Opinion
SC 165207 SC 165208COA 357805 COA 357966
07-19-2024
G.C., by Next Friend CRYSTAL CAVAZOS, Plaintiff-Appellant, v. AMERICAN ATHLETIX, LLC, and DAVISON COMMUNITY SCHOOLS, Defendants, And DANIEL ROMZEK and PHILIP THOM, Defendants-Appellees. G.C., by Next Friend CRYSTAL CAVAZOS, Plaintiff-Appellant, v. AMERICAN ATHLETIX, LLC, and DAVISON COMMUNITY SCHOOLS, Defendants-Appellees, And DANIEL ROMZEK and PHILIP THOM, Defendants.
Genesee CC: 19-112719-NO, CC: 19-112719-NO
Elizabeth T. Clement, Chief Justice Brian K. Zahra David F. Viviano Richard H. Bernstein Megan K. Cavanagh Elizabeth M. Welch Kyra H. Bolden, Justices.
ORDER
On April 17, 2024, the Court heard oral argument on the application for leave to appeal the October 13, 2022 judgment of the Court of Appeals. On order of the Court, the application is again considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
CAVANAGH, J. (concurring).
I concur with this Court's decision to deny plaintiff's application for leave to appeal because the bleachers in this case are not a "building" for the purposes of the publicbuilding exception. I write separately to address the lower courts' misreading of Renny v Mich. Dep't of Transp, 478 Mich. 490 (2007), as precluding plaintiff's claim under MCL 691.1406 on the basis of a "design defect."
I. FACTUAL BACKGROUND
Plaintiff's son was three years old when he attended a football game at Collins Field with plaintiff in 2017. They were seated approximately 15 rows up on the bleachers when plaintiff's son slipped through a 15-inch gap that existed between the seats and the floorboards. Tragically, plaintiff's son was severely injured when he fell onto the concrete foundation at the bottom of the bleachers.
At the time of their visit, Collins Field was comprised of an open-air football field, a chain-link fence, and a single set of metal bleachers without any sides or roof. Additionally, there was a "press box" affixed atop the bleachers. It is undisputed that defendant Davison Community Schools (DCS) owned Collins Field and that the bleachers were built in compliance with the then-existing building code. DCS attended to the bleachers throughout the years. In 2006, DCS paid to have the wooden portions of the bleachers removed. In 2008, DCS commissioned a third-party contractor to conduct an inspection of the bleachers, and the inspection revealed that the bleachers were no longer compliant with the building code because, among other issues, there were no "riser planks" between the floorboards and the seats. This was again confirmed to DCS in a 2013 inspection that also reported the lack of risers. DCS, however, never installed the risers.
The applicable building code for bleachers in Michigan is governed by several regulations, including Mich. Admin Code, R 29.1674. Furthermore, the Single State Construction Code Act, MCL 125.1501 et seq., instructs the State Construction Code Commission to adopt rules governing the construction of bleachers, among other structures.
A "riser plank" is a vertical section of material that sits between each horizontal part of a staircase or a set of bleachers.
Plaintiff filed this negligence lawsuit premised on the absence of those risers as a defect that caused her son's injuries. Specifically, plaintiff alleged that DCS was liable for the lack of risers, that its past and present directors of operations were grossly negligent for not commissioning the installation of risers, and that the third-party contractor that performed the inspections on the bleachers was generally negligent.
Relevant to the issue on appeal in this Court, the trial court granted DCS summary disposition, holding that, under Renny, the lack of risers was a design defect and not a condition that was brought about by a lack of repair or maintenance. The Court of Appeals affirmed the trial court, held that the gaps in the bleachers were conditions inherent in the design of the bleachers, and held that plaintiff's claim was barred, under Renny, because the claim was based on a design defect.
II. THE GTLA AND RENNY
There is no dispute that DCS is a governmental agency, and, under the governmental tort liability act (GTLA), MCL 691.1401 et seq., governmental agencies are "immune from tort liability if the governmental agency is engaged in the exercise or discharge of a governmental function." MCL 691.1407(1). However, governmental agencies may be liable for injuries that are caused by a condition of a public building. De Sanchez v Mich. Dep't of Mental Health, 455 Mich. 83, 90 (1997). Specifically, the "public building exception" to governmental immunity 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. Knowledge of the dangerous and defective condition of the public building and time to repair the same shall be conclusively presumed when such defect existed so as to be readily apparent to an ordinary observant person for a period of 90 days or longer before the injury took place. [MCL 691.1406.]
This Court clarified this exception in Renny, a case in which the plaintiff was injured when she slipped on ice and snow that had accumulated on a sidewalk owned by the Michigan Department of Transportation (MDOT). Renny, 478 Mich. at 493. The plaintiff alleged that MDOT had failed to install and maintain gutters and downspouts around the roof of the building, which had allowed the ice and snow to accumulate in front of the building. Id. This Court held:
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" or "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. [Id. at 500-501 (citations omitted).]
The trial court and the Court of Appeals both applied this reasoning to this case, holding that the absence of risers on the bleachers was a design defect akin to the gutters and downspouts in Renny.
Renny did not address, however, whether the term "maintain" includes keeping the structure up to date with the latest building code. In my view, the plain meaning of "maintain" as articulated in Renny includes keeping a building compliant with the latest safety protocols, including the current building codes. In other words, I do not believe that a building code violation is a "design defect" that precludes liability under Renny-instead, plaintiff's allegation that DCS failed to keep the structure up to code falls under the obligation it had to "maintain public buildings." MCL 691.1406. To state otherwise not only misreads the text of the public-building exception, but it also incentivizes governmental agencies to ignore conditions of their structures that they know are no longer considered to be safe under the guise that the structure was originally designed with a dangerous aspect. I do not believe that the Legislature intended such an effect. In this case, DCS was allegedly put on notice that its bleachers were no longer compliant with the building code because of the lack of risers, and it chose to not address the issue. In other words, it chose to not "maintain" the bleachers with the current building code. Thus, I believe that the trial court and Court of Appeals misinterpreted Renny to hold that the continued lack of risers was a design defect instead of a failure to maintain the bleachers in compliance with the current building code.
III. PUBLIC BUILDING
Despite my concern about the narrow application of Renny, the lower courts ultimately reached the right result in this case. The public-building exception to the GTLA unsurprisingly requires the structure at issue to be a "building." Both lower courts assumed that the bleachers in this case were a building for the purposes of the public-building exception. That assumption, however, was incorrect.
Defendants did not appeal the lower courts' conclusion in this regard, presumably because they were granted summary disposition on other bases.
The term "building" is not defined by the statute or in the public-building exception. The plain and ordinary meaning of this term, however, lends itself to the definition that a structure must have some discerning characteristic, such as walls or a roof, to be considered a building. Along those same lines, the Court of Appeals has held that a structure must have a "walled" design, Ali v Detroit, 218 Mich.App. 581 (1996), or be "box-like" in design, Pierce v Lansing, 265 Mich.App. 174 (2005), to be considered a building. Further, "although the [public-building] exception has been construed broadly to include fixtures on the land adjacent to a public building, i.e., a slide on a school playground, the exception has not been construed as including such fixtures when not immediately adjacent to or a part of any public building." Freedman v Oak Park, 170 Mich.App. 349, 353 (1988).
The bleachers in this case contain none of the features identified in the caselaw, nor do they contain any features that would normally be associated with a "building" because the bleachers were a structure providing seating to spectators. See Freedman, 170 Mich.App. at 353 (concluding that a covered park bench is not a public building). While the "press box" atop the bleachers may have the features of a building, it was not argued below that the bleachers were a public building by virtue of being affixed to the press box. Moreover, it is not clear whether the press box was in fact a "public" building for the purpose of the public-building exception because the record is silent as to whether it was open to the public. See Kerbersky v Northern Mich. Univ, 458 Mich. 525, 535 (1998). Thus, the public-building exception to the GTLA does not apply to plaintiff's claim because the bleachers cannot be considered a building or affixed to a public building. Therefore, DCS is entitled to governmental immunity in this instance.
IV. CONCLUSION
The narrow application of Renny used by the lower courts in this case, that the lack of risers was a design defect inapplicable to the public-building exception, was in error to the extent that the lower courts held that to "maintain" did not include compliance with the current building codes. In my view, Renny itself supports the conclusion that MCL 691.1406 requires governmental agencies to maintain a building's compliance with applicable and current building codes. However, because bleachers are not, by themselves, a "building" for the purpose of the public-building exception, I join the majority of this Court in denying plaintiff's application for leave to appeal.
BERNSTEIN, J., joins the statement of CAVANAGH, J.
WELCH, J. (dissenting).
Plaintiff, a minor, filed this lawsuit through his mother and next friend after he fell 17 feet from an old set of school bleachers that did not contain risers. The Court of Appeals, relying on Renny v Dep't of Transp, 478 Mich. 490 (2007), granted summary disposition for defendant Davison Community Schools (DCS). Specifically, it held that the public building exception to the governmental tort liability act (GTLA), MCL 691.1406, does not include design defects and that the bleachers were defectively designed. Cavazos v American Athletix, LLC, unpublished opinion per curiam of the Court of Appeals, issued October 13, 2022 (Docket Nos. 357805 and 357966). Given that this Court has never determined whether a known building code violation falls under the public building exception to the GTLA, I would have granted leave. I therefore respectfully dissent from the Court's decision to deny leave to appeal.
I. PLAINTIFF'S INJURY AND PROCEDURAL HISTORY
On October 21, 2017, Crystal Cavazos and her three-year-old son, GC, attended a football game at Collins Field, which is owned by DCS. They were seated about 15 rows up in the bleachers, which was approximately 17 feet above the ground. There were no riser planks between the seats and floorboards, which meant there was a 15-inch gap between the seat and the floorboards. GC fell through a gap in the bleachers and suffered severe injuries.
The bleachers were built in the 1960s and compliant with the code at the time. However, subsequent inspections made clear that they were out of code under the applicable updated standards. In 2006, DCS initiated a project to remove the wooden portions of the bleachers, but no riser planks were added in the process. In 2008, DCS ordered inspections of all the bleachers in the district. With respect to the stadium at Collins Field, the report stated under "Immediate Safety Issues": "Entry stairs sinking, bent seat, no riser planks, safety rails have large gap." No riser planks were added after the 2008 inspection because the director of operations for the school district did not think they were required, given that there was no code requirement for them at the time the bleachers were built. Moreover, the director of operations stated that he was unaware of a requirement to retrofit preexisting bleachers.
Under Section 1029.1.1 of the 2015 Michigan Building Code, "[b]leachers, grandstands, and folding and telescopic seating, that are not building elements, shall comply with ICC 300," which is a standard established by the International Code Council (ICC). Section 504.1 of the 2007 ICC standards, which applies to bleachers that were built before the standards were adopted, sets forth the bleacher requirements quoted in the report. See ICC 501.1.
In 2013, another inspection was performed to survey the school's football, baseball, soccer, and tennis fields. The report outlined the applicable guidelines:
The U.S. Consumer Product Safety Commission suggests in its Guidelines for Retrofitting Bleachers that "Any opening between the components in the seating, such as between the footboard, seatboard, and riser, should prevent passage of a 4-inch sphere where the footboard is 30 inches or more above the ground and where the opening would permit a fall of 30 inches or more." [Underlining omitted.]
While the inspection revealed that other sports facilities needed updating, the Collins Field stadium was deemed in "good condition," and no proposal for adding riser planks was included in the estimate for repair work. No other inspections were performed on the bleachers between the 2013 inspection and the 2017 accident.
II. PLAINTIFF'S LAWSUIT AND PROCEDURAL HISTORY
Plaintiff filed this lawsuit on May 13, 2019, alleging negligence against American Athletix, gross negligence against Philip Thom and Daniel Romzek, and negligence under the GTLA public building exception against DCS. The GTLA provides that a government agency "is immune from tort liability if the governmental agency is engaged in the exercise or discharge of a governmental function." MCL 691.1407(1). However, public buildings are generally excepted from governmental immunity:
American Athletix was contracted by DCS to inspect its bleachers; Romzek was the director of operations for the school district until 2012, when Thom took over as director of operations. Thom and Romzek moved for summary disposition, arguing that their conduct did not amount to gross negligence. American Athletix also moved for summary disposition, arguing that it did not own the property that was arguably defective and that its contract with DCS could not create a duty to protect GC, who was not yet born when the contract was finished. The Court of Appeals approved summary disposition for all defendants. We issued our order for argument on the application only as to defendant DCS. I therefore do not further address the claims against the other defendants.
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.]
The requirement to "repair and maintain" public buildings does not apply to design defects. Renny, 478 Mich. at 492. DCS filed a motion for summary disposition, arguing that the bleachers were not a building and that even if they were, the flaws therein were attributable to a design defect and not to DCS's failure to repair or maintain the bleachers.
The trial court determined that for purposes of deciding the motion, it considered the stadium to be a public building. It then held that DCS was entitled to summary disposition because the bleachers' lack of riser planks constituted a design defect. Plaintiff appealed, and the Court of Appeals affirmed the grant of summary disposition to DCS. Like the trial court, it too considered the bleachers to be a public building and focused its analysis upon the design defect exception set forth in Renny and its progeny. Specifically, quoting Renny, it stated:
"[MCL 691.1406] 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 [sic] 'to keep up' or '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." [Cavazos, unpub op at 12-13, quoting Renny, 478 Mich. at 500-501 (emphasis added).]
The Court of Appeals in this case additionally relied on its decision in Tellin v Forsyth Twp, 291 Mich.App. 692, 705-706 (2011). In Tellin, the Court of Appeals explained that "[a] design defect would appear to consist of a dangerous condition inherent in the design itself, such as its characteristics, functioning, and purpose," while "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." Id.
Applying Renny and Tellin to the instant case, the Court of Appeals concluded that the gaps in the bleachers were" 'condition[s] inherent in the design itself,'" having been there since the bleachers were first constructed. Cavazos, unpub op at 13, quoting Tellin, 291 Mich.App. at 705. Moreover, pursuant to Renny, the Court of Appeals held:
Like the trial court, the Court of Appeals assumed that the bleachers are a "public building" under the GTLA. Whether that determination is correct was not appealed to the Court of Appeals, nor was it appealed to us, given that plaintiff prevailed on that argument and thus could only appeal the issue of whether the bleachers (presumed to be a public building) had a design defect.
[I]nstalling a new feature, such as riser planks, even if done in the context of complying with any regulation or code, undoubtedly is not "restoring or returning" the bleachers to "a prior state or condition." Consequently, irrespective of any purported code violation, plaintiff's allegation involves a design defect and the trial court properly granted summary disposition in favor of DCS on the basis that a design defect claim does not fall within the public-building exception. [Cavazos, unpub op at 14].
Plaintiff appealed to this Court, and we held oral argument on the application to address "whether a governmental agency's noncompliance with a building code provision constitutes a failure to meet its obligation to repair and maintain a public building, rendering it liable under MCL 691.1406 and Renny v Mich. Dep't of Transp, 478 Mich. 490 (2007)." GC v American Athletix, LLC, 512 Mich. 932 (2023).
III. RENNY v DEP'T OF TRANSP
In Renny, the plaintiff fell on a patch of ice on the sidewalk in front of the door to a freeway rest area. Id. at 493. In her lawsuit, she alleged that the Michigan Department of Transportation (MDOT) failed to repair and maintain the public building and that the failure to install and maintain gutters and downspouts caused melted snow and ice to accumulate and freeze on the sidewalk. Id. at 494. The Renny majority, quoted earlier, held that the gutter problems constituted a design defect and that design defect claims are not cognizable under the plain language of MCL 691.1406, which refers only to a governmental agency's duty to "repair and maintain" the public building. Id. at 507. Justice WEAVER concurred in the result but did not think it necessary for the Court to reexamine whether MCL 691.1406 allowed recovery for injuries caused by a defective building design. Id. at 508. Justice MARILYN KELLY (joined by Justice MICHAEL F. CAVANAGH) dissented in part, concluding that it was well established based upon longstanding precedent that the public building exception to governmental immunity applies to the design of public buildings:
It is undisputed that the statute imposes on governmental agencies the duty to "repair and maintain" public buildings.
Accordingly, it defies logic that a governmental agency would be required to maintain a dangerously designed building and be exempted from liability for harm to the public caused by the building's design. It must be presumed that the Legislature intended that the design of public buildings
should not cause injury to people. Accordingly, I would hold that the duty to "repair and maintain" public buildings necessarily includes the duty to design safe public buildings. [Id. at 509.]
IV. APPLICATION
The first question to consider when deciding if the public building exception to governmental immunity applies is whether the place of injury constituted a public building. This case is admittedly in an odd posture because although the trial court deemed the bleachers a public building, the school district never appealed that finding because it ultimately prevailed on summary disposition under Renny. Accordingly, the Court of Appeals did not address this question and, like the trial court, assumed the bleachers were a public building. Because that matter was not appealed to us, I too would have assumed that the bleachers are a public building for this case only-and then addressed the application of Renny as requested in our order.
While I question whether Renny correctly interpreted MCL 691.1406, plaintiff's case raises an important issue I believe we need to answer so long as Renny remains the law: whether failure to abide by a building code falls under the design defect exception (set forth in Renny) to public building liability under the GTLA. Renny held that the plaintiff's claim was based on a design defect, but there was no indication in the opinion as to whether the lack of gutters and downspouts on the rest area building was a building code violation. In other words, Renny did not address whether a known building code violation was actionable under the GTLA.
Here, the bleachers at Collins Field were originally built to code in the 1960s and thus did not violate any building code at the time. Therefore, the bleachers did not have a design defect when installed, and plaintiff concedes this point. However, plaintiff argues that the riser planks should have been added in 2006 when DCS replaced the wooden portion of the bleachers. According to plaintiff, at that point, it was known that the lack of riser planks ran afoul of the building code, and it was incumbent upon the school district to "repair and maintain" that "defective condition." I believe this argument is worthy of our Court's consideration. Therefore, I would have granted leave and decided the matter.
For the aforementioned reasons, I respectfully dissent from the Court's decision to deny leave to appeal.