KAREN RENNY V DEPT OF TRANSPORTATION
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STATE OF MICHIGAN
COURT OF APPEALS
KAREN RENNY and CHARLES RENNY,
UNPUBLISHED
September 29, 2009
Plaintiffs-Appellants,
v
No. 285039
Court of Claims
LC No. 03-000042-MT
MICHIGAN DEPARTMENT OF
TRANSPORTATION,
Defendant-Appellee.
Before: Saad, C.J., and Whitbeck and Zahra, JJ.
PER CURIAM.
Following remand to the Court of Claims from the Michigan Supreme Court, plaintiffs
Charles and Karen Renny appeal by right the trial court’s grant of summary disposition to
defendant Michigan Department of Transportation (MDOT) in this personal injury lawsuit. We
affirm. We decide this appeal without oral argument.1
I. Basic Facts And Procedural History
This case involves a question of the applicability of the public building exception to
governmental immunity.2 On January 8, 2000, Karen Renny3 slipped and fell on a patch of snow
and ice in front of the doorway of a state rest area building in Roscommon County, seriously
injuring her right wrist. According to the materials presented by the parties, the building was
initially built with “eaves troughs” and downspouts in 1975. Although Renny and the Michigan
Supreme Court refer to this system as one of “gutters and downspouts,”4 the system actually used
initially was notably different. In contrast to a system using the more usual freestanding gutter
attached to the edge of the roof, the “gutter” portion of the rest stop as it was initially designed in
1975 was part of the roof itself, the slope of which had been upturned by the use of an
1
MCR 7.214(E).
2
MCL 691.1406.
3
Coplaintiff Charles Renny filed a claim for loss of consortium, which is derivative of his wife’s
claim. Therefore, we refer to Karen Renny singularly.
4
Renny v DOT, 478 Mich 490, 507; 734 NW2d 518 (2007) (Renny II).
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“outrigger” to form what appears to be a normal roof with a channel in the end of it, which
drained into integral “downspouts.”
The roof was remodeled, however, at some point before Renny’s fall, removing the eaves
trough drainage system and changing the roof to a more conventional one, albeit without gutters
and downspouts. One of the Roscommon County Road Commission employees responsible for
wintertime maintenance testified in his deposition that, although he could not recall exactly what
had been done to the roof, he thought that the shingles were replaced “[b]ecause it leaked inside
of the building.” A former MDOT area coordinator testified in his deposition that the initial
eaves trough system was no longer in use at the rest stop as of 1987. At some point, a four- or
five-foot “diverter” made of 2½-inch high angle iron was used to divert water away from the
door in the summer.5 It is unclear when or if this diverter was removed. And although the
coordinator did not know why the original eaves trough in the instant rest stop building was
removed, he testified that the design caused significant snow and ice buildup at other rest stops,
which created a hazard.
Renny sued MDOT6 and alleged that her injuries resulted from a defective condition of
the building. As the Michigan Supreme Court explained in Renny v Dep’t of Transportation,7
Renny’s theories of recovery included both defective design and defective maintenance.
Specifically, Renny argued that MDOT failed to install and maintain gutters and downspouts on
the roof of the building and that this caused melted snow and ice to accumulate on the sidewalks
in front of the entranceway and create a hazardous, slippery surface.8 The Court of Claims
granted MDOT’s motion for summary disposition, but this Court reversed on the basis that the
claim was cognizable under the public building exception.9 The Michigan Supreme Court
subsequently granted leave and reversed, in part, holding that design defects do not fall within
the public building exception to governmental immunity.10 The Supreme Court then remanded
to the Court of Claims with the following instructions:
Returning to the facts of this case, [Renny] alleges that she was injured by
a dangerous or defective condition of the rest area building. She argues that the
absence of gutters and downspouts, among other defects in the building, permitted
an unnatural accumulation of snow and ice on the sidewalks in front of an
entranceway and created slippery, hazardous conditions for members of the
public. Consistent with today’s decision, to the extent that [Renny]’s claim is
5
According to the employee, the rest stop was not open in the winter until 1999.
6
Renny also sued the Roscommon County Road Commission and Roscommon Township in a
separate circuit court action that was consolidated with this case at the trial court level. Both
parties were dismissed, and neither party is participating in this appeal.
7
Renny II, supra at 493-494.
8
Id. at 494.
9
Id.; see Renny v DOT, 270 Mich App 318; 716 NW2d 1 (2006) (Renny I).
10
Renny II, supra at 507.
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premised on a design defect of a public building, it is barred by governmental
immunity. However, [Renny] 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 [Renny]’s claim or whether her
claim may ultimately proceed to trial, [Renny] sufficiently pleaded in avoidance
of governmental immunity. Accordingly, we remand to the Court of Claims to
determine whether [Renny]’s suit may proceed with respect to the alleged failure
to repair and maintain the public building.[11]
Following remand, the trial court determined that Renny’s injury was a result of a design
defect rather than a failure to maintain. It found that, even if the building had in fact been
altered,12 MDOT was not required to continue to maintain an erroneous design and that when
changes were made to correct the defect in the design, this did not amount to a failure to repair
and maintain. It also held that the failure to place external gutters on the roof during the change
would be considered a design defect, which did not fall under the public building exception.
Renny now challenges the trial court’s grant of summary disposition in MDOT’s favor.
II. Summary Disposition
A. Standard Of Review
Under MCR 2.116(C)(10), a party may move for dismissal of a claim on the ground that
there is no genuine issue with respect to any material fact and the moving party is entitled to
judgment as a matter of law. The moving party must specifically identify the undisputed factual
issues and support its position with documentary evidence.13 The trial court must consider all the
documentary evidence in the light most favorable to the nonmoving party.14 Further, MCR
2.116(I)(2) provides that, if it appears to the court that the opposing party rather than the moving
party is entitled to judgment, the court may render judgment in favor of the non-moving party.
We review de novo the trial court’s ruling on a motion for summary disposition.15
B. Legal Standards
To avoid governmental immunity under the public building exception,
the 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
11
Id. at 506.
12
Despite the trial court’s statement, the parties do not dispute on appeal that the building’s roof
was in fact changed to remove the eaves trough system at some point prior to Renny’s fall.
13
MCR 2.116(G)(3)(b) and (4); Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999).
14
MCR 2.116(G)(5); Maiden, supra at 120.
15
Tillman v Great Lakes Truck Ctr, Inc, 277 Mich App 47, 48; 742 NW2d 622 (2007).
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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 amount of time.[16]
However, injuries arising from a design defect of a government building, as opposed to a failure
to maintain or repair, do not satisfy the third element above.17
C. Applying The Standards
Renny claims that her injury resulted from MDOT’s failure to maintain and repair the
roof of the rest stop building. This assertion is premised on the notion that the injury occurred
because MDOT removed gutters and downspouts that were included in the building’s initial
design and that this removal acted as a failure to repair or maintain the building as it was initially
designed. Renny also asserts that the trial court violated the law of the case when it concluded
that the removal of the original drainage system involved the design of the building because the
Supreme Court precluded that analysis in its remand order.
Under the law of the case doctrine, if an appellate court passes on a legal question and
remands for further proceedings, this Court not decide the legal question differently in a
subsequent appeal in the same case where the facts remain materially the same.18 But contrary to
Renny’s position, the Supreme Court did not rule as a matter of law that removal of the initial
“gutters and downspouts” constituted a failure to repair or maintain. Indeed, the Court
specifically stated that it was not passing judgment on the legal viability of Renny’s failure to
maintain claim. The Court concluded only that Renny had initially pleaded such a claim that, if
viable, could lead to recovery under the public building exception.19
The crux of Renny’s argument is, essentially, that once a building has been designed, the
government has the duty to maintain and repair that building as it existed in the initial design,
despite any problems with that design. We disagree. In Renny, the Supreme Court stated the
following in its discussion concerning the differences between designing a building and
maintaining it:
We agree with MDOT that [MCL 691.1406] clearly does 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,”
16
Renny II, supra at 495-496; see also MCL 691.1406.
17
Renny II, supra at 507.
18
Grievance Administrator v Lopatin, 462 Mich 235, 259; 612 NW2d 120 (2000).
19
Renny II, supra at 507.
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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 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.[20]
We acknowledge that use of the phrase “initial conception of the building” in the
Supreme Court’s discussion appears to support Renny’s claim. However, the Supreme Court
also recognized that a building can be “redesigned.” Renny’s argument, if adopted, would pose a
logistical nightmare for public entities trying to utilize improved technology to enhance safety in
public buildings. It would also prevent alterations that are warranted by a change in the use of a
building or unanticipated problems in the initial design. Buildings do not exist in a static
environment. Nor are all of the possible problems inherent in a building design apparent when a
building is initially conceived and built. We thus find Renny’s position untenable.
Consequently, we conclude that the trial court correctly determined that Renny’s injury
was not caused by a failure to repair or maintain. Admittedly, a situation could arise where it
would be difficult to distinguish between an act of repair or maintenance of an old design and a
“redesign” that would cause a defect in the new structure to fall into the category of a design
defect. Here, however, the type and extent of the change that occurred to the roof fell outside
even an expansive definition of repair or maintenance, given that a portion of the roof was
essentially deconstructed in order to remove the outriggers and integrated downspouts. This is
not, as Renny suggests, a case where a simple gutter was either removed, or fell down and was
not replaced. We thus affirm the trial court’s determination that, to the extent Renny’s injury
was caused by a defect in the rest stop, it was due to a design defect when a new roof system was
not equipped with standalone gutters and downspouts. We therefore conclude that summary
disposition was proper.
Affirmed.
/s/ Henry William Saad
/s/ William C. Whitbeck
/s/ Brian K. Zahra
20
Id. at 500-501 (emphasis added).
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