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April 01, 2009
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.
A governmental agency’s liability for negligence in the maintenance of a public building is grounded in MCLA 691.1406, which states:
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 Lafner v City of Flint, unpublished COA #282669, 2/3/09.
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.
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.
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.