WILLIAMSON v DEPARTMENT OF MENTAL HEALTH
Docket No. 101129
Court of Appeals of Michigan
Submitted October 18, 1988. Decided May 1, 1989.
176 Mich. App. 752
The Court of Appeals held:
The record supports the trial court‘s finding that the design of the bathing facilities constituted a defect in the building within the meaning of the building defect exception of the governmental immunity statute. The fact that the negligence of the attendant was also a proximate cause of decedent‘s death
Affirmed.
M. WARSHAWSKY, J., dissented. He would hold that the evidence failed to establish the existence of a defect in the building within the meaning of the statute. He would hold that the claim was barred by governmental immunity.
TORTS — GOVERNMENTAL IMMUNITY — PUBLIC BUILDINGS — PROXIMATE CAUSE.
The building defect exception to statutory governmental immunity is applicable where the Michigan Department of Mental Health at one of its resident treatment faсilities maintained a plumbing system and bathing facilities which permitted a patient who should not because of his condition be permitted to take a tub bath without supervision to draw his own bath water and take an unsupervised tub bath where such bath results in the drowning of the patient; liability may attach under the building defect еxception to statutory governmental immunity even where an injury or death is caused in part by the negligent supervision of a patient in a state facility if some physical defect in a public building is one of the proximate causes of the injury or death (
Sachs, Nunn, Kates, Kadushin, O‘Hare, Helveston & Waldman, P.C. (by David K. Barnes, Jr.), for plaintiffs.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and George L. McCargar and Gary L. Finkbeiner, Assistant Attorneys General, for defendant.
Before: SULLIVAN, P.J., and MURPHY and M. WARSHAWSKY,* JJ.
MURPHY, J. Defendant appeals as of right from the lower court‘s judgment in plaintiffs’ favor. Plaintiffs prevailed in their wrongful death action brought against defendant pursuant to the building exception to governmental immunity. We affirm.
On the morning of September 13, 1980, decedent asked Henry Bareiss, a childcare worker at Meadowview Three, if he could take a shower. Decedent was required to wear a helmet while showering beсause of his seizure disorder. If decedent wanted to take a bath, direct supervision was required. Bareiss testified that he gave decedent a towel, opened the door to the bath area and let decedent enter the room. Bareiss heard the shower water turn on and Bareiss proceeded to leave the immediate area to attend to other duties. Bareiss believed that decedent was taking a shower. He would not have let decedent take a bath alone. Meadowview Three had a shower and bath facility which consisted of one bathtub and three showers. Thе water for the showers and bathtub was controlled by a water valve box which was located in a recessed cabinet mounted in the wall of the shower and bath room.
Decedent‘s overall functioning level was equivalent to that of a fourth or fifth grader, although he read at a tenth grade level. Decedent understood that he was not to take a bath unsupervised.
At approximately 9:30 A.M. on September 13, 1980, decedent‘s mother, Mary Williamson, arrived at the facility to pick up her son. She testified that when she arrived Bareiss told her that decedent was “soaking in the tub.” Bareiss denied making this statement. Apрarently Bareiss had been su-
The chief of maintenance at Fairlawn Center testified how the water valve box in the bath and shower area operated. Both the main hot and cold watеr pipes went into a mixer so the water temperature was maintained at 110°F. Each of these main pipes had valves located before the mixer that were always left open. A main pipe carrying the temperature-controlled water left the mixer and this pipe had an on/off vаlve known as valve D. This valve was used by the staff and patients to turn on the water to the showers and bath. The pipe beyond valve D then branched off into four separate pipes; three went to the three showers and one pipe went to the bathtub. Each of these four pipes had on/off vаlves that were always left on. The pipe to the bathtub had a valve known as valve E. When the main valve D was turned on, water would run to all three showers and the bathtub. If the faucets at the bathtub were turned on, water would flow into the tub when the showers were on.
Decedent was permitted to turn on control vаlve D the morning he drowned.
Plaintiffs filed suit, alleging that decedent‘s death resulted from a dangerous or defective condition of a public building as provided for in the public building exception to governmental immunity,
Defendant first contends that the trial court clearly erred in finding that the shower and bath facilities at Fairlаwn Center constituted a dangerous and defective condition within the meaning of the building exception to governmental immunity. We disagree.
The public building exception to governmental immunity is codified at
Governmental agencies have the obligation to repair and maintain public buildings under their contrоl when open for use by members of the public. Governmental agencies are liable for bodily injury and property damage resulting from a dangerous or defective condition of a public building if the governmental agency had actual or constructive knowledge of the defect and, for a reasonable time after acquiring knowledge, failed to remedy the condition or to take action reasonably necessary to protect the public against the condition. Knowledge of the dangerous and defective condition of the public building and time to repair the same shall be conclusively presumed when such defect existed so as to be readily apparent to an ordinary observant person for a period of 90 days or longer before the injury took place.
The elements of proof under this exception are: (1) a defect, (2) actual or constructive knowledge of the defect, and (3) failure to act on the part of the responsible agency.
Most recently, our Supreme Court in Reardon v Dep‘t of Mental Health, 430 Mich 398, 409-410; 424 NW2d 248 (1988), reiterated the above principles and stated that the Legislature intended that the building exception is to apply to а situation in which an injury arises out of a dangerous or defective physical condition of the building itself. The existence of a defect and its relation to the alleged injuries is to be determined by the trier of fact. Young v Ann Arbor, 119 Mich App 512, 521; 326 NW2d 547 (1982).
Having set forth the applicable law, we next note that the lower court‘s findings of fact are subject to some degree of deference. MCR 2.613(C) provides that findings of fact by the trial court may not be set aside unless clearly erroneous. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Tuttle v Dep‘t of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976). Moreover, MCR 2.613(C) provides that regard shall be given to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it.
On appeal, defendant basically contends that the lower court erred bеcause the facts of this case
There is no question that improper supervision played some role in decedent‘s death. The lower court specifically found that Henry Bareiss was negligent. The lower court explained:
The Court finds that Henry Bareiss was negligent. Bareiss’ conduct, in allowing Plaintiffs’ decedent tо turn the main water valve on, and in leaving him unattended for half an hour while he returned to the nursing station, which is not within speaking and hearing distance, was a proximate cause of Plaintiffs’ decedent‘s death.
However, the court went on to note that its finding that Bareiss’ conduct was a proximate cause оf decedent‘s death did not preclude the court from finding that a building defect, that is the defective design of or absence of safety devices, was also a proximate cause of decedent‘s death. We agree. Clearly, there may be more than one proximate cause of аn injury. See, e.g., May v Parke, Davis & Co, 142 Mich App 404, 419; 370 NW2d 371 (1985), lv den 424 Mich 878 (1986). See also Davis v Detroit, 149 Mich App 249, 262-264; 386 NW2d 169 (1986), lv den 426 Mich 856 (1986).
The lower court in finding that the building
The Court does, however, find that Plaintiff has proven by a preponderance of the evidence that the improper design of the shower and bathing facilities at the Fairlawn center constitutеd a dangerous or defective condition within the meaning of
MCLA 691.1406 . Because of improper design, the system had to be completely altered or some safety device necessarily should have been employed as hereafter explained.* * *
The complexity of the valves contаined in the control box, their location in relation to the showers and bathtub, valve “D” which automatically and unnecessarily activated all three showers when one wanted only to activate the bathtub, the inability to hear the water being drawn in the bathtub while the showers were on, the failure to have mоnitors, alarms, video cameras, or other protective devices which would alert the staff that a patient was drawing water in the bathtub all constitute a dangerous and defective condition, due to the design of the shower and bathing facility at Fairlawn, within the meaning of
MCLA 691.1406 , in light of the use for which the shower аnd bathing facilities was specifically assigned; that is, the bathing and showering place for a known epileptic and mildly retarded patient subject to convulsions which occured [sic] without warning whom the staff was well aware was at risk for drowning if subject to a seizure while taking a bath. True, as Defendant argues, there is no medical standard that requires special safety devices to control the flow of water in an institution of this kind. However, Defendant does not have a normal water flow system which would meet the standard. Defendant had a complex and unwieldy system and was responsible to change it or prоtect patients from it by the use of one of many available safety devices.
As for the remaining two elements necessary for establishing a prima facie case under the building exception, thаt is, defendant‘s actual or constructive knowledge of the defect and defendant‘s failure to act in light of that knowledge, we conclude that there is ample support in the record establishing these elements. Ransburg, supra. Since plaintiffs established all three elements of the cause of action, and there is support for each of these elements in the record, we affirm the trial court‘s finding of liability against defendant.
Defendant‘s remaining issues raised on appeal are without merit. Briefly, the evidence produced at trial did not exceed the scope of plaintiffs’ pleadings, and there was no error by the trial court in denying defendant‘s motion for a directed verdict.
Affirmed.
SULLIVAN, P.J., concurred.
M. WARSHAWSKY, J. (dissenting). I respectfully dissent.
I find that plaintiffs’ claim is barred by governmental immunity. I do not agree that there was a defect in the building. Rather, I conclude that this was solely a case of poor supervision, which does