Author(s): John J. Gillooly, Sarah Robertson, Jami E. Leach

From the Editor
by John J. Gillooly

We believe that your relationship with your municipal or board attorney
should be based in large part on trust and an ability to get the job done. The
stronger the relationship with your attorney, the better. We do not want to interfere with that
relationship. The role of our firm is to assist you and your attorney in those complicated or unusual cases that require

a cohesive team effort. That is where we can help. The municipal team at Garan Lucow Miller is comprised
of nationally recognized attorneys with diverse backgrounds. Do you have an unusual tax, property or
personnel issue that would be best served by employing a team effort? Our municipal attorneys are ready at a
moment’s notice to spring into action with the help you need and deserve. How about a case that requires significant appellate briefing on issues that could impact your governing body for years to come. Our Appellate Department is made up of seven highly successful attorneys whose primary emphasis is on appeals.

We understand that you are subject to public scrutiny and must be particularly prudent in your allocation of revenue to legal fees. Simply stated, our fees will not break your bank. There is no need to pay legal fees of several hundred dollars an hour unless, of course, you enjoy the look of fine art in your lawyer’s office.
Our pledge is to assist your team by delivering the highest quality legal product at affordable rates. Let us assist your municipal attorney in those cases that need and deserve some extra muscle.

Supreme Court Widens the Road
to Immunity in Highway Cases

by Sarah Robertson
The Michigan Supreme Court recently released two opinions addressing the
highway exception to governmental immunity. The common thread running
through each of these opinions is the desire of the Court to apply the
Governmental Tort Liability Act (GTLA) as it is written even when that means overruling recent decisions by the
Supreme Court and the Court of Appeals.

In Grimes v MDOT, ___ Mich ___ (5/31/06), the Court granted leave to consider whether the shoulder is part of
the improved portion of the highway designed for vehicular travel for the purpose of the highway exception
to governmental immunity. The Court found that the shoulder is not “designed for vehicular travel” and so does
not fall within the highway exception to governmental immunity. It reasoned that the scope of the highway
exception is narrowly drawn. When the governmental agency is the state or county road commission, as it is
here, the duty of these agencies to repair and maintain attaches only to the improved portion of the highway that is also designed for vehicular travel. A shoulder is not designed for vehicular travel simply because it may be
used by vehicles. Accordingly, only the travel lanes of a highway are subject to the duty of repair and maintenance specified in MCL 691.1402(1).

This holding overruled the Court’s prior decision in Gregg v State Hwy Dep’t, 435 Mich 307 (1990), that a shoulder is “designed for vehicular travel.” The Grimes Court reasoned that Gregg had been wrongly decided where it relied on the doctrine of legislative acquiescence – the idea that decisions that have not been legislatively overturned are tacitly approved by the Legislature. The Court noted that the Legislature’s words, not its silence, are controlling. The Court also disagreed with the Gregg Court’s use of definitions found in the motor vehicle code, especially where that Court ignored the MVC’s definition of “shoulder” which clearly stated that the shoulder of a highway was not designed for vehicular travel.

The Court’s second decision regarding the highway exception is Wilson v Alpena County Road Commission, 474 Mich 161 (4/26/06). In Wilson, the Court addressed the question of what notice a governmental agency in
charge of road maintenance and repair must have before it can be held liable for damage or injury incurred because of the defect. The Court held that, pursuant to MCL 691.1402(1) and 1403, the agency must be aware that the defect rises to the level that, if not repaired, it unreasonably endangers public travel. Accordingly, “a
plaintiff must allege that the agency had actual or constructive notice of a defect in the road that, because of
the agency’s failure to reasonably maintain or repair, resulted in the road being not reasonably safe and
convenient for public travel.”

The Wilson Court reasoned that, while the Legislature has waived immunity if the road has become not reasonably safe for public travel due to the agency’s lack of repair or maintenance, it has not waived immunity if the repair is reasonable but the road is nonetheless still not reasonably safe because of some other reason. The Court found that an agency does not have a duty to eliminate all conditions that make the road not reasonably safe. Rather, an injury will only be compensable when the injury is caused by an unsafe condition, of which the agency had actual or constructive knowledge, which stems from a failure to keep the highway in reasonable repair. If the agency has notice of such a condition, it has only a reasonable time to repair it.

In Wilson, then, where all parties acknowledged that the road had problems – it was bumpy and required frequent
patching – those problems did not lead to the conclusion that the road was not reasonably safe for public travel.
While a bumpy road may not be reasonably safe, plaintiff in this case failed to show that a reasonable road
commission, aware of the particular condition, would have understood it to pose an unreasonable threat to safe
public travel. The case was remanded to the circuit court for further proceedings.

The Public Building Exception

by Jami E. Leach

The so called “public building exception” to governmental immunity imposes on governmental agencies the
obligation to repair and maintain public buildings under their control when open for use by members of the public. MCL 691.1406. Governmental agencies are liable for bodily injury and property damage resulting from a dangerous or defective condition of a public building, provided the governmental agency knew of the defect and failed to remedy the condition or take action reasonably necessary to protect the public against the condition.

In order to establish this exception, a plaintiff must prove
all of the following:

  • 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
    period of time.

Open to the Public
A building that is owned by a governmental agency but is not open to the public, i.e. it is always locked, privately leased, or closed for remodeling or renovations, is not within the exception. On the other hand, a member of the public injured as the result of a defective or dangerous condition of a building that is open to members of the public may invoke the exception, even if the person is injured in an area of the building not open for public use.

If the government has restricted entry to the building to those persons who are qualified on the basis of some
individualized, limiting criteria of the government’s creation, the building is not open to the public. For
example, a residence hall at the University of Michigan, which was locked 24 hours a day was not “open to the
public”. Visitors could gain access to the building only by using a courtesy phone to contact a resident, who could then unlock the door to allow entry. Maskery v University of Michigan Bd of Regents, 468 Mich 609 (2003).

Condition “of” the Building Itself
A recent published opinion of the Michigan Court of Appeals clarified when a condition on an adjacent
walkway can support a claim under the public building exception. Traditionally, injuries arising from a
dangerous or defective condition existing in an area adjacent to an entrance or exit, but nevertheless still not a
part of a public building do not come within the public building exception to governmental immunity. Horace v
City of Pontiac
, 456 Mich 744 (1998).

In Renny v Michigan Dept of
Transportation
, 270 Mich App 318 (2006), the plaintiff was injured when she slipped on a patch of ice directly in front of the door way to a rest area. Plaintiff argued that her injuries arose out of a known defective condition in a public building that MDOT failed to remedy. Plaintiff argued that the rest area building was clearly defective because of improper insulation and lack of gutters, thereby causing snow and ice to melt, run off the building roof, and create ice patches in front of the building’s door. Defendant argued that the public building exception did not apply because a patch of ice on a sidewalk was a condition that was clearly not “of the building itself”.

The Court held that the public building exception did apply under the facts presented in the case. Specifically
stating that it did not intend to broaden the scope of the exception, the Court held that when the plaintiff pleads that the dangerous condition that directly caused the injury (here the ice patch) was directly attributable to a dangerous or defective condition of the building itself (here the inadequate insulation and lack of gutters), the public building exception may be implicated. Of course, the plaintiff would be required to prove all of the other elements set forth above in order to establish liability against the municipal agency.

“Defective” Condition?
The question is not only whether the physical condition of the building caused the injury, but also whether the
physical condition was dangerous or defective under the circumstances presented. For example, where decedent
hanged himself from a bathroom stall partition in a mental hospital, the court held that the use of the partition
support bar to commit suicide did not transform an otherwise benign part of the building into a defective
condition. DeSanchez v State, 467 Mich 231 (2002).

Notice
If a plaintiff can show that the dangerous or defective existed for 90 or more days before the injury occurred,
and if the condition was readily apparent to an ordinary, observant person, then a conclusive presumption arises
under the statute that the agency knew of the defect or dangerous condition and had a reasonable amount of time to correct it.

Conclusion
Governmental Immunity is alive and well where the case involves a public building. Establishing a cause of action
under the public building exception to governmental immunity can be difficult and time-consuming. The
exception is very narrow and the requirements to prove the claim are many. In defending such a claim, be sure
that the claimant has plead and is able to prove each of the necessary elements. Otherwise, a motion for summary disposition may be warranted.

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