Opinion
Docket No. 179788.
Submitted December 4, 1998, at Lansing.
Decided December 29, 1998, at 9:55 A.M.
Schreier Weiss, P.C. (by Mark Schreier and Alyce M. Haas), for the plaintiff.
Plunkett Cooney, P.C. (by Christine D. Oldani and H. William Reising), for the defendant.
Before: MARKEY, P.J., and FITZGERALD and WHITE, JJ.
(ON REMAND)
This Court previously issued its opinion affirming the trial court's grant of summary disposition for defendant pursuant to MCR 2.116(C)(7) in Brown v. Genesee Co Bd of Comm'rs, 222 Mich. App. 363; 564 N.W.2d 125 (1997). Plaintiff's application for leave to appeal to our Supreme Court was held in abeyance pending the resolution of Kerbersky v. Northern Michigan Univ (Supreme Court Docket No. 105234). In light of its July 30, 1998, decision in Kerbersky, found at 458 Mich. 525; 582 N.W.2d 828 (1998), our Supreme Court, in lieu of granting leave to appeal, remanded this matter to us so we may reconsider our decision in light of Kerbersky. 459 Mich. 881 (1998). On remand, we must conclude that the rationale underlying our previous decision does not reflect the Supreme Court's current statement of the law as set forth in Kerbersky. We further conclude, however, that in light of Kerbersky, issues of fact exist regarding whether the construction of the drain adjacent to the inmates' shower, or a defect in the drainage system, constituted a "dangerous or defective condition of the public building itself." Accordingly, we vacate our prior opinion, reverse the trial court's order granting defendant's motion for summary disposition, and remand this matter for further proceedings and evidence to determine whether the shower area itself constituted a dangerous or defective condition of the jail, which is a public building.
In Kerbersky, supra at 527-528, a worker was injured when he fell from a ladder permanently attached to a building on the defendant university's campus during a renovation project involving the building. Kerbersky filed suit against the defendant university and others, alleging a negligence or premises liability theory and the application of the public building exception to governmental immunity. Id. Our Supreme Court determined that requiring a plaintiff to "prove he was injured in a `public area' of a public building has no basis in the [public building exception to governmental immunity] statute," MCL 691.1406; MSA 3.996(106). Id. at 537 (KELLY, J., concurring). In short, the Supreme Court concluded that if the building in which the plaintiff is injured is a public building open for use by members of the public, regardless of whether the situs of the accident is accessible to the public, that plaintiff should be able to invoke the public building exception.
The majority opinion chronicles this Court's opinions issued after Ross v. Consumers Power Co (On Rehearing), 420 Mich. 567; 363 N.W.2d 641 (1984), commenting on their continued viability, but none of those cases involved facts similar to those presented in Kerbersky or in the case at bar.
Having decided this case before Kerbersky and pursuant to then-existing case law, we concluded in our prior opinion that "the shower area where plaintiff fell is not `open for use by members of the public' or accessible to members of the general public," so the public building exception did not apply. Brown, supra at 368 (emphasis added). Clearly, through Kerbersky, the Supreme Court has established a new, expanded area of focus in public building exception cases, i.e., the public nature of the building where the accident occurred rather than the public nature of the accident site within the building where the accident occurred, is the critical inquiry. We therefore must follow the Supreme Court's most recent pronouncement on the subject and vacate our previous opinion because it conflicts directly with Kerbersky.
Accordingly, we reverse the trial court's grant of summary disposition on governmental immunity grounds, reinstate plaintiff's public building exception claims, and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.