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Crushed foot; no "building defect"; no remedy

Linda Parker suffered a crushing injury when a ramp used to unload delivery trucks at the Jacobetti Home for Veterans was blown over by a gust of wind and fell on her foot.  Her attorneys argued that she could bypass governmental immunity by arguing a defect in a public building--one of the statutory exceptions.  The attorneys argued that while the ramp was not a "fixture" attached to the building, it was an item of personalty so essential to the building's purpose that it was properly considered part of the building.  The trial court agreed.  On appeal, this decision was overturned.

The appelate judges held that even though the ramp was necessary to unload half of the many delivery trucks that attended Jacobetti (because the unloading dock height was too low and many trucks are not equipped with a ramp), it could be removed from the building without signficantly diminshing the value of the building and the ramp, if they were evaluated separately.  This situation certainly seems like a building defect to us:  if because of a flaw in the building an unwieldy piece of equipment must be utilized and that equipment presents an unnecessary risk of substantial injury--even without negligence by any party--that seems like a defect in the structure's operation. 

Further, it seems to be splitting hairs to suggest that moving the ramp from the building wouldn't diminish the value of the ramp and building:  obviously it would be expensive to replace the ramp, which was necessary to accommodate half of the arriving delivery trucks.  Equally obviously, the ramp has much greater value in this use than it would have if divorced from the realty.  It would seem that the  older, pre-"reform" cases on immunity speak directly to this situation and the ramp in this case was, in fact, a "permanent accession to the realty."

Thompson O’Neil, P.C.
309 East Front Street
Traverse City, Michigan 49684
Toll Free: 1-800-678-1307
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