*1
MICH 490
RENNY v
OF TRANSPORTATION
DEPARTMENT
(Cаlendar
3).
Argued
10, 2007
April
July
Docket
No.
No. Decided
11, 2007.
Renny brought
Karen and Charles
an action in
of Claims
the Court
against Michigan Department
Transportation, seeking
the
dam-
injuries
ages
patch
slipped
for
sustained when Karen
on a
doorway
ice and snow on a
in front of a
a
sidewalk
to
rest area
building.
plaintiffs
gutters
alleged
The
the absence of
and
among
downspouts,
building, permitted
in
other defects
the ice
allega-
and snow to
sidewalk. In
accumulate on the
addition to the
design
building,
plaintiffs alleged
a
tions of
defect
of the
that the
repair
building.
defendant failed to
and maintain the
The Court of
Claims,
J.,
Baumgartner,
granted
disposition
summary
Michael J.
defendant, ruling
allege
favor of
that the
to
failed
a
governmental
exception
claim that fits within the
immunity,
PJ.,
Appeals,
MCL
Court
691.1406. The
and
Smolensk,
J.,
J.,
C. and
reversed the order
the Court of
Whitbeck,
O’Connell,
Claims, holding
plaintiffs’
cognizable
that the
claim was
as a
рublic
exception
claim
under the
and that Karen
injury
Renny’s
directly
dangerous
attributable to a
or defective
building itself,
though
dangerous
even
condition
building.
App
and ice
snow
existed outside
Supreme
granted
application
The
Court
the defendant’s
appeal.
leave to
Michael A. Attorney General, Thomas L. Casey, Solicitor General, and Patrick F Isom and Harold J. Martin, Assistant Attorneys General, for the defendant. Amici Curiae:
Plunkett & Cooney, (by PC. Mary Massaron Ross and Hilary A. Dullinger), for the Michigan Municipal League, the Michigan Municipal League Liability and Pool, Property and the Michigan Townships Associa- tion. InJ. this case we consider whether a “design
YOUNG, defect” claim is cognizable under the public building exception immunity, MCL 691.1406. plain language of public building exception imposes only to “repair and maintain” a public building. the absence of any additional addressing design defects, we hold that building exception to governmental immunity does not permit a cause of premised action upon an alleged design defect. We any disavow dicta to the in contrary our earlier cases and any cases, overrule such as Sewell Transportation Department Renny 493 of v Court Dep’t v and Williamson Pub Schools1 Southfield for the to stand Health,2 that can be construed Mental fall within the design defects com- However, plaintiffs3 because exception. Michigan that defendant alternatively alleged plaint (MDOT) repair failed to we remand public building, and maintain suit plaintiffs to determine whether of Claims Accord- allegations.4 these respect with may proceed of sum- reversal Appeals the Court ingly, we affirm MDOT, the Court in favor of reverse mary disposition un- are actionable defects holding remand the case building exception, der the consis- proceedings for further of Claims to the Court this decision. tent with history procedural
i. facts
a rest area Roscom-
Renny
Karen
visited
Plaintiff
January
alleged
2000. She
Michigan,
County,
mon
building,
slipped
she
the rest arеa
leaving
that while
in front of the
the sidewalk
and ice on
patch
snow
right
to her
wrist.
injuries
serious
doorway and suffered
resulted
MDOT, alleging
injuries
that her
Plaintiff sued
area
condition of the rest
a defective
from
con-
“by
designing,
According
plaintiff,
[MDOT]
670;
In a published per decision, curiam the Court of Appeals reversed the Court of The panel Claims.6 held plaintiffs cognizable claim was as a design defect claim under the public building exception. It further concluded injured directly wrist was dangerous attributable to a or defective condition of the though itself the dangerous even сondition of snow and ice existed outside
This Court granted MDOT’s application for leave to
appeal.7
County
Plaintiff also sued the Roscommon
Road Commission and
Township
separate
Roscommon
in a
court
circuit
action that was
parties
consolidated
at
with this case
the trial court level. Both
were
dismissed,
party
participating
appeal.
neither
in this
6 Renny
Transportation,
Dep’t
App 318;
gates agency “to buildings,” and maintain (3) permits party bring design claim; and whether the Court *5 495 v Opinion of the Court of review
II. standard summary for motions de novo reviews This Court interpretation statutory are disposition.8Questions of by this questions de novo also reviewed that are of law stаtutory approaches the task of This Court.9 Legisla- seeking give interpretation the effect to to statutory language.10 expressed in the intent as ture’s unambiguous, is of a statute “When judicial Legislature’s is construction clear and intent is necessary permitted.”11 nor neither
III. ANALYSIS interpretation proper pivots of the This case immunity. governmental building exception public part, pertinent states, in MCL 691.1406 repair and obligation to agencies have the [g]overnmental open when buildings their control under maintain agencies public. Governmental by members use for damage resulting property bodily are liable public building of a dangerous or defective condition from a constructive agency had actual or governmental if the and, time after for a reasonable knowledge of the defect remedy knowledge, the condition or acquiring failed to necessary reasonably protеct take action [Emphasis added.] against the condition. plaintiff in order for a held that
This Court has immunity governmental build- under avoid transitory icy was not a that the sidewalk conclusion Corrections, Dep’t v 439 decision Wade contrary is to this Court’s (1992). 158; Mich 483 NW2d 72, Transportation, Dep’t 715 NW2d Grimes 9 Id. Co, 521, 526; Mut Automobile Ins v State Farm Griffith
NW2d 895
11 Id.
Plaintiff maintains that the dangerous or defective condition оf rest area building arose from a design defect, a design and that cognizable defect claim is under exception.13 She rests her from Bush v Oscoda Area argument on certain reiterated in Reardon v Dep’t of Schools14 that have we Mental Health15 Bush, other subsequent cases.16 In the plaintiff, student, the mother of an injured sued the student’s school and school after a jug officials of wood alcohol in a exploded non-laboratory classroom tempo- rarily used to hold science Concluding class. that plaintiff against stated a claim the defendants under the public building exception, opined Court this building provision structurally
[t]he defective
similar to
highway provisions.
duty,
“repair
defective
It
a
states
Health,
Dep’t
de Sanchez v
231,
Mental
236;
467 Mich
651 NW2d
of
(2002).
argues alternatively
Plaintiff
condition
defective
of the rest
building
area
gutters
arose from a failure to maintain
around the
716;
405 Mich
18 Reardon, 430 Mich at the Court
maintenance, Legislature’s choice of terms to those is define the indicative of intention its regarding sсope exception. clearly premises physical
and maintain a relates to the premises.[19] condition of the Reardon, Bush Citing Court has stated else- design where that a defective claim within the falls Plaintiff her public building exception.20 design rests defect claim this line of cases. responds
MDOT that this Court squarely has never design cognizable held defect under the building exception. According MDOT, Reardon's dis- Bush and design cussion defect was obiter claims dictum. Reardon rejected considered and the notion building exception injuries extended in public building that occur but were occasioned not by a physical condition of the It did itself. not pass design on the merits of a defect claim.
Moreover, that Reardon mischaracter- argues MDOT Bush as ized design defects fall within the when Bush in fact public building exception, only consid- ered the intended use of the classroom the lack safety Thus, in its devices MDOT it holding. argues, was Bush Court to unnecessary for the opine propriety on the of a defect claim and its statement question on that Finally, points out, dictum. MDOT this Court more recently openly has questioned whether a defect claim within the public building de fits exception. Sanchez Dep’t Mental Health,21 we stated
[d]espite the oft-cited that a may improper be or defective because of its design, may actually issue whether a 19 Id. at 409-410. Johnson, Sewell, supra; supra; Hickey,ssupra. See, e.g., 83, 96; 565 NW2d 358 *8 v the Court to invoke public sufficient in a a defect
constitute Court consid- has caused this building exception the Nonetheless, this is not before difficulty. that issue erable Court. the any support provided short, argues, MDOT illusory. is heavily relies plaintiff on which
caselaw
that
contends
MDOT
specifically,
More
this Court has
misplaced
Bush is
because
reliance on
Bush.
reasoning underpinning
dismantled
since
the structural
heavily on
in Bush relied
majority
The
excep
highway
between
linguistic
similarities
Therefore, be
building exception.
tion and
fell
defect claim
held that
our caselaw
cause
majority placed
Bush
highway exception,
within
building exception.
on the
gloss
judicial
the same
Comm,22
Co Rd
v Macomb
with Nawrocki
Beginning
inter
textually faithful
to a more
returned
this Court
trend contin
This
highway exception.
pretation
Comm,23 where this
Co Rd
in Hanson v Mecosta
ued
cases
exception
highway
line of
Court disavowed
“the
and held that
defect claim
recognized
or
design,
does not include
exception
highway
or
original design
arising from
correct defects
syllogisti
reasons
MDOT
highways.”
construction
Bush, has
Court,
deciding
since
then,
cally,
not allow
does
highway exception
recognized that
to the Bush
It was vital
defect claim.
for a
463 Mich
With of MDOT at plaintiffs position entirely *10 “dangerous where habihty phrase imposes The building” arises out pubhc condition of a defective that to and maintain repair failure governmental agency’s duty beyond of an additional suggestive It is not suspect to There is no reason and maintenance. repair to duty prevent to a impose intended Legislature that buildings pubhc condition[s]” “dangerous or obhgation clearly whohy unrelated to in a manner in the sentence.28 stated first 26Id.
27Id. agency dissent, governmental logic” According “defies that a to the it pubhc not duty repair but would and maintain a have a to would safely designed. Such public building more could have been liable if a be very purpose governmental recognize fails to that a statement habihty. Clearly, exposure immunity government’s this to is to limit the dehberately convey Legislature with its precisely intended to what the is expose logical to entirely chosen not that it would have chosen words. It is duty repair habihty design to agency defect. The governmental for a a [July- Mich 490 Opinion of the Court that suggestion repre- Bush
Contrary dissent’s consistently an Bush been precedent, sents unbroken has First, decisions by subsequent undermined Court. (On by Bush was succeeded Ross v Consumers Power Co way a case that altered Rehearing),29 fundamentally immunity construe the Sec- we statute. ond, we with MDOT that agree collapsed Hanson “logic” in a Fi- supporting Bush claim. nally, we of a propriety also note claim under public building exception premised on a lack of safety is also devices undermined Fane v Detroit Library Comm30—a decision authored the dissent. In Fane, we held under the facts of that case an elevated public building.” empha- terrace was “of a We public building sized that the exception only refers to injuries resulting from dangerous or defective condi- “of public analysis tions and that building” a fixtures useful in determining is giving whether condition public building.” rise is “of a light Fane, we see injuries fail to how from an exploding jug could have resulted from a dangerous or defective a public building” “of or could survive analysis fixtures under Fane.
Because
conclude
the statutory
we
unambiguous
imposes
only
a duty
maintain a public building, we
our
must reconsider
earlier cases
suggesting
defect claim is
impose
and maintain a
does not
an
unforeseeable
potentially significant
liability
governmental agencies.
same
public building,
be
cannot
said of a
a safe
which would be
hindsight by
ill-equipped
measured in
are
courts that
to consider the
budgetary
any
and architectural
trade-offs involved in the
construction
Thus,
being illogical,
narrowly
from
structure.
far
tailored
*11
entirely
government’s
and maintenance is
consistent with
limiting
liability.
in
its
interest
29
567;
420 Mich
claim. We
defect
not a
and was
safety
devices
alleged lack
Al-
dictum.
of the latter was
case,
discussion
so its
majority
the Bush
stated
point
though at one
design of
improper
that the
аlleged
has
“[p]laintiff
it
safety
rendered
devices
and absence
classroom
classroom,”
opined
it
elsewhere
as a science
unsafe
on lack
theory is based
s defective
“[p]laintiff
MDOT that
agree with
We also
safety devices.”32
defect
and its discussion
not a
case
Reardon was
Rather, Reardon
claims was dictum.
design defect
“impose[s]
building exception
held that
necessarily
buildings, not
maintain safe
duty to
buildings.”33
in
safety
cases,
has not endorsed
this Court
subsequent
re-
Hickey, supra,
claim. In
design defect
plaintiffs
alleged
argument
sponding
University Depart-
Michigan
State
design of
improper
the decedent
cell caused
Safety holding
ment of Public
acquiesced
Legislature
in Bush’s erro
claims that the
The dissent
exception.
this Court
interpretation
That
neous
acquiescence
legislative
has been else
highly
the doctrine
disfavors
28;
Co,
See,
& 478 Mich
e.g.,
v Farbman Stein
Karaczewski
statеd.
where
Detroit,
84;
(2007); Grimes,
Robinson v
In addition to Court Appeals decision case, are of only we aware a design two cases where recognized defect claim was or implicitly explicitly by a Williamson, supra, court. the Court of Appeals affirmed the Claims determination plaintiff alleged or design defect absence safety features that a proximate cause of the decedent’s death. The decedent, retarded, mildly teen- epileptic ager, drowned taking unsupervised while an bath at a Department of Mental Health residential treatment facility. The Court of Claims found that plaintiff proved by a preponderance of the evidence that improper design of the shower and bathing facilities a dаngerous constituted or defective condition of the public building that the defendant had a alter duty to modify safety devices. Sewell,
And,
supra,
this Court
summary
reversed
disposition in
favor of
defendant Southfield Public
J.).
Hickey,
(opinion
439 Mich at by Brickley,
Sanchez,
de
at
Opinion of the Court
cord
spinal
suffered a
Schools,
plaintiff
where
minor
school,
pool
high
at the
diving
after
into a shallow
fact
created a
plaintiff
question
pool.
in the
of an actual defect
the existence
regarding
and held that
use of
pool,
We examined
intended
use.
just
not
was an intended
swimming,
diving,
faulty
Second,
plaintiffs’ allegations
we held that the
sufficiently alleged
and improper
construction
pool
included an uneven
an actual defect. These defects
*13
depth
plaintiffs’
and mismarked
markers.
floor
design
poor
layout
about the
and
experts opined
a
failure. We
pool, claiming
design
that
there was
mеrely
the
that
was
a
with
lower courts
this
disagreed
of improper supervision.
case
build-
analysis
of our
light
foregoing
the dicta in earlier decisions
exception, we disavow
ing
Reardon,
any
in Bush and
from this Court such as
that
decisions,
of
suggesting
dicta from Court
language
the
of
design
plain
defect claim falls within
such as
Also,
any
the
we overrule
cases
provision.
to stand
that can be construed
Sewell and Williamson
fall within the
design
for the
that
defects
public building exception.36
Sewell,
today
it
our
does not
To the extent that
overrules
decision
policy
underpin
of
that
the doctrine
stare
considerations
contravene
Robinson,
First,
question,
supra.
relied on
See
without
Sewell
decisis.
clearly
plain
originating
in Bush that was
inconsistent with
dicta
why
language
explains
treats the
of
the statute. This
dissent
“explicit”
design
“implicit”
rather
because
as
in the statute
than
that
safe
509,
at
to be
in the actual words. Post
is nowhere
found
by
discharging
judicial responsibility
Therefore,
faithfully
our
arewe
statutory language
accurately interpreting
applying the
in this case.
overruling prior
Also,
largely disavowing dicta rather
are
than
we
plain
dicta above the
cases. We will not elevate
established
Hanson,
And,
repudiating
dicta
n 7.
See
Mich at 501
statute.
language,
simply enforcing
contrary
statutory
patently
are
is
we
expressed
Legislature.
plainly
intent of
IV APPLICATION
Returning
case, plaintiff alleges
to the facts of this
injured by dangerous
that she was
or defective condi-
argues
tion
the rest area
She
gutters
downspouts, among
absence of
de-
other
in the
an
building, permitted
fects
unnatural accumu-
and ice
lation
snow
sidewalks in front of an
entranceway and created slippery, hazardous conditions
public.
for members of the
today’s
Consistent with
decision,
to the extent that
premised
claim is
design
on a
of a
it
public building,
dеfect
is barred
immunity. However, plaintiff
alleged
also
that MDOT
to repair
failed
and maintain the rest area
building.37 Indeed, there
record
suggesting
is
evidence
the rest area
equipped
once
Second,
practical workability
of a
claim
defect
has elsewhere
(which
question by
majority
called into
been
A
Court.
this Court
dissenting justice)
may
included
noted that “whether
defect
actually
in a
constitute a defect
sufficient to invoke the
building exception
difficulty.”
has caused this Court considerable
de
Sanchez,
Third, turning
question
interests,
the defective condition of of the roof located immedi- ately way building. By way above this to the entrance/exit illustration, limitation, not these defective conditions include the by Opinion Weaver, J. judg- not pass we do Although downspouts. gutters claim or whether viability plaintiffs legal ment on trial, plaintiff suffi- to ultimately proceed may her claim immunity. governmental in avoidance ciently pleaded deter- of Claims to the Court to Accordingly, we remand respect with may proceed suit mine whether and maintain failure alleged CONCLUSION V cognizable are not claims design defect hold that We plain unambiguous, under only refers which building exception, build- and maintain” “repair agency’s of Appeals the Court Therefore, we affirm while ing. MDOT, we in favor summary disposition reversal defects Appeals the Court of reverse and we building exception, the public actionable under are further Claims for the Court of the case to remand this decision. consistent with proceedings JJ., Markman, con- Taylor, C.J., and CORRIGAN Young, J. curred only). in the result I concur (concurring
WEAVER, J. to affirm majority the result reached only in summary disposition reversal Court of gutters downspouts redirect maintain and. to install failure away from melting roof above the and ice on the snow entrance/exit walkway. statutory 691.1406] [MCL Defendant breached maintaining constructing, keeping the restroom designing, and/or had herein which described and/or conditions.... *15 478 MICH 490 by Opinion J. Kelly, of of Michigan Department Transporta-
favor defendant tion and to remand this to the Court of for case Claims farther proceedings plaintiffs’ complaint the basis alternatively alleged that failed to defendant and “repair pursuant maintain” a public building to MCL 691.1406.1 Because a majority of this Court has concluded plaintiffs’ against complaint adequately alleged claim injuries plaintiff Renny defendant for Karen sustained as a result of “repair defendant’s failure to and main- tain” rest area need building, Court not address the issue whether could pursue also a claim for building design. respect, defective In this order2 our granting appeal requesting leave to and the parties to address this issue was unnecessary improvident. Moreover, any commentary by the majority on the question defective design is obiter dictum. Thus, can becаuse decide this case without resorting to consideration of recovery whether is avail- able under for plaintiff alleges MCL 691.1406 who injuries occurred as a result a defectively de- signed public I building, would leave for day another question consideration of the recovery whether avail- able on the design. basis in (concurring
KELLY, J.
part
dissenting
part).
I believe that
public building exception
govern-
provides,
pertinent part:
MCL 691.1406
agencies
obligation
Governmental
have the
and main-
public buildings
open
tain
under
their control when
for use
public.
agencies
bodily
members of the
Governmental
are liable for
property damage resulting
from a
or defective
governmental agency
condition of a
if the
had actual
knowledge
and,
or constructive
reasonable time
acquiring knowledge,
remedy
after
faded to
the condition or
take
reasonably necessary
protect
рublic against
action
the condi-
tion.
Renny Dep’t
Transportation,
v
Accordingly, designed dangerously maintain a required would be for harm to the liability from exempted and be pre- It must be building’s design. caused public intended Legislature sumed Accord- people. not cause buildings should public and maintain” “repair I hold that ingly, would necessarily includes buildings buildings. safe DEFECT CLAIMS DESIGN ADDRESSING
MICHIGAN CASELAW pre- longstanding is consistent My interpretation Schools, Area Bush v Oscoda See cedent of this Court. 1 MCL 691.1406.
510 478 Mich 490 Opinion by J. Kelly, Reardon v Dep’t (1979), 716; Mich NW2d 268 Health, Mental 398; (1988), NW2d Sewell v Schools, Pub Southfield (1998). However, NW2d today majority overturns find only do I precedent. unpersuasive Not the ma- Bush as jority’s dictum, attempt to dismiss the Bush, Reardon, and Sewell should be but I disagree that overturned. v OSCODA
BUSH
AREA SCHOOLS
Bush,
others,
The issue in
among
was whether
district,
defendant
school
superintendent,
its
principal, and a classroom teacher were liable
under
public building exсeption. Bush,
During followed, the the plaintiffs lawsuit al- leged that temporary was laboratory dangerous and defective because improper the room and Id. of safety absence devices. at 730-731. order to determine whether the plaintiffs’ complaint was within building to exception governmen- tal immunity, it was necessary interpret MCL 691.1406. Court, for the Writing Justiсe CHARLES LEVIN stated: v J. Kelly, have building provision as we the defective
We construe agencies highway provision. Governmental the defective condi- liability dangerous or defective subject to are regard it arises building to whether without tion of repair and maintain. a failure to out of cases, may dangerous or be highway As in the faulty improper design, construction because of [Bush, 730.] at safety devices. or the absence statute, interpretation of its On the basis had complaint plaintiffs’ that the Bush Court concluded which relief could be upon a claim sufficiently stated the case to the The Court remanded Id. at 733. granted. the trier of fact Id. It was left to trial court. the class- whether, things, other among determination science physical defective when used as room was Integral at laboratory. Id. building may fall that a
Bush’s determination immunity as governmental exception within the improper design. or defeсtive because was, by defi- Therefore, cited from Bush binding precedent. constitutes nition, not dicta and have relied on that years, our courts past For follow- years immediately Bush. In the reasoning from cited the case Bush, Court of ing Michigan that a numerous times for the public building exception claim is actionable under Park immunity. Highland See Lee v 305, 309; Dist, 324 NW2d App School 512, Arbor, App Ann (1982); v Young City of Detroit, 143 (1982); 520-521; Landry 326 NW2d *18 16, 371 NW2d App MENTAL HEALTH REARDON v DEP’T OF Reardon, once Bush, in this Court years after Nine Reardon, 430 Mich at analyzed MCL 691.1406. again 478 Mich Opinion by Kelly, J. 409-410. It the first sentence of carefully considered statute, a duty to and maintain imposing “repair 410. It buildings.” explicitly Id. at reaffirmed the hold- ing building may Bush that a be defective because improper design. regard Id. With to the second sentence statute, phrase “danger- the Court held that the ous or building” defective condition of a public showed Legislature intended that exception apply in cases physical where the a building at injury. causes Id. specifically Reardon Court noted that its holding
was consistent Bush: as long danger “As presented physical condition of the building, it little matters the condition arose of improper design, construction, because faulty absence of safety Therefore, devices.” Id. at 410. when this Court had the opportunity to reexamine its inter- pretation 691.1406, of MCL it reaffirmed the holding in Bush that is actionable under exception immunity. v DEP’T OF
WILLIAMSON
MENTAL HEALTH2
Dep’t
Health,
Williamson v
Mental
the Court of
Appeals cited
for
Bush
that a building
may be
of MCL
purpose
691.1406
because of improper design, faulty construction, or the
absence of safety
panel
devices.3 The
affirmed the trial
court’s
finding
building exception applied
where the
and bathing
shower
facilities of the building
in question
designed. Williamson,
had been improperly
principle. *19 Renny y 513 Opinion Kelly, J. PUB
SEWELL SOUTHFIELD SCHOOLS Sewell, again building may this Court stated that a dangerous improper design.4 be or defective because of grant summary held that the disposition We because the had suf- improper plaintiff defendant dangerous from ficiently alleged arising Sewell, faulty construction and 456 improper design. Mich at 671-672.5
Therefore,
frequently repeated
proposition
defect claims fall within the
design
public building excep-
tion to
become a
governmental immunity has
bedrock
Michigan jurisprudence.
majority distracts attention
from
fact by citing
cases that
this Court resolved
determining
without
whether there was a
defect.
(On Resubmission),
408;
See
v Zezulka
Mich
Hickey
439
(1992);
106
de
v Michigan Dep’t
487 NW2d
Sanchez
Health,
83;
(1997);
Mental
455 Mich
Also, that, it should be noted had the Legislature disagreed with this Court’s interpretation MCL *20 691.1406, many years it had to amend the language of suggests statute. Its failure to do so Legislаture’s intent was that a defect claim be the public building exception gov- actionable under immunity.7 ernmental
THE ROBINSON8 FACTORS
erroneously
Because it
in
holding
characterizes
dictum,
Bush
the majority
as
finds no need to consider
the factors set forth in Robinson for deciding whether to
Robinson,
overturn Bush.
The first consideration is whether the earlier deci
Robinson,
wrongly
sion was
decided.
The other Robinson factors are:
whether
(2)
decision at
“practical workability,”
issue defies
whether reliance interests would work an undue hard-
(3)
if
ship
authority
overturned,
whether
changes
the law or
make the
longer
facts
decision no
Robinson,
justified.
Bush does not practical workability. it has integral functioned as an of our part governmental immu- nity jurisprudence for the past years. Conversely, reliance interests would work an hardship undue if Bush above, were overturned. As indicated it is a frequently cited that design defect claims fall within the public building exception.9Clearly, overturning Bush will *21 mark a drastic shift in Michigan jurisprudence.
No
in
changes
the law or the facts render the decision
unjustified.
that,
It is true
in deciding Bush, the Court
relied on the
similarity
structural
between the
building exception and the highway exception statutes.
Bush,
516 478 Kelly, J. whereas this case concerns highway exception, cerned the Especially considering public building exception. decided, Hanson, estimation, its my incorrectly in extended to the holding should not be exception.10 under majority
The also claims that Bush has been majority of this Court. The by subsequent mined decisions Ross v Consumers notes that Bush was succeeded (On way altered the Rehearingj,* Power Co which immunity statute. governmental Court construes the However, Moreover, Rear- Ross did not overrule Bush. decided after Bush and Ross. don and Sewell were determined that Ross Neither Reardon nor Sewell ac holding designs affected Bush’s that defective are fact, public building exception. tionable under Legisla Ross in order to quoted explain Reardon enacting ture’s rationale for immu Reardon, Mich at Reardon then nity act. reiterated the Bush that defective are holding designs public building exception. actionable under the majority Library also contends that Fane v Detroit However, nothing Comm12undermines Bush. Fane undermines Bush’s defects are action- public building exception. interpreted able under the Fane meaning phrase building” “of Fane, 465 Mich at Fane did not building exception. 77-78. interpret phrase “repair and maintain.”
CONCLUSION
agree
majority’s
I
with the
decision to remand this
for further
proceedings
case to
Court Claims
Hanson,
I
that I dissented in
and I continue to
would also note
incorrectly
believe that Hanson was
decided.
567;
363 NW2d
But I would reaffirm the longstanding precedent of Court that design defects are actionable under the public building exception immunity, A duty MCL 691.1406. safe public buildings is in a implicit duty to and maintain them. This interpretation of MCL 691.1406 is consistent with this Court’s longstanding precedent and, as demonstrated by a factors, review the Robinson should not be overruled.
CAVANAGH,J., KELLY, concurred with J. notes is odds statutory language with the statute itself. The refers governmental agency’s only duty “repair to and maintain and does refer to public buildings,” any not design a duty public building. Therefore, to hold that of the statute includes a defect claim plain is inconsistent with its language. on plaintiff exclusively caselaw, While relies almost MDOT largely appeals statutory language. order an statutory construction, to decide issue of we must plain language public resort first building exception to the Legislature’s determine in- agree tent.24 with MDOT that provision clearly We support does not claim. The first sen- “ tence of MCL 691.1406 states that [governmental agencies obligation repair have the and maintain buildings open under their control when use of the public.” unequivocally members This sentence duty establishes to “re- agency pair and maintain” public buildings. the term Neither “repair” “maintain,” nor the term which we construe according usage, to their common encompasses to design redesign particular or public building in “Design” conceive; invent; manner. is defined as “to By contrast, “repair” contrive.”25 means “to restore to Homes, Co, 192, 196; Echelon LLC v Carter Lumber NW2d 544 Heritage Dictionary English Language, The American New College Edition Opinion of the Court Similarly, injury.”26 or damage after sound preserve.”27 or “to keep up” “to means “maintain” and “maintain” “repair” to the definitions Central something, in this returning or restoring the notion condition. prior to a state building, case a building, conception the initial refers to “Design” “repair “Design” restoration. than its rather concepts, unmistakably disparate maintain,” then, are and maintain” “repair sole use Legislature’s and the to in- did not intend it indicates unambiguously scope defect claims within clude building exception. 691.1406, imposes which of MCL The second sentence bodily injury “for governmental agencies habihty or defective from a resulting damage property expand not building,” does pubhc condition of a of a pubhc and maintenance beyond