BRANDON JOSEPH V SOUTHFIELD PUBLIC SCHOOLS
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STATE OF MICHIGAN
COURT OF APPEALS
BRANDON JOSEPH, a Minor, by his Next
Friend, KAYATANA PRICE,
UNPUBLISHED
May 8, 2008
Plaintiff-Appellee,
v
No. 275869
Oakland Circuit Court
LC No. 2006-076177-NO
SOUTHFIELD PUBLIC SCHOOLS,
Defendant-Appellant.
Before: Servitto, P.J., and Hoekstra and Markey, JJ.
HOEKSTRA, J., (dissenting).
I respectfully dissent.
In Renny v Dep’t of Transportation, 478 Mich 490; 734 NW2d 518 (2007), the issue
before the Supreme Court was whether MCL 691.1406 supported a claim for a design defect. In
Renny, the plaintiff, while leaving a rest area building, slipped on a patch of snow and ice on the
sidewalk in front of the building’s doorway. She sued the Michigan Department of
Transportation (MDOT), alleging that because of its failure to install gutters and downspouts
around the building, snow and ice accumulated on the sidewalk in front of the building, which
created a dangerous condition. Our Supreme Court agreed with MDOT that the plain language
of MCL 691.1406 did not support a design defect claim:
The first sentence of MCL 691.1406 states that “[g]overnmental agencies
have the obligation to repair and maintain public buildings under their control
when open for use by members of the public.” This sentence unequivocally
establishes the duty of a governmental agency to “repair and maintain” public
buildings. Neither the term “repair” nor the term “maintain,” which we construe
according to their common usage, encompasses a duty to design or redesign the
public building in a particular manner. “Design” is defined as “to conceive;
invent; contrive.” By contrast, “repair” means “to restore to sound condition after
damage or injury.” Similarly, “maintain” means “to keep up” or “to preserve.”
Central to the definitions of “repair” and “maintain” is the notion of restoring or
returning something, in this case a public building, to a prior state or condition.
“Design” refers to the initial concept of the building, rather than its restoration.
“Design” and “repair and maintain,” then, are unmistakably disparate concepts,
and the Legislature’s sole use of “repair and maintain” unambiguously indicates
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that it did not intend to include design defect claims within the scope of the public
building exception.
The second sentence of MCL 691.1406, which imposes liability on
governmental agencies “for bodily injury and property damage resulting from a
dangerous or defective condition of a public building,” does not expand the duty
beyond the repair and maintenance of a public building. The phrase imposes
liability where the “dangerous or defective condition of a public building” arises
out of the governmental agency’s failure to repair and maintain that building. It is
not suggestive of an additional duty beyond repair and maintenance. [Id. at 500501.]
Consequently, the Supreme Court disavowed the dicta from its prior decisions in
Reardon v Dep’t of Mental Health, 430 Mich 398; 424 NW2d 248 (1988), and Bush v Oscoda
Area Schools, 405 Mich 716; 275 NW2d 268 (1979), and any from the cases from our Court,
which suggested that a design defect claim falls within the scope of the public building
exception. Renny, supra at 505.1 In Reardon, supra at 409-410, and Bush, supra at 730, the
Supreme Court had stated in dicta that “a building may be dangerous or defective because of
improper design, faulty construction or the absence of safety devices.”
Although Renny is a design defect case, its reasoning is equally applicable to instances
where defects result from faulty construction.2 As explained by the Supreme Court, the duty of a
governmental agency under the public building exception is to “repair and maintain” public
buildings, a duty which requires the governmental agency to restore or return the public building
to a prior state or condition. Renny, supra at 500-501. Construction, however, does not refer to
the restoration of a building to a prior state or condition. “Construct” means “to build or form by
putting together parts.” Random House Webster’s College Dictionary (1992). It refers to the
initial act of building or forming a structure. Construction and “repair and maintain” are
therefore disparate concepts, and the Legislature’s sole use of “repair and maintain”
unambiguously indicates that it did not intend to include faulty construction claims within the
scope of the public building exception. Renny, supra at 501. Here, the uncontroverted
averments of plaintiff’s own expert, Joseph Ziemba, established that the alleged defect was the
result of faulty construction, specifically the improper placement of the adjustable metal plate on
the bottom of the drinking fountain, and that the defect had existed since its installation. No
evidence showed that the drinking fountain was repaired by Southfield Public Schools (SPS) so
as to cause the defective condition or that maintenance should have resulted in the correction of
1
In addition, the Supreme Court overruled any cases, such as Sewell v Southfield Pub Schools,
456 Mich 670; 576 NW2d 153 (1998), and Williamson v Dep’t of Mental Health, 176 Mich App
752; 440 NW2d 97 (1989), that could be construed to stand for the proposition that claims for
design defects fall within the scope of the public building exception.
2
Thus, I agree with the majority that Renny is factually distinguishable. But clearly Renny
establishes the legal platform upon which to decide a construction case like this one. Indeed, the
cases that Renny overruled, as indicated above, purported to extend the public building exception
to not only design, but faulty construction and the absence of safety devices cases as well.
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it. Consequently, because plaintiff’s claim is a faulty construction claim rather than a repair or
maintenance claim, it is barred by governmental immunity.3
I would reverse the trial court’s order denying SPS’s motion for summary disposition and
remand for entry of an order granting summary disposition to SPS.
/s/ Joel P. Hoekstra
3
Because when the motion for summary disposition was filed, extensive discovery had already
been conducted regarding the origin of this defect and plaintiff’s position, as stated by their
expert, is that it existed since installation, I, unlike the majority, find no reason to delay
addressing this issue because discovery had not closed.
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