CONNIE FANE V DETROIT LIBRARY COMMISSION
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Michigan Supreme Court
Lansing, Michigan 48909
_____________________________________________________________________________________________
C hief Justice
Justices
Maura D. Cor rigan
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
Opinion
____________________________________________________________________________________________________________________________
FILED JULY 24, 2001
CONNIE FANE and CHARLES FANE,
Plaintiffs-Appellants,
v
No. 116708
DETROIT LIBRARY COMMISSION,
Defendant-Appellee.
___________________________________
KAREN L. COX and NORMAN W. COX,
Plaintiffs-Appellants,
v
BOARD OF REGENTS OF THE
UNIVERSITY OF MICHIGAN,
Defendant-Appellee.
___________________________________
BEFORE THE ENTIRE BENCH
KELLY, J.
No. 116711
These consolidated cases question the scope of the public
building exception to governmental immunity1 in light of this
Court's ruling in Horace v City of Pontiac, 456 Mich 744; 575
NW2d 762 (1998).
The parties in Fane dispute whether the
elevated terrace where plaintiff fell is part of Detroit's
main
public
library
building.
In
Cox,
this
Court
must
determine whether a portable ramp placed at a doorstep is part
of the Fairlane Estate building in Dearborn.
We conclude that the public building exception can apply
to parts of a building that extend beyond the walls.
We hold
the public building exception applicable under the undisputed
facts in Fane v Detroit Library Commission, because the
terrace is part of the building.
Hence, we reverse the
decision of the Court of Appeals.
In Cox v Board of Regents of the University of Michigan,
applying the undisputed facts, we find that the ramp is not
part of the building.
Because the public building exception
does not apply, we affirm the Court of Appeals decision.
I.
A.
FACTS AND PROCEEDINGS
FANE v DETROIT LIBRARY COMMISSION
On October 21, 1995, Connie Fane was walking toward the
main entrance of the Detroit Public Library.
She climbed
several stairs to a broad stone terrace that gives access to
1
MCL 691.1406.
2
the doors of the library.
After she had taken several steps
on the terrace, the heel of her shoe caught on a raised
portion of the stonework.
injured.
She fell as a result and was
She and her husband, Charles, filed a complaint
against the Detroit Library Commission.
They alleged that,
under the public building exception to governmental immunity,
the commission violated its statutory duty to repair and
maintain the terrace in a safe condition.
The
commission
sought
summary
disposition
under
MCR
2.116(C)(7) and (C)(10), arguing that governmental immunity
bars plaintiffs' claim.
The parties disputed whether the
terrace was part of the building for the purpose of the public
building exception.
They agreed that the fall did not occur
in the building itself but on the terrace approximately
thirty-five yards from the entrance.
Plaintiffs contended
that the terrace is part of the permanent structure of the
library building; it is physically attached to the building,
and it provides the sole access to the main entrance.
When the trial court denied the commission's motion, the
commission filed an appeal.
In lieu of granting leave, the
Court of Appeals, citing Horace, remanded for entry of an
order granting summary disposition for the commission.2
2
This
Unpublished order, entered May 8, 1998 (Docket No.
211232).
3
Court vacated the Court of Appeals decision and remanded the
case for consideration with Cox.
459 Mich 944 (1999).3
On remand, the Court of Appeals reversed the lower
court's denial of summary disposition, again relying on this
Court's decision in Horace.4
The Court concluded that the
trial court had erred as a matter of law in finding that the
terrace was part of the building.
It noted that Connie Fane
was not alleged to have fallen in the building, and it
determined that the elevated terrace was "merely contiguous"
and not part of the building itself.
The appeals court remanded the case to the trial court
with instructions to enter an order of summary disposition in
favor of the commission.
This Court granted leave to appeal,
ordering the case to be argued and submitted with Cox.
463
Mich 911 (2000).
B.
COX v BOARD OF REGENTS OF THE UNIVERSITY OF MICHIGAN
On August 21, 1994, Karen Cox was visiting the Henry Ford
estate to attend her niece's wedding.
As she walked from the
building to an outdoor porch, she stepped on a ramp that had
been positioned at the doorstep.
The heel of her shoe caught
3
The order also consolidated Maskery v Univ of Mich Bd of
Regents (Docket No. 109065).
Maskery is not part of this
appeal.
4
Unpublished opinion per curiam, issued March 24, 2000
(Docket No. 211232).
4
in a space between the door and the ramp, and the ramp
slipped, causing her to fall.
In a multicount complaint, Karen and her husband, Norman,
sued the Board of Regents of the University of Michigan, the
owners of the property.
They alleged that the ramp was a
dangerous or defective condition and that the board breached
its duty under the public building exception to governmental
immunity by failing to secure it in a proper fashion.
The board moved for summary disposition, arguing that the
public building exception did not apply.
The board contended
that, because it was not affixed to the building, the ramp was
not part of the building itself.
Plaintiffs responded that a
reasonable trier of fact could conclude that the ramp was part
of the building, notwithstanding that it was portable and
unattached.
The trial court granted the board's motion for summary
disposition, citing MCR 2.116(C)(7).
The Court of Appeals
denied plaintiffs' delayed application for leave to appeal.5
This Court remanded to the Court of Appeals for consideration
as on leave granted.
459 Mich 883 (1998).
On remand, the Court of Appeals affirmed the grant of
5
Unpublished order, entered July 2, 1998 (Docket No.
208644).
5
summary disposition in favor of the board.6
Relying on this
Court's decision in Horace and a fixtures analysis, the court
determined that the ramp was not a fixture or an integral part
of the building.
The Court concluded that the trial court had properly
found that the public building exception was not applicable.7
This Court granted leave to appeal, ordering the case to be
argued and submitted with Fane.
II.
A.
463 Mich 911 (2000).
LEGAL PRINCIPLES
STANDARDS OF REVIEW
In both cases, the Court of Appeals upheld summary
disposition under MCR 2.116(C)(7).
We review decisions on
summary disposition motions de novo.
Sewell v Southfield Pub
Schs, 456 Mich 670, 674; 576 NW2d 153 (1998).
Under MCR
2.116(C)(7), summary disposition is proper when a claim is
barred by immunity granted by law.
To survive such a motion,
the plaintiff must allege facts justifying the application of
an exception to governmental immunity.
Wade v Dep't of
Corrections, 439 Mich 158, 164; 483 NW2d 26 (1992).
We
consider all documentary evidence submitted by the parties,
6
Unpublished opinion per curiam, issued March 24, 2000
(Docket No. 215337).
7
The decision also addressed the issue of proprietary
function, which is not presented in this appeal pursuant to
this Court's order granting leave to appeal.
6
accepting
affidavits
as
true
or
the
other
contradict them.
B.
contents
of
appropriate
the
complaint
documents
unless
specifically
Sewell, supra at 674; MCR 2.116(G)(5).
THE PUBLIC BUILDING EXCEPTION
Under MCL 691.1407(1), a government agency is generally
immune from suit for actions undertaken in the performance of
its governmental functions.
However, this broad immunity is
limited by some narrowly drawn exceptions. Jackson v Detroit,
449 Mich 420, 427; 537 NW2d 151 (1995).
involves
the
public
building
The present appeal
exception
to
governmental
immunity, which provides in pertinent part:
Governmental agencies have the obligation to
repair and maintain public buildings under their
control when open for use by members of the public.
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.
[MCL
691.1406.]
To determine whether the public building exception is
applicable, this Court has set forth a five-pronged test.
Under the test, a plaintiff is required to 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 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
7
defective condition after a reasonable period of
time or failed to take action reasonably necessary
to protect the public against the condition after a
reasonable period.
[Kerbersky v Northern Mich
Univ, 458 Mich 525, 529; 582 NW2d 828 (1998),
citing Jackson, supra at 428.]
It is the third element of this test that is at issue in the
present appeal, whether a dangerous or defective condition of
the public building itself exists.
III.
HORACE V CITY OF PONTIAC
The Court of Appeals determined that neither the terrace
nor the ramp is part of the buildings in question, relying on
this Court's decision in Horace.
Horace was a consolidated
appeal involving two different sets of facts, both of which
involved
injuries
from
defects
in
walkways.8
The
first
concerned a hole or crack eighteen to twenty-eight feet from
the entrance doors of the Silverdome in Pontiac.
The second
involved a hole in a walkway leading to the entrance of a
building at a rest area on I-75.
The issue in Horace was whether the public building
exception applies to dangerous or defective conditions of
areas outside and adjacent to entrances or exits of public
buildings.
Horace, supra at 746.
The Court concluded that
"the ground adjacent to a public building is [not] a public
'building,' statutorily speaking . . . ."
8
Id. at 757.
Thus,
The decision in Horace also resolved its companion case,
Adams v Dep't of State Highways & Transportation.
8
the core holding of Horace is that mere sidewalks and walkways
are
clearly
outside
the
scope
of
the
public
building
exception.
However, the Court added in a footnote that the decision
is not an absolute bar to injuries occurring from defective or
dangerous conditions located outside the four walls of a
building.
The footnote states:
The dissent suggests that our opinion may cut
off liability for injuries resulting from the
collapse of an outside overhang on a public
building, stairs leading up to or down from an
elevated building entrance, an underground tunnel
leading into a building, an attached external ramp
or railing. While it is not necessary for us to
resolve these hypothetical situations in the case
at bar, we note that an outside overhang is a
danger presented by a physical condition of a
building itself and that some stairs may also fit
the test we adopt today if they are truly part of
the building itself. [Id. at 756-757, n 9.]
We are now asked to further clarify the extent to which
something outside a building falls within the exception.
IV.
ANALYSIS
As an initial matter, we conclude that the Court of
Appeals reading of Horace was overly broad. The appeals court
decision mistakenly portrays Horace as stating a bright-line
rule
precluding
liability
for
injuries
occurring
from
dangerous or defective conditions of building parts outside an
entrance or exit.
By imposing an absolute bar on liability
for injuries arising from something outside the four walls of
9
a building, the opinion precludes the possibility that an
external part might be "truly part of the building itself."
While such an interpretation would be warranted by the
words "in a public building," the Legislature did not choose
that phrase.
Rather, it referred to injuries resulting from
dangerous or defective conditions "of a public building,"
which implies that the conditions could pertain to parts of a
building outside its walls.
We presume that "of" rather than
"in" was carefully chosen to reflect legislative intent.
See
Reardon v Dep't of Mental Health, 430 Mich 398, 410; 424 NW2d
248 (1988).
It is consistent with Horace and its treatment of the
word "of" to consider the characteristics of the building and
the item in question.9
building
possesses
If it must be determined whether the
the
item,
surely
the
relative
characteristics of both must be evaluated.
In some cases, a fixtures analysis will be helpful in
determining whether an item outside the four walls of a
building is "of a public building."
As recognized in Velmer
v Baraga Area Schs,10 a dangerous or defective fixture can
support
9
a
claim
Horace
possession."
10
of
liability
indicated that
456 Mich 756.
under
"of"
is
the
public
"used
430 Mich 385, 394; 424 NW2d 770 (1988).
10
to
building
indicate
exception.
However, the fixtures analysis is limited to items of
personal property that have a possible existence apart from
realty.
Wayne Co v Britton Trust observes that "[t]he term
'fixture' necessarily implies something having a possible
existence apart from realty, but which may, by annexation, be
assimilated into realty."
Wayne Co v Britton Trust, 454 Mich
608, 614-615; 563 NW2d 674 (1997) (citation omitted).
Where
the facts do not lend themselves to a fixtures analysis
because the item causing the injury has no existence apart
from realty, the courts must look beyond the fixtures analysis
to determine whether an item or area outside the four walls of
a building is "of a public building."
Under the fixtures analysis, an item is considered part
of the building if it is found to be a fixture.
An item is a
fixture if (1) it is annexed to realty, (2) its adaptation or
application to the realty is appropriate, and (3) it was
intended as a permanent accession to the realty.
Id. at 615.
When a fixtures analysis does not apply, in determining
whether an item or area outside the four walls of a building
is "of a public building," the courts should consider whether
the item or area where the injury occurred is physically
connected
to
and
not
intended
11
to
be
removed
from
the
building.11
A.
FANE v DETROIT LIBRARY COMMISSION
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.
11
A temporary object or structure is normally not part of
a building. Consider, for example, scaffolding attached to a
building only for the period necessary to complete
construction. Because it is clearly intended to be removed
from the building, the scaffolding could not be considered
part of the building.
12
The Court of Appeals erred in finding that the Fanes' claim
was precluded by the holding in Horace.
B.
COX v BOARD OF REGENTS OF THE UNIVERSITY OF MICHIGAN
The characteristics of the portable ramp indicate that it
is personal property with a possible existence apart from the
doorstep of the Fairlane Estate building.
As such, the
fixtures analysis is applicable.
There is no dispute that the portable ramp was not
physically attached to the building and could readily be
removed.
Wayne Co states that annexation can be actual or
constructive.
Constructive annexation occurs where the item
cannot be removed from the building without impairing the
value of both the item and the building.
615-616.
ramp
Wayne Co, supra at
However, there is no evidence that removal of the
would
impair
building.
the
Therefore,
value
of
either
the
ramp
or
the
the
ramp
was
not
actually
or
constructively annexed to the building.
Although
the
ramp
was
adapted
appropriately
to
the
entrance, there is no evidence that it was intended as a
permanent accession to the building.
ramp
is
not
a
fixture
and,
We conclude that the
therefore,
not
part
of
the
building. Because it does not fall within the public building
exception, the appeals court correctly determined that summary
disposition was proper in Cox.
13
V.
Horace
CONCLUSION
acknowledges
that
injuries
occurring
from
dangerous or defective conditions of building parts outside
the walls of a building can fall within the public building
exception. In determining whether an item or area outside the
walls of a building is "of a public building," the courts must
consider the characteristics of the building and of the item
in question.
item
is
A fixtures analysis should be used where the
personal
property
that
existence apart from the realty.
could
possibly
have
an
However, where the facts
indicate that the fixtures analysis does not apply, the courts
should consider whether the item or area where the injury
occurred is physically connected to and not intended to be
removed from the building.
Applying this analysis to the undisputed facts in Fane,
we conclude that the elevated terrace is part of the library
building itself because the terrace is physically connected to
and not intended to be removed from the library.
Fanes are not precluded from pursuing their claim.
Hence, the
The Court
of Appeals order instructing the trial court to enter summary
disposition in favor of the commission is reversed.
However, we affirm in Cox.
Applying the undisputed
facts, the ramp is personal property that could possibly have
an existence apart from the building. Therefore, the fixtures
14
analysis is applicable.
However, the ramp is not a fixture
because it is not annexed to the building and was not intended
as a permanent accession to the building. Therefore, the ramp
is not part of the building.
Accordingly, we affirm the decision of the Court of
Appeals in Cox and reverse in Fane.
CORRIGAN ,
C.J.,
and
CAVANAGH , WEAVER , TAYLOR , YOUNG ,
MARKMAN , JJ., concurred with KELLY , J.
15
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