Brown v. Genesee County Board of Commissioners

Michigan Supreme Court

Lansing, Michigan 48909

____________________________________________________________________________________________

C hief Justice Justices

Maura D. Cor rigan Michael F. Cavanagh

Opinion

Elizabeth A. Weaver

Marilyn Kelly

Clifford W. Taylor

Robert P. Young, Jr.

Stephen J. Markman

____________________________________________________________________________________________________________________________

FILED JULY 3, 2001

CHESTER E. BROWN, JR.,

Plaintiff-Appellee,

v No. 113915

GENESEE COUNTY BOARD OF

COMMISSIONERS,

Defendant-Appellant.

____________________________________

BEFORE THE ENTIRE BENCH (except TAYLOR, J.).

CORRIGAN, C.J.

We granted leave to consider whether an inmate, who

claims that a dangerous or defective condition in a jail

caused injuries, may avoid governmental immunity for tort

liability under the statutory exception for public buildings,

MCL 691.1406. The trial court granted summary disposition to

defendant-county, but the Court of Appeals reversed and held

that a jail falls within the exception.

We would reverse the Court of Appeals decision and

reinstate the trial court’s grant of summary disposition to

defendant. Although a jail is “open for use by members of the

public,” an inmate is not a member of the “public” as

contemplated by the Legislature when it enacted the public

building exception to governmental immunity.

I. UNDERLYING FACTS AND PROCEDURAL HISTORY

Plaintiff, an inmate in the Genesee County jail, injured

himself when he slipped on water near a shower stall. He sued

the county under the public building exception, MCL 691.1406.

He alleged that improper drainage and the absence of a shower

curtain had caused water to accumulate on the floor.1

The trial court granted summary disposition to defendant

under MCR 2.116(C)(7) on the ground that the public building

exception did not apply. The Court of Appeals initially

affirmed. 222 Mich App 363; 564 NW2d 125 (1997). It observed

that the shower area of the jail was not open to members of

the public. This Court then remanded the case to the Court of

Appeals for reconsideration in light of Kerbersky v Northern

Mich Univ, 458 Mich 525; 582 NW2d 828 (1998). 459 Mich 881

(1998).

On remand, the Court of Appeals reversed. 233 Mich App

1

Our resolution of this case does not require us to

consider whether a structural defect, as opposed to a

transitory condition, caused the accident. Cf. Wade v Dep’t

of Corrections, 439 Mich 158; 483 NW2d 26 (1992).

2

325; 590 NW2d 603 (1998). It noted that Kerbersky mandates

analysis of the public’s access to the building itself, not

the specific accident site within the building. The Court of

Appeals assumed that a jail is open for use by members of the

public. Defendant now appeals.

II. STANDARD OF REVIEW

We review the grant or denial of a motion for summary

disposition de novo. Maiden v Rozwood, 461 Mich 109, 118; 597

NW2d 817 (1999). MCR 2.116(C)(7) permits summary disposition

where immunity granted by law bars a claim. Courts must

consider documentary evidence submitted by the parties.

Glancy v Roseville , 457 Mich 580, 583; 577 NW2d 897 (1998).

We review de novo questions of statutory interpretation.

Donajkowski v Alpena Power Co, 460 Mich 243, 248; 596 NW2d 574

(1999).

III. ANALYSIS

A. GOVERNMENTAL IMMUNITY

Absent a statutory exception, a governmental agency is

immune from tort liability when it exercises or discharges a

governmental function. MCL 691.1407(1). A governmental

function is “an activity which is expressly or impliedly

mandated or authorized by constitution, statute, local charter

or ordinance, or other law.” MCL 691.1401(f).

MCL 45.16 expressly mandates operation of jails: “each

organized county shall, at its own cost and expense, provide

3

at the county seat thereof . . . a suitable and sufficient

jail . . . and keep the same in good repair.” Defendant thus

enjoys general immunity from tort liability in its maintenance

and operation of the county jail. See Jackson v Saginaw Co,

458 Mich 141, 148; 580 NW2d 870 (1998).

B. PUBLIC BUILDING EXCEPTION

Several statutory exceptions to immunity exist.2 This

case implicates the public building exception:

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 take action reasonably necessary to

protect the public against the condition. [MCL

691.1406.]

For this exception to apply, a plaintiff must

demonstrate:

(1) a governmental agency is involved, (2) the

public building in question was 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 period or

failed to take action reasonably necessary to

2

They include: the highway exception, MCL 691.1402; the

motor vehicle exception, MCL 691.1405; the public building

exception, MCL 691.1406; the proprietary function exception,

MCL 691.1413; and the governmental hospital exception, MCL

691.1407(4).

4

protect the public against the condition after a

reasonable period. [Kerbersky, supra at 529.]

Today we would hold that the plain statutory language also

requires that the party seeking relief be a member of the

“public.”

1. WAS THE JAIL OPEN FOR USE BY MEMBERS OF THE PUBLIC ?

Mere public ownership of a structure does not satisfy the

express language of the public building exception. A building

must also be open for use by members of the public.

Kerbersky, supra at 533.3 When determining the public’s

access, we analyze the building itself, not the specific

accident site within the building. Id. at 527.

Plaintiff claims to have injured himself near a shower

stall in defendant’s jail. Under Kerbersky, we examine the

public’s access to the jail rather than the shower area. Id.

Green v Dep’t of Corrections, 386 Mich 459; 192 NW2d 491

(1971), held that a jail falls within the scope of the

statutory exception.4 In other decisions, this Court has

3

Examples of publicly owned buildings that are not open

for use by members of the public include: a city-owned

apartment used as a private residence, Griffin v Detroit, 178

Mich App 302; 443 NW2d 406 (1989); a publicly owned building

that is closed for renovations, Dudek v Michigan, 152 Mich App

81; 393 NW2d 572 (1986); and a locked building that was not

designed for public access, Taylor v Detroit, 182 Mich App

583; 452 NW2d 826 (1989).

4

While we agree with Green that a jail is subject to the

public building exception, we do not approve the reasoning in

that decision. This Court in Green failed to analyze whether

a jail is open for use by members of the public. Moreover,

5

implicitly assumed as much. See, e.g., Wade v Dep’t of

Corrections, 439 Mich 158; 483 NW2d 26 (1992).

We would reaffirm that a jail is open for use by members

of the public. Family, friends, and attorneys may generally

visit inmates. Members of the public may also enter a jail

for other reasons, e.g., to apply for a job or make a

delivery.

The fact that public access to a jail is limited does not

alter our conclusion. Schools fall within the exception even

though members of the public may not enter whenever and

wherever they please. See Sewell v Southfield Public Schools,

456 Mich 670; 576 NW2d 153 (1998); Bush v Oscoda Area Schools,

405 Mich 716; 275 NW2d 268 (1979). The public building

exception applies to buildings with limited access, including

schools and prisons. Kerbersky, supra at 534; Steele v Dep’t

of Corrections, 215 Mich App 710, 715; 546 NW2d 725 (1996).

2. IS A JAIL INMATE A MEMBER OF THE PUBLIC ?

We next consider whether an inmate is a member of the

“public” who may avoid immunity under the public building

exception. To answer this question, we examine the statutory

text.

for reasons discussed below, we would overrule Green to the

extent that it treats inmates as members of the “public” for

purposes of the statutory exception.

6

a. RELEVANT PRINCIPLES OF STATUTORY INTERPRETATION

Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d

119 (1999), articulated the proper mode of interpretation:

The rules of statutory construction are well

established. The foremost rule, and our primary

task in construing a statute, is to discern and

give effect to the intent of the Legislature.

Murphy v Michigan Bell Telephone Co, 447 Mich 93,

98; 523 NW2d 310 (1994). See also Nation v W D E

Electric Co, 454 Mich 489, 494; 563 NW2d 233

(1997). This task begins by examining the language

of the statute itself. The words of a statute

provide “the most reliable evidence of its intent

. . . .” United States v Turkette, 452 US 576,

593; 101 S Ct 2524; 69 L Ed 2d 246 (1981). If the

language of the statute is unambiguous, the

Legislature must have intended the meaning clearly

expressed, and the statute must be enforced as

written. No further judicial construction is

required or permitted. Tryc v Michigan Veterans’

Facility, 451 Mich 129, 135; 545 NW2d 642 (1996).

“Contextual understanding of statutes is generally

grounded in the doctrine of noscitur a sociis: ‘[i]t is known

from its associates,’ see Black’s Law Dictionary (6th ed), p

1060. This doctrine stands for the principle that a word or

phrase is given meaning by its context or setting.” Tyler v

Livonia Schools, 459 Mich 382, 390-391; 590 NW2d 560 (1999).

Also, when construing a statute, we presume that every

word has meaning; our interpretation should not render any

part of the statute nugatory. People v Borchard-Ruhland, 460

Mich 278, 285; 597 NW2d 1 (1999).

b. INTERPRETATION

The first sentence of the public building exception

7

articulates the governmental agency’s duty (“to repair and to

maintain public buildings”) and a limitation of that duty

(“when [the buildings are] open for use by members of the

public”). As discussed above, the limiting phrase explicitly

restricts the types of buildings to which the duty extends.

Unless a building is open for use by members of the public, it

does not fall within the exception. But this phrase also

limits implicitly the class of persons who may sue. It

excludes persons who are not members of the public, i.e.,

those persons who are not present in the building as potential

invitees.

The Legislature simply could have ended the first

sentence of the statute after it articulated the duty owed by

governmental agencies. It instead set forth a limitation of

the duty. The Legislature would not have limited the duty to

buildings that are open to members of the public if it had

intended to protect persons who are not members of the public.

By including the public within the protected class, the

Legislature implicitly excluded persons who are not members of

the public. See Hoste v Shanty Creek Management, Inc, 459

Mich 561, 572, n 8; 592 NW2d 360 (1999) (the express mention

of one thing in a statute impliedly excludes other similar

things). Thus, allowing anyone to sue would effectively

nullify the limiting phrase.

8

Read in context, therefore, the duty created in the

statute protects members of the public from dangerous and

defective conditions in public buildings. We decline to read

the statutory language out of context or to “stretch” the

common, ordinary meaning of the words to include a class of

persons whom the Legislature expressed no intent to protect.5

Jail inmates are not members of the public for purposes

of the public building exception.6 Unlike a person who enters

a jail, e.g., to meet with an inmate, make a delivery, or

apply for a job, an inmate does not visit a jail as a

potential invitee. Instead, inmates are legally compelled to

be there. Inmates thus are not within the class of persons

the Legislature intended to protect from defects in public

buildings.7

5

Our concurring colleague believes that a person who is

not a member of the public may sue for injuries that occur in

an area of a public building that is open to the public. The

statutory text, however, plainly refers to buildings that are

open to members of the public; it does not refer to areas of

public buildings that are open to persons who are not members

of the public. Moreover, Kerbersky, supra, held that the

situs of an injury in a public building is not relevant.

6

Our concurring colleague agrees that an inmate is not a

member of the public, but relies on different language in the

statute to reach that conclusion.

7

Our proposed holding today is limited to jail inmates;

we offer no view regarding other classes of persons. It is

worth observing, however, that unlike jail inmates, students

attending a public school are not legally compelled to be

there. They have other choices, including charter schools,

private schools, and home schooling.

9

It is undisputed that plaintiff was an inmate when he

injured himself near a shower stall in defendant’s jail. He

therefore was not a member of the public for purposes of the

public building exception.8

IV. CONCLUSION

A jail is open for use by members of the public.

However, jail inmates are not members of the public and thus

cannot avoid governmental immunity under the public building

exception. Accordingly, we would reverse the Court of Appeals

decision and reinstate the trial court’s grant of summary

disposition for defendant.

WEAVER and YOUNG , JJ., concurred with CORRIGAN , C.J.

8

The dissent offers no analysis of the text of the public

building exception to support its view that inmates are

“members of the public.” Instead, the dissent relies on the

“logic” in Green, supra, and dicta from other cases.

Our duty to honor the intent of the Legislature, as

expressed in unambiguous statutory text, is paramount. This

Court in Green offered no analysis to support its assertion

that an inmate “is a member of the public community.” Id. at

464. As we have explained, treating inmates as “members of

the public” would nullify the limiting phrase in the public

building exception. We decline to elevate an isolated,

conclusory assertion in Green above the plain language of the

public building exception.

10

S T A T E O F M I C H I G A N

SUPREME COURT

CHESTER E. BROWN, JR.,

Plaintiff-Appellee,

v No. 113915

GENESEE COUNTY BOARD OF

COMMISSIONERS,

Defendant-Appellant.

MARKMAN J. (concurring).

I concur in the result reached in the plurality opinion

because I agree that the public building exception to

governmental immunity is not applicable in this case, although

I reach this conclusion on the basis of a different analysis

than that of the plurality opinion’s. Accordingly, I concur

in the plurality opinion’s reversal of the decision of the

Court of Appeals and the reinstatement of the trial court’s

grant of summary disposition in favor of defendant.

First, I agree with the plurality opinion’s conclusion

that a jail is “open for use by members of the public,” as

well as in its analysis in reaching this conclusion. Second,

I agree that an inmate is not a member of the public within

the meaning of the public building exception. However, I

respectfully disagree with the analysis by which the plurality

opinion reaches this conclusion. It reaches such a conclusion

on the basis of the statutory language that limits the

government’s duty to repairing and maintaining public

buildings that are “open for use by members of the public.”

In contrast, I reach this same conclusion on the basis of the

statutory language that limits the government’s liability to

injuries caused by failing to “take action reasonably

necessary to protect the public against the condition.” We

both conclude that a jail inmate is not a member of the public

for purposes of the public building exception in order to

avoid rendering the language of the statute meaningless by

encompassing within the definition of public virtually

everyone. The difference in our analyses is that I come to

this conclusion in order to avoid rendering the term “public”

as contained in the last sentence of the statute meaningless,

whereas the plurality opinion comes to the same conclusion in

order to avoid rendering the term “public” as contained in the

first sentence of the statute meaningless.

2

Finally, I disagree with the plurality opinion’s

conclusion that a party seeking relief under the public

building exception must be a member of the public. The

essential difference between my interpretation of the statute

and that of the plurality is that I view the statute as a

“where” statute while it views the statute as a “who” statute.

In other words, I believe that the statute limits the

government’s liability to certain places, i.e., public

buildings that are “open for use by members of the public.”

In contrast, the plurality opinion asserts that the statute

limits the government’s liability to certain people, i.e.,

members of the public.

I. ANALYSIS

I agree with the plurality opinion’s conclusion that an

inmate is not a member of the public within the meaning of the

public building exception. However, I come to this conclusion

for reasons different from the plurality opinion’s. The

plurality reaches this conclusion on the basis that the

limitation of the government’s duty to only public buildings

that are “open for use by members of the public” also

implicitly limits the government’s duty to only members of the

public. Slip op at 8. In my view, the language “open for use

by members of the public” limits only which buildings are

3

public buildings for purposes of the public building

exception. Accordingly, a jail is a public building within

the meaning of the public building exception because it is

“open for use by members of the public.”

In my judgment, the important issue in this case is not

merely whether defendant was a member of the public, but

rather whether action by the defendant “was reasonably

necessary to protect the public against the [alleged dangerous

or defective] condition” of the public building. The public

building exception statute provides:

Governmental agencies are liable for bodily

injury and property damages resulting from a

dangerous or defective condition of a public

building if the governmental agency . . . failed to

. . . take action reasonably necessary to protect

the public against the condition. [MCL 691.1406

(emphasis added).]

It is clear from the language of the statute, i.e., “necessary

to protect the public,” that the Legislature intended to limit

the government’s liability, in that the government only is

liable for failing to “take action reasonably necessary to

protect the public.” Thus, the relevant question is whether

action was “necessary to protect the public.” Because the

government is only liable for injuries caused by failing to

“take action reasonably necessary to protect the public,” if

a member of the public is injured in a “public building,” the

4

government may be liable.1

However, because this liability is limited to failing to

“take action reasonably necessary to protect the public,” if

a person who is not a member of the public is injured in a

“public building,” the government may only be liable if the

plaintiff was injured in an area of the building open to the

public. This is true because, in order to protect members of

the public, the government must keep areas of public buildings

that are open to members of the public free from dangerous or

defective conditions.2 However, because this liability is

limited to failing to “take action reasonably necessary to

protect the public,” the government is not liable for failing

to repair and maintain areas of public buildings not open to

the public, unless a member of the public is actually injured

therein. See Kerbersky v Northern Mich Univ; 458 Mich 525,

1

Plaintiff would still have to prove that the injury was

caused by a dangerous or defective condition of the building

and that the governmental agency had knowledge of the

condition and failed to remedy the condition after a

reasonable period.

2

Because the government is liable for failing to “take

action reasonably necessary to protect the public,” the

government may be serendipitously liable for failing to

protect a person who is not a member of the public, if that

person is injured in an area of the building open to the

public. This liability does not arise because of some duty

owed to the person who is not a member of the public; rather,

it arises from the duty owed to protect members of the public.

The person who is not a member of the public is merely an

incidental beneficiary of this duty owed to the public.

5

527; 582 NW2d 828 (1998).3 Therefore, in order for the public

building exception to apply, plaintiff must establish that (1)

he was a member of the public, or (2) he was injured in an

area of the building open to the public.

The plurality opinion concludes that a party seeking

relief under the public building exception must be a member of

the public. Slip op at 5. It asserts that the limitation of

the government’s duty to public buildings that are “open for

use by members of the public” also implicitly limits the

government’s duty to only members of the public. Slip op at

8. I respectfully disagree. The statutory language clearly

expresses the Legislature’s intent for the government’s duty

to only apply to certain buildings, but it says nothing about

limiting the government’s duty to certain people.

3

Kerbersky held that the government is liable to members

of the public for injuries caused by dangerous or defective

conditions of public buildings, regardless of whether the

accident site was open to members of the public. However,

Kerbersky did not distinguish between members of the public

and persons who are not members of the public. Thus,

consistent with Kerbersky, I would continue to hold that the

government may be liable to members of the public, regardless

of whether the specific accident site was open to members of

the public. However, I would now make the distinction

mandated, in my judgement, by the statute, between members of

the public and persons who are not members of the public. I

would conclude that, even though the government may be liable

to members of the public injured in an area of the building

not open to members of the public, the government is not

liable to persons who are not members of the public who are

injured in an area of the building not open to members of the

public.

6

The plurality opinion contends that “[t]he Legislature

would not have limited the duty to buildings that are open to

members of the public if it had intended to protect persons

who are not members of the public.” Id. at 8 (emphasis in the

original). Although I do not know with any certainty what

motivated the Legislature in this regard, I suspect that it

included this language to ensure that the public building

exception would apply to buildings that are open, to some

degree, to the public, such as jails and office buildings, but

not to buildings that are altogether closed to the public,

such as electrical substations and data facilities. Had it

merely limited the government’s duty to members of the public,

without limiting the government’s duty to public buildings

that are “open for use by members of the public,” the statute

may well have imposed what the Legislature perceived as an

unreasonable burden upon the government to maintain and repair

such “public buildings” as substations and data facilities at

an unnecessarily high level. The corollary to the plurality

opinion’s argument, of course, is that if the Legislature had

intended to protect only members of the public, it could have

just as easily stated that proposition, as well.

A. IS A JAIL INMATE A MEMBER OF THE PUBLIC WITHIN THE MEANING OF THE

PUBLIC BUILDING EXCEPTION ?

In determining whether the government is liable for

7

injuries sustained by a plaintiff under the public building

exception, the first inquiry is whether the plaintiff is a

member of the public. “The primary goal of judicial

interpretation is to ascertain and give effect to the intent

of the Legislature.” McJunkin v Cellasto Plastic Corp, 461

Mich 590, 598; 608 NW2d 57 (2000). This Court’s obligation

is to determine the Legislature’s intent “as gathered from

the act itself.” Id. MCL 691.1406 provides that a

governmental agency is liable for failing to do what is

“reasonably necessary to protect the public” against

dangerous or defective conditions in public buildings. The

logical reading of this statute is that the Legislature

intended to limit the government’s liability to injuries

caused by the government’s failure to protect members of the

public. It is clear from the plain words of the statute,

i.e., “necessary to protect the public,” that the Legislature

did not intend under the public building exception for

governmental agencies to be liable for injuries caused by the

government’s failure to do what is necessary to protect

persons who are not members of the public, such as jail

inmates.

A jail inmate is not in the class of persons the

Legislature intended to protect when it enacted the public

8

building exception to governmental immunity.4 This is

evidenced by the statutory language limiting a governmental

agency’s liability to injuries caused by the government’s

failure to take action to protect members of the public.

People who enter jails to visit inmates are members of the

public whom the Legislature intended to protect. However, in

my judgement, an inmate who is legally compelled to be at the

jail is not a member of the public for purposes of the public

building exception.

This Court’s interpretation of a statute must avoid

denying effect to portions of that statute. Piper v

Pettibone Corp, 450 Mich 565, 571-572; 542 NW2d 269 (1995).

If we were to interpret “public” to include inmates, we would

be denying effect to a portion of the public building

statute. The Legislature intended governmental agencies to

only be liable for failing to protect members of the public.

However, if we interpret “public” to include inmates,

governmental agencies would effectively be liable to everyone

because, if an inmate is a member of the public, it is

difficult to conceive of who would not be considered to be

part of such a class. The inmate is segregated from the

4

The government may still be liable to persons who are

not members of the public, such as jail inmates, if they are

injured in an area of a public building open to the public, as

discussed above.

9

public, he is severely limited in his ability to intermingle

with the public, and under typical circumstances is confined

to an area in which the public has no right to be. I would

conclude that the statute does not impose liability upon

governmental agencies for failing to do what is necessary to

protect inmates of a jail for purposes of the public building

exception. Accordingly, I agree with the plurality opinion’s

conclusion that a jail inmate is not a member of the public

within the meaning of the public building exception, and thus

I concur with the plurality opinion’s overruling of that part

of Green v Dep’t of Corrections, 386 Mich 459; 192 NW2d 491

(1971), which held that inmates are members of the public

community whether in or out of jail.5

5

The dissent criticizes the plurality opinion’s

overruling of Green. Post at 3. The dissent asserts that,

“despite the plurality’s misguided belief that we can ignore

precedent whenever this Court’s reading of a statute would

lead to a different result than that of a prior Court, I

continue to find value in respecting precedent.” Id. In my

judgment, the plurality opinion did not ignore precedent;

rather, it accurately explained why it was necessary to

overrule Green in order to enforce the plain meaning of the

statutory language. Although I, like the dissent, find

considerable value in respecting precedent, I also find value

in enforcing the plain meaning of statutory language. See

Nawrocki v Macomb Co Rd Comm, 463 Mich 143, 151; 615 NW2d 702

(2000) (holding that “we are duty-bound to overrule past

decisions that depart from . . . the plain language of the

statutory clause . . .”). I agree with the plurality opinion

that this Court should not “elevate an isolated, conclusory

assertion in Green above the plain language of the public

building exception.” Slip op at 10, n 8. Further, to place

the Green decision in context, I note that Green was decided

(continued...)

10

B. WAS PLAINTIFF INJURED IN AN AREA OF THE BUILDING OPEN TO THE

PUBLIC ?

In determining whether the government is liable for

injuries sustained by plaintiff under the public building

exception, the second inquiry is whether the plaintiff was

injured in an area of the building open to the public. In

order to protect the public, governmental agencies must

ensure that all areas of public buildings, to which the

public has access, contain no dangerous or defective

conditions. It would be illogical to hold that a

governmental agency must keep all areas of a public building

free from dangerous or defective conditions, because the

statute expressly provides that a governmental agency only is

liable for failing to protect the “public” from those

conditions. Thus, governmental agencies are not liable for

5

(...continued)

during a period in which this Court gave the term

“governmental function” a narrow reading, while giving broad

readings of the statutory exceptions to governmental immunity.

In contrast with that prior era, we now interpret the term

“governmental function” broadly and construe the exceptions

narrowly. Ross v Consumers Power Co(On Rehearing), 420 Mich

567; 363 NW2d 641 (1984). Moreover, in Green, the Court

focused its analysis on whether the building was a pubic

building, i.e., “open for use by members of the public.” The

Court never discussed whether action was “necessary to protect

the public.” Green held, in the context of whether a jail is

a public building, that an inmate is a member of the public,

whereas I would now hold in the context of whether action is

“necessary to protect the public” from a defective or

dangerous condition of a public building, that an inmate is

not a member of the public.

11

failing to keep areas of public buildings to which the public

does not have access free from dangerous or defective

conditions, unless that condition, in fact, causes a member

of the public injury. See Kerbersky, supra at 527.

Kerbersky, supra at 527, held that “a member of the

public injured as the result of a defect[ive] or dangerous

condition of a building that is open to members of the public

may invoke the public building exception to governmental

immunity, even if the person is injured in an area of the

building not open for use by members of the general public.”

I would reaffirm that holding. What I would hold today is

that a person who is not a member of the public cannot invoke

the public building exception to governmental immunity if

that person is injured in an area of the building not open to

the public. However, a person who is not a member of the

public may invoke the public building exception if that

person was injured in a part of the building that is open to

the public. In sum, a member of the public can invoke the

public building exception, regardless of whether the specific

accident site was open to members of the public, but a person

who is not a member of the public cannot invoke the public

building exception unless the accident site was open to

members of the public. I reach this conclusion, not because

it necessarily conforms with my own views about the proper

12

contours of governmental immunity, but because I believe that

it most closely conforms with the language of the public

building exception.

The Court, in Kerbersky, concluded that, when

determining whether a building is a public building for

purposes of the public building exception, the situs of the

injury is irrelevant. However, Kerbersky did not conclude

that the situs of the injury is irrelevant for all purposes.

I would concur with Kerbersky, in that, when determining

whether a building is a public building, the proper inquiry

is into the public nature of the building itself, not merely

the specific accident site. Thus, in deciding that a jail is

a public building, I examined the jail itself, not merely the

shower area in which plaintiff was injured. However, the

situs of an injury is relevant when determining whether the

government is liable for failing to “take action reasonably

necessary to protect the public.” In Kerbersky, the Court

concluded that the government is liable to a member of the

public who is injured as the result of a dangerous or

defective condition of a public building, regardless of

whether that person was injured in an area of the building

open to the public. Therefore, the situs of an injury is

irrelevant when determining the government’s liability to a

member of the public. However, Kerbersky did not make the

13

distinction between members of the public and persons who are

not members of the public. I now make this distinction,

which is, in my judgment, mandated by the statute. The

government is liable for injuries to members of the public,

regardless of where they are injured in the building, because

the government is liable for injuries caused by failing to

take remedial action “reasonably necessary to protect the

public.” But, the government is liable to persons who are

not members of the public only if they are injured in an area

of the building open to the public because the government is

only liable for injuries caused by failing to take remedial

action when such action was “reasonably necessary to protect

the public.” Therefore, I would conclude that, even though

a jail is a public building, the public building exception

does not apply to an inmate injured in an area of that jail

not open to the public.6

6

The plurality opinion asserts that the statute does not

support my position that the public building exception is

applicable to people who are not members of the public who are

injured in an area of a “public building” that is open to the

public. Slip op at 9, n 5. I respectfully disagree. The

statute provides that governmental agencies are liable for

injuries caused by its failure to “take action reasonably

necessary to protect the public against the condition.”

Clearly, this means that governmental agencies are liable for

injuries caused by its failure to repair and maintain areas of

“public buildings” that are open to the public because, in

that case, action would be “reasonably necessary to protect

the public.” What the statute does not support, in my

judgment, is the plurality’s holding that governmental

(continued...)

14

In the present case, members of the public did not have

access to the shower area, which is where plaintiff was

injured. Because plaintiff was not a member of the public

and was injured in an area of the jail that was not open to

the public, defendant should not be held liable under the

public building exception for failing to keep the shower area

free of defective or dangerous conditions.

II. CONCLUSION

The government is generally immune from tort liability.

However, there are several statutory exceptions that apply to

this broad grant of immunity, one being the public building

exception. I agree with the plurality opinion that a jail is

a public building “open for use by members of the public.”

I also agree that plaintiff is not a member of the public.

However, in my judgment, that is not the end of the inquiry.

The plurality views this statute as a “who” statute, meaning

6

(...continued)

agencies are never liable for injuries sustained by people who

are not members of the public.

The plurality opinion also asserts that “Kerbersky,

supra, held that the situs of an injury in a pubic building is

not relevant.” Slip op at 9, n 6. However, as I have already

noted, Kerbersky only held that the situs of an injury in a

public building is irrelevant when determining a governmental

agency’s liability to a member of the public. It did not hold

that the situs of an injury is irrelevant when determining a

governmental agency’s liability to a person who is not a

member of the public. This is the distinction I now make,

which, in my judgment, is mandated by the statute.

15

that it limits the government’s liability to certain people,

i.e., members of the public. Therefore, the plurality

concludes that because plaintiff is not a member of the

public, he cannot recover under the public building

exception. In my judgment, however, it is more consonant

with the statutory language to view this statute as a “where”

statute, meaning that it limits the government’s liability to

certain places, i.e., public buildings that are “open for use

by members of the public.” Additionally, the government is

only liable for injuries caused by failing to take remedial

action “reasonably necessary to protect the public.”

Therefore, because plaintiff is not a member of the public,

it is necessary to determine whether plaintiff was injured in

an area of the building that was open to members of the

public. Because plaintiff is not a member of the public, and

because he was injured in an area of the building that was

not open to members of the public, defendant should not be

held liable under the public building exception for failing

to protect plaintiff from the alleged dangerous or defective

condition. Accordingly, I concur in the plurality opinion’s

reversal of the Court of Appeals decision and the

reinstatement of the circuit court’s grant of summary

disposition in favor of defendant.

16

S T A T E O F M I C H I G A N

SUPREME COURT

CHESTER E. BROWN, JR.,

Plaintiff-Appellee,

v N o .

113915

GENESEE COUNTY BOARD OF

COMMISSIONERS,

Defendant-Appellant.

________________________________

CAVANAGH, J. (dissenting).

I believe that leave was improvidently granted in this

case. Further, I believe that the lead opinion unwisely

departs from precedent and reaches out to discuss issues that

have already been adequately addressed by the courts of this

state. I agree with the lead opinion to the extent that it

recognizes that jails are public buildings “open for use by

members of the public” for the purposes of the public

building exception to governmental immunity, MCL 691.1406.

However, I dissent from the plurality’s decision to examine

the question whether inmates are members of the public, and

its decision to overrule a prior decision of this Court in

favor of its own interpretation.

The issue argued by the parties in this case was whether

the Genesee County jail is a public building open for use by

members of the public within the meaning of MCL 691.1406.

The lead opinion correctly concludes that it is. Slip op at

1. However, rather than resolving the case solely on the

merits of the question before it, the plurality chooses to

address the question whether an inmate is a member of the

public. Moreover, the plurality dedicates a solitary

sentence in a footnote to the fact that the question it deems

of utmost importance in this case has already been addressed

by this Court, Green v Dep’t of Corrections, 386 Mich 459;

192 NW2d 491 (1971).

I cannot join the plurality’s unsupportable decision to

“overrule Green to the extent that it treats inmates as

members of the public for purposes of the statutory

exception.” Corrigan, C.J. slip op at 6, n 4. Rather,

assuming that the question should even be addressed in the

context of this case, I would apply Green.

In Green, the plaintiff was an inmate in the Detroit

House of Corrections, a municipal facility operated by the

Department of Corrections. He injured himself while

operating machinery in a prison shop area. This Court

2

explicitly rejected the argument that the Detroit House of

Corrections was nonpublic simply because it was not open to

the public at large. The Court held that the facility was a

“public building” for immunity purposes. The Court also

stated that, “plaintiff is a member of the community whether

in or out of jail.” Id. at 464.

The basis for the present suit is the same as it was in

Green. Both cases were granted to examine the same statutory

language, “[g]overnmental agencies have the obligation to

repair and maintain public buildings under their control when

open for use by members of the public.” MCL 691.1406; see

also Green at 464. Other than to effectuate a policy change,

I see no reason for this Court to depart from the logic Green

used thirty years ago and that this Court has implicitly

followed since. The plurality offers nothing substantial in

support of its observation that “[j]ail inmates are not

members of the public for purposes of the public building

exception.” Slip op at 9. Given Green’s finding to the

contrary, I believe that the conclusion is erroneous.

Further, despite the plurality’s misguided belief that

we can ignore precedent whenever this Court’s reading of a

statute would lead to a different result than that of a prior

Court, I continue to find value in respecting precedent. The

plurality proclaims that Green is contrary to legislative

3

intent, and believes that Green made an isolated observation

about whether prisoners are members of the public. Given the

plurality’s distaste for precedent that would support a

different view than its own, I question whether it gives any

credence to the fact that the Green Court defined the

“controlling” issue in that case as “whether the state,

through the Department of Corrections, may be held to respond

in damages for tortious injury sustained by a state-sentenced

convict while he is incarcerated in the Detroit House of

Correction.” Green at 462.

I would also note that the plurality completely ignores

the fact that this Court has historically permitted suits

arising out of prisoner injuries to be brought under the

public building exception. See Johnson v Detroit, 457 Mich

695; 579 NW2d 895 (1998)(a prisoner hanged himself in a jail

cell); Hickey v Zezulka, 439 Mich 408; 487 NW2d 106 (1992)(a

prisoner committed suicide in a jail cell); Wade v Dep’t of

Corrections, 439 Mich 158; 483 NW2d 26 (1992)(an inmate

brought slip and fall action). Thus, the plurality’s plain

observation not only contravenes Green, but would eliminate

causes of actions that have been repeatedly recognized by

this Court as being available.1

1

The plurality finds these decisions to be of no import

since they did not squarely address whether prisoners are

(continued...)

4

For these reasons, I believe not only that leave was

improvidently granted, but that the plurality improvidently

uses this case as a vehicle for restricting the public

building exception to governmental immunity. Therefore, I

dissent.

KELLY , J., concurred with CAVANAGH , J.

TAYLOR , J., took no part in the decision of this case.

(...continued)

members of the public. However, they did not need to address

the issue since it had already been decided in Green. Quite

simply, the plurality today would change an established

principle of Michigan law.

5