The opinion
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
ESTATE OF MICHAEL WHYTE, by DANIEL UNPUBLISHED
BERRY, Personal Representative, October 17, 2019
Plaintiff-Appellee,
v No. 343161
Wayne Circuit Court
DETROIT TRANSPORTATION LC No. 16-009474-NO
CORPORATION, DETROIT PEOPLE MOVER,
EDITH BOWLES, and CYNTHIA GEHLERT,
Defendants-Appellants,
and
JOHN DOE,
Defendant.
Before: METER, P.J., and O’BRIEN and SWARTZLE, JJ.
PER CURIAM.
Michael Whyte passed away after suffering lethal injuries when he fell between two train
cars at the Detroit People Mover’s Times Square Station in Detroit. Whyte’s estate filed this
lawsuit alleging several negligence claims against the Detroit Transportation Corporation (DTC)
and several other defendants. The DTC eventually moved for summary disposition under MCR
2.116(C)(7), arguing that it was entitled to governmental immunity and that no exceptions under
the governmental tort liability act (GTLA), MCL 691.1401 et seq., applied. The trial court held,
in relevant part, that the public-building exception to governmental immunity, MCL 691.1406,
was applicable, and therefore denied summary disposition for the DTC. The DTC appeals as of
right this portion of the trial court’s ruling. We reverse.
In response to the DTC’s motion, plaintiff argued, as relevant to this appeal, that two
exceptions to governmental immunity applied that prevented summary disposition: (1) the
proprietary-function exception because the DTC has multiple income sources, including
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advertising revenue, and (2) the public-building exception because the DTC failed to “repair and
maintain” the platform by not installing between-car barriers in purported violation of the
Americans with Disabilities Act (ADA), 42 USC 12131 et seq., and by installing surveillance
cameras in less-than-ideal locations.
The DTC, on the other hand, argued that neither exception applied. With respect to the
proprietary-function exception, the DTC contended that the exception could not apply because
providing low-cost public transportation to Detroit residents was not primarily for the purpose of
producing a pecuniary profit. As for the public-building exception, the DTC argued that it did
not apply because the DTC’s failure to install between-car barriers and surveillance cameras in
certain locations were allegations of design defects, which are not covered under the public-
building exception.
In denying summary disposition, the trial court agreed with the DTC that the
proprietary-function exception did not apply, but concluded that the public-building exception
did apply. In so holding, the trial court rejected the DTC’s argument that plaintiff’s allegations
were for design defects. The DTC appealed this denial, and the trial court stayed the matter
pending resolution of the appeal.
For the reasons stated below, we reverse the trial court’s opinion and order denying the
DTC’s motion for summary disposition and remand for further proceedings.
I. GOVERNMENTAL IMMUNITY IN GENERAL
We review de novo a trial court’s ruling on a motion for summary disposition. Kendricks
v Rehfield, 270 Mich App 679, 681-682; 716 NW2d 623 (2006). We likewise review de novo
questions of statutory interpretation, including the interpretation of the GTLA. Renny v Dep’t of
Transp, 478 Mich 490, 495; 734 NW2d 518 (2007).
When interpreting and applying the GTLA, the goal is “to give effect to the Legislature’s
intent as expressed in the statutory language.” Id. When the statutory language is unambiguous,
the Legislature’s intent is clear and judicial construction is inappropriate. Id. The GTLA
“affords broad immunity from tort liability to governmental agencies and their employees
whenever they are engaged in the exercise or discharge of a governmental function.” Kozak v
Lincoln Park, 499 Mich 465, 467; 885 NW2d 443 (2016). Thus, the GTLA’s grant of immunity
is broadly construed, and any exceptions to that immunity are narrowly construed. Grimes v
Michigan Dep’t of Transp, 475 Mich 72, 91 n 54; 715 NW2d 275 (2006).
Under section 7 of the GTLA, “a governmental agency is immune from tort liability if the
governmental agency is engaged in the exercise or discharge of a governmental function”
“[e]xcept as otherwise provided in this act[.]” MCL 691.1407(1). The trial court held that the
DTC was a governmental agency engaged in the exercise or discharge of a governmental
function and was therefore entitled to governmental immunity. This holding has not been
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challenged on appeal. 1 The only question on appeal is whether one of the exceptions to
governmental immunity applies, which is plaintiff’s burden to prove. See Mack v Detroit, 467
Mich 186, 201; 649 NW2d 47 (2002).
II. THE PUBLIC-BUILDING EXCEPTION
The public-building exception in MCL 691.1406 provides, in relevant 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.
The Michigan Supreme Court interpreted and applied those two sentences in a detailed way in
Renny, 478 Mich at 500-501, stating:
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,” 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” “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.
1
While arguing that the proprietary-function exception should apply, plaintiff states in his brief,
“The mere fact that the DTC is subsidized by the government does not make the corporation a
government entity.” This sentence could be construed as contending that the DTC is not a
governmental agency, though it would make little sense to argue about whether an exception to
governmental immunity applies if the entity cannot claim immunity in the first place. At any
rate, to the extent that this sentence could be construed as arguing that the DTC is not eligible to
claim governmental immunity, we deem the argument abandoned for failure to adequately brief
the issue. See Prince v MacDonald, 237 Mich App 186, 197; 602 NW2d 834 (1999).
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The second sentence of MCL 691.1406, which imposes liability on
governmental agencies “for bodily injury and property damage resulting from a
dangerous or defective condition of a public building,” does not expand the duty
beyond the repair and maintenance of a public building. The phrase imposes
liability where the “dangerous or defective condition of a public building” arises
out of the governmental agency’s failure to repair and maintain that building. It is
not suggestive of an additional duty beyond repair and maintenance. There is no
reason to suspect that the Legislature intended to impose a duty to prevent
“dangerous or defective condition[s]” in public buildings in a manner wholly
unrelated to the obligation clearly stated in the first sentence. [Footnotes
omitted.]
In short, the Michigan Supreme Court has established that a design-defect claim does not fall
within the plain language of the public-building exception. Renny, 478 Mich at 505.
In Renny, 478 Mich at 493-494, the plaintiff slipped and fell on a snow-and-ice patch on
a rest area’s sidewalk and alleged that the Michigan Department of Transportation (MDOT) was
negligent in “designing, constructing, keeping, and/or maintaining the rest area” by allowing
melted snow and ice to accumulate on the sidewalk. The plaintiff “attributed the accumulated
snow and ice, in part, to MDOT’s failure to install and maintain gutters and downspouts around
the roof of the building,” and “maintained that the gutters and downspouts would have safely
channeled the snow and ice that melted off the roof away from the sidewalks.” Id. at 494.
Although the Supreme Court remanded the matter because “there [was] record evidence
suggesting that the rest area was once equipped with gutters and downspouts” which could
satisfy the “repair and maintain” requirements, the Court nevertheless made clear that, “to the
extent that plaintiff’s claim is premised on a design defect of a public building, it is barred by
governmental immunity.” Id. at 506-507.
This Court followed Renny’s guidance that the public-building exception does not apply
to cases based on design-defect allegations in Tellin v Forsyth Twp, 291 Mich App 692; 806
NW2d 359 (2011). In that case, two children were injured after a “wobbly” I-beam fell on them
and broke their arms at a 40-year-old Air Force base that had been turned into a township
learning center. Id. at 696. The plaintiffs sued several governmental defendants, alleging, in
relevant part, that the public-building exception to governmental immunity applied because the
defendants failed to repair or maintain the I-beam. Id. at 697. The trial court found, in relevant
part, that the plaintiffs’ claim centered on an alleged failure to maintain, and not a design defect,
because someone had noticed that “the I-beam configuration . . . seemed loose” and was thus in
need of maintenance. Id. at 695, 698.
On appeal, the defendants argued that they were immune from liability under the GTLA
because “the placement of the steel I-beam configuration was simply a redesign decision that
altered the initial conception of the building” and, thus, was a design defect. Id. at 700. After
recognizing Renny’s distinction between “design defect versus repair and maintain,” the Tellin
Court noted “that the Renny Court did not explain where the line between the two concepts
should be drawn,” instead leaving that to trial courts to determine. Id. at 703. Accordingly, the
Tellin Court offered its own understanding of the differences between the two:
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A design defect would appear to consist of a dangerous condition inherent in the
design itself, such as its characteristics, functioning, and purpose. . . .
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. . . . 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. [Id. at 705-706
(footnotes omitted).]
Applying this framework, the Tellin Court determined that the “plaintiffs were not injured
because of an inherent characteristic of the I-beam configuration when coupled with the roof
overhang[.]” Id. at 706. Rather, the I-beam was installed as a “preventive measure” to support
“the existing structure,” and “[a]ny defective condition was not from the I-beam’s inherent
characteristics but from the [defendants’] failure to properly maintain the stability of the I-beam
configuration.” Id. at 707. The Tellin Court ultimately concluded:
Apart from the initial placement of the I-beam configuration, once it was
installed, the [defendants] had a continuing duty to repair and maintain it if it
became loose, damaged, or unstable. 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. In contrast, the [defendants] could have remedied the
condition at issue here 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.
Therefore, 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.
[Id. at 707 (footnotes omitted).]
In light of Renny and Tellin, it is our view that, in order for the public-building exception
to governmental immunity to apply, a plaintiff’s claims must allege that the governmental
defendant needed but failed to fix something pertaining to the building. Plaintiff’s claims here
do not do so.
Regarding the surveillance cameras, plaintiff alleged “that this surveillance infrastructure
was defective and not properly maintained” because it did not allow “proper coverage of the area
in question.” Plaintiff alleged that the surveillance cameras should have been installed in a
manner so that “Plaintiff’s Decedent’s fall would have been fully visualized, providing
Defendants with an appreciable period of time to stop the train from progressing, entirely
preventing Decedent Whyte’s death.” Clearly, plaintiff is alleging not that the cameras needed to
be fixed but that they should have been installed in a different location. The dangerous condition
that the placement of the cameras created, according to plaintiff, is that the DTC controllers
could not “fully visualize[]” the area where Whyte fell. This dangerous condition, however, was
“inherent in the design itself[.]” Tellin, 291 Mich App at 705. That is, the controllers could not
“fully visualize[]” the area where Whyte fell because the DTC decided to place the cameras
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where it did. Thus, plaintiff’s camera-related claim is alleging a defect in the platform’s design.
And because a design-defect claim does not fall within the plain language of the public-building
exception, Renny, 478 Mich at 505, we hold that plaintiff’s claims against the DTC, to the extent
they rely on allegations about the surveillance cameras, are barred by governmental immunity.
We reach the same holding with respect to plaintiff’s claims based on the between-car
barriers. Plaintiff alleged that “the Times Square Station platform was structurally defective in
that the structure of the platform allowed for the public to access the area between the train cars”
as well as “the rails . . . when a train is waiting to be boarded.” Plaintiff does not, however,
allege that there was something already installed in the building that needed to be fixed.
Plaintiff’s claims, to the extent they center on the lack of between-car barriers, focus on an
inherent problem with the platform as conceived and constructed, rather than extrinsic
circumstances, such as an already-installed between-car barrier that became loose or unstable.
That is, plaintiff’s complaint is with the design of the platform, not with a condition of the
platform that needed to be repaired or that was not properly maintained. Accordingly, we hold
that plaintiff’s claims against the DTC, to the extent they rely on allegations about the lack of
between-car barriers, are barred by governmental immunity.
We are not persuaded by plaintiff’s and the trial court’s reliance on purported violations
of the ADA. Assuming without deciding that the DTC’s failure to have installed between-car
barriers prior to Whyte’s death did, in fact, violate the ADA, we have found no legal authority
supporting the theory that an ADA violation, by itself, requires a governmental entity to “repair
and maintain” under the public-building exception. Although evidence of a statutory violation
creates a rebuttable presumption of negligence, see, e.g., Klanseck v Anderson Sales & Serv, Inc,
426 Mich 78, 86; 393 NW2d 356 (1986), a statutory violation, alone, is not one of the six
narrowly-tailored exceptions to governmental immunity, see Goodhue v Dep’t of Transp, 319
Mich App 526, 531 n 1; 904 NW2d 203 (2017). Thus, evidence of the violation alone does not
avoid governmental immunity under the public-building exception.
In arguing that the DTC’s failure to install the between-car barriers falls within the
public-building exception, plaintiff points out that the Renny Court defined “maintain,” in part,
as “to keep up.” Renny, 478 Mich at 501. Plaintiff expounds that the DTC was required “to
keep up” with ADA regulations, and its failure to do so amounts to a failure to “maintain” the
platform. Yet plaintiff seems to ignore that, when defining “maintain” in the public-building
exception, the Renny Court explained, “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.” Id. Clearly, installing something new to the platform2 is not “restoring or returning”
it “to a prior state or condition.” Thus, regardless whether the lack of between-car barriers
amounts to a code or ADA violation, plaintiff’s claim ultimately constitutes a design defect and
therefore does not fall within the public-building exception pursuant to Renny. In so ruling, we
2
Nothing in the record suggests that there has been any change in regard to between-car barriers
since the platform was constructed.
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emphasize that any exception to the GTLA’s broad grant of immunity—which includes the
public-building exception—is narrowly construed. Grimes, 475 Mich at 91 n 54.
Plaintiff’s reliance on Green v State, 30 Mich App 648; 186 NW2d 792 (1971), and
Velmer v Baraga Area Sch, 430 Mich 385; 424 NW2d 770 (1988), is misplaced. Both cases
dealt with whether pieces of heavy-duty equipment were fixtures and thus subject to the public-
building exception. See Green, 30 Mich App at 655; Velmer, 430 Mich at 390-396. Both cases
were decided before Renny, and neither dealt with the distinction between design defects and a
failure to repair and maintain. Thus, neither case assists us in deciding the issue now before us.
Moreover, because the cases were decided pre-Renny, neither provides a sufficient explanation
of what caused the purported failure to the equipment’s safety devices.3 Were they, like this
case, simply designed that way? Or were they installed with the proper safety devices but,
because of extrinsic forces, in need of repair or maintenance? Without being able to answer
these questions, we cannot conclude that Green or Velmer support a different result here.
For these reasons, we hold that the trial court erred in deciding that plaintiff met his
burden of establishing that the public-building exception to governmental immunity applied.
III. THE PROPRIETARY-FUNCTION EXCEPTION
Plaintiff alternatively argues that we should nevertheless affirm the trial court’s denial of
the DTC’s motion for summary disposition based on the proprietary-function exception. “A trial
court’s ruling may be upheld on appeal where the right result issued, albeit for the wrong
reason.” Gleason v Mich Dep’t of Transp, 256 Mich App 1, 3; 662 NW2d 822 (2003). We
conclude, however, that the trial court did not reach the right result.
The proprietary-function exception to governmental immunity is codified in MCL
691.1413, which states in relevant part:
The immunity of the governmental agency shall not apply to actions to recover
for bodily injury or property damage arising out of the performance of a
proprietary function as defined in this section. Proprietary function shall mean
any activity which is conducted primarily for the purpose of producing a
pecuniary profit for the governmental agency, excluding, however, any activity
normally supported by taxes or fees.
“Therefore, to be a proprietary function, an activity: (1) must be conducted primarily for the
purpose of producing a pecuniary profit; and (2) it cannot be normally supported by taxes and
fees.” Goodhue, 319 Mich App at 532 (quotation marks and citation omitted).
As explained by this Court in Goodhue, 319 Mich App at 532:
3
Both courts concluded, without discussion, that, for a fixture located in a public building, a
safety defect in the fixture falls under the public-buildings exception to governmental immunity.
See Green, 30 Mich App at 655; Velmer, 430 Mich at 396.
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The first prong of the proprietary function test has two relevant
considerations. First, whether an activity actually generates a profit is not
dispositive, but the existence of profit is relevant to the governmental agency's
intent. Importantly, [a]n agency may conduct an activity on a self-sustaining
basis without being subject to the proprietary function exemption. Second, where
the profit is deposited and where it is spent indicate intent. If profit is deposited
in the general fund or used on unrelated events, the use indicates a pecuniary
motive, but use to defray expenses of the activity indicates a nonpecuniary
purpose. [Quotation marks and citations omitted; alteration in Goodhue.]
In Goodhue, 319 Mich App at 534, this Court concluded that the operation of the Blue
Water Bridge in Port Huron was not a proprietary function. In doing so, it pointed to the
following factors:
“the Blue Water Bridge receives income from a variety of sources but that
the primary sources is from tolls,”
“all monies are placed in the same Blue Water Bridge subfund, which is
part of the state’s trunk-line fund,”
“the money is used solely ‘for the operation of the Blue Water Bridge,’ ”
and
“in addition to daily operations, money from the subfund is used for
capital projects and to pay debt service on bonds that were issued for
projects associated with the Blue Water Bridge.” [Id. at 533.]
The Goodhue Court rejected the plaintiff’s emphasis on evidence that the defendant’s income
exceeded its expenses over the previous several years, as well as the assertion “that the operation
of the Blue Water Bridge has a real purpose to increase the ‘profit’ of the state because any Blue
Water Bridge expansion project will generate significant tax revenue for the state.” Goodhue,
319 Mich App at 533. The Goodhue Court concluded, “In sum, there is no evidentiary support
for the contention that the primary purpose in running an efficient international bridge crossing is
to improve the financial bottom line of any other government.” Id.
To support his position that the real purpose of the Detroit People Mover was to make a
profit for the DTC, plaintiff relies in part on deposition testimony from one of the DTC’s
controllers. She testified, in relevant part, that
“approximately 90 percent of [DTC’s] operational budget” comes from
“various local, state and federal public funding,”
the DTC charges riders “75 cents” per ride, which “is used to defray the
$5.85 it costs for that ride,” i.e., “[t]he operating cost to carry one rider,”
“[w]e don’t make a profit,” and “we never have had a profit” because
“[i]t’s really all losses,”
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the DTC makes money from selling advertising space, which “is used to
defray the cost of generating that revenue for advertising,”
the DTC invests in capital assets, which apparently includes “artwork,”
the DTC has over $47 million in assets, which “would be any and all of
[its] cash accounts, prepaid expenses, inventory and any deferred . . .
assets now as well as for pension,” and
the DTC receives “rental income” from a clothing store “for a lot [it has]
over on Broadway underneath [its] guideway, that’s $375 a month that [it]
receive[s], and the remainder, the miscellaneous is mainly proceeds from
insurance companies . . . .”
According to the controller, the 75-cent fares are “deposited in a general fund” and “used to
defray the primary expense of the operation of the People Mover,” the subsidies that come in
“are used, again, for the primary expense of the operation of the People Mover,” the rental
income is used for “[o]perating expenses” meaning “the primary expenses of operating the
People Mover,” and any “miscellaneous revenue” is also “used for the primary expense of
operating the People Mover.” Indeed, the only income that did not go to “the primary expense of
the operation of the People Mover” was the advertising income, which the controller agreed
“goes toward the advertising of the People Mover.”
The circumstances in this case are largely indistinguishable from those in Goodhue. In
both cases, the governmental entity received income from a variety of sources, placed all of the
income in the same fund, and used the money exclusively or almost exclusively to operate. In
Goodhue, the only exception was that “money from the subfund [was also] used for capital
projects and to pay debt service on bonds,” Goodhue, 319 Mich App at 534, and here the only
exception is that advertising income is used for other advertising. Plaintiff’s argument that this is
a proprietary function because advertising income is used for advertising-related purposes—
meaning purposes other than the “operation” of the Detroit People Mover—is not persuasive.
Ultimately, nothing in the record demonstrates that the Detroit People Mover was “conducted
primarily for the purpose of producing a pecuniary profit,” nor does anything demonstrate that
low-cost mass transportation is an activity that is not “normally supported by taxes and fees.”
Goodhue, 319 Mich App at 532 (quotation marks and citation omitted). Again, “it is the
responsibility of the party seeking to impose liability on a governmental agency to demonstrate
that its case falls within one of the exceptions.” Mack, 467 Mich at 201. And the controller’s
deposition testimony that the DTC used advertising income for advertising-related purposes is
not enough to meet that burden. Accordingly, we hold that the trial court properly concluded
that plaintiff did not meet his burden to show that the proprietary-function exception to
governmental immunity applies.
In sum, the trial court erred when it held that plaintiff met his burden to show that the
public-building exception to governmental immunity applied based on the DTC’s failure to
install between-car barriers and its purported failure to install surveillance cameras in certain
locations. Plaintiff also failed to establish that the People Mover had a proprietary function. We
therefore reverse.
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Reversed and remanded for proceedings consistent with this opinion. We do not retain
jurisdiction.
/s/ Patrick M. Meter
/s/ Colleen A. O’Brien
/s/ Brock A. Swartzle
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