LEE LERNER V PIERCE MIDDLE SCHOOL
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STATE OF MICHIGAN
COURT OF APPEALS
LEE LERNER,
UNPUBLISHED
September 25, 1998
Plaintiff-Appellant,
v
PIERCE MIDDLE SCHOOL and WATERFORD
SCHOOL DISTRICT,
No. 203061
Oakland Circuit Court
LC No. 96-534239 NO
Defendants-Appellees.
Before: Holbrook, Jr., P.J., and Wahls and Cavanagh, JJ.
MEMORANDUM.
Plaintiff appeals as of right the order granting defendants’ motion for summary disposition on
governmental immunity grounds. We reverse. This appeal is being decided without oral argument
pursuant to MCR 7.214(E).
Plaintiff was injured when he walked into a pane of glass installed in a sidelight adjacent to a set
of doors at the entry to Pierce Middle School. Plaintiff alleged that the glass had been missing for years,
and that defendants’ failure to make the new glass readily visible constituted a building defect, avoiding
governmental immunity under MCL 691.1406; MSA 3.996(106). The trial court granted defendants’
motion for summary disposition pursuant to MCR 2.116(C)(7), stating that the allegations failed to
show a dangerous or defective condition in the building itself.
When reviewing the grant of summary disposition on the ground that a claim is barred by
governmental immunity, the Court must consider all documentary evidence submitted. Codd v Wayne
Co, 210 Mich App 133, 134; 537 NW2d 453 (1995). “All well-pleaded allegations are accepted as
true and construed in favor of the non-moving party. To survive a motion for summary disposition, the
plaintiff must allege facts warranting the application of an exception to governmental immunity.” Id. at
133-134.
MCL 691.1406; MSA 3.996(106) provides in part:
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Governmental agencies have the obligation to repair and maintain public
buildings under their control 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.
The Legislature intended that the exception apply in cases where the physical condition of the
building causes the injury. Reardon v Dep’t of Mental Health, 430 Mich 398, 411; 424 NW2d 248
(1988). Whether the physical condition of a building is dangerous or defective must be determined in
light of the uses for which the building was designed. DeSanchez v Dep’t of Mental Health, 455 Mich
83, 91; 565 NW2d 358 (1997).
The trial court erred in granting summary disposition. The allegations, viewed in a light most
favorable to the non-moving party, show that it would be reasonable for a person to walk into the
sidelight, not knowing that clear glass was present. The trier of fact could conclude that it was
reasonably necessary to take measures to make the glass visible to protect the public from the danger
presented. Accepting plaintiff’s allegations, as we must, there are sufficient facts presented to show that
the public building exception may be applicable to his claim. Codd, supra.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain
jurisdiction.
/s/ Donald E. Holbrook, Jr.
/s/ Myron H. Wahls
/s/ Mark J. Cavanagh
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