Opinion
Docket No. 105891.
Argued December 9, 1997 (Calendar No. 4).
Decided June 16, 1998.
Lopatin, Miller, Freedman, Bluestone, Herskovic, Heilmann Domol (by Richard E. Shaw) for the plaintiff.
City of Detroit Law Department (by Brenda M. Miller) for the defendant.
We granted leave to determine whether the Court of Appeals erred in affirming summary disposition for the defendants on governmental immunity grounds. Plaintiff's decedent hanged himself on overhead bars in a police station holding cell that were exposed because wire mesh that had been placed over them to help prevent suicides had been torn away. This case presents the question whether the torn mesh constitutes a building defect within the meaning of the public building exception to the governmental tort liability act, MCL 691.1406; MSA 3.996(106). This Court has previously concluded that exposed overhead bars in a general holding cell were not a building defect, Jackson v. Detroit, 449 Mich. 420; 537 N.W.2d 151 (1995). This Court has also previously held that a claim could proceed under the public building exception where a cell at the Wayne County jail, specifically designated for individuals with mental conditions, was allegedly defective because it did not contain adequate safety measures, such as adequately padded walls. Lockaby v. Wayne Co, 406 Mich. 65; 276 N.W.2d 1 (1979).
The plaintiff argues that the city's installation of mesh rendered these cells as cells designed to prevent suicide and that the torn mesh constituted a building defect in this particular suicide-resistant cell. I agree. Consequently, I would reverse that portion of the Court of Appeals decision upholding summary disposition for the defendants on governmental immunity grounds. Nevertheless, I would find that defendants were entitled to summary disposition on the underlying negligence claim. Because the plaintiff could not establish that the suicide was foreseeable, she could not establish that the defendants owed a duty to prevent the suicide. Consequently, I would affirm summary disposition for the defendants on this basis.
I FACTS AND PROCEEDINGS
Decedent, James Johnson, was a city of Detroit employee. On the afternoon of December 29, 1991, a Detroit police sergeant, on his way to work at the third precinct, saw Johnson pass a portable electric generator through an opening in a fence surrounding the Detroit Department of Public Works yard. The sergeant, after returning from the precinct with assistance, followed tracks made by a cart Johnson had used to transport the generator. The officers arrested Johnson and took him to the third precinct station.
Officer Ralph Heatlie, the individual defendant in this case, processed Johnson before placing him in a holding cell in the felony cellblock used for temporary detention of felony prisoners awaiting arraignment. Because Johnson was cooperative, Heatlie rewarded him by placing him in a cell containing a toilet. He first took the standard precautions of removing Johnson's hat, gloves, belt, wallet, lighter, and shoe laces. Tragically, however, Johnson managed to kill himself by tying one sleeve of his sweatshirt to an overhead horizontal bar in his cell and the other around his neck. Officer Heatlie discovered Johnson after hearing shouting and banging noises from the cellblock area, made by other prisoners in cells across from Johnson's. It took Heatlie a "short period. Maybe a couple minutes" to return to the area because he had to secure a prisoner that he was working with at the time.
Efforts had been made at this precinct to prevent hangings by welding wire mesh approximately one and one half inches below the overhead bars that formed the ceiling. However, in this particular cell, the mesh was torn away. While officials were apparently aware of the torn mesh, they had not yet repaired it. Precinct commander Leamon Wilson had requested repairs, on an emergency basis, in a memo to the Deputy Chief for Management Services dated September 17, 1991, more than one hundred days before Johnson's death. Further, Officer Heatlie, on first becoming aware of the problem, decided to close the cell until repairs were made. However, because of the lengthy delay in repairing the mesh and because this was one of only five cells containing a toilet, Heatlie decided to renew use of the cell.
According to documentary evidence submitted by the parties, the other four cells containing a toilet were already occupied.
Plaintiff Barbara Johnson, the decedent's wife, filed this action for wrongful death, and asserted the public building exception in order to avoid a governmental immunity defense. Defendants filed their motion for summary disposition at the close of discovery pursuant to MCR 2.116(C)(7), (8) and (10).
MCR 2.116(C)(7) allows summary disposition if
[t]he claim is barred because of release, payment, prior judgment, immunity granted by law, statute of limitations, statute of frauds, an agreement to arbitrate, infancy or other disability of the moving party, or assignment or other disposition of the claim before commencement of the action.
MCR 2.116(C)(8) permits summary disposition if "[t]he opposing party has failed to state a claim on which relief can be granted." MCR 2.116(C)(10) permits summary disposition if "[e]xcept as to the amount of damages, there is no genuine issue as to any material fact. . . ."
The trial court granted summary disposition for the defendants on governmental immunity grounds. MCR 2.116(C)(7). The Court of Appeals affirmed. We granted leave to consider whether the torn wire mesh constitutes a building defect within the meaning of MCL 691.1406; MSA 3.996(106).
Unpublished memorandum opinion, issued March 5, 1996 (Docket No. 172383).
454 Mich. 907 (1997).
II. LAW A. STANDARD OF REVIEW
In reviewing a trial court's grant of summary disposition on governmental immunity grounds under MCR 2.116(C)(7), we must review the complaint to determine whether the plaintiff has pleaded facts justifying application of an exception to governmental immunity. Wade v. Dep't of Corrections, 439 Mich. 158, 162-163; 483 N.W.2d 26 (1992); Ross v. Consumers Power Co (On Rehearing), 420 Mich. 567; 363 N.W.2d 641 (1984). While review under MCR 2.116(C)(8) allows only consideration of the pleadings, our review under MCR 2.116(C)(7) and (10) also must include consideration of all documentary evidence submitted by the parties. Patterson v. Kleiman, 447 Mich. 429; 526 N.W.2d 879 (1994).
Under MCR 2.116(C)(8), we accept all well-pleaded factual allegations as true and construe them in a light most favorable to the nonmoving party. Wade, supra ; Skinner v. Square D Co, 445 Mich. 153, 161-162; 516 N.W.2d 475 (1994). MCR 2.116(C)(10) motions are properly granted when there is no genuine issue of material fact and where the moving party is entitled to judgment as a matter of law. Skinner, supra. Under MCR 2.116(C)(10), the nonmovant has the burden of providing evidence to support the conclusion that there is a genuine issue of material fact. McCart v. J Walter Thompson USA, Inc, 437 Mich. 109, 113-115; 469 N.W.2d 284 (1991). See also MCR 2.116(G)(4). When reviewing summary disposition under MCR 2.116(C)(7), the contents of the complaint are accepted as true unless specifically contradicted by affidavits or other documentation submitted by the moving party. Sewell v. Southfield Public Schools, 456 Mich. 670, 674; 576 N.W.2d 153 (1998).
With these standards as a guide, I turn to a discussion of governmental immunity and the public building exception to governmental immunity, and their applicability to this case.
B. GOVERNMENTAL IMMUNITY
Governmental agencies, like the city of Detroit and its agents, generally are immune from tort liability for actions taken while performing governmental functions. MCL 691.1407(1); MSA 3.996(107)(1).
Specifically, the governmental tort liability act provides that
all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided in this act, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed before July 1, 1965, which immunity is affirmed. [MCL 691.1407(1); MSA 3.996(107)(1).]
The act's broad grant of immunity is subject to five narrowly drawn statutory exceptions, including the public building exception. Since Ross v. Consumers Power Co, supra, the defining case concerning interpretation of the governmental tort liability act, this Court has broadly interpreted immunity under the act and has narrowly construed the exceptions to immunity. With this basic principle of interpretation in mind, I once again explore the scope of the public building exception.
The other four exceptions are (1) the highway exception, MCL 691.1402; MSA 3.996(102), (2) the negligent use of a government-owned motor vehicle exception, MCL 691.1405; MSA 3.996(105), (3) the proprietary function exception, MCL 691.1413; MSA 3.996(113), and (4) the government hospital exception, MCL 691.1407(4)(b); MSA 3.996(107)(4)(b).
C. PUBLIC BUILDING EXCEPTION
The public building exception allows suits against governmental agencies where a dangerous or defective condition of the building itself is alleged to have caused the injuries and where certain other criteria are met. The act states:
This Court has previously noted that to apply the public building exception, a plaintiff must prove the following: (1) that a governmental agency is involved, (2) that the public building in question is open to the public, (3) that a dangerous or defective condition of the public building itself exists, (4) that the governmental agency had actual or constructive notice of the alleged defect, and (5) that the governmental agency failed to remedy the alleged defect after a reasonable period of time. Hickey v. Michigan State Univ (On Resubmission, 439 Mich. 408, 421; 487 N.W.2d 106 (1992). Most of our public building exception decisions, like this case, involve interpretation of the third prong of this five-part test.
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; MSA 3.996(106).]
While the language of the exception is fairly straightforward, it has been difficult to state a single test that controls its application, especially in cases where the adequacy of supervision or the injured party's contributing causation is involved. Our cases interpreting the public building exception, however, do reveal certain general principles that are helpful in determining whether and under what circumstances the exception applies.
One of the overarching principles, repeatedly cited by this Court in our decisions discussing the public building exception since Ross, is the maxim that in enacting the building exception, the Legislature intended to impose a duty to maintain the safety of public buildings, not necessarily safety in public buildings. Reardon v. Dep't of Mental Health, 430 Mich. 398, 415; 424 N.W.2d 248 (1988). Thus, the alleged defect must be a defect of the building itself and not merely a transient condition, such as accumulated grease or oil on a hallway floor, Wade v. Dep't of Corrections, supra, or inadequate supervision in an otherwise adequate facility, Schafer v. Dep't of Mental Health, 430 Mich. 398, 417; 424 N.W.2d 248 (1988); Hickey v. Michigan State Univ (On Resubmission), 439 Mich. 408, 424; 487 N.W.2d 106 (1992).
A public building may be defective because of improper maintenance or repair, faulty construction, absence of safety devices, or improper design. Bush v. Oscoda Area Schools, 405 Mich. 716, 730; 275 N.W.2d 268 (1979). As recently noted in de Sanchez v. Dep't of Mental Health, 455 Mich. 83; 565 N.W.2d 358 (1997), this Court has had some difficulty discerning when a design defect may actually constitute a defect in a public building sufficient to invoke the public building exception.
While a design that in some way impedes the ability to supervise users of the building might in some cases constitute a design defect, the design must directly contribute to the injuries. Hickey, supra at 424. In other words, "where the essence of a tort claim is negligent supervision, a plaintiff cannot transform the claim into a building-defect claim merely because a superior building design would have improved the ability to supervise." de Sanchez, supra at 95.
Although language in some of this Court's previous decisions, such as Schafer and Hickey, supra, may have appeared to suggest that where adequate supervision could have prevented the injuries, the building exception was inapplicable, this Court made clear in de Sanchez that where the essence of a tort claim is a defective building, summary disposition may not be granted merely by claiming that proper supervision would have prevented the injuries. Instead, as long as a physical defect in the building itself coincides to cause the injury, the public building exception might apply even if negligent supervision is also involved.
Another important principle, first discussed in Bush, supra, is that courts must examine whether the building is defective in light of the uses or activities for which it is specifically assigned. Bush involved a high school student who was seriously burned by an explosion during a chemistry class that was being temporarily held, because of overcrowding, in a general classroom lacking laboratory safety equipment. This Court held that the trier of fact must determine whether the room was defective when used as a chemistry room, and if so, whether the defect was a cause of the plaintiff's injuries. Regarding the importance of examining the intended use, this Court stated:
[T]he lack of certain safety devices did not render the classroom defective per se; it is ordinarily unnecessary to install laboratory safety equipment in classrooms. In determining whether a place is safe, one must consider the use or purpose it serves. A building may be safe for one use or purpose, but not for another. A school is not a school because it is called one, but because it is used and functions as one. If a hospital is converted into a prison, the building must be maintained as a safe prison, not as a safe hospital. The room in which [the plaintiff] was injured had by use become a physical science room, and therefore had to meet the standards of a physical science room although it had once been a mathematics room. [ Bush, supra at 732.]
The principle of intended use also controlled in Lockaby, supra. That case, like this one, involved an alleged defect resulting in injuries to an individual in a holding cell. In Lockaby, the injured individual was known to have a mental condition and was placed in a cell specifically designated for such individuals. He suffered an injury to his spinal cord after striking his head against the cell wall. His complaint alleged, among other things, that a lack of adequately padded walls in the cell constituted a defect. Citing Bush, this Court held that the lack of adequately padded walls might be a defect in a cell designated to hold individuals with mental conditions. Consequently, we held that the plaintiff had pleaded a cause of action so as to avoid governmental immunity.
Conversely, in other prison suicide cases, where the cell was intended for temporary detention or for holding a general population and was not specifically equipped to prevent suicides, this Court has held that otherwise benign installations used by the arrestee to hang himself were not defects. Hickey and Jackson, supra. In Hickey, an intoxicated individual hanged himself from the bolts securing a heating unit in a temporary detention cell at the Michigan State University Department of Public Safety. Explaining that the intended use principle announced in Bush controlled, this Court stated:
MSU's holding cell was specifically intended and assigned for temporary detention. Even the plaintiff did not argue that the cell was used for any purpose except the temporary lockup of arrestees. We must, therefore, determine if this cell, with the installation of the heating unit, specifically used and assigned for temporary detention, was dangerous or defective. We hold that it was not. [ Hickey at 425-426.]
After discussing the impossibility of making a jail or holding cell suicide-proof, we further explained:
There would seem to be no limits on the possibility of suicide in an ordinary lock-up cell, particularly one that was only being used for temporary custody, even the temporary custody of an inebriated individual. To suggest that any physical feature of a jail cell, otherwise benign, that can conceivably become a part of a plan of one who is desperately driven to self destruction can become a "dangerous or defective condition" under the public building exception statute, simply crosses the outer limits of any reasonable reading of the intent of that statute when considered in the context of its history, purpose, and wording. [ Id. at 426.]
Likewise, this Court in Jackson, supra, found that a cell with exposed overhead bars was not defective for the specific use and purpose for which it was assigned, that of a general holding cell. As in this case, the decedent in Jackson hanged himself from exposed overhead bars. Even though Mr. Jackson, unlike the decedent in Hickey, was known to be suicidal, that fact did not transform the intended use of the cell from that of a general holding cell to that of a cell designated for suicidal prisoners. The designated use as a general cell controlled.
In summary, a defect will be found only where the alleged problem relates to safety of a public building, not just to safety in a public building. Thus the alleged defect must be one of the building itself. While an improper design may constitute a defect, no defect will be found if the essence of the tort involves inadequate supervision. Further, courts must examine the intended use and the specific designated purpose of the building or room in order to determine whether a defect exists. Thus, while overhead bars in a general holding cell are not a defect, Jackson, supra, exposed overhead bars might constitute a defect in a cell specifically designed or equipped to prevent suicide by the installation of wire mesh.
III. ANALYSIS A. BUILDING DEFECT
The determinative question in this case is whether the installation of mesh over the overhead crossbars, in order to help deter suicides, renders the cell a suicide-deterrent cell, specifically assigned to deter hangings from the overhead crossbars. Because I think that these cells, with the installed mesh, were intended to function as suicide-deterrent cells, I would hold that the public building exception applies. The plaintiff has presented evidence sufficient to establish that this suicide-deterrent cell was defective in light of its intended purpose because the mesh designed to prevent access to the overhead bars was torn away. The plaintiff also has presented evidence that the defendants had notice and a reasonable time to repair the defect and did nothing. Consequently, the pleadings and supporting documentary evidence are sufficient to allow the plaintiff's claim to go forward.
While the cell involved here is typically used to hold a general population and functions as a general holding cell, once the mesh was installed to deter suicides, it functioned in fact as a suicide-deterrent cell. As we noted in Bush, "[i]f a hospital is converted into a prison, the building must be maintained as a safe prison, not as a safe hospital." Id. at 732. Similarly, once this cell was converted to a suicide-deterrent cell, the city was obligated to maintain it as a safe suicide-deterrent cell, in that it had a duty to maintain the specific safety feature designed to accomplish this purpose in good repair.
The dissent insists that the character of the cell involved here is identical to that at issue in Jackson, supra, i.e., it functions as a general holding cell and not as a suicide-deterrent cell. The dissent's analysis suggests that the intended use of these general cells, all equipped to be suicide deterrent, changes with each detainee ushered into them, depending upon that detainee's demonstrated proclivity toward suicide. This illogical result is not required by this Court's opinion in Bush, as suggested by the dissent. Bush held that where the defendant knew that a general classroom would be used to conduct a chemistry class, it might be defective if it was not equipped with appropriate safeguards necessary for chemistry experiments. Similarly, in this case, where the defendants knew that the general holding cells would be used to hold a general detainee population, including some suicidal individuals, when it was, in fact, used to hold a suicidal individual and did not contain appropriate safeguards, it was defective. Once again, all the cells were, in fact, used and equipped to hold a general detainee population and a population with a known risk of suicide. Their intended use was to function as general suicide-deterrent cells.
As a suicide-deterrent cell, the analysis this Court applied in Lockaby controls. A defect in a feature designed to protect the inmate or arrestee from his own devices comes within the building exception if the plaintiff can show that the defect was a contributing cause of the injuries. As we noted in de Sanchez, supra, the fact that other causes also might be involved, such as inadequate supervision or the arrestee's own actions toward self-destruction, does not necessarily preclude application of the public building exception.
Consequently, the defendants' focus on the decedent's actions as the real cause of his death misses the mark. While I recognize that the language in Hickey concerning the impossibility of making a suicide-proof cell can be read to suggest that an individual's own efforts at self-destruction preclude a finding that an otherwise benign feature might be a defect, this is not necessarily determinative. If a cell is designed or equipped to be suicide-deterrent, lack of compliance with reasonable safety measures could indeed constitute a defect of the building when viewed in light of its intended use. For example, the question in Bush was not whether the classroom could be made accident-proof, but whether lack of reasonable safety devices contributed to the injuries. Certainly creative and unforseen implements of self-destruction cannot always be eliminated. However, when a cell is intended to function as a suicide-deterrent cell, a defect may exist where reasonable steps are not taken to maintain its safety features in good repair.
B. NEGLIGENCE 1
I note that merely because a plaintiff is able to plead a claim to avoid governmental immunity, in this case on the basis of the public building exception, does not necessarily mean that the defendants are liable. Our conclusion that the public building exception applies to plaintiff's claim merely establishes that the city undertook a duty to maintain this suicide-deterrent cell in good repair. The fact that the city has this general duty does not necessarily establish a duty owed to this particular plaintiff in the facts of this case. Establishing a building-defect claim circumventing governmental immunity does not negate traditional tort law principles. Perhaps a statement of the obvious, plaintiff still must demonstrate the elements of her negligence claim.
2
In this case, the defendants filed their motion for summary disposition not only on the ground of governmental immunity, but also on the ground that there was no genuine issue of material fact. MCR 2.116(C)(10). The trial court's order granting defendants' motion for summary disposition cited not only MCR 2.116(C)(7), the governmental immunity provision, but also cited MCR 2.116(C)(10). Although the Court of Appeals did not reach this alternative ground, except with respect to the gross negligence claim against defendant Heatlie, I would hold that summary disposition under MCR 2.116(C)(10) was proper because there was no genuine issue of material fact on the underlying negligence claim.
In her negligence claim, the plaintiff has to establish that the defendant had a duty to this particular decedent, that it breached that duty by placing the decedent in the defective cell, and that the breach was a proximate and factual cause of the decedent's death. A defendant does not owe a duty to an unforeseeable plaintiff. In this case, plaintiff failed to present a genuine issue of material fact establishing the existence of a duty owed to plaintiff's decedent because defendants were actually unaware, and it was not reasonably foreseeable, that the decedent was suicidal before placing him in the defective cell. See Hickey, supra at 438-439.
In support of their motion for summary disposition, which was brought after the close of extensive discovery, defendants city of Detroit and Officer Heatlie offered the deposition testimony of Officers Heatlie and Wylie. Both officers testified that the decedent gave no indication that he was suicidal. Conversely, the plaintiff presented nothing to refute this evidence and did not offer any evidence that the suicide was reasonably foreseeable.
Where the events leading to injury are not foreseeable, there is no duty, and summary disposition is appropriate. Groncki v. Detroit Edison Co, 453 Mich. 644, 657; 557 N.W.2d 289 (1996). In this case, the defendants had no notice that the decedent might attempt suicide, and therefore they cannot be held responsible for failing to prevent the decedent's death. This death was not reasonably foreseeable. Tragic as it was, defendants cannot be held responsible for the unforeseen suicide of the plaintiff's decedent. Consequently, I would uphold the trial court's granting of summary disposition to the defendants under MCR 2.116(C)(8).
IV. CONCLUSION
While the plaintiff has established evidence sufficient to allow her claim to go forward under the public building exception to governmental immunity, the underlying negligence claim fails because it was not reasonably foreseeable that the decedent would attempt suicide.
The torn mesh rendered this cell, which was intended to function in fact as a suicide-deterrent cell, defective within the meaning of the public building exception. The evidence also supports a conclusion that the city had notice of the torn mesh and had reasonable time in which to repair it.
Although summary disposition was improper on the ground of governmental immunity, it is proper on the underlying negligence claim. The uncontroverted evidence at the close of discovery and as presented at the summary disposition stage showed that defendants could not have suspected that the decedent was suicidal. Consequently, there was no duty to prevent this unforeseeable death.
For these reasons, I would reverse that portion of the Court of Appeals decision upholding summary disposition for the defendants on the ground of governmental immunity and would affirm summary disposition on the underlying negligence claim.
I agree with the lead opinion's conclusion that the trial court did not err in granting defendants' motion for summary disposition because the plaintiff could not establish negligence as a matter of law. I therefore join part III(B) of the lead opinion. However, I disagree with the lead opinion's conclusion that the public building exception to governmental immunity applies to this case.
Plaintiff's decedent was placed in a holding cell after he was arrested. Because he had been cooperative, the decedent was placed in the only empty cell that was equipped with a toilet. Unfortunately, there was also a hole in the wire mesh that had been previously installed to prevent detainees from hanging themselves on the overhead bars. Unexpectedly, by the acknowledgment of all parties, the decedent endeavored to gain access to the overhead bars through this hole. He was successful and hanged himself. Suit followed, and defendants moved for summary disposition, claiming governmental immunity. The trial court granted defendants' motion for summary disposition, and the Court of Appeals affirmed.
The question at issue here is whether the public building exception to governmental immunity applies under these undisputed facts. In every instance where a plaintiff brings a tort claim against a governmental entity on the basis of the building defect exception to governmental immunity, a two-step analysis is warranted. The first question is whether the plaintiff's cause of action invokes an exception to governmental immunity. If this requirement is met, the plaintiff must then establish the elements of his underlying cause of action. See Canon v. Thumudo, 430 Mich. 326, 335; 422 N.W.2d 688 (1988) (which cautions against confusing separate inquiries into immunity and negligence).
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; MSA 3.996(106).]
Except as otherwise provided in this act, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. [MCL 691.1407(1); MSA 3.996(107)(1).]
The lead opinion concludes that this case qualifies for application of the public building exception to governmental immunity. The foundation of the lead opinion's analysis is the notion that the cell at issue here was converted from a nondefective general holding cell to a defective suicide deterrent cell by reason of the installation of wire mesh preventing access to the overhead bars of the cell and the subsequent failure to repair a hole in the mesh before the decedent hanged himself. I disagree.
Pursuant to Bush v. Oscoda Area Schools, 405 Mich. 716, 731-732; 275 N.W.2d 268 (1979), whether there was, in fact, a building defect, warranting application of the public building exception to governmental immunity, depends on the use to which the area of the building at issue was put. In Bush, a nonlaboratory classroom was used to teach a chemistry class. Because the classroom was not normally used in this manner, it failed to have various safety features, including a safety shower, ventilation or exhaust hoods, sinks, enclosed storage areas, stationary laboratory desks, and water and gas outlets. Id., p 725. Unfortunately, an accident occurred during a chemistry class, and the plaintiff was injured.
Bringing suit, the plaintiff alleged, in part, that the absence of appropriate safety devices rendered the classroom unsafe for science classes and therefore that the classroom was defective, triggering the public building exception to governmental immunity. This Court stated:
To be sure, the lack of certain safety devices did not render the classroom defective per se; it is ordinarily unnecessary to install laboratory safety equipment in classrooms. In determining whether a place is safe, one must consider the use or purpose it serves. A building may be safe for one use or purpose, but not for another. . . . The room in which Foxworth was injured had by use become a physical science room, and therefore had to meet the standards of a physical science room although it had once been a mathematics room. [ Bush, supra, 405 Mich. 732.]
Thus, under the rationale of Bush, cells such as the one at issue are required to meet standards consistent with their use in order to avoid the defective building exception. This means when it is being used as a general holding cell, i.e., a cell to be used for those such as this plaintiff who give no indication of suicidal tendencies, that the standards for such a cell (that is a nonsuicide deterrent cell) are the standards to be employed in determining whether the cell was defective. This the lead opinion fails to do, instead saying merely that if the suicide prevention "add-ons" to the cell are in any way defective there is a cause of action if a detainee commits suicide in it without regard to how the cell really was being used. This cannot be reconciled with Bush.
I note that I take no position on whether the absence of a safety device itself constitutes a public building defect. This contention has not been endorsed in a decision from this Court subsequent to Ross v. Consumers Power Co (On Rehearing), 420 Mich. 567; 363 N.W.2d 641 (1984). I rely on Bush only for its holding that it is the intended use of the building that controls the analysis.
Moreover, in Jackson v. Detroit, 449 Mich. 420; 537 N.W.2d 151 (1995), this Court concluded that a similar cell was not defective, despite the fact that the plaintiff's decedent was known to be suicidal at the time and the overhead bars of the cell were completely exposed, i.e., no wire mesh had been installed. Relying on Hickey v. Zezulka (On Resubmission), 439 Mich. 408; 487 N.W.2d 106 (1992), the Court concluded that the plaintiff's claim related more to safety in a public building rather than to the safety of the building itself. Jackson, supra, 449 Mich. 428-429. The Court held that the statute did not create an exception to governmental immunity in instances where the decedent utilized an otherwise benign physical feature as a means of committing suicide. Id.
The Court went on, however, to conclude that the plaintiff had presented a prima facie allegation that the city of Detroit, by a policy of inaction, i.e., a failure to incorporate suicide deterrent features in these cells in light of the historical suicide risk, had been "deliberately indifferent" to the safety of its detainees. Consequently, this Court concluded that it was possible that the plaintiff might prevail against defendant through an action based on 42 U.S.C. § 1983.
It should be noted that under the current "deliberate indifference" standard necessary to prevail in a § 1983 action, the record appears devoid of any evidence that would allow plaintiff to prevail. See Bryan Co Bd of Co Comm'rs v. Brown, 520 U.S. 397, 415; 117 S.Ct. 1382, 1394; 137 L.Ed.2d 626 (1997) ("Congress did not intend municipalities to be held liable unless deliberate action attributable to the municipality directly caused a deprivation of federal rights"); Simmons v. Philadelphia, 947 F.2d 1042, 1064 (CA 3, 1991) (a plaintiff must show that responsible policymakers were aware of the number of suicides in city lockups and of the alternatives for preventing them, but either deliberately chose not to pursue alternatives or acquiesced in long-standing policy or custom of inaction). As is clear, historical data of prison suicide alone is not sufficient to demonstrate liability under 42 U.S.C. § 1983.
In the cell at issue, defendant had installed wire mesh as an additional feature that, having a hole in it, the lead opinion now would find rendered the cell itself defective. However, the fact that defendant took action that could negate a finding that it was deliberately indifferent to the safety of its detainees does not demonstrate that the intended use of the cell had changed. Furthermore, where these cells without wire mesh were previously found in Jackson to be without defect when housing a suicidal detainee, it logically follows that a similar cell is not defective, despite the fact that the wire mesh installed still allowed access to the overhead bars because of a rip in the mesh. While in the instant case defendant had taken the extra step of adding mesh covering the overhead bars, this Court's decision in Jackson demonstrates that the cell already met the standards consistent with its use. As in Jackson, the fact that the decedent utilized the otherwise benign physical feature of the cell to commit suicide did not demonstrate that the cell itself contained a defect as contemplated by the Legislature.
The lead opinion fails to appreciate our discussion of the interplay between Bush and Jackson. Bush stands for the proposition that the intended use of the building controls whether it is defective. Jackson demonstrated that these cells are intended to accommodate a general detainee population and that even if the detainee was known to be suicidal, accessability to the overhead bars and the detainee's act of hanging himself does not demonstrate that the cell is defective. The lead opinion now effectively would rule by judicial fiat that because this general detainee population, in other cases, has been shown to have a known risk of suicide these cells are intended to function as suicide deterrent cells and the failure to maintain "appropriate" suicide deterrent features strips the city of governmental immunity. Ante, p 709, n 8. Moreover, to the extent the lead opinion attempts to cloak that holding, by suggesting that the installation itself of the mesh changed the use of the cell, Bush effectively demonstrates the fallacy of that argument by finding that "[t]he room in which Foxworth was injured had by use become a physical science room. . . ."
Under Bush and Jackson, I would conclude that the cell at issue was not defective. Therefore, there being no defect, the public building exception to governmental immunity is not applicable to this case, and I would hold that the trial court did not err in granting defendants' motion for summary disposition on this basis as well.
BOYLE and WEAVER, JJ., concurred with TAYLOR, J.
I concur in the conclusion that plaintiff has stated a claim in avoidance of governmental immunity under the public building exception. However, I dissent from the lead opinion's resolution of the plaintiff's negligence claim against the defendants city of Detroit and Detroit Police Department. The trial court's grant of summary disposition to the defendants and the Court of Appeals affirmance of that order were clearly premised on the plaintiff's inability to plead in avoidance of governmental immunity. The separate issue, whether defendants owed plaintiff a duty under these circumstances, was, therefore, not addressed below. Nevertheless, the lead opinion, without affording the parties the opportunity to brief the matter, and without meaningful analysis, rules sua sponte that plaintiff's claim is barred because defendant owed the deceased no duty as a matter of law. It bears repeating that
The Court of Appeals discussion of defendants' duty was limited to the plaintiff's gross negligence claim against Officer Ralph Heatlie.
[t]he adversary system disciplines the judicial inquiry and serves to crystallize the difficult choices with which we generally find ourselves confronted. When an issue is not presented in the form of a keenly contested and discrete controversy, a court is denied a valuable resource that contributes both to the legitimacy and wisdom of its judgment. [ People v. Butler, 413 Mich. 377, 393-394; 319 N.W.2d 540 (1982) (opinion of LEVIN, J.).]
The scope of the duty owed a citizen by his jailer is complex and of great importance. However, it is not properly before the Court. Accordingly, I would order supplemental briefing or remand the matter to the circuit court for further proceedings.
The lead opinion's resolution of the negligence issue arguably would rob the governmental immunity issue of its precedential force because its resolution is no longer necessary to the case.
CAVANAGH and KELLY, JJ., concurred with BRICKLEY, J.