Author(s): Jami E. Leach, Matthew LaBeau

There are six statutory exceptions to the broad grant of governmental immunity in Michigan. This is the third installment in a series of articles that will provide a summary of each exception. We started with the highway exception – one of the most used and most litigated exceptions. In February, we touched briefly on the “motor vehicle exception”. Today we will address the “public building exception”. Remember that the exceptions to immunity are very narrowly construed – therefore attention to each word in the statute is imperative. As always, if you have any questions or need some assistance on this or any governmental issue, please feel free to contact one of our nine offices.

PUBLIC BUILDING EXCEPTION

A governmental agency’s liability for negligence in the maintenance of a public building is grounded in MCLA 691.1406, which states:

  • Governmental agencies have the obligation to repair and maintain public buildings under their control when open for use by members of the public. Governmental agencies are liable for bodily injury and property damage resulting from a dangerous or defective condition of a public building if the governmental agency had actual or constructive knowledge of the defect and,for a reasonable time after acquiring knowledge, failed to remedy the condition or to take action reasonably necessary to protect the public against the condition. Knowledge of the dangerous and defective condition of the public building and time to repair the same shall be conclusively presumed when such defect existed so as to be readily apparent to an ordinary observant person for a period of 90 days or longer before the injury took place. As a condition to any recovery for injuries sustained by reason of any dangerous or defective public building, the injured person, within 120 days from the time the injury occurred, shall serve a notice on the responsible governmental agency of the occurrence of the injury and the defect. The notice shall specify the exact location and nature of the defect, the injury sustained and the names of the witnesses known at the time by the claimant.
  • A plaintiff must prove (1) a governmental agency is involved, (2) the public building in question is open for use by members of the public, (3) a dangerous or defective condition of the public building itself exists, (4) the governmental agency had actual or constructive knowledge of the alleged defect,and (5) the governmental agency failed to remedy the alleged defective condition after a reasonable amount of time.
  • Design defect claims are NOT cognizable under the unambiguous, plain language of the public building exception, which refers only to the governmental agency’s duty to “repair and maintain” the public building. In short, the governmental agency has only the duty to maintain and repair the building which was designed. Renny v Dept of Transp, 478 Mich 490 (2007).
  • Public building exception to governmental immunity, including 120 day notice provision which is now enforceable by analogy to Rowland v Washtenaw County Road Com’n, 477 Mich 197 (2007).
  • Janitorial issues do not fall within the public building exception. Wade v Dep’t of Corrections, 439 Mich 158 (1992), citing Reardon v Dep’t of Mental Health, 430 Mich 398 (1988).
  • It remains unclear whether a failure to sweep the floors (as opposed to make physical repairs to the building, itself, or its fixtures) would constitute “maintenance” under the public buildings exception.
  • Under the public building exception, the making of an incident report by defendant’s employee is not sufficient to satisfy the notice requirement in the statute, relying on Rowland. Chambers v Wayne County, 482 Mich 1136 (2008)
  • A protruding floor-mounted electrical outlet box does not implicate the public building exception where there is no evidence the boxwas improperly maintained. There was no defect in the box itself. Plaintiff’s claim that she was injured because of its location is a design defect claim which is barred by governmental immunity. Collins v Oakland County Community College, unpublished COA #282351, 3/26/09.

Municipalities Are Not Responsible for Defects on the Shoulder of the Road

Plaintiffs sustained injuries when the vehicle in which they were riding struck a pothole on Torrey Road in the City of
Flint and left the roadway. When the driver attempted to steer back onto the road, the vehicle hit the road edge drop off causing the driver to cross the center line where the vehicle was struck by an oncoming vehicle. Plaintiffs filed separate lawsuits alleging that potholes in the portion of the roadway designed for vehicular travel, as well as the road edge drop off, rendered the road not reasonably safe and convenient for public travel as required by MCL 691.1402. The Court of Appeals, citing Grimes v DOT, 475 Mich 72 (2006), stated that only the travel lanes of a highway are subject to the duty of repair and maintenance specified in MCL 691.1402(1). The shoulder of the roadway was not a type of “other installation” cited in MCL 691.1402(a)(1) that a municipality is responsible to repair and maintain. Lafner v City of Flint, unpublished COA #282669, 2/3/09.

Incorporating a Release of Liability with a Plea Bargain Agreement is Valid and Enforceable

Defendant Officer was dispatched to a home concerning a possible drunk driver. When the defendant arrived at the scene, he found plaintiff intoxicated and behind the wheel of her running vehicle. Plaintiff was charged with operating under the influence of liquor and resisting and obstructing a police offer. Her attorney and the prosecutor reached a plea agreement whereby the prosecutor would dismiss the criminal charges and in exchange, plaintiff would plead guilty to operating while visibly impaired and agree to release defendant from all civil liability arising out of her arrest. Notwithstanding the release, plaintiff sued defendant alleging the use of excessive force during her arrest. The trial court grated defendant’s Motion for Summary Disposition on the basis that the release agreement barred the civil action.

The Court of Appeals affirmed the trial court. First, the court found that plaintiff’s release was voluntary. In doing so, the court applied the six factors in Stamps v City of Taylor, 218 Mich App 626 (1996) and determined that the plaintiff was not totally unsophisticated and was not in custody at the time of the agreement. The court also found that Plaintiff was represented by counsel and the release was clear on its face. The court rejected plaintiff’s claims of prosecutorial and police misconduct. The plaintiff’s arrest was legitimate given her blood alcohol level and plaintiff admitted that she did not want to get into defendant’s police car. Therefore, the charges were not brought merely for the purpose of creating a bargaining chip to get the plaintiff to release civil liability. The court also rejected plaintiff’s argument that the plea bargain offended public interest. Finally, the court found that the release was not invalid because the terms were generally placed on the record. The judge made reference to the written plea agreement and plaintiff acknowledged agreement to the terms of the terms of the written plea agreement. Iske v Allen, unpublished COA #281575, 2/19/09.

Municipality is Entitled to Governmental Immunity When Discharging an Employee

Defendant Au Sable Valley Community Mental Health Services (“Au Sable”) fired both plaintiff and her shift supervisor on the basis that both of them were responsible for the death of a resident. The defendant was entitled to governmental immunity because it is well-settled that hiring, supervision, discipline and discharge of a government employee is the exercise of a governmental function. Focusing on the general activity, Au Sable was a government agency engaged in activity authorized by law and was expressly or implicitly authorized by law to hire, supervise and discipline its employees, including plaintiff. Bricker v Au Sable Valley Comm Mental Health Svs, unpublished COA #281736, 1/29/09.

A Plaintiff Cannot Avoid Governmental Immunity By Pleading a Breach of Contract Claim

Plaintiff filed a complaint alleging both breach of contract and gross negligence against the City of Detroit
and its Detroit Housing Commission. Plaintiff alleged the lease obligated the Housing Commission to inspect the premises and to maintain them in good repair and in compliance with all applicable building codes and regulations. Plaintiff asserted that failure to fulfill those duties resulted in a water leak that caused mold to develop. Defendants were entitled to governmental immunity because plaintiff had pled a personal injury action for damages and negligence, not an action for contract damages. Plaintiff failed to plead in avoidance of governmental immunity, and the court noted that no exception to governmental immunity covers negligent failure to maintain public housing in good repair. Brooks v City of Detroit, unpublished COA #282413, 1/29/09.