Johnson v. City of Detroit

v JOHNSON CITYOF DETROIT 9, Argued (Calendar 4).

Docket No. 105891. December No. Decided 16, Rehearing June 1998. denied 459 Mich 1203. Johnson, personal representative as of James T. Barbara estate Johnson, deceased, Wayne brought wrongful death action against city Detroit, Depart- Circuit Court the Detroit Police ment, Ralph Heatlie, alleging and Officer that installation of mesh precinct holding wire to cover overhead bars in the third cell in placed arrested, which the decedent was after he was and in which himself, hanged plaintiff he rendered it a suicide-deterrent cell. The alleged further tear the mesh constituted a governmental immunity. court, so as to avoid the defense of The Hathaway, J., summary disposition granted Diane Marie for the governmental immunity. defendants on the basis of The Court of Appeals, P.J., JJ., and Smolensk and C. J. affirmed McDonald, Sindt, unpublished opinion (Docket 172383). in an memorandum No. The plaintiff appeals. separate opinions, Supreme In Court held: plaintiff stated a claim in avoidance of immu- nity public building exception. under the The defendants were enti- summary disposition underlying negligence claim; tled to on the plaintiff and, failed to establish that the suicide was foreseeable thus, duty prevent that the defendants owed a the suicide. Merely plaintiff plead gov- because a is able to a claim to avoid immunity, public building ernmental in this case on the basis of the exception, necessarily does not mean that the defendant is liable. Establishing building-defect circumventing governmental claim negate principles. does not traditional tort law A negligence still must demonstrate the elements of a In claim. case, summary disposition although improper ground on the governmental immunity, proper underlying negligence it is on the discovery claim. The uncontroverted evidence at the close of presented summary disposition proceedings as at the showed that suspected defendants could not have that the decedent was sui- Consequently, prevent cidal. there was no this unforesee- able death. part part.

Affirmed in and reversed in 457 Mich 695 public building stated further that Chief Justice Mallett against governmental agencies where, inter allows suits alia, dangerous itself is or defective condition alleged injuries. enacting public building to have caused In duty exception, Legislature impose maintain the intended to a to safety public buildings, necessarily safety public buildings. in not alleged building The defect must be a defect of the itself and not merely condition, grease a transient such as accumulated or oil on hallway adequate inadequate supervision in floor or an otherwise facility. public may building improper A be defective because of repair, faulty safety construction, maintenance or absence of devices, directly injuries. improper design or that contributes to the negligent supervision, plain- Where the essence of a tort claim is building-defect merely tiff cannot transform the claim into a claim superior improved ability building design because a would have the Additionally supervise. building to courts must examine whether a light specifi- is defective in of the uses or activities which it is cally assigned. general holding While overhead bars in a cell are defect, exposed might not a overhead bars in constitute a defect specifically designed equipped prevent to suicide installation of wire mesh. cells, mesh, Because these with the installed were intended to cells, public exception building

function as suicide-deterrent applies. plaintiff presented The has evidence sufficient to establish light that this in suicide-deterrent cell was defective of its intended purpose designed prevent because the mesh to access to the over- away. plaintiff presented head bars was tom The also has evidence repair that the defendants had notice and a reasonable time to nothing. designed protect defect and did A defect in a feature the inmate or arrestee his from own devices comes within the building if the can show that the defect was a contributing injuries. cause of the The fact that other causes also might involved, inadequate supervision be such as or the arrestee’s self-destruction, necessarily preclude own actions toward does not application public building exception. of the joined by dissenting, Justice Justices Boyle Taylor, Weaver, public building exception governmental stated further that the applicable is in this case. Whether there was a build- ing defect, application warranting building exception, of the depends on the use to which area of the at issue was put. may purpose, A be safe for one use or but not for issue, another. In the cell at the standards for nonsuicide-deter- employed detemriining rent cell are the standards to be whether the cell was defective. The fact that the defendant took action that Opinion by Marlett, C.J. deliberately negate finding indifferent that it was could that the intended of its detainees does not demonstrate use changed. did the use of an otherwise of the cell had Nor decedent’s physical benign feature of the ceE to commit suicide demonstrate contemplated by the cell itself contained a defect as Legislature. joined by Justices dissent- Cavanagh Justice Brickley, Kelly, summary grant disposition ing, to the stated further clearly plaintiff’s inability plead premised defendant was on the immunity. separate issue, avoidance of duty circumstances, whether a was owed under these was not scope complex great and of addressed. Because importance, supplemental briefing should be ordered or the case proceedings. remanded to the circuit court for further Bluestone, Lopatin, Miller, Freedman, Herskovic, & E. Heilmann Domol Richard (by Shaw) for the plaintiff. M. Brenda

City Department Law (by of Detroit Miller) for the defendant. C.J. We leave to determine granted Appeals affirming

whether the Court of erred sum- mary on disposition governmental for the defendants him- grounds. hanged Plaintiffs decedent police holding self on overhead bars in a station exposed that were because wire mesh that had been placed help prevent over them to suicides had been away. presents question tom case whether This the tom mesh constitutes a defect within the building exception gov- to the meaning building liability act, 691.1406; ernmental tort MCL MSA has concluded that 3.996(106). previously This Court bars in a cell were exposed general holding overhead Detroit, 449 Mich Jackson v building defect, not a 420; previ 537 NW2d 151 This Court has also (1995). ously proceed pub under the held that a claim could Wayne lic where a cell at 457 Mich 695 Opinion by Mallett, County jail, specifically designated for individuals allegedly with mental conditions, defective adequate because it did not measures, contain adequately padded Wayne Lockaby such as walls. v (1979). Co, 65; 406 Mich 276 NW2d 1 plaintiff argues city’s The installation of pre- designed mesh rendered these cells as cells vent suicide and that the tom mesh constituted a particular suicide-resistant cell. agree. Consequently, portion I I would reverse that Appeals summary upholding the Court of decision disposition the defendants on immunity grounds. Nevertheless, I find would summary disposition defendants were entitled to on underlying negligence claim. Because the could not establish that the suicide was foreseeable, she could not establish that the defendants owed a prevent Consequently, the suicide. I would summary disposition affirm for the defendants on this basis.

I. FACTS AND PROCEEDINGS city Decedent, Johnson, James was a of Detroit employee. On the afternoon of December 29, 1991, police sergeant, way Detroit on his to work at the precinct, pass portable third saw Johnson electric generator through opening surrounding an in a fence Department yard. the Detroit of Public Works sergeant, returning precinct after from the with assis- tance, followed tracks made a cart Johnson had transport generator. used to The officers arrested precinct Johnson and took him to the third station. Ralph Officer Heatlie, the individual defendant in processed placing this case, Johnson before him in a Johnson Opinion by tempo- felony cellblock used cell in the holding felony awaiting arraign- prisoners rary detention Heatlie cooperative, was Johnson ment. Because containing him in a cell by placing him rewarded precautions the standard He first took toilet. belt, wallet, lighter, hat, gloves, removing Johnson’s however, managed Tragically, and shoelaces. his one sleeve of sweatshirt by tying kill himself the other bar in his cell and horizontal an overhead discovered Johnson neck. Officer Heatlie around his noises from the banging hearing shouting after in cells prisoners made other area, cellblock period. took Heatlie a “short from Johnson’s. It across minutes” to return to the area Maybe couple he was prisoner he had to secure because with at the time. working prevent precinct been made at this Efforts had approximately wire mesh one by welding hangings bars that one-half inches below the overhead However, particular cell, in this ceiling. formed the away. appar- mesh tom While officials were mesh, they yet had not ently aware of the tom Leamon Wilson had repaired it. Precinct commander basis, an in a memo requested repairs, emergency on Services dated Deputy Management to the Chief for days more than one hundred September 17, 1991, Heatlie, Officer on Further, before Johnson’s death. decided to close problem, aware of the becoming first However, made. because of repairs the cell until were delay in the mesh and because repairing lengthy 700 457 Mich 695 by Opinion Mallett, C.J. only

this was one of five cells containing toilet, Heatlie decided to renew of use the cell.1

Plaintiff Barbara Johnson, the decedent’s filed wife, death, action for and wrongful pub asserted the lic building exception in order to governmen avoid a tal defense. Defendants filed their motion summary disposition discovery at the close of pur suant MCR 2.116(C)(7), (8) (10).2

The trial court granted summary disposition for the governmental defendants on immunity grounds. MCR 2.116(C)(7). The Court Appeals of affirmed.3 We granted leave to consider whether the tom wire mesh constitutes building defect within the meaning of MCL 691.1406; MSA 3.996(106).4

n. LAW A STANDARD OP REVIEW In reviewing a trial grant summary court’s dispo- sition on governmental immunity grounds under MCR 2.116(C)(7), we must review complaint to deter- 1 According documentary parties, evidence submitted containing already occupied. other four cells a toilet were 2 2.116(C)(7) summary disposition MCR allows if release, payment, prior judgment, claim is barred [t]he because of immunity granted by law, limitations, frauds, statute of statute of agreement arbitrate, infancy disability an moving or other of the

party, assignment disposition or other of the claim before com- mencement of the action. 2.116(C)(8) permits summary disposition MCR opposing party if “[t]he has granted.” failed to state a claim 2.116(C)(10) on which relief can be MCR permits summary disposition “[ejxcept damages, if as to the amount of genuine any there is no issue as to material . . . .” fact 3 Unpublished opinion, 5, (Docket memorandum issued March 1996 172383). No. 4 (1997). 454 Mich 907 pleaded justifying facts has mine whether immu an application Corrections, 158, Mich 162- Dep’t Wade v nity. Power Ross v Consumers (1992); NW2d 26 163; 483 Rehearing), 567; 420 Mich 363 NW2d (On Co allows MCR 2.116(C)(8) review under While (1984). under our review pleadings, only consideration include consider- also must 2.116(C)(7) (10) MCR by the documentary evidence submitted ation of all Kleiman, v 429; 447 Mich 526 parties. Patterson (1994). NW2d 879 accept well-pleaded we all 2.116(C)(8), MCR

Under in a and construe them as true allegations factual party. Wade, nonmoving favorable to the light most Square Co, v D 161-162; supra; Skinner 153, 445 Mich motions are 2.116(C)(10) MCR (1994). 516 NW2d 475 issue of genuine when there is no properly granted party where the is entitled moving material fact and Skinner, supra. a matter of law. as judgment the nonmovant has the bur 2.116(C)(10), Under MCR support evidence to the conclusion providing den of issue of material fact. McCart genuine that there is Thompson USA, Inc, Walter 109, 113- v J 437 Mich 2.116(G)(4). 284 See also MCR 115; (1991). 469 NW2d MCR summary disposition under reviewing When are complaint contents of 2.116(C)(7), by specifically unless contradicted accepted as true submitted affidavits or other documentation Schools, Public Sewell v moving party. Southfield NW2d 153 670, 674; (1998). Mich I turn to a discus- guide, standards as a With these build- immunity public and the sion of governmental immunity, and their exception to ing governmental applicability to this case. 457 Mich 695

B. GOVERNMENTALIMMUNITY city Governmental like agencies, of Detroit and its agents, generally are liability immune from tort actions taken while performing governmental func tions. MCL MSA 691.1407(1); 3.996(107)(1).5

The act’s broad grant subject to five narrowly drawn statutory exceptions, including the n.6 public building exceptio Since Ross v Consumers Power Co, supra, the defining case concerning inter pretation of liability tort act, this broadly Court has interpreted immunity under the act narrowly has construed the exceptions to immu nity. With this principle basic interpretation mind, I once again explore scope public building exception.

C. PUBLIC BUILDINGEXCEPTION building exception allows suits against governmental agencies where a dangerous or defec- tive condition of the building itself is alleged to have

5 Specifically, governmental liability provides the tort act that governmental agencies all liability shall be immune from tort in all government agency engaged cases wherein the is in the exercise or discharge governmental Except of a pro- function. as otherwise act, vided in this modifying this act shall not be construed as or restricting immunity liability the of the state from tort as it existed July 1, 1965, before which 691.1407(1); is affirmed. [MCL 3.996(107)(1).] MSA 6 exceptions (1) highway The other four exception, are the MCL 691.1402; 3.996(102), (2) negligent government-owned MSA the use of a exception, 691.1405; 3.996(105), motor vehicle (3) proprie- MCL MSA the tary exception, 691.1413; 3.996(113), function (4) gov- MCL MSA and the hospital exception, ernment 691.1407(4)(b); 3.996(107)(4)(b). MCL MSA by Opinion Mallett, injuries criteria where certain other the and

caused The act states: are met.7 repair obligation and agencies have the to Governmental open public buildings for under their control when

maintain agencies public. are members of the Governmental use bodily property resulting injury damage from liable for building public if dangerous of or defective condition or knowl- governmental agency had actual constructive the acquiring and, edge a reasonable after of the defect time remedy action knowledge, failed the condition or to take to public reasonably necessary protect against the con- the 691.1406; 3.996(106).] MSA dition. [MCL exception fairly language the is While the single straightforward, state a it has been difficult to application, especially in cases controls its test that injured adequacy supervision the the where party’s contributing is Our causation involved. cases building exception, interpreting public however, the helpful principles general are reveal certain that do determining and under what circumstances whether exception applies. the repeatedly overarching principles, the cited

One of discussing public Court in decisions the our building Ross, is maxim that in since enacting building exception, Legislature impose to maintain intended previously public apply that This Court has noted prove following: (1) governmental exception, a that a must involved, question open (2) public agency is to the dangerous public building public, (3) of the or defective condition exists, (4) agency had actual or constructive itself governmental agency alleged defect, (5) that the failed notice period Hickey remedy alleged of time. v defect after reasonable 408, 421; (On Resubmission), Michigan 439 Mich 487 NW2d State Univ decisions, case, building exception (1992). like this Most of our prong five-part interpretation of this test. of the third involve 704 457 695 Mich Opinion C.J. Mallett, public necessarily safety buildings, buildings. Dep’t Health, Reardon v Mental Mich 430 of (1988). alleged 398, 415; Thus, 424 NW2d 248 building defect must be a defect of itself and not merely a condition, transient such as accumulated grease hallway Dep’t floor, or oil on Wadev Cor of supra, inadequate supervision rections, in an oth adequate facility, Dep’t erwise v Mental Schafer of (1988); Health, 398, 430 424 417; Mich NW2d 248 Hickey Michigan (On Resubmission), v State Univ (1992). 424; 408, 439 Mich 487 NW2d 106 public building may A be defective because improper repair, faulty maintenance or construction, improper design. absence of devices, or v Bush Oscoda Schools, 730; Area 405 Mich 716, 275 NW2d recently (1979). Dep’t As noted de v Sanchez (1997), Health, Mental 455 Mich 83; NW2d 358 difficulty discerning this Court has had some when may design actually defect constitute in a public public building sufficient to invoke the exception. way design impedes ability

aWhile that in some supervise building might users in some cases design directly design constitute a defect, must injuries. Hickey, supra contribute to the at 424. In other words, “where the essence of a tort claim is negligent supervision, plaintiff cannot transform the building-defect merely claim into a claim because superior building design improved would have ability supervise.” supra Sanchez, de at 95.

Although language previous in some of this Court’s may Hickey, supra, decisions, such as Schafer appeared suggest adequate super- have that where prevented injuries, vision could have inapplicable, clear in made this Court is a a tort claim where the essence Sanchez de may summary disposition building, not be defective supervision proper merely by claiming granted long injuries. prevented as as Instead, have would building physical coincides itself in the defect a exception might building injury, the cause the supervision negligent apply involved. is also if even principle, important in first discussed Another supra, whether must examine is that courts Bush, light uses or activities in defective is specifically assigned. involved a Bush which it is seriously high an burned who was school student chemistry being explosion during class that a overcrowding, gen- temporarily in a held, because of laboratory safety equipment. lacking eral classroom determine the trier of fact must held that This Court a used as was defective when the room whether chemistry defect was so, if whether the room, and impor- injuries. Regarding plaintiffs cause of examining use, this Court the intended tance of stated: did not render devices lack of certain [T]he unnecessary ordinarily per se; it is defective

classroom In laboratory safety equipment in classrooms. deter- install safe, the use place must consider mining is one whether may one use or be safe for purpose it A serves. is not a school purpose, another. A school but not for and func- one, it is used but because it is called because prison, hospital converted into If a tions as one. prison, a safe not as as a safe building must be maintained injured had plaintiff] was which hospital. The room in [the room, had physical and therefore science become a use although physical science room of a meet the standards swpra [Bush, at room. 732.] been a mathematics it had once Mich Opinion by principle use also in intended controlled

Lockaby, supra. That like case, one, involved an injuries alleged resulting defect to an individual in injured holding Lockaby, In cell. individual was placed known to have a mental condition and was specifically designated a cell for such individuals. He injury spinal striking suffered an to his cord after his against complaint alleged, head the cell wall. His among things, adequately padded other that a lack of Citing walls in the cell constituted defect. Bush, this adequately padded Court held that the lack of walls might designated be a in a to hold individ- Consequently, uals with mental conditions. we held pleaded had a cause of action so as governmental immunity. to avoid Conversely, prison in other cases, suicide where temporary the cell was intended for detention or for holding population general specifically a and was not equipped prevent suicides, this Court has held that benign otherwise used installations the arrestee to hang Hickey himself were not defects. and Jackson, supra. Hickey, hanged In an intoxicated individual securing heating himself from the bolts a unit in a temporary Michigan detention cell the at State Uni- versity Department Safety. Explaining of Public that principle the intended use announced in Bush con- trolled, this Court stated: holding specifically assigned

Msu’s cell was intended and temporary for argue detention. Even did not any purpose except tempo- cell used for rary lockup must, therefore, of arrestees. We if determine cell, unit, specifi- heating with installation of the cally assigned temporary detention, used and for was dan- gerous [Hickey or defective. We hold that it was not. at 425- 426.] jail making impossibility discussing a

After explained: suicide-proof, holding we further cell possibility of no limits on seem to be There would lock-up cell, particularly that was ordinary one in an suicide temporary custody, temporary even only being for used any suggest To custody individual. of an inebriated benign, can jail cell, otherwise physical of a feature desper- plan who is conceivably part of one become “dangerous or ately can become self destruction driven to public building under condition” defective any reasonable simply limits of statute, the outer crosses in the when considered of that statute reading the intent wording. at history, purpose, [Id. 426.] its context of supra, found that Jackson, Likewise, this Court exposed defective for bars was not overhead with cell purpose specific it was which use and holding general assigned, As in this cell. that of hanged himself from in Jackson decedent case, the though exposed Jackson, Mr. Even bars. overhead Hickey, be sui- was known to decedent unlike the use of the intended not transform that fact did cidal, holding general that of a cell to of a from that the cell designated prisoners. designated for suicidal general cell controlled. as a use only summary, where the be found a defect will In public budding, safety problem alleged aof relates to public building. just Thus the in a alleged itself. must be one may design improper defect, no a constitute While an involves of the tort if the essence will found be inadequate supervision. must examine Further, courts purpose designated specific use and the intended whether to determine in order or room gen- in a bars while overhead Thus, exists. a defect Mich holding supra, eral cell defect, Jackson, are not a exposed might bars in overhead constitute a defect a specifically equipped prevent designed cell to sui- cide the installation of wire mesh.

HI. ANALYSIS A. BUILDING DEFECT question The determinative in this case whether the installation of mesh crossbars, over overhead help suicides, order to deter renders the cell a sui- specifically assigned cell, cide-deterrent to deter hangings from the overhead crossbars. Because I think cells, that these mesh, with installed were intended to function as I cells, suicide-deterrent public building exception applies. would hold that the plaintiff presented The has evidence sufficient to establish suicide-deterrent cell was defective light purpose of its intended because the mesh designed prevent access to the overhead bars was away. presented tom has also evidence that the defendants had notice and a reasonable time repair nothing. Consequently, the defect and did documentary pleadings supporting evidence plaintiffs go are sufficient to allow the claim to forward. typically

While the cell involved here is used to general population general a hold functions as holding cell, once the was mesh installed deter sui- cides, it functioned in fact as cell. suicide-deterrent hospital As we Bush, “[i]f noted in is converted into prison, be must maintained as a safe prison, hospital.” Similarly, aas safe Id. at 732. once this was to a converted suicide-deterrent city obligated cell, the maintain it as safe sui- Opinion Mallett, C.J. that had a to maintain cell, in it cide-deterrent this accomplish safety designed feature specific the repair.8 in purpose good analysis this Court cell, the

As a suicide-deterrent A defect in a feature Lockaby in controls. applied his the or arrestee from inmate designed protect if building exception comes within the own devices that a contribut plaintiff can show the the in injuries. Sanchez, we noted de cause As ing of be might causes also supra, the fact that other inadequate arres involved, supervision as or the such not self-destruction, own toward does tee’s actions necessarily application public building preclude exception.9 8 The the cell here is iden- dissent insists that character of involved Jackson, i.e., supra, general at hold-

tical to that issue in it functions as a analysis suggests ing dissent’s cell and not as a suicide-deterrent cell. The cells, equipped general suicide that the use of these all to be intended them, upon deterrent, depending changes with each ushered into detainee proclivity illogical detainee’s toward suicide. This result demonstrated opinion suggested by required by Bush, not this Court’s in as the dis- general a sent. Bush that where the defendant knew that classroom held class, chemistry might if would be used it be defective it was to conduct equipped safeguards necessary chemistry experi- appropriate not with Similarly, case, general ments. holding in this where defendants knew that the population, general cells to hold detainee includ- would be used individuals, fact, ing was, when some it in used to hold a suicidal suicidal appropriate safeguards, defective. individual did not contain it was were, equipped again, fact, general in Once all the cells used and to hold a population population risk Their and a with a known of suicide. detainee general use function as suicide-deterrent cells. intended was to 9 Consequently, as the the defendants’ focus on the decedent’s actions recognize lan- cause of misses the mark. While I real his death suicide-proof concerning impossibility making guage Hickey of suggest be individual’s own efforts at self- cell can read to an benign might preclude finding be a that an otherwise feature destruction defect, necessarily designed or If a cell is is not determinative. deterrent, compliance equipped with reasonable suicide lack of be when indeed constitute a defect measures could example, question light in Bush was its intended use. For viewed accident-proof, but whether whether classroom could be made 457 Mich

Opinion by B. NEGLIGENCE

i merely I note that because a is able to plead governmental immunity, claim avoid in this public building exception, case on the basis necessarily does not mean that the defendants are lia- ble. Our conclusion that the applies plaintiffs merely claim establishes the that city duty undertook a to maintain this suicide- good repair. city cell in deterrent fact that the has general duty necessarily duty this not does establish a particular plaintiff owed to this in the facts this of Establishing building-defect case. claim circum- venting governmental immunity negate not does tradi- principles. Perhaps tional law tort a statement of the obvious, must still demonstrate the elements negligence of her claim. case,

In this the defendants their filed for motion summary disposition only ground gov on the immunity, ground ernmental but also on that genuine there was no issue of material MCR fact. 2.116(C)(10). granting The trial court’s order defend summary disposition only ants’ motion cited not 2.116(C)(7), governmental immunity provi MCR 2.116(C)(10). Although sion, but also cited MCR Appeals Court did not reach this alternative ground, except respect gross negligence with to the safety injuries. Certainly lack of reasonable devices contributed to the cre- implements always ative and unforeseen of self-destruction cannot be However, eliminated. when a cell is intended function as a suicide- cell, may steps deterrent exist where reasonable are not taken good repair. maintain its features in I that Heatlie, would hold defendant against claim 2.116(C)(10) MCR summary disposition under mate- no issue of genuine there was proper because underlying negligence claim. rial fact on the claim, plaintiff has to estab- In negligence her particular duty had a that the defendant lish duty by placing decedent, it breached that cell, and that breach decedent the defective of the decedent’s was a and factual cause proximate duty to an unfore- does not owe death. A defendant pre- failed to case, plaintiff In this plaintiff. seeable establishing fact issue of material genuine sent plaintiff’s owed to decedent existence actually unaware, and it defendants were because reasonably foreseeable, the decedent was not cell. him in the defective placing was suicidal before Hickey, supra at 438-439. See summary disposition, support In of their motion for dis- of extensive brought which was after close Heatlie city of and Officer covery, defendants Detroit testimony Heatlie of Officers deposition offered the officers testified that the decedent Wylie. and Both Conversely, he indication that was suicidal. gave no presented this evidence plaintiff nothing the to refute any suicide was did not offer evidence the and reasonably foreseeable. not injury are foresee leading

Where the events to disposition summary able, duty, is no there Co, v Detroit Edison Mich appropriate. Groncki 453 the case, In this (1996). 557 NW2d 289 644, 657; might the decedent had no notice defendants they be held attempt and therefore cannot suicide, the decedent’s responsible failing prevent reasonably not foreseeable. This death was death. Mich Taylor, J. Tragic responsi- was, as it defendants cannot be held plaintiffs ble for of the unforeseen suicide the dece- Consequently, uphold I dent. granting would the trial court’s summary disposition

of defendants 2.116(C)(8). under MCR

IV. CONCLUSION While the has established evidence suffi- go pub- cient to her allow claim to forward under building exception governmental immunity, lic underlying negligence claim fails because was it reasonably foreseeable that attempt suicide. the decedent would cell, tom mesh rendered which was intended in to function fact as a cell, suicide-deterrent meaning defective within exception. of supports The evidence also conclusion city had notice of the tom mesh and had rea- repair sonable in time which to it.

Although summary disposition improper on the ground governmental immunity, proper of it is on underlying negligence claim. The uncontroverted evi- discovery presented dence at the close and as at summary disposition stage showed that defend- suspected ants could not have that the decedent was Consequently, prevent suicidal. there was no this unforeseeable death. portion reasons,

For these I would reverse that Appeals summary upholding the Court of decision disposition ground gov- for the defendants on summary ernmental and would affirm dis- position underlying negligence on the claim. (concurring part dissenting Taylor, J. part). agree opinion’s I with the lead conclusion that

Opinion by J. Taylor, granting defendants’ did not err trial court summary disposition because the motion for negligence law. I a matter of as could not establish opinion. part join However, of the lead therefore m(B) opinion’s disagree conclusion I with the lead governmental public building to applies case. to this placed holding in a was

Plaintiff’s decedent coopera- been Because he had he was arrested. after only placed empty cell in the tive, the decedent Unfortunately, equipped a toilet. there with that was previ- had been in the wire mesh that was also a hole hanging ously prevent to from installed detainees Unexpectedly, bars. themselves on overhead parties, acknowledgment all decedent gain to bars access the overhead endeavored hanged through him- hole. He was successful moved sum- followed, and defendants self. Suit immunity. mary disposition, claiming governmental granted motion for sum- The trial court defendants’ mary disposition, Appeals and the Court of affirmed. question at here whether the issue is immunity2 exception1 governmental every undisputed applies facts. In under these bodily injury property agencies are liable for Governmental pub- damage resulting dangerous from a or defective condition of a governmental agency or constructive lic if the had actual acquiring and, knowledge after for a reasonable time remedy knowledge, the condition or to take action reason- failed ably necessary protect public against the condition. [MCL 691.1406; 3.996(106).] MSA act, governmental agen- provided Except in this otherwise all as liability in all cases wherein the immune from tort cies shall be discharge government agency engaged in the exercise 691.1407(1); 3.996(107)(1).] MSA function. [MCL 457 Mich 695 Opinion by J. Taylor, plaintiff brings against instance where a a tort claim entity governmental building on the basis of the exception governmental immunity, to a two- step analysis question is warranted. The first is plaintiffs the whether cause of action an invokes exception immunity. governmental require to If this plaintiff is met, ment must then establish the ele underlying ments his cause of See v action. Canon (1988) Thumudo, 326, 335; 430 Mich 422 NW2d 688 against (which confusing separate inquiries cautions negligence). into opinion qualifies lead The concludes that case application exception building for of the immunity. governmental foundation the lead opinion’s analysis is the notion that the cell at issue general was here converted from a nondefective hold- ing cell to a defective suicide-deterrent cell reason preventing of the installation of mesh wire access subsequent the overhead bars of the fail- repair ure to a hole in the mesh before the decedent hanged disagree. himself. I

Pursuant to Bush v Schools, Oscoda Area 405 Mich (1979), 716, 731-732; 275 NW2d 268 whether there building warranting application was, fact, defect, public building exception governmental immunity, depends on the use to which the area put. at issue was In Bush, nonlaboratory classroom was used to teach a chemis try normally class. Because the classroom was safety manner, used in this it failed to have various including safety features, shower, ventilation storage hoods, sinks, exhaust areas, enclosed station ary laboratory gas desks, Id., and water and outlets. v Detroit Taylor, J. Unfortunately, during 725. an accident occurred

p injured. chemistry class, plaintiff and the was part, suit, Bringing alleged, safety appropriate absence of devices rendered unsafe science classes and therefore classroom defective, triggering pub- that the classroom immunity. This lic Court stated: sure,

To of certain devices did not be lack ordinarily per se; it render the classroom defective unnecessary laboratory safety equipment to install in class- place safe, determining whether a is one must rooms. In may building purpose it A be consider the use serves. purpose, . use or but not for another. . . The safe for one injured was had use become a room in which Foxworth physical room, and therefore had to meet the stan- science physical although dards room it had once been of a science p [Id., a room. mathematics 732.] as the Thus, Bush, the rationale of cells such under required are to meet consistent one at issue standards avoid with use in order to the defective their when as a exception.3 being This means it is used a cell be used those holding cell, i.e., general indication of sui plaintiff give such who no as this tendencies, for such a cell cidal that the standards are the standards (that cell) a nonsuicide-deterrent was determining in whether the cell employed to be opinion do, This the fails to instead defective. lead 3 safety position no on the absence of a I that I take whether note public building has not defect. This contention device itself constitutes subsequent to Ross v Con in a decision from this Court been endorsed 567; (1984). (On Rehearing), I NW2d 420 Mich 363 641 sumers Power Co rely only holding it is intended use of the on for its that Bush analysis. controls 457 Mich 695 Taylor, J. merely prevention saying that if the suicide “add-ons” way any to the cell are in defective there is a cause of action if detainee commits suicide in it without regard really being to how the cell was used. This cannot with be reconciled Bush.

Moreover, 420; v 449 Mich Detroit, Jackson (1995), NW2d 151 this Court concluded that a similar despite plain defective, the fact that the tiff’s decedent was known to be suicidal at time completely and the overhead bars of the cell were exposed, Rely i.e., no mesh wire had been installed. ing Hickey (On Resubmission), on v Zezulka (1992), 408; Mich 487 NW2d 106 the Court concluded plaintiff’s safety claim related more building rather than to the build ing supra, Jackson, itself. 449 Mich 428-429. The excep Court held that the statute did not create an governmental immunity tion to in instances where the benign physical decedent utilized an otherwise fea committing ture as a means of suicide. Id.

The Court went on, however, to conclude that the presented prima allegation had facie city by policy of Detroit, inaction, i.e., a fail incorporate ure to suicide-deterrent features in these light cells in of the historical risk, suicide been had “deliberately indifferent” to the of its detaine Consequently, es.4 this Court concluded that it was 4 It should be noted that under the current “deliberate indifference” necessary prevail action, appears standard in § 1983 the record any prevail. devoid Bryan evidence would that allow See Co, Brown, 397, 415; Bd Oklahoma Co Comm’rs v 520 US 117 S Ct 1382; (“Congress (1997) Ed 2d municipalities 137 L 626 did not intend municipality be held liable unless deliberate action attributable the directly deprivation rights”); Philadelphia, caused a of federal Simmons v 1042, 3, (CA 1991) (a plaintiff responsible 947 F2d 1064 must show that J. Taylor, against prevail plaintiff might that the possible 1983. 42 USC based on an action through defendant wire had installed issue, defendant cell at In the it, in a hole having that, feature an additional mesh as find rendered now would opinion lead took fact that defendant However, the defective. itself it was deliber that finding negate that could action does not detainees safety of its ately to the indifferent cell had intended use that demonstrate wire cells without where these Furthermore, changed. in Jackson to be without found previously mesh were it detainee, logically a suicidal housing when despite the defective, cell is not that a similar follows allowed access installed still the wire mesh fact that in mesh. ripa bars because of to the overhead had taken case defendant While in the instant the overhead covering mesh step adding extra in Jackson demonstrates Court’s decision bars, consistent already met the standards the cell that decedent Jackson, the fact that the use. As in with its feature of the benign physical otherwise utilized the did not demonstrate cell to commit suicide contemplated by the a defect as cell itself contained Legislature.5 city lockups

policymakers and of of the number of suicides were aware deliberately them, preventing not to chose but either the alternatives policy acquiesced longstanding pursue or custom of alternatives or prison clear, inaction). suicide alone is not suffi historical data of As is liability 1983. under USC cient to demonstrate interplay appreciate opinion our discussion of fails to The lead proposition that and Jaclcson. Bush stands for the between Bush it is defective. Jackson controls whether intended use of general accommodate are intended to these cells demonstrated population to be sui if the detainee was known and that even detainee hanging accessability cidal, act of bars and the detainee’s to the overhead opinion defective. The lead that the cell is himself does not demonstrate general by judicial effectively because this fiat would rule now 718 457 Mich Dissenting Opinion by Brickley, J.

Under Bush and I Jackson, would conclude that the cell at issue was not Therefore, defective. there being public building exception gov- defect, no immunity applicable ernmental is not case, grant- I would hold that the trial court did not err in ing summary disposition defendants’ motion for on this basis as well.

Boyle and Weaver, JJ., concurred with Taylor, J. (dissenting). J. I concur in the conclusion Brickley, gov that has stated a claim in avoidance of public building excep ernmental under the opinion’s tion. I However, dissent from the lead reso plaintiff’s negligence against lution of the claim city Depart defendants of Detroit and Detroit Police grant summaiy disposition ment. The trial court’s Appeals to the defendants and the Court of affirm clearly premised plain ance of that order were on the inability plead governmental tiff’s in avoidance of immunity. separate issue, whether defendants plaintiff duty owed under these circumstances, was, therefore, not addressed below.1 Nevertheless, the opinion, affording parties oppor lead without tunity meaningful to brief the matter, and without analysis, sponte plaintiff’s rules sua that claim is population, cases, detainee in other has been shown to have a known risk of suicide these cells are intended to function as suicide-deterrent cells “appropriate” and the failure to strips maintain suicide-deterrent features city immunity. Ante, p 709, Moreover, n 8. to the opinion attempts extent the holding, by lead suggesting to cloak that changed installation cell, itself of the mesh the use of the Bush effec- tively fallacy argument by demonstrates finding of that that “[t]he injured room in which physical Foxworth was use become a had sci- ence room . . . .” Appeals duty The Court of discussion of defendants’ was limited to plaintiff’s gross negligence against Ralph claim Officer Heatlie. Opinion by Dissenting Brickley, J. owed the deceased no

barred because defendant repeating a matter of law. It bears as judicial inquiry adversary system disciplines the [t]he crystallize with which we the difficult choices serves generally When an issue is not find ourselves confronted. keenly presented in the form of a contested and discrete controversy, that con- a court is denied a valuable resource legitimacy judgment. both to the and wisdom of its tributes 377, 393-394; [People Butler, NW2d v 413 Mich (1982) (opinion J.).] Levin, jailer owed a citizen his scope importance. However, it is not complex great and of I properly Accordingly, before the Court. would order supplemental or remand the matter to the cir briefing proceedings.2 for further cuit court Cavanagh Kelly, JJ., concurred with J. Brickley, negligence arguably opinion’s issue would The lead resolution of the precedential because its issue of its force rob the necessary longer of the case. is no to the outcome resolution

Case Details

Case Name: Johnson v. City of Detroit

Court Name: Michigan Supreme Court

Date Published: Jun 16, 1998

Citation: 579 N.W.2d 895

Docket Number: 105891, Calendar No. 4

Court Abbreviation: Mich.