Opinion
353623
06-10-2021
JAYSE NAGY, a minor and JASON NAGY as Next Friend, Plaintiff-Appellant, v. STEPHEN MURPHY and LAMPHERE SCHOOLS, Defendants-Appellees.
UNPUBLISHED
Oakland Circuit Court LC No. 2019-174730-NO
Before: Ronayne Krause, P.J., and Riordan and O'Brien, JJ.
Per Curiam.
Plaintiff, Jayse Nagy (Jayse), through his father and next friend Jason Nagy, appeals by right from the trial court's order granting summary disposition pursuant to MCR 2.116(C)(7) in favor of defendants Lamphere Schools and middle-school track and field coach Stephen Murphy. Jayse was injured during a track and field practice that was being held indoors, in a hallway at the middle school, when he struck and broke a wire-mesh window with his hand. We affirm.
I. BACKGROUND
The Page Middle School building, part of the Lamphere School District, was constructed in 1957, and its construction included wire-mesh interior windows. As of April 11, 2019, when the injury occurred, all of the wire-mesh glass in the middle school remained original. According to the Lamphere Schools director of facilities, he was aware of only one wire-mesh window ever being replaced in the entire district: it had been broken by a baseball in 1988, and it was replaced with laminate glass because laminate glass was cheaper and easier to acquire. As far as he knew, laminate glass and wire mesh glass were equally safe and equally accomplished the same goals. No witnesses were aware of any prior injuries caused by wire mesh glass anywhere within the Lamphere School District.
Wire-mesh glass has a mesh of metal wires embedded in the pane. Laminate glass has a layer of plastic bonded to the pane. Both are intended to hold pieces of glass in place if the glass is broken.
Murphy was, among other roles in the Lamphere School District, the track and field coach at the middle school; he had also participated in track and field as a student when he attended the Lamphere high school. Murphy explained that he had a variety of training, which included first aid, and which also emphasized the importance of weather conditions and hydration on student player safety. As a coach, Murphy received a manual from the school's athletic director, and he referred to that manual frequently. Murphy was also familiar with, and had experience using, the first aid kits provided by the school. Those kits generally contained bandages, gauze, athletic tape, scissors, petroleum jelly, extra mouth guards, and a small toolkit. Murphy and the athletic director explained that they were supposed to work together to establish the availability and safety of practice areas. Murphy believed it was generally up to coaches to determine if the weather permitted practices to be safely held outside, but coaches could not unilaterally cancel or move practice without the approval of administration and the athletic director.
Up to the date of the incident, track and field practice had been held on the track behind the school, and practices were generally an hour to an hour and a half long. On April 11, 2019, practice began outside, but because "there was a quick weather change," Murphy obtained approval from the middle school's lead principal to move practice into one of the school's hallways. Murphy also contacted the athletic director. The athletic director knew that similar practices had been performed in both the middle school and in other school buildings, and he believed there would be little to no other traffic in the hallways because it was after school, so he also granted permission. Murphy proposed to hold sprint relay races in the hallway, whereupon he was advised to take precautions at hallway intersections and ensure that no one walked through the relay. No one suggested to Murphy any alternative locations or activities.
Murphy explained that the middle school building had a main gym and an auxiliary gym, but both gyms were already occupied by other sports teams. The athletic director also opined that the gyms would have been impractical and offered insufficient room for track and field practice.
Murphy explained that he had never personally, as a coach, held a practice in that particular location. However, he had held practices as a high school coach in the high school's hallways. Murphy stated that from his experience with track and field, it was fairly common for sports teams to run in hallways, and it was something he did when he was on the Lamphere high school track team. The athletic director also indicated that he knew similar practices had been conducted by other coaches in running-related sports, he had personally observed some of those indoor practice sessions, and he was unaware of any other injuries having occurred. He was unaware of any specific protocols for practice in the hallways beyond "just ensuring that there was monitoring going on."
Murphy explained that the specific exercise underway was a relay sprint, in which "one person would start, they would run down to the other end of the corridor, slap my hand, pivot, turn around and run back and slap back the next person's hand and so on and so forth." Jayse provided a similar description of the relay sprint exercise. However, Murphy and Jayse provided somewhat different accounts of the details of the practice.
Jayse stated that Murphy never checked to ensure that the running area was clear and that Murphy did not tell anyone to put their backpacks out of the way. However, Jayse noted that no such instruction was given because everyone's backpacks were already placed off to the side. Murphy stated that both after the students came inside and during the practice itself, Murphy instructed the students to place any of their items up against the wall. However, he conceded that he could not see all of the items. Nevertheless, "in-between every relay race, [Murphy] made sure that the pathways were clear and reminding the students to keep the hallways clear and to stay back up against the hall walls." Murphy explained that his precautions included making sure the students were properly dressed with rubber-soled shoes, walking up and down the hallway several times, ensuring that all bags and students were up against the wall, placing two students at intersections to watch for anyone coming, checking for slip spots on the floor, telling the students to wipe off their shoes, and telling the students that "there would be athletic punishments" if they removed themselves or any objects from the wall.
Jayse could not recall whether Murphy placed anyone as spotters at hallway intersections, but he opined that if Murphy claimed to have done so, he probably did do so.
Insofar as we can determine from the testimony and the exhibits provided, Murphy stood at one end of the hallway, and at the other end of the portion of the hallway being used for the sprint exercise, there was a doorway and partition that featured wire-mesh glass windows. The student whose hand needed to be tagged stood in front of the doorway. Murphy stated that the students' stopping point should have been approximately twenty feet from the doorway, but Jayse stated that the student was standing only about five feet away from the doorway.
Jayse contended that Murphy never told anyone specifically how to stop, although he admitted that he could not remember what Murphy said when Murphy explained the rules of the relay. Murphy contended that "one of the points of the relay was to be able to handle your speed and be able to deescalate so that you can be able - them slapping hands is symbolic of passing the baton, if you will." Jayse stated that he saw one other student almost run into a window in the doorway. Murphy did not recall any other students having difficulty slowing down at the end of the relay, but he did recall that they used a lot of the distance from the hand-slapping point to the doors to slow down. Murphy did not know whether Jayse would have required more distance because he was the fastest, but in his personal experience as a track runner, going faster did not necessarily require more distance to slow down.
Murphy described Jayse as "literally the fastest on the team."
Murphy estimated that by the time Jayse was injured, they had been practicing for close to an hour, so they were starting to wind down. According to Jayse, he was trying to outrun the girl running next to him, touched the other student's hand, but then "tripped over a bag and tried to stop myself with my left hand," which went through the doorway window. He explained that it happened very quickly, and he initially tried to pull his hand back out. Murphy stated that he had a clear view of the opposite end of the hallway from where he was standing, but nevertheless he did not actually see Jayse fall; he could only see that Jayse was on the ground, and one of the other students told him" 'Coach, Jayse needs help.'" According to Murphy, Jayse told him "that he was trying to stop and that his arm went through the window." Murphy did not recall whether Jayse told him anything about tripping. A couple of days later, a few of the students told Murphy that Jayse "was trying to deescalate his speed and lost control, and that he was running towards the, they said wall, but more so running towards the window, and that his arm went through the window."
As noted, the purpose of the wire mesh is to hold broken pieces of glass in place.
Murphy ran to Jayse to make sure Jayse was okay, but did not immediately "think of the worst." When Murphy arrived, he saw the blood on Jayse's arm and that Jayse was holding his arm up while lying on the ground. Murphy told Jayse to try to relax, told the students to be quiet, then yelled at them to be quiet and stand back, and ordered one of them to run to the office to alert the administration. Murphy opined that the students were not misbehaving, but they were in shock, and he wanted them quiet so he could focus. After Jayse put his hand through the window, he was in shock, whereupon Murphy used his sweatshirt as a makeshift tourniquet and took Jayse to the lobby until an ambulance arrived. Jayse stated that he was bleeding profusely, and Murphy did not use any medical supplies other than his own sweatshirt. Murphy agreed, explaining that although there was a first aid kid available, it was on the other side of the hallway, and "at that specific moment I was right there with Jayse, and that's what I had resulted [sic] to." Murphy had never previously encountered an injury of that magnitude; he had encountered strains or hamstring pulls, but not injuries caused by external objects. Murphy explained that the baseball coach came out and grabbed some paper towels, which Murphy wrapped around Jayse's arm, and then Murphy took off his sweatshirt "and used it as kind of like a bandage to tighten it up to try to stop whatever bleeding and salvage the cuts." The principal also came out to assist, paramedics were summoned, and Jayse was taken to the emergency room.
As noted above, the first aid kits contained bandages, gauze, athletic tape, scissors, petroleum jelly, extra mouth guards, and a small toolkit. Thus, it would appear not to have contained anything entirely applicable to the situation in any event.
Jayse's injuries are not at issue in this appeal, but very generally, Jayse's testimony reflects that although he went through a painful period of recovery and suffered an obvious pause in his athletic career, he was re-engaging in a multitude of sports and, aside from serious scarring, was largely limited by his hand sometimes "locking up" and a loss of sensation in two of his fingers.
According to still images provided by plaintiff taken from a video recording, an object can be seen on the floor a few minutes before and just after the injury. We note that, without the benefit of the actual video recording itself and being able to see what exhibits were being referenced during some of the depositions, it is difficult to put the object into context. Nevertheless, Murphy stated that he did not recall whether there was anything in the area, and his focus was on Jayse rather than items on the ground. Murphy stated that he would have stopped the relay if that "much stuff had been in the area." He also speculated that items might have been moved into the area after the accident, because the "kids swarmed and were all around us" and Murphy had to tell them to move back while "a few of them went in their bags and got their phone because they were 'Hey, coach, we can call 911,' so on and so forth because I don't remember all of that, all of those bags being there during the relay, bags or shoes or whatever items are in that." We note that the object is seemingly consistent with Jayse's statement that he tripped over a backpack, but because, again, we lack the video recording itself, we do not find the nature of the object unambiguous.
Approximately two months after the injury, plaintiff commenced this action, alleging that Murphy committed gross negligence for a variety of reasons, including holding the practice indoors and failing to ensure that the running area was clear; and alleging premises liability against Lamphere Schools, contending that its failure to replace the 1957 wire-mesh glass constituted a failure to repair and maintain a public building. Defendants moved for summary disposition, arguing that Murphy did not show the requisite lack of regard for his students' safety to constitute gross negligence, and arguing that plaintiff had actually articulated a design defect claim that was not cognizable. The trial court observed that defendants had not specified a subrule under which defendants sought summary disposition, but ruled that defendants were substantively arguing governmental immunity. It therefore treated the motion as having been brought pursuant to MCR 2.116(C)(7) and granted summary disposition accordingly. This appeal followed.
II. STANDARD OF REVIEW
A grant or denial of summary disposition is reviewed de novo on the basis of the entire record to determine if the moving party is entitled to judgment as a matter of law. Maiden v Rozwood, 461 Mich. 109, 118; 597 N.W.2d 817 (1999). The trial court treated the motion as having been made pursuant to MCR 2.116(C)(7), under which plaintiff's claims were allegedly barred. Therefore, the trial court was required to accept all well-pleaded contents of the complaint as true unless contradicted by documentary evidence submitted by the parties. Maiden, supra, 461 Mich. 119. The interpretation and application of statutes, rules, and legal doctrines is reviewed de novo. Estes v Titus, 481 Mich. 573, 578-579; 751 N.W.2d 493 (2008). Whether an entity is immune to suit is a question of law. County Road Ass'n of Mich. v Governor, 287 Mich.App. 95, 118; 782 N.W.2d 784 (2010). Appellate courts will affirm a right result arrived at on the basis of wrong reasoning. Kirl v Zinner, 274 Mich. 331, 336; 264 N.W. 391 (1936); Fox v Roethlisberger, 350 Mich. 1, 4; 85 N.W.2d 73 (1957); Mulholland v DEC Internat'l Corp, 432 Mich. 395, 411 n 10; 443 N.W.2d 340 (1989).
III. IDENTIFICATION OF SUMMARY DISPOSITION SUBRULE
As an initial matter, plaintiff complains that defendants did not specify a subrule upon which they sought summary disposition. Courts look to the substance of pleadings and instruments, irrespective of how they are named or labeled. Hartford v Holmes, 3 Mich. 460, 463 (1855); John Deere Co v Wonderland Realty Corp, 38 Mich.App. 88, 91; 195 N.W.2d 871 (1972); Norris v Lincoln Park Police Officers, 292 Mich.App. 574, 582; 808 N.W.2d 578 (2011). Furthermore, appellate courts review grants or denials of summary disposition under the substantively correct rule, irrespective of the rule upon which a trial court relied. Spiek v Michigan Dep't of Transportation, 456 Mich. 331, 338 n 9; 572 N.W.2d 201 (1998). A party or a trial court's failure to identify a subrule is irrelevant if it can be reasonably discerned from the party's or the court's reasoning which rule was appropriate or intended. Johnson v Heite, 243 Mich.App. 578, 584-585; 624 N.W.2d 738 (2000). Indeed, trial courts are not constrained by the subrule or subrules specified by a party, and they "may proceed under the appropriate subrule if neither party is misled." Computer Network, Inc v AM Gen Corp, 265 Mich.App. 309, 312; 696 N.W.2d 49 (2005).
Plaintiff's protestations notwithstanding, it is clear that plaintiff and the trial court accurately comprehended the substance of defendants' arguments as asserting governmental immunity and responded appropriately. This is a wholly meritless concern.
IV. GROSS NEGLIGENCE BY MURPHY
Governmental immunity for an employee, rather than for a governmental entity, is an affirmative defense that must be proved by the employee. Odom v Wayne Co, 482 Mich. 459, 479; 760 N.W.2d 217 (2008). Under the Governmental Immunity Act, MCL 691.1401 et seq., governmental employees are immune from tort liability unless, in relevant part, the employee's conduct "amount[s] to gross negligence that is the proximate cause of the injury or damage." MCL 691.1407(2)(c)." 'Gross negligence' means conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results." MCL 691.1407(8)(a). Proximate causation requires both a "but-for" unbroken chain of causality and a reasonable degree of foreseeability; in other words, the complained-of harm must be a deterministic consequence of allegedly wrongful conduct and a reasonably predictable consequence of that conduct. Ray v Swager (Ray II), 501 Mich. 52, 66-69; 903 N.W.2d 366 (2017).
The parties appear to tacitly agree that the other requirements of MCL 691.1407(2) for an employee to enjoy tort immunity (that the employee was acting within the scope of his authority and was engaged in the exercise of a governmental function) are satisfied.
Plaintiff argues that our Supreme Court's holding in Ray II establishes that Murphy must be grossly negligent as a matter of law. Plaintiff misapprehends the case. What our Supreme Court actually held in Ray II was that this Court had erroneously conflated factual causation with legal causation, failed to apply a subjective rather than an objective standard for negligence due to the young age of the plaintiff in that case, and generally conducted an incomplete and flawed analysis. Ray II, 501 Mich. at 73-76. On remand from our Supreme Court, this Court did not hold that the defendant was grossly negligent as a matter of law, but rather that there were so many material factual disputes, confounding variables, and unknown but potentially relevant details, that summary disposition in the defendant's favor was inappropriate. Ray v Swager (Ray III), 321 Mich.App. 75, 760-762; 909 N.W.2d 917 (2017). Plaintiff's argument appears to be that his counsel participated in the Ray appeals and cited two unpublished cases in this Court and to our Supreme Court, neither of which is cited anywhere by either court. Beyond a misapprehension or misrepresentation of the Ray opinions, we find the remainder of this argument incomprehensible.
This Court's first opinion was unpublished. Ray v Swager (Ray I), unpublished per curiam opinion of the Court of Appeals, decided October 15, 2015 (Docket No. 322766). The cases plaintiff cites are White v Roseville Public Schs, unpublished per curiam opinion of the Court of Appeals, decided February 21, 2013 (Docket No. 307719), and Hurley v L'Anse Creuse Sch Dist, unpublished per curiam opinion of the Court of Appeals, decided July 25, 2013 (Docket No. 310143). Neither case is even mentioned in any of the three Ray opinions. Furthermore, unpublished opinions have no precedential effect, MCR 7.21(C)(1), and although they may be considered persuasive under appropriate circumstances, reliance on unpublished opinions is generally disfavored. See Glasker-Davis v Auvenshine, __ Mich. App__, __ n 4; __ N.W.2d __(2020). We do not find the circumstances appropriate here.
The gross negligence standard "indicates that the Legislature limited employee liability to situations where the contested conduct was substantially more than negligent." Maiden, 461 Mich. at 122. Indeed, "evidence of ordinary negligence does not create a material question of fact concerning gross negligence." Id. at 122-123. Gross negligence is not established by the fact that an actor could have taken additional precautions, nor may it be established on the basis of hindsight. Tarlea v Crabtree, 263 Mich.App. 80, 90; 687 N.W.2d 333 (2004). Notwithstanding plaintiff's protestations that the trial court improperly held Murphy to a standard of total disregard, this Court has, in fact, characterized gross negligence as being "as though, if an objective observer watched the actor, he could conclude, reasonably, that the actor simply did not care about the safety or welfare of those in his charge." Id. Failure to comply with proper procedures, standards, or policies does not, contrary to plaintiff's assertions, necessarily establish more than ordinary negligence, which in turn is insufficient to establish gross negligence. Rakowski v Sarb, 269 Mich.App. 619, 635-636; 713 N.W.2d 787 (2006); Xu v Gay, 257 Mich.App. 263, 271; 668 N.W.2d 166 (2003).
We note that defendants' arguments are also flawed, primarily in failing to recognize that there were some significant differences between Murphy's testimony and Jayse's testimony regarding what safety precautions Murphy undertook. As the trial court properly observed, there are questions of fact regarding the extent of the precautions Murphy took. Taking the evidence in the light most favorable to plaintiff, Jayse was injured because he tripped over a stray bag on the floor while attempting to slow down from a point that was a mere five feet from the doorway, and Murphy never gave explicit orders to keep items out of the running lanes or patrolled the running lanes to personally ensure they were clear. It is not appropriate to resolve factual disputes when ruling on a motion for summary disposition.
Jayse and Murphy also disputed whether Jayse was one of the first students to run in the relay, or the last. However, we are unaware of why that would be a material fact.
Plaintiff alleged that Murphy committed gross negligence on the basis of several discrete acts of alleged misconduct. Leaving aside the allegations that are vague, generic, and conclusory, plaintiff's allegations of gross negligence mostly amount to Murphy failing to ensure that the running lanes were clear, failing to ensure sufficient maneuvering space for the students, failing to station an additional adult at the other end of the relay, and failing to keep a first-aid kit reasonably accessible. However, the evidence shows that the first-aid kit contained nothing of value for the circumstances (such as arm-sized bandages or tourniquets); by Jayse's own testimony the running lanes were clear at the outset of the practice and he claimed to have been one of the first students to participate; and the available photographs show that the doors were open, so it seems obvious that students could have just run through the doorway. Furthermore, the uncontradicted evidence showed that holding track practice indoors, in the school hallways, had been successfully done many times in the past. Moreover, Murphy obtained approval of both the principal and the athletic director. Finally, although Murphy may not have had a perfect view of the opposite end of the running area, he was able to see Jayse on the ground, so it appears he had at least some view of the entire length of the exercise.
Again, if the actual video recording had been introduced into evidence, perhaps this would become more clear.
Resolving all factual disputes presumptively in plaintiff's favor, there may be a genuine question of fact whether Murphy was negligent. However, ordinary negligence does not establish a question of fact regarding gross negligence. Murphy had personal experience holding indoor practices, and he cleared the day's activities with individuals who held institutional experience with such indoor practices. Murphy could not have been grossly negligent in deciding to move practice indoors. The fact that the running lane was already clear would suggest that no instruction to remove items from the lane would have been necessary, so any alleged failure to give such an instruction also cannot have amounted to gross negligence. Stationing the stopping point a mere five feet from the doorway was perhaps less than ideal, but again, the doorway was apparently open, and Jayse opined that the only reason he ran into a window was because he tripped over the backpack. This suggests that the five-foot stopping distance was minimally adequate in the absence of detritus on the floor, so again it would not have been grossly negligent. We think Murphy's decision to fabricate a tourniquet rather than dig through a first-aid kit that clearly had nothing of value for the circumstances cannot even rise to the level of ordinary negligence. Finally, although stationing another adult at the end of the relay might have been a good idea in hindsight, we are not persuaded that any benefit from a second adult would have been readily predictable. Therefore, failing to station a second adult at the other end of the relay cannot have been gross negligence. Because Murphy clearly had some kind of view of the entire hallway, it was not gross negligence to regard an imperfect view as "good enough."
Plaintiff proffers an affidavit from a purported expert opining that Murphy "breached the standard of care," which, even accepted at face value, remains an ordinary negligence concept.
We conclude that there is no question of fact that Murphy's conduct could not have been grossly negligent, even accepting the facts in plaintiff's favor. Murphy unambiguously took precautions and made efforts to ensure that the practice was safe. Even if Murphy was unsuccessful or could have arguably taken better precautions in hindsight, he did not demonstrate a "substantial lack of concern" for whether his students came to harm. We therefore need not consider plaintiff's proximate causation argument.
V. PREMISES LIABILITY AS TO LAMPHERE SCHOOLS
Unlike employees, governmental entities are absolutely immune from suit unless an exception applies, and the plaintiff has the burden of establishing the applicability of one of those exceptions. Odom, 482 Mich. at 477-479. "The immunity conferred on governmental agencies is broad, and the exceptions narrowly drawn." Haliw v Sterling Heights, 464 Mich. 297, 303; 627 N.W.2d 581 (2001). "Although governmental agencies may be under a wide variety of duties, with regard to services that they provide to the public, only those enumerated within the statutorily created exceptions are legally compensable if breached." Id. at 303 n 5. The parties do not dispute that defendant Lamphere Schools was "engaged in the exercise or discharge of a governmental function." MCL 691.1407(1).
Plaintiff does not allege that Lamphere Schools is vicariously liable for Murphy's alleged misconduct. Cf., Ross v Consumers Power Co, 420 Mich. 567, 591-592; 363 N.W.2d 641 (1984). Rather, plaintiff's claim against Lamphere Schools is based on the "public building" exception set forth in MCL 691.1406, in relevant part, as follows:
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.
There is no serious dispute that plaintiff technically alleged a violation of MCL 691.1406. Plaintiff asserted that the window at issue "constituted a dangerous or defective condition of the public building, as the subject window should not have shattered from force exerted against it by JAYSE," that defendant "had actual or constructive notice of the defect" and that defendant "failed to remedy the defective condition after a reasonable period of time." Defendants argue that plaintiff substantively brings a design-defect claim, which defendants accurately point out would be barred by governmental immunity and falls outside of the public building exception. Renny v Dep't of Transp, 478 Mich. 490, 495-507; 734 N.W.2d 518 (2007).
As discussed, this was not a motion brought or decided pursuant to MCR 2.116(C)(8), under which only the pleadings may be considered, and under which summary disposition would have been proper only when the allegations could not possibly support any recovery. See Maiden, 461 Mich. at 119-120. Thus, whether plaintiff stated a claim in his complaint is not dispositive.
It is well-established that courts are not bound by the names or labels given to pleadings or instruments by parties, and indeed are obligated to look beyond such superficialities to consider the substance of the matter. Hartford, 3 Mich. at 463 (1855); John Deere Co, 28 Mich.App. at 91; Norris, 292 Mich.App. at 582; see also, In re Traub Estate, 354 Mich. 263, 278-279; 92 N.W.2d 480 (1958); Wilcox v Moore, 354 Mich. 499, 504; 93 N.W.2d 288 (1958). Defendants accurately point out that, based on the record evidence, the window at issue in this matter was part of the original construction of the building. Furthermore, defendants appropriately chastise plaintiff's claim that Lamphere Schools was "phasing out" wire-mesh windows. In fact, Lamphere Schools replaced exactly one window over the course of at least thirty years, and it installed a laminate rather than a wire-mesh replacement only for reasons of expense and ease of acquisition. The gravamen of plaintiff's argument is that Lamphere Schools' failure to conduct a wholesale replacement of all wire-mesh glass on its campuses constitutes a failure to repair and maintain its buildings.
Even if wire-mesh windows are, in fact, unsafe in schools, there is no record evidence in support of that proposition. The only window that previously broke had been struck by a baseball, which is not readily comparable to a human hand. The unrebutted testimony shows that Lamphere Schools believed wire-mesh and laminate glasses to be equal in all respects other than cost and availability. Nevertheless, even if there was record evidence that wire-mesh windows were inherently dangerous, our Supreme Court has explained that:
The second sentence of MCL 691.1406, which imposes liability on governmental agencies "for bodily injury and property damage resulting from a dangerous or defective condition of a public building," does not expand the duty beyond the repair and maintenance of a public building. The phrase imposes liability where the "dangerous or defective condition of a public building" arises out of the governmental agency's failure to repair and maintain that building. It is not suggestive of an additional duty beyond repair and maintenance. There is no reason to suspect that the Legislature intended to impose a duty to prevent "dangerous or defective condition[s]" in public buildings in a manner wholly unrelated to the obligation clearly stated in the first sentence. [Renny, 478 Mich. at 501.]Consequently, Lamphere Schools would still not be liable for the presence of the wire-mesh glass unless that wire-mesh glass was present because Lamphere Schools failed to repair or maintain the school building.
In Renny, the plaintiff alleged that a rest area building was hazardous, in violation of the Michigan Department of Transportation's duty to repair and maintain the building, because the building lacked gutters and downspouts that would have safely channeled snow and ice away from sidewalks. Renny, 478 Mich. at 493-494. Our Supreme Court held that the plaintiff's claim could not be maintained to the extent it alleged that the building was improperly designed. Id. at 506. However, the plaintiff's claim did fall within the public building exception in part, because there was "record evidence suggesting that the rest area building was once equipped with gutters and downspouts." Id. at 506-507. Notably, our Supreme Court emphasized that "repair" meant restoration to a prior condition after some kind of damage had been sustained, and "maintain" meant preserving some prior condition. Id. at 500-501. "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 of condition." Id. at 501. In contrast," '[d]esign' refers to the initial conception of the building, rather than its restoration." Id. The inescapable conclusion is that the public building exception to governmental immunity usually could not apply where the alleged defect was present as part of the building from the outset.
Plaintiff's claim is, therefore, necessarily a design defect claim, not a failure to repair or maintain claim. The broken window was original, so it was not something that had been improperly repaired or maintained. The broken window was not a stray that had been overlooked or not yet reached during a building-wide restoration project, which might also have suggested some kind of improper or inadequate repair or maintenance. The allegedly dangerous or defective nature of the wire-mesh glass was simply part of the building design from the time of its construction. Therefore, plaintiff's claim necessarily falls outside the scope of the public building exception to governmental immunity. We also note our agreement with the trial court's alternative holding that there is no record evidence to show that Lamphere Schools was aware, or had any reason to be aware, that wire-mesh glass posed any exceptional danger.
Affirmed.