CAROLYN MURRAY V DELTA COLLEGE
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STATE OF MICHIGAN
COURT OF APPEALS
CAROLYN MURRAY,
UNPUBLISHED
September 26, 2000
Plaintiff-Appellant,
v
No. 217635
Bay Circuit Court
LC No. 98-003263-NO
DELTA COLLEGE,
Defendant-Appellee.
Before: Meter, P.J., and Griffin and Talbot, JJ.
PER CURIAM.
Plaintiff appeals as of right from an order granting summary disposition to defendant pursuant to
MCR 2.116(C)(7) and (10). We reverse.
Plaintiff alleged that on entering defendant’s building she was injured when she tripped and fell
on the edge of a half-inch depression in the floor. The rectangular-shaped depression was structurally
designed to hold a mat which, when in place, made the depressed area even with the rest of the floor.
Sometime before the incident, defendant’s maintenance staff removed the mat to prepare the entrance
for renovation. The trial court granted defendant summary disposition on the basis that plaintiff’s claim
did not fall within the public building exception to governmental immunity because the depression was a
transitory condition arising from negligent janitorial care and was not a dangerous or defective condition
of the building itself. The trial court also concluded that the danger posed by the depression was open
and obvious and did not create an unreasonable risk of harm.
Plaintiff argues that the trial court erred in concluding that the public building exception set forth
in MCL 691.1406; MSA 3.996(106) did not apply because the depression in the floor was a
dangerous condition of the building itself. We agree.
We review a trial court’s decision on a motion for summary disposition de novo. Van v
Zahorik, 460 Mich 320, 326; 597 NW2d 15 (1999). Summary disposition is proper under MCR
2.116(C)(7) for a claim that is barred because of immunity granted by law. Smith v Kowalski, 223
Mich App 610, 616; 567 NW2d 463 (1997). When reviewing a grant of summary disposition based
on governmental immunity, this Court considers all documentary evidence submitted by the parties. Id.
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Unlike a motion under subsection (C)(10), the movant under (C)(7) is not required to file supportive
material, and the opposing party need not reply with supportive material. Maiden v Rozwood, 461
Mich 109, 119; 597 NW2d 817 (1999). The contents of the complaint are accepted as true unless
contradicted by documentation submitted by the movant. Id. To survive a motion for summary
disposition brought under MCR 2.116(C)(7), the plaintiff must allege facts warranting the application of
an exception to governmental immunity. Smith, supra at 616.
As a general rule, a governmental agency is immune from tort liability for actions taken while
performing governmental functions. MCL 691.1407(1); MSA 3.996(107)(1); Jackson v Detroit, 449
Mich 420, 427; 537 NW2d 151 (1995).1 This broad grant of immunity is subject to five narrowly
drawn statutory exceptions. Id.; Nawrocki v Macomb County Road Commn, (Docket No. 107903,
issued 7/28/00), slip op pp 11 n 14, 13. The public building exception provides in pertinent part:
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 . . . . [MCL 691.1406; MSA 3.996(106).]
To fall within the narrow confines of the exception, a plaintiff must prove that (1) a governmental agency
is involved, (2) the public building in question is open for use by members of the public, (3) a
dangerous or defective condition of the public building itself exists, (4) the governmental agency
had actual or constructive knowledge of the alleged defect, and (5) the governmental agency failed to
remedy the alleged defective condition after a reasonable period of time. Kerbersky v Northern
Michigan University, 458 Mich 525, 529; 582 NW2d 828 (1998); Jackson, supra at 428.
(Emphasis added.)
In cases construing the third element, at issue here, our Supreme Court has held that the intent
of the Legislature in enacting the public building exception was to “impose a duty to maintain safe public
buildings, but not necessarily safety in public buildings.” Wade v Dep’t of Corrections, 439 Mich 158,
163; 483 NW2d 26 (1992), citing Reardon v Dep’t of Mental Health, 430 Mich 398, 417; 424
NW2d 248 (1998); see also Jackson, supra at 428. Thus, the duty to repair and maintain relates to
the structural condition of the premises, and the exception “is limited to injuries occasioned by a
‘dangerous or defective physical condition of the building itself.’” Wade, supra at 163, 168; Jackson,
supra at 428. As long as the injury is presented by a structural condition of the building, it does not
matter whether the condition arose because of improper design, faulty construction, or the absence of
safety devices. Wade supra at 168, citing Reardon, supra at 410.
1
The parties do not contest, and we therefore do not decide, whether defendant is a governmental
agency that was engaged in the discharge of a governmental function in relation to the incident in
question.
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Applying these principles to the present case, we disagree with the trial court’s conclusion that
the depression was not a dangerous or defective condition of the building itself. The depression in the
floor was clearly part of the building’s design because it was structurally incorporated into the floor. It
was intended to hold a mat and to work with the mat to keep water and dirt away from the surface of
the floor. Defendant’s removal of the mat exposed the abrupt, half-inch deep depression, thereby
creating a potentially hazardous ridge around the depression against which an individual might trip and
fall. In other words, plaintiff’s alleged injury was occasioned by a dangerous condition inherent in the
physical structure and design of the building itself. Accordingly, we hold that plaintiff has stated a claim
under the public building exception to governmental immunity, and the trial court erred in granting
summary disposition in favor of defendant.
We are not persuaded by defendant’s argument that Wade, supra, compels the opposite result.
In Wade, our Supreme Court affirmed the lower court’s ruling that the plaintiff failed to state a claim
under the public building exception for injuries caused by the accumulation of oil, grease, food, and
water on the prison floor. Id. at 161, n 4. In narrowly construing the exception, the Court held that it
does not contemplate transitory conditions “because they are not related to the permanent structure or
the physical integrity of the building” or claims of negligent janitorial care. Id. at 168, 170. The Court
specifically concluded as follows:
In sum we conclude that the public building exception is to be narrowly
construed, and does not encompass claims of negligent janitorial care. A spill on the
floor does not become part of the building itself by virtue of the risk of injury it
may create for the plaintiff. Moreover, we do not believe the Legislature intended
“dangerous or defective condition of a public building” to refer to such transitory
conditions. The use of the ninety-day period for conclusively presuming knowledge, as
well as the reference to time to “repair” the defect, reinforces our belief that the public
building exception does not encompass transitory conditions or ordinary daily
maintenance.
In the present case, plaintiff’s claim alleges no more than mere negligence: that
grease, oil, food, and water were allowed to accumulate on the floor. This
accumulation was the transitory condition which caused the plaintiff’s injury.
Furthermore, no defect of the public building itself was pleaded. [ at 170-171.
Id.
(Emphasis added).]
Although a possibility exists that removing the mat and leaving the depression exposed arose from
negligent janitorial care, the proper inquiry under Wade is whether the transitory condition which caused
the plaintiff’s injury constituted a dangerous or defective condition of the building itself. Unlike the spill
on the floor in Wade, the condition which allegedly caused the injury in this case was built into the
permanent structure of the building. Further, defendant presented no evidence establishing that the
removal of the mat was a “transitory” condition. While defendant submitted an affidavit from the
“Director of Physical Plant” in which he averred that defendant’s maintenance staff had been instructed
to remove the mat for renovation purposes, there is no indication that its removal was temporary.
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Plaintiff also argues that the trial court erred in granting defendant summary disposition in
reliance on the open and obvious doctrine because the shift in floor levels was not an obvious danger
and, even if it were, it posed an unreasonable risk of harm. In reviewing a motion under MCR
2.116(C)(10) the court must consider the pleadings, affidavits, depositions, admissions and other
documentary evidence in the light most favorable to the nonmoving party. Smith v Globe Life Ins Co,
460 Mich 446, 454; 597 NW2d 28 (1999). Summary disposition is appropriate where there is no
genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. at
454-455.
The parties apparently do not dispute that at the time of her injury, plaintiff occupied the status
of an invitee. A business invitor must exercise reasonable care to protect invitees from an unreasonable
risk of harm caused by a dangerous condition that the invitor knows or should know invitees will not
protect themselves against. Bertrand v Alan Ford, Inc, 449 Mich 606, 609; 527 NW2d 185 (1995),
citing 2 Restatement Torts, 2d, § 343, pp 215-216. However, the business invitor owes no duty of
care where the alleged risk is open and obvious, unless the landowner should anticipate the harm, or the
risk of harm remains unreasonable, despite the obvious nature of the condition. Id. at 611; Riddle v
McLouth Steel Products Corp, 440 Mich 85, 96-97; 485 NW2d 676 (1992). A danger is open and
obvious if an average user of ordinary intelligence could have discovered the danger and risk presented
upon casual inspection. Novotney v Burger King Corp (On Remand), 198 Mich App 470, 475; 499
NW2d 379 (1993).
Here, the photographs defendant submitted with its motion do not establish the full length of the
depression from where it began just inside the door to the end where plaintiff allegedly tripped. Nor do
the photographs clearly depict a difference in color between the depressed area and the main floor,
which defendant claims would have alerted a person entering the door to the floor level shift. MCR
2.116(G)(4); Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996) (the moving
party has the initial burden of supporting its position by affidavits, depositions, admissions, or other
documentary evidence). Further, plaintiff testified at her deposition that she was following her daughter
and a guide through the doors of the building and tripped “the minute I got in there and started walking,”
although she could not recall if she took more than one step before she tripped coming out of the
depressed area. Plaintiff also testified that she had never been in the building prior to the incident and
that there were no signs warning of the floor differential or the absence of a mat. While plaintiff
acknowledged that she was not looking down when she entered the door and that there was nothing
obscuring her vision, her escort testified that the depression was “not that obvious” and that she had
walked over it three times and “didn’t notice it.” Given the quality of defendant’s evidence, and viewing
the facts in the light most favorable to plaintiff, Quinto, supra at 362, we cannot conclude, as a matter
of law, that an average user with ordinary intelligence could have discovered the alleged hazard upon
casual inspection. Thus, an issue of fact exists and the trial court erred in granting summary disposition
to defendant pursuant to MCR 2.116(C)(10).
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We reverse the trial court’s grant of summary disposition to defendant and remand for
proceedings consistent with this opinion. We do not retain jurisdiction.
/s/ Patrick M. Meter
/s/ Richard Allen Griffin
/s/ Michael J. Talbot
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