Opinion
No. 103819.
June 14, 1996.
Leave to Appeal Denied June 14, 1996:
Court of Appeals No. 165624.
I would grant leave to appeal.
I
Plaintiff was visiting defendant's fish hatchery when she fell and injured her arm and hand in the tank room used for breeding sturgeon. In order to breed sturgeon, water must be continuously running through the tank. The tank in this room was supplied with a constant stream of water running into the tank, and exiting the tank at approximately ten to nineteen gallons a minute. This water left through a three-inch hole in the center of the tank, out a tube, and then along the slope of a concrete floor to drains.
Defendant permitted members of the public to enter the fish hatchery for self-guided tours. Shortly before plaintiff entered the fish hatchery, defendant had "flushed" the sturgeon tank. This operation, which occurred occasionally in addition to the running water, involved dropping the bottom of the sturgeon tank for a moment to allow a great deal of water and fish feces to flow from the tank, onto the concrete floor of the hatchery, and then down the drain. The worker then rinsed the smooth concrete floor with a hose and cleaned it with a fish disinfectant and bristle pad to "break up any slime." The worker did not feel any slippery spots but said, "I am not saying I got everything. . . ."
Plaintiff sued for her injuries, and the defendant moved for summary judgment on the basis of governmental immunity. The trial judge ruled for defendant, finding there was not a question of fact to support an exception for a dangerous or defective condition of a public building.
The Court of Appeals majority agreed, concluding that because adequate cleanup of the slime would have prevented the injury, the problem was not with the safety of the building but with the supervision that took place within it. The dissenting judge, who was sitting by assignment, said:
I would reverse the order granting summary disposition. I believe that a question of fact exists with regard whether this continuous draining water, containing a slimy residue, onto the floor of a public building, visited by over 130,000 people, is a danger actually presented by the building itself or was merely a transitory condition. This continuous flow of water allowing slime to occur on the floor would appear to be more than a spill resulting in a maintenance problem and would raise a question of fact concerning the existence of a dangerous or defective condition of the public building itself.
II
The tank room was designed to control a continuous flow of water. The tanks were built with a hole to allow the water to run out, and the floor was designed to channel the water to the drain. The running of the water in this case was a result of the structure of the building, not an activity within it separable from the physical building itself. This condition was more like a poorly designed shower in a public locker room than a wet hallway.
If the trier of fact were to find that there was a defect respecting the designed use of the building, governmental immunity is not a bar.
It was a question of fact whether the cause of plaintiff's fall was a building defect or improper maintenance. Summary disposition was inappropriate.