York v. City of Detroit
452 N.W.2d 641
Mich. Ct. App.
1989
Check Treatment
Per Curiam.

This case is before us on remand from our Supreme Court for reconsideration in light of Velmer v Baraga Area Schools6, 430 Mich 385; 424 NW2d 770 (1988), and Reardon v Dep’t of Mental Health, 430 Mich 398; 424 NW2d 248 (1988). The facts of this case are set forth in our first opinion. See York v Detroit, unpublished opinion per curiam of the Court of Appeals, decided July 10, 1987 (Docket No. 87529). After reconsidering this case, we conclude that the public building exception to governmental immunity, MCL 691.1406; MSA 3.996(106), does not apply. Although our Supreme Court intended that Rear-don would clarify the duty imposed by the public building exception, we, nevertheless, found the issue in this case difficult to resolve.

In Reardon, our Supreme Court examined the Legislature’s intent in enacting the public building exception to governmental immunity, MCL 691.1406; MSA 3.996(106). This narrow exception to a broad grant of immunity applies to "an injury arising out of a dangerous or defective physical condition of the building itself.” Reardon, 409. In other words, the exception applies in cases in which "the physical condition of the building *94causes the injury.” Id., p 411. The Reardon Court clarified that the duty imposed by the exception "relates to dangers actually presented by the building itself.” Id., p 415. The physical condition of the building can arise from improper design, faulty construction, or absence of safety devices. Reardon, 409-410; Bush v Oscoda Area Schools, 405 Mich 716, 730; 275 NW2d 268 (1979).

In fact, the Reardon Court noted that the Legislature intended that the public building exception apply to facts similar to those of Williams v Detroit, 364 Mich 231; 111 NW2d 1 (1961), the case which precipitated the Legislature’s enacting the governmental immunity act. Reardon, 408-409. In Williams, the plaintiff’s decedent was assisting in carrying a desk into an elevator in a building owned and maintained by the city when he fell down an elevator shaft and was killed. Apparently the elevator had an opening which was not guarded or protected in any way, and there was a space, about thirty inches wide, between the elevator floor and the side of the shaft.

After reviewing both the facts in Williams and the Reardon Court’s explanation of the Legislature’s intent in enacting the public building exception, we conclude that the exception was not intended to apply to facts such as those contained in this case. Here, the physical condition of the cell itself did not actually present a danger to York as the elevator did to the plaintiff’s decedent in Williams. Similar to the companion case to Reardon, Schafer v Ethridge, there is no evidence in this case that the room itself was unsafe. Therefore, we reverse the jury verdict in favor of plaintiff on her defective building claim.

We also have reviewed defendant’s argument on reconsideration that we should not have granted plaintiff a new trial on her 42 USC 1983 claim *95because any instructional error during trial was harmless. After reviewing the case law cited by defendant, we continue to abide by our original decision. Therefore, we remand this case for a new trial on defendant’s § 1983 claim. We do not retain jurisdiction.