We granted leave in this case to determine whether a defense of proper supervision may bar a true building defect claim under the public building exception to governmental immunity. Finding it does not, we reverse the decision of the Court of Appeals and remand this case to the trial court for further proceedings consistent with this opinion.
On March 11, 1983, plaintiffs' decedent was involuntarily admitted to Ypsilanti Regional Psychiatric Hospital. There, decedent was diagnosed with reactive depression, thought disorders, and suicidal preoccupation. The decedent was immediately placed on one-to-one suicidal precautions. Six days later, he was taken off one-to-one watch and was placed on general suicidal precautions.
For the past decade, this case has weaved its way through the judicial system. Separate lawsuits were originally filed in the Court of Claims against the Department of Mental Health and in the Washtenaw Circuit Court against Dr. Genoves-Andrews.
An application for leave to appeal to this Court was filed by defendants. In lieu of granting leave, we remanded the case to the Court of Appeals for reconsideration in light of Canon v. Thumudo, 430 Mich. 326, 422 N.W.2d 688 (1988), Reardon v. Dep't of Mental Health, 430 Mich. 398, 424 N.W.2d 248 (1988), and Smith v. Dept. of Public Health, 428 Mich. 540, 410 N.W.2d 749 (1987).
On remand from the Court of Appeals, the defendants moved for summary disposition pursuant to MCR 2.116(C)(10). That motion was denied on August 6, 1992. On defendants' motion for reconsideration, the trial court reversed itself and granted summary disposition for both defendants. After remand, the Court of Appeals affirmed,
The issue before us is not whether a defect in the building actually existed or whether, if a defect did exist, the defendant's actions were the legal or factual cause of the decedent's death. Plaintiffs contend that a defect did exist and the Court of Appeals did not revisit this question. Instead, the sole issue on appeal is whether the defense of proper supervision bars a true building defect claim. Defendant concedes that, as the common restroom for the ward, the restroom was to be used by suicidal patients. Defendant contends, however, that because the restroom was never assigned to be suicide proof, and reasonable supervision could have prevented the suicide, there was no building defect.
A motion brought pursuant to MCR 2.116(C)(10) examines the factual basis for a claim and may be granted only where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.
The governmental immunity statute affords significant immunity from tort liability arising from activities in which the governmental agency was engaged in the performance of a governmental function. M.C.L. § 691.1407(1); M.S.A. § 3.996(107)(1).
This Court has held that as long as a physical defect in the building itself coincided to cause the injury, the government entity may be liable under the public building exception even if negligent supervision was involved.
Likewise, in Williamson v. Dep't of Mental Health, 176 Mich.App. 752, 758, 440 N.W.2d 97 (1989), the Court of Appeals concluded that a defect in the defendant's building existed, despite the fact that improper supervision was also a contributing cause of the decedent's death. The Court opined that
The assertion that "proper supervision would have offset any shortcomings in the configuration of the room" was first pronounced in Reardon, supra at 417, 424 N.W.2d 248. In Reardon, a nursing student sought damages for a sexual assault she suffered while occupying a room in the defendant's dormitory. The crux of plaintiff's complaint was that her dormitory room was unsafe because numerous master keys were in circulation. In a companion case, Schafer v. Ethridge, a mentally retarded resident of a state facility was sexually assaulted and impregnated. The substance of this complaint was that the layout of the facility created a dangerous or defective condition in the building because it hindered staff supervision. Finding that neither case involved an injury caused by a condition of the building as used for its intended purpose, the majority concluded that the public building exception did not apply. Id. at 400, 424 N.W.2d 248.
In Reardon and Schafer, sexual assaults on a student and patient were found not to state a claim in avoidance of governmental immunity because the building, which was being used for its intended purpose, was not defective.
In Hickey, supra, the plaintiff contended that the improper design of the facility impeded supervision resulting in a dangerous or defective condition in the building. The plaintiff's son committed suicide in a Michigan State University Department of Public Safety holding cell where he was held after being arrested for driving under the influence of intoxicating liquor.
Three arguments were advanced in support of the plaintiff's contention that the public building exception was applicable. First, the plaintiff alleged that the holding cell's improper design created a dangerous or defective condition because it prevented proper supervision. Next, the plaintiff alleged that the lack of state-of-the-art equipment in the cell created a dangerous or defective condition. Third, the plaintiff asserted that the heating unit and metal brackets created a dangerous or defective condition because they were improperly placed. The Court concluded that the claim against Michigan State University was barred by governmental immunity.
With no defect in the building itself having been found, the Court explained that "more effective supervision would have overcome this alleged design defect in the holding cell." Id.
More recently, in Jackson v. Detroit, 449 Mich. 420, 537 N.W.2d 151 (1995), the "proper supervision" language was again referenced. Finding that the plaintiff's claim involved safety in a public building rather than the safety of a public building, we concluded that the claim did not come within the confines of the public building exception. Although it was stated that "where proper supervision would have `offset any shortcomings in the configuration of the room,' the public building exception does not apply,"
Plaintiffs correctly acknowledge that where the essence of a tort claim is negligent supervision, a plaintiff cannot transform the claim into a building-defect claim merely because a superior building design would have improved the ability to supervise. Similarly, where the essence of a tort claim is a defective building under the public building exception, summary disposition may not be granted simply by claiming that proper supervision would have averted the injury.
Despite the oft-cited proposition that a public building may be dangerous or defective because of its improper design,
For the reasons stated above, the decision of the Court of Appeals is reversed and the case is remanded to the trial court for further proceedings consistent with this opinion.
RILEY, Justice (dissenting).
Although I agree with the majority that a defense of proper supervision should not bar a claim of a true building defect under the public building exception to governmental immunity, I do not believe that plaintiffs pleaded a claim of a building defect that inhered in the building itself. The majority wrongly refused to address this argument, claiming that it is "not before this Court," see maj. op., p. 363, despite the fact that defendant preserved this contention and argued it on appeal. I would reach this issue and conclude that there was no building defect as a matter of law. Hence, I would affirm the Court of Appeals decision to uphold the trial court's grant of summary disposition in favor of defendant.
I. Public Building Exception
As the majority properly notes, see maj. op., p. 361, a governmental agency is immune from tort liability under M.C.L. § 691.1407(1); M.S.A. § 3.996(107)(1) for actions taken while performing governmental functions. Jackson v. Detroit, 449 Mich. 420, 427, 537 N.W.2d 151 (1995). This broad immunity is subject to a number of narrowly drawn exceptions, including an exception for public buildings under M.C.L. § 691.1406; M.S.A. § 3.996(106). Section 106 provides in pertinent part:
This Court has established a five-part test to determine whether the public building exception governs a particular case. A plaintiff must prove:
The duty relates to the dangers presented by the building itself. Jackson, supra at 428, 537 N.W.2d 151. The purpose of the public building exception is to promote the maintenance of safe public buildings, not to provide for safety in public buildings. Id. A public building may be dangerous or defective where there is an improper design, faulty construction, or the absence of safety features. Hickey, supra at 422, 487 N.W.2d 106, citing Bush v. Oscoda Area Schools, 405 Mich. 716, 730, 275 N.W.2d 268 (1979). However, a court must look to the uses or activities for which that part of the building is assigned to determine if a dangerous or defective condition exists. Id. The question is whether the physical condition was dangerous or defective under the circumstances presented. Hickey, supra at 422, 487 N.W.2d 106, citing Reardon v. Dep't of Mental Health, 430 Mich. 398, 410-411, 424 N.W.2d 248 (1988).
We have also stated on several occasions that where proper supervision would have eliminated the alleged defects in the design of the building, the public building exception does not apply. See Jackson, supra at 428, 537 N.W.2d 151,
II. de Sanchez—The majority's decision not to address defendant's claim that there was no building defect
In the instant case, plaintiffs contend that there was a design defect in the psychiatric hospital's restroom where there was a toilet stall that contained an overhead dividing bar from which decedent hanged himself while he was unsupervised.
Hence, the Court of Appeals has ruled against defendant on three occasions on the issue of the adequacy of plaintiffs' allegations pursuant to MCR 2.116(C)(8) that there was a building defect under the public building exception.
On plaintiffs' appeal from that decision, the majority claims that because "the issue whether a defect existed was not fully briefed or argued," it is unable on appeal to determine whether a building defect existed as a matter of law. See maj. op., p. 359, n. 1. The majority seeks to avoid the question whether plaintiffs have adequately alleged whether there was a building defect in the instant case so that, instead, it may solely answer defendant's response regarding proper supervision. These inquiries, however, cannot be isolated from one another. The only circumstances in which this Court has referred to the fact that proper supervision may defeat a claim of a building defect has been in cases in which this Court was resolving whether there was a dangerous or defective condition in a building under the public building exception to governmental immunity. See Jackson, supra at 429, 537 N.W.2d 151 ("the only question presented by this case is whether a dangerous or defective condition existed"); Hickey, supra at 422-423, 487 N.W.2d 106. There is no support for the majority's decision to isolate the question whether there was a properly alleged building defect from the question whether proper supervision would have eliminated an alleged shortcoming.
In remanding this case to the trial court, the majority provides that the trial court may grant summary disposition to defendant under MCR 2.116(C)(10) if, on remand, the court continues to believe that the overhead bar in the restroom "did not fail in its purpose" and that "its mere presence does not constitute a building defect." Maj. op., p. 364, n. 32, quoting the trial court's October 8, 1992, order. However, the majority is leaving unchanged the three Court of Appeals decisions, two of which were published, in which that Court concluded that there was an adequate allegation of a dangerous condition in the building under MCR 2.116(C)(8). See 161 Mich.App. 245, 249-253, 410 N.W.2d 803 (1987), 179 Mich.App. 661, 667-669, 446 N.W.2d 538 (1989), and unpublished per curiam opinion, (Docket No. 158052). On remand, the trial court is bound under the law of the case to adhere to these three Court of Appeals decisions. The trial court is still bound because the majority has not vacated these earlier decisions. See Johnson v. White, 430 Mich. 47, 52-53, 420 N.W.2d 87
Moreover, I do not believe that a remand is necessary. This case was begun in March 1984 and has been to the Court of Appeals three times already. There is no dispute about the factual record. The trial court has issued an opinion on the question whether there was a building defect as a matter of law. See Maj. op., p. 364, n. 32. I believe this issue is properly before this Court and that we should address it now, not three years from now when it returns on appeal.
III. de Sanchez—Building Defect
I believe that the restroom was neither dangerous nor defective as a matter of law in light of its intended use as a restroom for patients in a psychiatric hospital. There was no actual defect in the physical condition of the room itself. Rather, the decedent was using the restroom for something other than its intended function when he hanged himself on the dividing bar inside the toilet stall.
In examining plaintiffs' complaint, plaintiffs suggest a broader purpose for the psychiatric hospital's restroom than merely the general purpose of any restroom, but that, because it is a psychiatric hospital, it is a room that should be safe for suicidal patients. On appeal, plaintiffs argue that the facts of this case are more analogous to the facts of Lockaby v. Wayne Co., 406 Mich. 65, 276 N.W.2d 1 (1979), than to Hickey. In Lockaby, supra at 74, n. 1, 276 N.W.2d 1, a prisoner knocked himself unconscious in the Wayne County jail causing himself spinal injury resulting in a total paralysis of his body below the neck. The plaintiff alleged that the cell was defectively designed because the jail failed to provide sufficient padding for a cell that was designated for "mental" inmates. Id. at 74-75, 276 N.W.2d 1.
We should reject plaintiffs' argument because the better analogy to the instant case is the recent decision, Jackson, a case that plaintiffs neglected to brief, also involving an attempted suicide in a public building. In Jackson, supra at 423-424, 537 N.W.2d 151,
Like the instant case, the employees of the police station knew that Jackson was suicidal. However, unlike this case, there had been a significant number of attempted suicides in that very police station (thirteen attempts over the previous four years). See id. at 429, n. 12, 537 N.W.2d 151.
The Court's reasoning in Jackson is equally applicable to plaintiffs' claim here, particularly where one replaces the restroom stall in the psychiatric hospital for a jail cell in the police station:
Although for different reasons than those given by the Court of Appeals, I would affirm the trial court's decision to grant defendant summary disposition.
WEAVER, J., concurred with RILEY, J.
We are aware that in Schafer v. Ethridge, [430 Mich. 398, 424 N.W.2d 248 (1988),] ... the Court ... [found that] "proper supervision... would have offset any shortcomings in the configuration of the room." The instant case, however, was decided in a motion made pursuant to GCR 1963, 117.2(1) [MCR 2.116(C)(8)], which is to be granted only if the claim, viewed in light of the allegations of the pleadings alone, is so clearly unenforceable as a matter of law that no factual development could possibly justify a right of recovery.... At this relatively premature stage of the proceedings, we are not inclined to draw essentially factual conclusions that more extensive supervisory measures could have been reasonably implemented and that such measures would have prevented the decedent's suicide.
In its October 8, 1992, motion for reconsideration and order granting summary disposition, the trial court explained:
Because we do not know from the materials before this Court on what basis the trial court made this statement, we do not endorse nor do we foreclose the trial court's ability to stand by the statement on remand.
The Court reversed its decision with regard to the first allegation, i.e., that there was a failure to design the restroom so that patients may be observed by staff, because the Court concluded that the allegation failed to raise a claim that there was a defective condition in the building itself. Id. at 668, 446 N.W.2d 538.