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Court of Appeals must address "public building exception" to governmental immunity

Denise Andrus fell while leaving the back exit of the Southgate Civic Center after attending her grandaughter's skating practice.  She was carrying two boxes of fund-raising candy to her car when she stepped on a drop-off in the dark and tore her rotator cuff.  She filed a claim against the City owner, alleging that the fall resulted from the non-operation of the three entryway lights attached to the walls near the rear entrance.  The City argued that the injury didn't fall within the public building exception to immunity and appealed the trial court's decision to the contrary.

The Court first noted that the City was in error alleging that the activist "Engler Majority" had totally eliminated any liability for injuries occurring outside a public structure.  The Court had clearly indicated that while injuries caused by sidewalks were not related to the building structure, steps, roof overhangs and other structure fixtures could be the basis for the application of the public building exception.

The City's next argument was based on other "Engler Majority" rulings holding that the governmental entity would not be liable for defective design of a building or for active negligence in managing the building.  (While premises liability is interpreted in the private sector to exclude "negligence" claims arising out of an injury related to the condition of the premises, the Engler Justices have taken the opposite tack in the public building context and held that any "negligence" in maintaining a hazardous premise operates to grant immunity to the owner.  The net effect in each case is that the victim loses:  in the private sector the owner's "duty" is eliminated because the condition is open and obvious, regardless of negligence of the owner; while in public building situations, the owner is not responsible for dangerous conditions to the extent the victim is arguing negligence in the operation of the building.)

The reviewing judges noted that there was no dispute over the fact that the lights were not operational.  They were repaired through the repair of an electronic timer within days of Andrus' injury.  Thus, Andrus' attorneys had alleged that the injury was caused by a defect in the structure that wasn't a design flaw:  if they can prove this to be true, the building exception to immunity will apply.  The plaintiff's arguments based on negligent management of the building, however, and on design features of the lighting system, must be struck.

Finally, the City argued that the Andrus's had not adequately supported the legally-required allegation that it had notice of the defect prior to Andrus' fall.  The higher court agreed that the trial judge should not have considered non-notarized letters from individuals who claimed to have alerted the rink manager's office of lighting problems at the rear entrance as much as one year before the fall.  On the other hand, the building janitor had alleged under oath that the manager was aware of the lighting problem a week before the fall and had scheduled a repair that had not yet been accomplished.  On this basis, it was a question of fact for the jury to decide whether the City had adequate notice of the lighting problem and a reasonable opportunity to address it.

Thompson O’Neil, P.C.
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Traverse City, Michigan 49684
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