JOANN HETHERINGTON V UNIVERSITY OF MICHIGAN REGENTS
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STATE OF MICHIGAN
COURT OF APPEALS
JOANN HETHERINGTON,
UNPUBLISHED
March 17, 2009
Plaintiff-Appellee,
v
No. 283543
Court of Claims
LC No. 07-000036-MZ
UNIVERSITY OF MICHIGAN REGENTS,
Defendant-Appellant.
Before: Murphy, P.J., and Fitzgerald and Markey, JJ.
PER CURIAM.
Defendant appeals the trial court’s order denying its motion for summary disposition that
was pursued on the basis of governmental immunity. We reverse and remand for entry of
judgment in favor of defendant.
In this case, plaintiff fell and injured herself in defendant’s auditorium located in Flint
when she misjudged the vertical height of a riser while stepping down from the riser. The
auditorium has risers that stretch across the room, with staircases on the far sides of the
auditorium. The height of the risers is equal to about the height of two steps in the staircases.
Plastic chairs, stored on the sides of the auditorium, or any other free-standing seating devices1
can be placed on the risers for performances and events. The public entrance to the auditorium is
from the rear of the room and, from the entrance area, the risers and staircases lead down to the
stage, which is at the lowest point in the room. Although no seats or chairs are bolted or
physically connected to any of the risers, the last riser level at the back of the auditorium, next to
the entrance, has plastic chairs on it that are tethered together and are always left in place. This
was done several years ago, following an accident, so as to prevent patrons entering the
auditorium from using the risers as steps, forcing them instead to walk over to the side staircases
and make their way downward, entering the risers from the side. Plaintiff was seated on one of
the tethered chairs in the back row during a performance by her granddaughter. When the
performance concluded, she desired to go down to the stage to see her granddaughter, but
persons who had been sitting to her left and right were milling around, blocking her from exiting
1
It was indicated that when the auditorium opened in the 1970s some students placed beanbag
chairs on the risers for their classes.
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the riser by way of a staircase. There were no persons or obstacles in the first few risers directly
in front of plaintiff, so she decided to use the riser as a step to make her way down to the stage.
And the accident occurred as she stepped down and forward, misjudging the height of the riser,
thinking it to be an ordinary step. She tumbled and stumbled down multiple risers until stopping
when another patron grabbed her.
This case presents issues concerning the imposition of governmental immunity, the
construction of the public building exception to governmental immunity, MCL 691.1406, the
interpretation of Renny v Dep’t of Transportation, 478 Mich 490; 734 NW2d 518 (2007), and the
question whether Renny should be given prospective application only. The trial court denied
defendant’s motion for summary disposition under its interpretation of Renny and the public
building exception to governmental immunity. Defendant appeals as of right pursuant to MCR
7.203(A)(1) and MCR 7.202(6)(a)(v).
On appeal, defendant argues that, under Renny, the public building exception was not
implicated because defendant did not fail to repair or maintain the auditorium, where the height
of the risers would be a design defect and where the lack of handrails or guardrails (hereinafter
simply referred to as guardrails) or warnings do not support a claim under the public building
exception. Further, according to defendant, plaintiff's claims based on lack of designations on
the edge of the riser and on the placement of the chairs on the top riser level do not implicate the
public building exception and, regardless, such claims or defects were never presented in the
notice required by MCL 691.1406. Moreover, defendant contends that any claim related to the
placement of chairs on the back riser fails because the chairs are not part of the building. Finally,
defendant maintains that any claim based on a lack of safety devices is not cognizable under the
public building exception.
This Court reviews de novo a trial court’s decision on a motion for summary disposition.
Kreiner v Fischer, 471 Mich 109, 129; 683 NW2d 611 (2004). The question whether
governmental immunity is applicable in a given case is one of law that is also reviewed de novo
on appeal. Bennett v Detroit Police Chief, 274 Mich App 307, 310-311; 732 NW2d 164 (2007).
The governmental tort liability act (GTLA), MCL 691.1401 et seq., provides a broad
grant of immunity from tort liability to government agencies, absent the applicability of a
statutory exception, when they are engaged in the discharge or exercise of a governmental
function. MCL 691.1407(1); Maskery v Univ of Michigan Bd of Regents, 468 Mich 609, 613;
664 NW2d 165 (2003); Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 595; 363
NW2d 641 (1984). An activity that is expressly or impliedly authorized or mandated by
constitution, statute, local charter, ordinance, or other law constitutes a governmental function.
Maskery, supra at 613-614. This Court gives the term “governmental function” a broad
interpretation, but the statutory exceptions must be narrowly construed. Id. at 614. The party
that seeks to impose liability on a governmental entity has the burden of pleading in avoidance of
governmental immunity. Mack v Detroit, 467 Mich 186, 198; 649 NW2d 47 (2002).
The public building exception to governmental immunity, MCL 691.1406, provides in
relevant part:
Governmental agencies have the obligation to repair and maintain public
buildings under their control when open for use by members of the public.
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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. Knowledge of the
dangerous and defective condition of the public building and time to repair the
same shall be conclusively presumed when such defect existed so as to be readily
apparent to an ordinary observant person for a period of 90 days or longer before
the injury took place. As a condition to any recovery for injuries sustained by
reason of any dangerous or defective public building, the injured person, within
120 days from the time the injury occurred, shall serve a notice on the responsible
governmental agency of the occurrence of the injury and the defect. The notice
shall specify the exact location and nature of the defect, the injury sustained and
the names of the witnesses known at the time by the claimant. [2]
The focal point of this case entails interpretation of Renny, supra. In Renny, the plaintiff
slipped on a patch of snow and ice on a sidewalk while leaving a public rest area building,
severely injuring her wrist. The opinion set forth the nature of the plaintiff’s allegations in her
suit against the defendant Michigan Department of Transportation (MDOT):
Plaintiff sued MDOT, alleging that her injuries resulted from a defective
condition of the rest area building. According to plaintiff, “by [MDOT] designing,
constructing, keeping and/or maintaining” the rest area in a defective condition,
melted snow and ice accumulated on the sidewalks in front of the entranceway
and created a hazardous, slippery surface. Plaintiff attributed the accumulated
snow and ice, in part, to MDOT's failure to install and maintain gutters and
downspouts around the roof of the building. Plaintiff maintained that gutters and
downspouts would have safely channeled the snow and ice that melted off the
roof away from the sidewalks. Moreover, plaintiff alleged that MDOT had actual
or constructive notice of these defects for more than 90 days before the accident,
but failed to remedy them. MDOT moved for summary disposition, which the
Court of Claims granted on the basis of governmental immunity. [Id. at 493-494.]
The Court framed the plaintiff’s case as one claiming that the dangerous or defective
condition of the rest area building arose from a design defect that was cognizable under the
public building exception. Id. at 496. The Court held “that the public building exception to
governmental immunity does not permit a cause of action premised upon an alleged design
defect.” Id. at 492. The Court reasoned as follows:
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;
2
The second paragraph of MCL 691.1406 outlines the manner in which to serve the notice,
which is not an issue here.
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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 conception 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
that it did not intend to include design defect claims within the scope of the public
building exception. [Id. at 500-501.3]
Here, plaintiff makes a general claim that her fall and injuries were caused by design
defects. Under Renny, such a claim is not cognizable under the public building exception.
Plaintiff also claims that the auditorium should have had guardrails along the fronts of the
risers. Plaintiff characterizes the claim as one asserting an absence of safety devices, which,
according to plaintiff, was not an issue decided in Renny, leaving in place caselaw that supported
imposition of the public building exception relative to such claims. We tend to agree that Renny
left intact prior precedent recognizing a safety-device claim under the public building exception.
See Renny, supra; Reardon v Dep’t of Mental Health, 430 Mich 398, 409-410; 424 NW2d 248
(1988); Bush v Oscoda Area Schools, 405 Mich 716, 730; 275 NW2d 268 (1979); Lockaby v
Wayne Co, 406 Mich 65; 276 NW2d 1 (1979). However, with respect to the absence of
guardrails in particular, we view the claim as one alleging a design defect. Guardrails are
generally included as part of the construction of a building. We fail to see any real difference
between the lack of guardrails here, which ostensibly would have prevented plaintiff from taking
her misstep had they been installed, and the lack of gutters and downspouts in Renny, which, if
installed, ostensibly would have safely channeled water away from the sidewalk and prevented
the accumulation of water and ice on the sidewalk upon which the plaintiff slipped. The Renny
Court remanded the case because there was evidence suggesting that the rest area building was
once equipped with gutters and downspouts, thereby possibly implicating the duty to repair and
3
The Renny Court, however, did not rule entirely in favor of MDOT in the case, stating as
follows:
Consistent with today's decision, to the extent that plaintiff's claim is
premised on a design defect of a public building, it is barred by governmental
immunity. However, plaintiff also alleged that MDOT failed to repair and
maintain the rest area building. Indeed, there is record evidence suggesting that
the rest area building was once equipped with gutters and downspouts. Although
we do not pass judgment on the legal viability of plaintiff's claim or whether her
claim may ultimately proceed to trial, plaintiff sufficiently pleaded in avoidance
of governmental immunity. Accordingly, we remand to the Court of Claims to
determine whether plaintiff's suit may proceed with respect to the alleged failure
to repair and maintain the public building. [Renny, supra at 506-507 (emphasis
added).]
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maintain the building as constructed. Here, however, the evidence conclusively established that
the auditorium never had guardrails in the places relevant to plaintiff’s argument. If plaintiff’s
claim were successful, it would necessarily mean that defendant was being held liable for failing
to design the auditorium without guardrails. Accordingly, the claim fails as a matter of law.
Plaintiff’s contention that the auditorium was defective and dangerous because of the
height of the risers clearly encompasses a design defect. There has been no change in the steps
and risers since construction, and thus no change in the height of the risers. Regardless of
whether there are any code violations relative to the height of the risers, the claim constitutes a
design defect not cognizable under the public building exception pursuant to Renny. We also
note that the trial court’s statements from the bench when ruling did not suggest that the case
could go forward on the basis that the risers were too high or in violation of any building codes.
With respect to a claimed lack of warnings, plaintiff appears to rely only on the failure of
defendant to use contrasting marking strips on the risers that could potentially warn or alert a
patron of the drop down to the next riser and its true height. The evidence reflected that there
has been no change in the carpeting since the date of construction. Given the holding in Renny
and the Court’s definitions of “repair” and “maintain,” the public building exception cannot be
read to include a duty to warn by use of a means that could alert a patron of a danger.
In Walker v Flint, 213 Mich App 18, 21; 539 NW2d 535 (1995), this Court stated that “a
claim of a duty to warn is a separate and distinct theory of liability from a statutory duty to
maintain and repair under the highway exception to governmental immunity.” Further, also with
respect to the highway exception to governmental immunity, our Supreme Court has clearly
stated that allegations concerning a lack of warning and traffic control signs do not implicate the
highway exception and the government’s duty to repair and maintain a highway. Hanson v
Mecosta Co Rd Commrs, 465 Mich 492, 499; 638 NW2d 396 (2002); Nawrocki v Macomb Co
Rd Comm, 463 Mich 143, 183-184; 615 NW2d 702 (2000)(rejecting an argument that a
governmental agency had a duty to install signs and signals that might conceivably make the
roadway safer). By analogy, the duty of a governmental agency to repair and maintain a public
building does not include the duty to utilize measures that warn of an unsafe condition or that
make a condition less hazardous.
In regard to the use of a solid color of carpeting throughout the auditorium that makes it
somewhat difficult to judge the depth or height of the risers, the issue is touched on in the
previous paragraphs relative to the claim that the carpeting should have had some markings to
improve safety. Under Renny and its definitions of “repair” and “maintain,” defendant’s use of
the orange or red colored carpeting simply does not implicate the duties to repair and maintain;
therefore, the public building exception is not applicable.
With respect to the alleged low lighting, plaintiff merely suggested in her deposition that
it might have contributed to her fall. Nevertheless, the lighting would clearly be a fixture, see
Fane v Detroit Library Comm, 465 Mich 68; 631 NW2d 678 (2001), and if there was any
evidence suggesting that the lighting was low because of a repair or maintenance failure or that
the lighting had been brighter as operated at the time the auditorium was constructed, an
argument could be made that there was a failure to repair and maintain. But there is no evidence
supporting this proposition.
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Plaintiff also presents a defect claim associated with the “permanent” placement of the
plastic chairs on the top riser. There is no claim that the chairs, in and of themselves, are
dangerous and defective; rather, the opinion asserted by plaintiff’s expert was that the placement
of the chairs played a role in causing the injury in that there was an insufficient amount of room
to maneuver on the risers given the space taken up by the tethered chairs. Indeed, plaintiff
frames an argument that the defective condition was the lack of adequate floor space on the riser
to move about safely. Plaintiff argues that, because the auditorium was constructed with risers
back in the 1970s that did not have any chairs, seats, or other items placed on them, defendant
failed to “maintain” the building as constructed when placing the tethered chairs on the top riser
on what appears to be a permanent basis.
It is evident that the intent of the designers was that chairs, bean bags, or some other
seating devices would be used at times when patrons attended events. The same problem would
have surfaced here had plaintiff and others grabbed untethered chairs from the storage area on
the side of the auditorium and placed them on the top riser in order to sit and watch the
performance. Plaintiff’s claim is not comparable to the situation in Renny, where the rest area
building may have once been equipped with gutters and downspouts that were no longer present
due to, allegedly, a failure to maintain the building. It cannot be reasonably argued that placing
the tethered chairs on the top riser reflected a failure to properly maintain the riser. One of
multiple problems with the chair-related claim is that it is inconsistent with causation as
described by plaintiff. According to plaintiff’s testimony, the only problem caused by the
narrowed riser space was that she could not get around patrons who were standing by their chairs
and engaged in conversation with others. Such is the case in almost every performance or
sporting venue; you excuse yourself and hope that others around you will move to let you
through, even if it requires them moving to the end of the row. Plaintiff did not fall because she
slipped as she was walking on the riser in an attempt to maneuver around other patrons and exit a
side staircase. Rather, plaintiff intentionally stepped forward off the riser, but fell when she
misjudged the depth or height of the riser, thinking it was an ordinary step.4
Finally, in a very cursory argument, plaintiff claims that Renny should only be given
prospective application and that the instant suit was filed prior to the issuance of Renny. We
conclude that this issue is not sufficiently briefed such that it requires resolution by this panel.
Mudge v Macomb Co, 458 Mich 87, 105; 580 NW2d 845 (1998).
We reverse the trial court’s order and remand for entry of judgment in favor of defendant.
We do not retain jurisdiction. Pursuant to MCR 7.219, taxable costs are awarded to defendant as
the prevailing party.
/s/ William B. Murphy
/s/ E. Thomas Fitzgerald
/s/ Jane E. Markey
4
In light of our conclusions on the various alleged defects, it is unnecessary to address issues
concerning satisfaction of the statutory notice provision found in MCL 691.1406.
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