EMILY TELLIN V FORSYTH TOWNSHIP

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STATE OF MICHIGAN COURT OF APPEALS EMILY TELLIN, Minor, by Next Friend LORI HINGA and MATTHEW WERFELMAN, Minor, by Next Friend ANDREA DETAMBLE, Plaintiffs-Appellees, v UNPUBLISHED January 25, 2011 APPROVED FOR PUBLICATION March 10, 2011 9:00 a.m. No. 293590 Marquette Circuit Court LC No. 08-046274-NO FORSYTH TOWNSHIP and WEST BRANCH TOWNSHIP, Defendants-Appellants. Before: SAWYER, P.J., and WHITBECK and WILDER, JJ. PER CURIAM. I. OVERVIEW In July 2006, plaintiffs Emily Tellin and Matthew Werfelman were visiting the K. I. Sawyer Learning Center (“Learning Center”), located in Forsyth Township, Michigan. Plaintiffs were injured when an I-beam was dislodged and fell on them. Plaintiffs sued, and defendants Forsyth Township and West Branch Township (the Townships) moved for summary disposition under MCR 2.116(C)(7), asserting that they were immune from suit pursuant to the governmental immunity doctrine.1 The trial court denied the motion, finding that the Townships were not entitled to immunity because plaintiffs demonstrated the existence of a failure to repair or maintain under the public building exception to the governmental immunity doctrine.2 The Townships appeal as of right from the trial court’s denial of their motion for summary disposition. We affirm. 1 MCL 691.1407(1). 2 MCL 691.1406. -1- II. FACTS Before the incident at issue, the Learning Center building existed for approximately 40 years as part of the former K. I. Sawyer Air Force Base before the federal government deeded it to defendant Forsyth Township. At some point, Forsyth Township leased the building to West Branch Township. In 2002, West Branch Township moved library books into the Learning Center. At some point between the years 2002 and 2005, the Learning Center was structurally modified from a four-unit living area to its current one-unit form. Apparently, each unit previously had independent entryways. During the remodeling, the entryways were reconfigured from four separate entrances to a single, main entrance. The Townships opened the Learning Center to the public sometime in 2004. Before 2003, a roof overhang awning above the main entrance of the Learning Center was supported by wooden columns. However, in 2003, Wes Miller, the husband of the Learning Center’s then current director, brought a steel I-beam configuration to the Learning Center. The configuration included a horizontal steel I-beam with a vertical steel post welded at each end of the I-beam. Apparently, Miller delivered this I-beam configuration with the supporting steel columns already welded to the I-beam. According to Susan McNeil, one of the librarians, Miller said that the I-beam configuration would supplement the existing beam and column configuration of the roof overhang in case the snow load on the overhang became too heavy. However, there is no indication that the director, the governing board, or any other authority found extra support necessary or authorized the installation of the I-beam configuration. Rather, Miller, or someone from the Learning Center’s staff, asked local Navy Seabee volunteers to help install the I-beam configuration under the awning within the roof overhang’s existing beam and column structure. The parties agree that this I-beam configuration was secured only through downward compression of the existing roof overhang—there was nothing externally or internally securing it to the building or the concrete slab upon which it sat. Neither Miller, his wife, nor the Townships had any inspectors examine the installation to determine whether it was up to code or passed safety regulations. At some point after installation of the I-beam configuration, Michael Erdmann, a volunteer who previously performed some maintenance projects at the Learning Center, kicked the I-beam configuration or applied some force to it to determine whether it was properly secured. Thereafter, Erdmann spoke with McNeil and allegedly explained that he thought someone might be able to move the I-beam configuration or that it seemed loose. There is some discrepancy over the exact substance of Erdmann’s conversation with McNeil about the stability of the I-beam configuration. Regardless, the Townships did not take any action after Erdmann allegedly voiced his concern. On July 18, 2006, at around 8:00 p.m., 13-year-old Emily Tellin and her friend, Tiffany Grondin, left the Salvation Army building, which is a neighboring building that contained recreational activities such as basketball and various games. The two went over to the Learning Center to stand under the roof overhang adjacent to the entrance of the building and wait for Tellin’s mother to pick them up. Matthew Werfelman and at least two other children joined them. -2- Grondin started swinging or twisting around the steel pole portion of the I-beam configuration. Grondin described the I-beam configuration as “wobbly” as she swung. She then leaned up against it after she became dizzy, approximately 20 seconds later. The I-beam configuration then started to dislodge and fall toward the Learning Center, sliding from underneath the overhang. As the I-beam fell, the force of the I-beam pushed Tellin down onto the ground. Allegedly, Tellin broke her hand from attempting to catch the I-beam configuration as it fell. Werfelman fractured his arm when the I-beam fell on him. At the time of this incident, the interior of the library was closed for the day. However, the parties do not dispute that the Learning Center had a 24-hour book depository drop, which was still open to receive book returns, located under the roof overhang area where the I-beam configuration stood. In the window under the Learning Center’s roof overhang awning were two signs: one read “No Loitering” and the other informed the public to deposit their books in the drop box under the roof overhang. McNeil testified that the “No Loitering” sign had been placed in the window due to an ongoing vandalism problem. The sign indicating that books were to be deposited in the book drop also contained a notice that the library was moving to a different location. In its recitation of the facts, the trial court stated that the library was closed due to the move and that the moving process had already begun at the time this incident occurred. However, McNeil testified that the decision to move occurred after the incident and was based partly on the incident, and partly on the ongoing problems that the library had with vandalism. Plaintiffs, through their next friends, sued the Townships, alleging that the Townships were liable under the public building exception to the governmental immunity doctrine on the basis of their failure to repair and maintain the Library Center. Plaintiffs alleged that “[t]he overhang and beam were defective and dangerous because the vertical beam structure was not anchored to the horizontal portion of the overhand [sic] nor the surface of the base.” Plaintiffs further alleged that “[a] reasonable maintenance and inspection schedule would have resulted in the discovery of the structure’s instability and need for repair.” The trial court found that the Learning Center was a public building and that the steel Ibeam configuration was part of that public building. Additionally, the trial court found that the Learning Center was open to the public, despite the fact that the incident occurred after hours, because of the location of the 24-hour book depository under the roof overhang. With regard to whether this was a design defect, the trial court held as follows: I do find the inspection by the volunteer, then relating the results of that inspection to the paid librarian, rises to the level of maintenance of that part of the public building that was open to the public and not design. The fact that it may have been a defective design, if there is later maintenance of that defective design or inspection, the fact that it was also defectively designed, in this Court’s judgment, does not then eliminate liability from maintenance of a defectively designed structure by way of inspection. Finally, the trial court concluded that the Townships were on notice when Erdmann told McNeil his concerns about the structure. Therefore, the trial court concluded that the Townships were not entitled to governmental immunity because plaintiffs demonstrated the existence of a failure -3- to repair or maintain under the public building exception. Accordingly, the trial court denied the Townships’ motion for summary disposition. The Townships now appeal. III. THE PUBLIC BUILDING EXCEPTION A. STANDARD OF REVIEW This Court reviews de novo questions of law regarding governmental immunity.3 This Court also reviews de novo motions for summary disposition under MCR 2.116(C)(7).4 To survive a (C)(7) based on governmental immunity, a “plaintiff must allege facts justifying the application of an exception to governmental immunity.”5 In reviewing a (C)(7) motion, a court must accept all well-pleaded allegations as true and construe them in favor of the nonmoving party.6 Also, this Court reviews de novo questions of statutory construction.7 B. GOVERNMENTAL IMMUNITY STANDARDS Absent an exception, a government agency, like a township,8 is generally immune from tort liability when it is engaged in the discharge of a governmental function.9 And the operation of a government-owned library is a governmental function.10 Courts are required to broadly construe the term “governmental function,” while strictly construing exceptions to governmental immunity.11 One of these exceptions is the public building exception.12 Under the public building exception, “[g]overnmental agencies have the obligation to repair and maintain public buildings under their control when open for use by members of the public.”13 And a plaintiff must prove all of the following to bring suit against the governmental agency: 3 Pierce v Lansing, 265 Mich App 174, 176; 694 NW2d 65 (2005). 4 Id. 5 Fane v Detroit Library Comm, 465 Mich 68, 74; 631 NW2d 678 (2001). 6 Pierce, 265 Mich App at 176-177. 7 Grimes v Dep’t of Transp, 475 Mich 72, 76; 715 NW2d 275 (2006). 8 MCL 691.1401 (a), (b), (d). 9 MCL 691.1407(1); Stringwell v Ann Arbor Pub Sch Dist, 262 Mich App 709, 712; 686 NW2d 825 (2004). 10 See Fane, 465 Mich at 74-75. 11 Kerbersky v Northern Mich Univ, 458 Mich 525, 529; 582 NW2d 828 (1998). 12 MCL 691.1406; Kerbersky, 458 Mich at 529. 13 MCL 691.1406. -4- (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 amount of time.[14] The parties do not dispute that the Learning Center was run by a governmental agency and that the building itself was a public building. The parties further agree that the I-beam configuration was part of the building because it was physically connected to the building.15 However, as we will discuss, the parties dispute whether the building was open for use by members of the public; whether the I-beam configuration was a defective condition, as courts have interpreted that term; and whether the Townships had actual or constructive knowledge of the alleged defect. C. DEFECTIVE DESIGN OR FAILURE TO MAINTAIN The Townships argue that as governmental agencies they are immune from claims of design defects in their public buildings, which includes alleged defects in redesigns. According to the Townships, the placement of the steel I-beam configuration was simply a redesign decision that altered the initial conception of the building. And the Townships point out that the structure was in place, without issue, for three years before this incident at issue. The public building exception excludes claims of design defects.16 Thus, to avoid governmental immunity, a plaintiff must assert a claim that the defective condition was the result of a failure to repair or maintain.17 The salient question therefore is whether plaintiffs’ injuries from placement of the I-beam configuration were the result of a design defect, or a failure to repair or maintain. A court must give effect to the Legislature’s intent when construing a statute.18 In determining the Legislature’s intent, this Court must first look at the language of the statute itself.19 This Court gives the words of the statutes their plain and ordinary meaning and will look outside the statutory language only where it is ambiguous.20 “The Legislature is presumed to be 14 Renny v Dep’t of Transp, 478 Mich 490, 496; 734 NW2d 518 (2007); see MCL 691.1406. 15 Fane, 465 Mich at 78; see also Horace v City of Pontiac, 456 Mich 744, 756 n 9; 575 NW2d 762 (1998). 16 Renny, 478 Mich at 502-503. 17 Id. at 506-507. 18 People v Libbett, 251 Mich App 353, 365-366; 650 NW2d 407 (2002). 19 Id. at 365 20 Id. at 365-366. -5- familiar with the rules of statutory construction and, when promulgating new laws, to be aware of the consequences of its use or omission of statutory language[.]”21 In determining the plain meaning of the statute, this Court uses “the fair and natural import of the terms employed” and gives effect “to every word, phrase, and clause” as far as possible.22 As stated, the public building exception only applies to claims of failure to repair or maintain a public building, not to design defects.23 In Renny v Dep’t of Transp, the plaintiff was injured when she slipped and fell on a patch of ice and snow on the sidewalk of a rest area that defendant Michigan Department of Transportation (MDOT) operated.24 Plaintiff brought suit against MDOT claiming that MDOT’s “failure to install and maintain gutters and downspouts around the roof of the building” caused melted snow and ice to accumulate on the entry way.25 Prior to the plaintiff’s injury, the rest stop had a “gutter” system that was integrated into the roof of the rest stop.26 The design was explained as follows: 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 “outrigger” to form what appears to be a normal roof with a channel in the end of it, which drained into integral “downspouts.”[27] Sometime before the plaintiff was injured, the roof structure was deconstructed to remove the gutters and downspouts because of a supposed malfunction of the gutter system.28 In holding that the public building exception does not permit claims of design defects in public buildings, the Michigan Supreme Court explained the distinction between design defects and a failure to repair or maintain as follows: 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 21 In re MKK, 286 Mich App 546, 556; 781 NW2d 132 (2009). 22 Libbett, 251 Mich App at 366. 23 Renny, 478 Mich at 506-507. 24 Id. at 493. 25 Id. at 493-494. 26 Renny v Dep’t of Transp (After Remand), unpublished opinion per curiam of the Court of Appeals, issued September 29, 2009 (Docket No. 285039) (hereinafter “Renny II”), at 1. 27 Id. 28 Id. at 2. -6- 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 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.[29] Although announcing this distinction between design and repair or maintenance, the Renny Court did not explain where the line between the two concepts should be drawn. Instead, the Supreme Court remanded to the Court of Claims for a determination whether the plaintiff had a claim for failure to repair or failure to maintain.30 On appeal from the Court of Claims’ decision, this Court appeared to recognize that despite some of the language used in the Supreme Court’s opinion, a public building could be “redesigned.”31 This Court then found that MDOT’s removal of the gutter system was a redesign because it was an alteration of the roof structure itself and not simply a removal of the gutters.32 In holding that this alteration was a redesign, this Court stated: [T]he 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 29 Renny, 478 Mich at 500-501 (emphasis added). 30 Id. at 507. Renny does not make abundantly clear whether “repair”—a restorative concept— and “maintain”—a preservative concept—are two separate concepts or rather are synonyms that refer to the “notion of restoring or returning . . . to a prior state or condition.” Renny, 478 Mich at 500-501. However, because “repair and maintain” occurs within the same sentence of MCL 691.1406, they refer to distinct concepts. See State Farm Fire & Cas Co v Old Republic Ins Co, 466 Mich 142, 146; 644 NW2d 715 (2002) (“Courts must give effect to every word, phrase, and clause in a statute and avoid an interpretation that would render any part of the statute surplusage or nugatory.”). Thus, under Renny, a defendant may be liable for failure to repair or failure to maintain a public building. 31 Renny II, unpub at 5. 32 Id. -7- downspouts. This is not . . . a case where a simple gutter was either removed, or fell down and was not replaced.[33] “Admittedly,” this Court observed, “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.”34 One additional unpublished, post-Renny case recognized that redesigns are exempt from the public building exception.35 However, it also failed to address exactly what constitutes a redesign.36 In Collins, the plaintiff was injured when she was sliding her chair across the defendant’s dental lab, which was open to the public. Her chair hit a floor-mounted electrical plate that protruded from the lab floor.37 This electrical socket was not part of the original blueprints but apparently was part of a subsequent modification.38 Without elaboration on why this constituted a redesign, this Court concluded: Plaintiff argues that “[o]ne cannot characterize a feature of a building as a ‘design’ issue when it was not present when the building was first constructed.” However, plaintiff offers no authority for this proposition. . . . Nonetheless, we note that our Supreme Court in Renny, rejected the notion advanced by plaintiff. The Renny Court stated that “[n]either the term ‘repair’ nor the term ‘maintain,’ . . . encompasses a duty to design or redesign the public building in a particular manner.” (Emphasis added.) Thus, the fact that the electrical socket here at issue was not part of this building’s original design does not mean that plaintiff’s 33 Id. 34 Id. 35 Collins v Oakland Co Community College, unpublished opinion per curiam of the Court of Appeals, issued March 26, 2009 (Docket No. 282351). 36 Id. at 2-3. A majority of the unpublished, post-Renny cases involved initial designs. See, e.g., Hetherington v Univ of Mich Regents, unpublished opinion per curiam of the Court of Appeals, issued March 17, 2009 (Docket No. 283543) (finding a design defect from lack of guardrails for steps and design defect concerning the height of steps and risers); Martin v Detroit, unpublished opinion per curiam of the Court of Appeals, issued February 28, 2008 (Docket No. 275893) (design defect in absence of gutter on roof causing ice to accumulate on sidewalk). But see Mack v Troy City Schs Bd of Ed, unpublished opinion per curiam of the Court of Appeals, issued August 14, 2008 (Docket No. 278406) (explaining that auditorium’s burnt-out or dim aisle lights could be a failure to repair or maintain); Joseph v Southfield Pub Schools, unpublished opinion per curiam of the Court of Appeals, issued May 8, 2008 (Docket No. 275869) (finding an initial installation/construction of a drinking fountain did not constitute a design defect). 37 Collins, unpub at 1. 38 Id. -8- complaint about the location of this properly functioning electrical socket is the result of defendant’s failure to properly repair or maintain this building.[39] A design defect would appear to consist of a dangerous condition inherent in the design itself such as its characteristics, functioning, and purpose.40 For example, the accumulation of the snow and ice on the sidewalk in Renny was not from any malfunction of the roof or problem with its construction, but was a natural effect of the characteristics of the new roof design, which was not intended to divert melting snow and ice.41 In contrast, a failure to repair or maintain appears to consist of something caused by extrinsic circumstances, such as a malfunction, deterioration, instability, or a fixture that is improperly secured or otherwise improperly constructed or installed.42 Reparative or preventative measures may also supplement the existing structure to preserve the existing design.43 An action could initially be a design decision, but subsequent improper installation, malfunction, deterioration, or instability could later transform this decision into a failure to repair or maintain.44 For example, if the wiring for the electrical socket in Collins became compromised and began electrocuting people from normal use, then a failure to correct the problem would be a failure to repair or maintain. But tripping over the surface because of its placement is the characteristic of the design itself and the placement would properly be a design decision. In this case, plaintiffs were not injured because of an inherent characteristic of the I-beam configuration when coupled with the roof overhang, such as its displacement of melting snow or ice,45 or the fact that its base protruded into the walkway causing patrons to trip.46 Thus, this 39 Id. at 2-3. 40 See Renny, 478 Mich 500-501 (“‘Design’ refers to the initial conception of the building . . . .”); see also Renny II, unpub at 5. 41 Renny II, unpub at 5. 42 See Renny, 478 Mich at 500-501; see also Estate of Nowak v Bay Co, unpublished opinion per curiam of the Court of Appeals, issued July 17, 2008 (Docket No. 279076) (failure to repair or maintain because of deterioration and cracking of concrete steps causing plaintiff to trip); Joseph v Southfield Pub Schs, unpublished opinion per curiam of the Court of Appeals, issued May 8, 2008 (Docket No. 275869) (finding an initial installation/construction of a drinking fountain did not constitute a design defect). 43 See Renny, 478 Mich at 500-501. 44 See id. at 501 (“[A] ‘dangerous or defective condition of a public building’ arises out of the governmental agency’s failure to repair and maintain that building.”). 45 See Renny II, unpub at 5. 46 See Collins, unpub at 3. -9- case is distinguishable from Renny because the initial conception of the building’s structure did not change as it did in that case; rather the Townships introduced additional support to “keep up” and “preserve” the existing roof overhang structure. In Renny, the roof was deconstructed to accommodate the removal of the gutter system.47 Unlike the roof in Renny, here, the actual structure of the roof overhang was never altered or modified, and even after the I-beam configuration collapsed, the existing roof overhang remained fully functional and intact. Therefore, the installation of the I-beam configuration was a preventive measure to supplement and coincide with the existing structure rather than a redesign of the roof overhang. Any defective condition was not from the I-beam’s inherent characteristics but from the Townships’ failure to properly maintain the stability of this I-beam configuration. Apart from the initial placement of the I-beam configuration, once it was installed, the Townships had a continuing duty to repair and maintain it if it became loose, damaged, or unstable.48 This case is thus further distinguishable from Renny because the only way to remedy the situation in Renny was to install a new gutter system.49 In contrast, here, the Townships could have remedied this condition had they performed regular maintenance to test the stability of the I-beam structure, which would likely have disclosed any instability. This failure to repair or maintain is further illustrated by the fact that the Townships had knowledge that this I-beam configuration was not secured. Thus, we conclude that the trial court did not err when it characterized plaintiffs’ injuries as resulting from a failure to repair or maintain the building. D. OPEN FOR USE BY THE PUBLIC The Townships also argue that the trial court erred when it held that the Learning Center was open to the public at the time of the incident. The incident occurred around 8:00 p.m. when the Learning Center was closed to the public, and the Townships argue that merely making a book drop box available for after-hours returns does not make the building “open for use” by the public. Additionally, according to the Townships, the Learning Center limited the public’s access to the book drop by posting a “No Loitering” sign outside of the building. In determining whether a public building is open for use by the public, we must consider the nature of the building, the building’s use, and any limiting criteria on the public’s right to access.50 In Kerbersky v Northern Mich Univ, the Michigan Supreme Court held that the building at issue, which was part of a public university, was open for use by the public despite 47 Renny II, unpub at 5. 48 Renny, 478 Mich at 501. 49 Renny II, unpub at 5. 50 Maskery v Univ of Mich Bd of Regents, 468 Mich 609, 617; 664 NW2d 165 (2003); see also Brown v Genesee County Bd of Comm’rs, 464 Mich 430, 435; 628 NW2d 471 (2001) (“When determining the public’s access, we analyze the building itself, not the specific accident site within the building.”) (emphasis in original). -10- the fact that the area where the plaintiff was injured was closed to the public for renovations.51 The Court found it significant that parts of the building remained open to the public during renovations.52 However, the Court observed that had the university completely closed the building while renovations were being performed, then it would no longer have been open to the public.53 In contrast, in Maskery v Univ of Mich Bd of Regents, the Supreme Court concluded that a public university dormitory was not open for use by the public because it was locked 24 hours a day, and only residents or visitors that were permitted access from a resident, were allowed admittance.54 Albeit arguably in dictum, the Maskery Court explained: [T]he statutory language makes clear that the public-building exception applies when the building is open for use by members of the public. A building such as a courthouse that is open to the public during business hours may nonetheless be closed to the public at other times, such as at night or on weekends. Similarly, a university athletic facility may be open to the public during a sporting event, but closed to the public at other times. Because the statutory language limits the exception to periods when the building is open for use by members of the public, accidents that occur when the building is closed to the public do not fall within the confines of the exception, and the government is entitled to immunity.[55] Here, the Learning Center is more like the university building in Kerbersky than the building in Maskery because the exterior area where the incident occurred was open to the public, even though the interior of the Learning Center itself was closed when the incident occurred.56 As the Court explained in Maskery, The phrase “limited access” was used in Kerbersky to explain that where access to part of a building is limited, the public-building exception may still apply if the building remains open for use by members of the public. Here, the concept of limited access is used in a different sense, i.e., to describe a building in which access to the entire building, or the general right of entry, is restricted to 51 Kerbersky, 458 Mich at 536; see also Maskery, 468 Mich at 618 n 9 (“Kerbersky clarifies that a building may be ‘open for use by members of the public’ even where a location within the building is restricted from public use.”); Brown, 464 Mich at 435 (stating that the public building exception applies even though the public may not enter whenever and wherever they please). 52 Kerbersky, 458 Mich at 536. 53 Id. at 535. 54 Maskery, 468 Mich at 611. 55 Id. at 619 (emphasis in original). 56 See Kerbersky 458 Mich at 535-536; Brown, 464 Mich at 435. -11- persons who are qualified to enter. Where the government has created rules that render the building closed except to those who are qualified to enter, the building is not open for use by members of the public. The focus of the test is on the government’s intended use of the building. Thus, the test set forth in this case should not be confused with the language in Kerbersky clarifying that a building may be open to the public even though access to a part of the building is limited.[57] In keeping with Kerbersky, if even a part of a building remains open to the public, then the building falls within the public building exception. The focus is on the intended use of the building and not merely on the hours of operation. Here, at no point was the entire Learning Center continuously closed to the public. At any time of the day the public was freely permitted to access the area under the roof overhang where the I-beam configuration was located to access the book depository. Admittedly, plaintiffs were not under the roof overhang area to return books; however, unlike in Maskery, defendants instituted no method of limiting the public’s access to the roof overhang area. And although there was a “No Loitering” sign, which purported to limit access to the area, plaintiffs were not “loitering,” as that term in commonly defined. “Loiter” means “to linger aimlessly . . . in or about a place” or “to waste time.”58 Here, plaintiffs were under the roof overhang area with the purpose of waiting for their parents to pick them up. Accordingly, we conclude that plaintiffs presented sufficient evidence to show that the Learning Center was open to the public at the time of the incident. E. NOTICE Defendants further argue that the trial court erred when it found that they had notice of the condition because a volunteer’s opinion is insufficient to put defendants on notice of a defective condition. Also, defendants contend, the notice was not constructive because this structure had remained in place without incident for three years. This Court has held that knowledge of a condition may be satisfied by either actual or constructive knowledge.59 The public building exception presumes knowledge upon a government agency if “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.”60 Here, the main thrust of the Townships’ argument is basically that they never inspected the structure, and thus never had knowledge of the condition. However, the Townships received actual notice of the condition that this I-beam configuration was not properly secured when Erdmann informed McNeil that it was loose or might be able to move. There is some dispute regarding how detailed Erdmann’s 57 Maskery, 468 Mich at 618 n 9. 58 Random House Webster’s College Dictionary, pg 774 (1997). 59 Ali v Detroit, 218 Mich App 581, 586-587; 554 NW2d 384 (1996). 60 MCL 691.1406. -12- critique of the stability of the I-beam configuration was, yet McNeil admitted that Erdmann did warn her about its possible instability. Therefore, we conclude the trial court did not err when it concluded that the Townships had sufficient notice of the defective condition. F. CONCLUSION The trial court did not err when it concluded that plaintiffs’ injuries from the I-beam configuration arose from a failure to repair or maintain and not a design defect. The trial court also did not err in concluding that the Learning Center was open for use by the public. And the trial court did not err when it concluded that the Townships had sufficient notice of the defective condition. Accordingly, the trial court properly denied defendants’ motion for summary disposition under MCR 2.116(C)(7). We affirm. /s/ David H. Sawyer /s/ William C. Whitbeck /s/ Kurtis T. Wilder -13-

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