ANN E MASKERY V UNIVERSITY OF MICHIGAN
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STATE OF MICHIGAN
COURT OF APPEALS
ANN E. MASKERY and ROBERT MASKERY,
UNPUBLISHED
January 11, 2002
Plaintiffs-Appellants,
v
BOARD OF REGENTS OF THE UNIVERSITY
OF MICHIGAN,
Defendant-Appellee.
No. 187738
Court of Claims
LC No. 94-015604-CM
ON REMAND
Before: Whitbeck, P.J., and Hoekstra and Owens, JJ.
PER CURIAM.
In lieu of granting leave to appeal, our Supreme Court has remanded this case to our
Court with instructions to reconsider our decision in Maskery v University Bd of Regents,
unpublished opinion of the Court of Appeals, issued March 24, 2000 (Docket No. 187738) in
light of Brown v Genesee Co Bd of Comm’rs, 464 Mich 430; 628 NW2d 471 (2001), Fane v
Detroit Library Comm, 465 Mich 68; 631 NW2d 678 (2001), and Cox v University of Mich Bd of
Regents, 465 Mich 68; 631 NW2d 678 (2001).1 We reverse and remand.
I. Basic Facts and Procedural History
Plaintiffs sought to recover from defendant after plaintiff Ann E. Maskery allegedly fell
on the steps leading to a university residence hall where plaintiffs’ daughter lived. The trial
court ruled, however, that plaintiffs’ lawsuit could not proceed against defendant because the
public building exception to governmental immunity, MCL 691.1406, did not apply to the
residence hall. Accordingly, the trial court granted defendant’s motion for summary disposition.
On appeal, we affirmed, noting that the residence hall was not open to the public because
only residents were provided keys for access to the external doors and visitors entered only if
admitted by a resident. Our Supreme Court remanded with instructions to reconsider our
decision in light of Horace v City of Pontiac, 456 Mich 744; 575 NW2d 762 (1998).
1
The Fane and Cox decisions were consolidated in one opinion. See Fane, supra at 79-80.
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After remand, we again affirmed, opining that the Horace decision did not disturb our
conclusion that the residence hall was not a public building:
Application of Horace, supra, to the facts of this case fails to cause us to change
our previous conclusion that the residence hall owned and operated by defendant
University was not open to the public. This residence hall is indistinguishable
from the privately occupied public housing in Griffin v Detroit, 178 Mich App
302; 443 NW2d 406 (1989), and White v Detroit, 189 Mich App 526; 473 NW2d
702 (1991), where the buildings were similarly not freely accessible to the public.
Although Kerbersky [v Northern Mich Univ, 458 Mich 525, 529, 582 NW2d 828
(1998)] . . . might, at first blush, lend support to plaintiff’s argument that because
non-residents were occasionally let into the building, it was “open to the public,”
this argument impermissibly attempts to broaden the public building exception
beyond acceptable bounds. While access to some portions of the building in
Kerbersky may have been restricted at the time of the plaintiff’s injury, access to
the entire building in the present case was limited to the building’s residents,
guests admitted by the residents, and maintenance personnel. [Maskery, supra
slip op at 3.]
The majority opinion further concluded that the steps on which plaintiff Ann E. Maskery fell
were not part of the residence hall building, thereby providing an additional basis for affirming
the trial court’s refusal to apply the public building exception. However, in a concurring
opinion, Judge Hoekstra opined that the area in dispute was sufficiently part of the building to
permit application of the public building exception.
As noted above, our Supreme Court has again remanded this case for our reconsideration
of plaintiffs’ attempt to rely on the public building exception.
II. Standard Of Review
The applicability of governmental immunity is a question of law that is reviewed de novo
on appeal. Baker v Waste Management of Michigan, Inc, 208 Mich App 602, 605; 528 NW2d
835 (1995). “In deciding a motion for summary disposition based on governmental immunity, a
court must consider all documentary evidence submitted by the parties. Terry v Detroit, 226
Mich App 418, 428; 573 NW2d 348 (1997).” “All well-pleaded allegations are accepted as true
and construed most favorably to the nonmoving party in determining whether the defendant is
entitled to judgment as a matter of law.” Id.
III. Analysis
In the instant matter, there were alternative bases for granting defendant’s motion for
summary disposition: (i) the residence hall was not a public building, and (ii) even if the
residence hall was a public building, the steps on which plaintiff Ann E. Maskery fell were not
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part of the residence hall. We are asked to reconsider these conclusions in light of the Brown,
Fane, and Cox decisions.
A. The Brown Decision
In Brown, an inmate at a county jail brought an action against the county after he slipped
and fell on a wet floor after showering. Brown, supra at 432. The trial court concluded that the
public building exception did not apply and granted the defendant’s motion for summary
disposition. Id. at 433. We initially affirmed in Brown, but reversed after the case was
remanded by our Supreme Court for reconsideration in light of Kerbersky, supra. Brown, supra
at 433.
On appeal, our Supreme Court reversed, thereby affirming the trial court’s decision.
Brown, supra at 440. A plurality of the Court opined as follows:
Mere public ownership of a structure does not satisfy the express language of the
public building exception. A building must also be open for use by members of
the public. Kerbersky, supra at 533; 582 NW2d 828. When determining the
public’s access, we analyze the building itself, not the specific accident site within
the building. Id. at 527; 582 NW2d 828.
***
We would reaffirm that a jail is open for use by members of the public. Family,
friends, and attorneys may generally visit inmates. Members of the public may
also enter a jail for other reasons, e.g., to apply for a job or make a delivery.
The fact that public access to a jail is limited does not alter our conclusion.
Schools fall within the exception even though members of the public may not
enter whenever and wherever they please. See Sewell v Southfield Public
Schools, 456 Mich 670; 576 NW2d 153 (1998); Bush v Oscoda Area Schools, 405
Mich 716; 275 NW2d 268 (1979). The public building exception applies to
buildings with limited access, including schools and prisons. Kerbersky, supra at
534, 582 NW2d 828; Steele v Dep't of Corrections, 215 Mich App 710, 715; 546
NW2d 725 (1996). [Brown, supra at 435-436.]
In addition, Justice Markman agreed with the plurality’s analysis and conclusion that the county
jail was open for use by members of the public. Id. at 440 (Markman, J., concurring). Thus, a
majority of the Court opined that the county jail was “open for use by members of the public.”2
2
Nevertheless, a majority of the Court also concluded on other grounds that the plaintiff could
not rely on the public building exception. The plurality opinion concluded that the plaintiff, as
an inmate, was not a member of the public for purposes for the public building exception.
Brown, supra at 439. Justice Markman agreed with this conclusion, but applied a different
analysis in reaching that result. Id. at 440-452 (Markman, J., concurring).
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Here, the building in question is not a jail, but a residence hall. If a jail is “open for use
by members of the public” by virtue of the family and friends that may visit inmates, it certainly
follows that a residence hall would also be “open for use by members of the public.” Indeed, we
would suspect that there is more, or at least equal, ingress and egress in a residence hall than in a
jail. Similarly, a residence hall is likely to receive deliveries of supplies, mail, and food by nonresidents. Moreover, if the very limited access to a jail is not sufficient to preclude its
characterization as a public building, the instant residence hall’s minimal security measures,
while presumably effective, further justify a finding that the residence hall was a public building.
Thus, we believe that the Brown decision leads only to a conclusion that the residence hall was
“open for use by members of the public.” Therefore, we conclude that the residence hall was a
public building, as necessary to permit plaintiff’s reliance on the public building exception to
governmental immunity, MCL 691.1406.
B. The Fane and Cox Decisions
In Fane, the plaintiff was injured after slipping on a terrace that provided access to the
Detroit Public Library. Fane, supra at 71. The trial court denied the defendant’s motion for
summary disposition, which was based on an argument that the public building exception was
inapplicable to the terrace because it was not part of the building. Id. We reversed, relying on
the Horace decision. Id. Our Supreme Court vacated the reversal, and remanded for
reconsideration. Id. at 71-72. We again reversed the trial court, concluding that the trial court
erred as a matter of law by ruling that the terrace was part of the building. Id.
On appeal, our Supreme Court opined as follows:
A fixtures analysis is not applicable to the elevated library terrace in Fane because
the terrace does not have an existence apart from the library. Therefore, we must
determine whether it is physically connected to and not intended to be removed
from the building, making the terrace part “of a public building.”
The terrace is a large stone area that is physically abutting and built into the
library building. It is not intended to be removed from the rest of the building in
the foreseeable future. Normally, to reach the main entrance, one walks along a
sidewalk, up stairs to the elevated terrace, across the terrace, and up additional
stairs. If the terrace were removed, the doors to the library would be located
approximately four feet off the ground.
We conclude that the elevated terrace is physically connected to and not intended
to be removed from the library. Accordingly, we are persuaded that the terrace is
part of the building within the meaning of the public building exception. [Id. at
79.]
Thus, the Court concluded that this Court erred by reversing the trial court. Id. at 79, 81.
In Cox, the primary plaintiff was injured when she slipped and fell on a ramp leading
from a building to an outdoor porch. Fane, supra at 72. Our Supreme Court noted that the ramp
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was portable, unattached to the building, and readily removable. Id. at 72-73, 79. Thus, the
Court affirmed rulings by the trial court and this Court that the ramp was not part of the building,
preventing the plaintiffs from relying on the public building exception. Id. at 79-80.
Here, we believe that the residence hall steps are more analogous to the terrace in Fane
than the portable ramp in Cox. The residence hall steps are certainly not portable. Although the
height of the residence hall door is unclear, we do not believe that the residence hall’s architects
anticipated the door being used for ingress and egress without its steps. In other words, like the
terrace in Fane, the steps allow the door to remain functional, and their removal is certainly not
plausible. Further, the steps appear to be physically connected to the building. In fact, much like
the terrace in Fane, the steps have no existence apart from the residence hall. Accordingly, we
believe that the Fane and Cox decisions justify a conclusion that the residence hall steps were
part of the residence hall for the purposes of applying the public building exception.
III. Conclusion
Having reconsidered our earlier rulings in light of the Brown, Fane, and Cox decisions,
we conclude that the residence hall was a public building and that the residence hall steps were a
part of the residence hall. Thus, precluding plaintiffs’ reliance on the public building exception
to governmental immunity, MCL 691.1406, was erroneous. Therefore, we reverse the trial
court’s decision granting defendant’s motion for summary disposition.
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ William C. Whitbeck
/s/ Joel P. Hoekstra
/s/ Donald S. Owens
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