Renny v. Department of Transportation

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

FILED JULY 11, 2007

KAREN RENNY and CHARLES RENNY,

Plaintiffs-Appellees,

v No. 131086

MICHIGAN DEPARTMENT OF TRANSPORTATION,

Defendant-Appellant.

_______________________________

BEFORE THE ENTIRE BENCH

YOUNG, J.

In this case we consider whether a “design defect” claim is cognizable

under the public building exception to governmental immunity, MCL 691.1406.

The plain language of the public building exception imposes a duty only to “repair

and maintain” a public building. In the absence of any additional language

addressing design defects, we hold that the public building exception to

governmental immunity does not permit a cause of action premised upon an

alleged design defect. We disavow any dicta to the contrary in our earlier cases
and overrule any cases such as Sewell v Southfield Pub Schools,1 and Williamson v

Dep’t of Mental Health,2 that can be construed to stand for the proposition that

design defects fall within the public building exception. However, because

plaintiff’s3 complaint alternatively alleged that defendant Michigan Department of

Transportation (MDOT) failed to repair and maintain the public building, we

remand to the Court of Claims to determine whether plaintiff’s suit may proceed

with respect to these allegations.4 Accordingly, we affirm the Court of Appeals

reversal of summary disposition in favor of MDOT, reverse the Court of Appeals

holding that design defects are actionable under the public building exception and

remand the case to the Court of Claims for further proceedings consistent with this

decision.

I. FACTS AND PROCEDURAL HISTORY

Plaintiff Karen Renny visited a rest area in Roscommon County, Michigan,

in January 2000. She alleged that while leaving the rest area building, she slipped

1
456 Mich 670; 576 NW2d 153 (1998).
2
176 Mich App 752; 440 NW2d 97 (1989).
3
Coplaintiff Charles Renny filed a claim for loss of consortium, which is
derivative of his wife’s claim. Therefore, we will refer to plaintiff singularly.
4
We do not pass judgment on the legal viability of plaintiff’s allegations
with respect to a failure to maintain and repair the rest area building, nor should
this opinion be construed as holding that plaintiff is entitled to proceed to trial.
We simply observe that plaintiff in her complaint minimally pleaded in avoidance
of governmental immunity and therefore we remand for further proceedings on
that basis. See part IV, infra.

2

on a patch of snow and ice on the sidewalk in front of the doorway and suffered

serious injuries to her right wrist. Plaintiff sued MDOT, alleging that her injuries

resulted from a defective condition of the rest area building. According to

plaintiff, “by [MDOT] designing, constructing, keeping and/or maintaining” the

rest area in a defective condition, melted snow and ice accumulated on the

sidewalks in front of the entranceway and created a hazardous, slippery surface.5

Plaintiff attributed the accumulated snow and ice, in part, to MDOT’s failure to

install and maintain gutters and downspouts around the roof of the building.

Plaintiff maintained that gutters and downspouts would have safely channeled the

snow and ice that melted off the roof away from the sidewalks. Moreover,

plaintiff alleged that MDOT had actual or constructive notice of these defects for

more than 90 days before the accident, but failed to remedy them. MDOT moved

for summary disposition, which the Court of Claims granted on the basis of

governmental immunity.

In a published per curiam decision, the Court of Appeals reversed the Court

of Claims.6 The panel held that plaintiff’s claim was cognizable as a design defect

claim under the public building exception. It further concluded that plaintiff’s

5
Plaintiff also sued the Roscommon County Road Commission and
Roscommon Township in a separate circuit court action that was consolidated
with this case at the trial court level. Both parties were dismissed, and neither
party is participating in this appeal.
6
Renny v Dep’t of Transportation, 270 Mich App 318; 716 NW2d 1
(2006).

3

injured wrist was directly attributable to a dangerous or defective condition of the

building itself even though the dangerous condition of snow and ice existed

outside the building.

This Court granted MDOT’s application for leave to appeal.7

II. STANDARD OF REVIEW

This Court reviews de novo motions for summary disposition.8 Questions

of statutory interpretation are questions of law that are also reviewed de novo by

this Court.9 This Court approaches the task of statutory interpretation by seeking

to give effect to the Legislature’s intent as expressed in the statutory language.10

“When the language of a statute is unambiguous, the Legislature’s intent is clear

and judicial construction is neither necessary nor permitted.”11

7
477 Mich 958 (2006). In our order granting leave, we asked the parties to
address three questions: (1) whether the Court of Appeals correctly characterized
the alleged dangerous or defective condition in this case as a design defect; (2)
whether the public building exception, which obligates a governmental agency “to
repair and maintain public buildings,” permits a party to bring a design defect
claim; and (3) whether the Court of Appeals’ conclusion that the icy sidewalk was
not a transitory condition is contrary to this Court’s decision in Wade.
8
Grimes v Dep’t of Transportation, 475 Mich 72, 76; 715 NW2d 275
(2006).
9
Id.
10
Griffith v State Farm Mut Automobile Ins Co, 472 Mich 521, 526; 697
NW2d 895 (2005).
11
Id.

4

 III. ANALYSIS

This case pivots on the proper interpretation of the public building

exception to governmental immunity. MCL 691.1406 states, in pertinent part, 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. 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.
[Emphasis added.]

This Court has held that in order for a plaintiff to avoid governmental

immunity under the public building exception, the plaintiff must prove that (1) a

governmental agency is involved, (2) the public building in question is open for

use by members of the public, (3) a dangerous or defective condition of the public

building itself exists, (4) the governmental agency had actual or constructive

knowledge of the alleged defect, and (5) the governmental agency failed to

remedy the alleged defective condition after a reasonable amount of time.12 In this

case, the parties dispute whether plaintiff has satisfied the third element. That is,

whether plaintiff was injured by a dangerous or defective condition of the rest area

building.

12
de Sanchez v Dep’t of Mental Health, 467 Mich 231, 236; 651 NW2d 59
(2002).

5

 Plaintiff maintains that the dangerous or defective condition of the rest area

building arose from a design defect, and that a design defect claim is cognizable

under the public building exception.13 She rests her argument on certain language

from Bush v Oscoda Area Schools14 that we have reiterated in Reardon v Dep’t of

Mental Health15 and other subsequent cases.16 In Bush, the plaintiff, the mother of

an injured student, sued the student’s school and school officials after a jug of

wood alcohol exploded in a non-laboratory classroom temporarily used to hold

science class. Concluding that the plaintiff stated a claim against the defendants

under the public building exception, this Court opined that

[t]he defective building provision is structurally similar to the
defective highway provisions. It states a duty “repair and maintain”,
and in providing a cause of action extends it to “a dangerous or
defective condition of a building”. We construe the defective
building provision as we have the defective highway provision.
Governmental agencies are subject to liability for a dangerous or
defective condition of a public building without regard to whether it
arises out of a failure to repair and maintain.

13
Plaintiff argues alternatively that the defective condition of the rest area
building arose from a failure to maintain gutters around the building.
14
405 Mich 716; 275 NW2d 268 (1979).
15
430 Mich 398; 424 NW2d 248 (1988).
16
See, e.g., Johnson v Detroit, 457 Mich 695; 579 NW2d 895 (1998);
Sewell, supra; Hickey v Zezulka (On Resubmission), 439 Mich 408; 487 NW2d
106 (1992); see also Williamson, supra.

6

 As in the highway cases, a building may be dangerous or
defective because of improper design, faulty construction or the
absence of safety devices. [17]

In Reardon, this Court quoted Bush approvingly to make the point that the

public building exception applies only where an injury “is occasioned by a

physical defect or dangerous condition of the building itself”18 rather than where

an injury merely occurs on the premises. In its discussion of the governmental

agency’s duty under the public building exception, the Reardon Court opined that

[t]he first sentence [of the public building exception] imposes upon
governmental agencies the duty to “repair and maintain public
buildings under their control . . . .” In Bush v Oscoda Area Schools,
405 Mich 716; 275 NW2d 268 (1979), we held that this duty is not
strictly limited to the repair or maintenance of public buildings.
Instead, we held that “a building may be dangerous or defective
because of improper design, faulty construction or the absence of
safety devices.” Id. at 730. We reiterate this proposition, as the
holding in Bush is entirely consistent with today’s conclusion that
the injury must be occasioned by the dangerous or defective
condition of the building itself. As long as the danger of injury is
presented by a physical condition of the building, it little matters that
the condition arose because of improper design, faulty construction,
or absence of safety devices. However, while the public building
exception is not strictly limited to failures of repair or maintenance,
the Legislature’s choice of those terms to define the governmental
duty is indicative of its intention regarding the scope of the
exception. The duty to repair and maintain a premises clearly relates
to the physical condition of the premises.[19]

17
Bush, 405 Mich at 730.
18
Reardon, 430 Mich at 400.
19
Id. at 409-410.

7

Citing Bush and Reardon, this Court has stated elsewhere that a defective design

claim falls within the public building exception.20 Plaintiff rests her design defect

claim on this line of cases.

MDOT responds that this Court has never squarely held that a design defect

is cognizable under the public building exception. According to MDOT,

Reardon’s discussion of Bush and design defect claims was obiter dictum.

Reardon considered and rejected the notion that the public building exception

extended to injuries that occur in a public building but were not occasioned by a

physical condition of the building itself. It did not pass on the merits of a design

defect claim.

Moreover, MDOT argues that Reardon mischaracterized Bush as holding

that design defects fall within the public building exception, when Bush in fact

only considered the intended use of the classroom and the lack of safety devices in

its holding. Thus, MDOT argues, it was unnecessary for the Bush Court to opine

on the propriety of a design defect claim and its statement on that question was

dictum. Finally, MDOT points out, this Court more recently has openly

questioned whether a design defect claim fits within the public building exception.

In de Sanchez v Dep’t of Mental Health,21 we stated that

20
See, e.g., Johnson, supra; Sewell, supra; Hickey, supra.

21
455 Mich 83, 96; 565 NW2d 358 (1997).

8

 [d]espite the oft-cited proposition that a public building may be
dangerous or defective because of its improper design, the issue
whether a design defect may actually constitute a defect in a public
building sufficient to invoke the public building exception has
caused this Court considerable difficulty. Nonetheless, that issue is
not before this Court.

In short, MDOT argues, any support provided by the caselaw on which plaintiff

heavily relies is illusory.

More specifically, MDOT contends that plaintiff’s reliance on Bush is

misplaced because this Court has since dismantled the reasoning underpinning

Bush. The majority in Bush relied heavily on the structural and linguistic

similarities between the highway exception and the public building exception.

Therefore, because our caselaw held that a design defect claim fell within the

highway exception, the Bush majority placed the same judicial gloss on the public

building exception. Beginning with Nawrocki v Macomb Co Rd Comm,22 this

Court returned to a more textually faithful interpretation of the highway exception.

This trend continued in Hanson v Mecosta Co Rd Comm,23 where this Court

disavowed the line of highway exception cases that recognized a design defect

22
463 Mich 143; 615 NW2d 702 (2000).
23
465 Mich 492, 502; 638 NW2d 396 (2002). The Court of Appeals also
signaled a more principled approach to the highway exception. See, e.g.,
Wechsler v Wayne Co Rd Comm, 215 Mich App 579, 587-588; 546 NW2d 690
(1996) (“The Legislature thus did not purport to demand of governmental agencies
having jurisdiction of highways that they improve or enhance existing
highways . . . . The only statutory requirement and the only mandate that, if
ignored, can form the basis for tort liability is to ‘maintain’ the highway in
reasonable repair.”).

9

claim and held that “the highway exception does not include a duty to design, or to

correct defects arising from the original design or construction of highways.”

MDOT reasons syllogistically, then, that this Court, since deciding Bush, has

recognized that the highway exception does not allow for a design defect claim. It

was vital to the Bush majority’s logic that the highway exception permitted design

defect claims. Now that this central premise has been repudiated, there is no

reason for a similarly erroneous statutory construction to persist with regard to the

public building exception.

With respect to the plain language of the statute, MDOT notes that

plaintiff’s position is entirely at odds with the statute itself. The statutory

language refers only to the governmental agency’s duty to “repair and maintain

public buildings,” and does not refer to any duty to design a public building.

Therefore, to hold that the language of the statute includes a design defect claim is

inconsistent with its plain language.

While plaintiff relies almost exclusively on caselaw, MDOT largely appeals

to the statutory language. In order to decide an issue of statutory construction, we

must first resort to the plain language of the public building exception to

determine the Legislature’s intent.24 We agree with MDOT that this provision

clearly does not support a design defect claim. The first sentence of MCL

24
Echelon Homes, LLC v Carter Lumber Co, 472 Mich 192, 196; 694
NW2d 544 (2005).

10

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.”25 By contrast,

“repair” means “to restore to sound condition after damage or injury.”26 Similarly,

“maintain” means “to keep up” or “to preserve.”27 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.

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

25
The American Heritage Dictionary of the English Language, New
College Edition (1978).
26
Id.
27
Id.

11

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.28

Contrary to the dissent’s suggestion that Bush represents an unbroken

precedent, Bush has been consistently undermined by subsequent decisions of this

Court. First, Bush was succeeded by Ross v Consumers Power Co (On

Rehearing),29 a case that fundamentally altered the way we construe the

governmental immunity statute. Second, we agree with MDOT that Hanson

28
According to the dissent, it “defies logic” that a governmental agency
would have a duty to repair and maintain a public building but would not be liable
if a public building could have been more safely designed. Such a statement fails
to recognize that the very purpose of governmental immunity is to limit the
government’s exposure to liability. Clearly, this is precisely what the Legislature
intended to convey with its deliberately chosen words. It is entirely logical that it
would have chosen not to expose a governmental agency to liability for a design
defect. The duty to repair and maintain a public building does not impose an
unforeseeable and potentially significant liability on governmental agencies. The
same cannot be said of a duty to design a safe public building, which would be
measured in hindsight by courts that are ill-equipped to consider the budgetary and
architectural trade-offs involved in the construction of any structure. Thus, far
from being illogical, a narrowly tailored duty of repair and maintenance is entirely
consistent with the government’s interest in limiting its liability.
29
420 Mich 567; 363 NW2d 641 (1984).

12

collapsed the “logic” in Bush supporting a design defect claim. Finally, we also

note that the propriety of a claim under the public building exception premised on

a lack of safety devices is also undermined by Fane v Detroit Library Comm30 – a

decision authored by the dissent. In Fane, we held under the facts of that case that

an elevated terrace was “of a public building.” We emphasized that the public

building exception only refers to injuries resulting from dangerous or defective

conditions “of a public building” and that a fixtures analysis is useful in

determining whether the condition giving rise to the injury is “of a public

building.” In light of Fane, we fail to see how injuries from an exploding jug

could have resulted from a dangerous or defective condition “of a public building”

or could survive a fixtures analysis under Fane.

Because we conclude that the statutory language is unambiguous and

imposes a duty only to repair and maintain a public building, we must reconsider

our earlier cases suggesting that a design defect claim is cognizable under the

public building exception.31 As we said in de Sanchez, it is an oft-cited

30
465 Mich 68; 631 NW2d 678 (2001).
31
The dissent claims that the Legislature acquiesced in Bush’s erroneous
interpretation of the public building exception. That this Court highly disfavors
the doctrine of legislative acquiescence has been elsewhere stated. See, e.g.,
Karaczewski v Farbman Stein & Co, 478 Mich 28; 732 NW2d 56 (2007); Grimes,
475 Mich at 84; Robinson v Detroit, 462 Mich 439, 465; 613 NW2d 307 (2000);
Donajkowski v Alpena Power Co, 460 Mich 243, 261; 596 NW2d 574 (1999).
Thus, for the reasons stated in these opinions, the dissent’s reliance on this
spurious rule is a nonstarter.

13

proposition that design defect claims fall within the public building exception.

Yet there are few instances where this Court or the Court of Appeals has endorsed

a design defect claim. We agree with MDOT that Bush involved an alleged lack

of safety devices and was not a design defect case, so its discussion of the latter

was dictum. Although at one point the Bush majority stated that “[p]laintiff has

alleged that the improper design of the classroom and absence of safety devices

rendered it unsafe as a science classroom,” elsewhere it opined that “[p]laintiff’s

defective building theory is based on lack of safety devices.”32 We also agree with

MDOT that Reardon was not a design defect case and its discussion of design

defect claims was dictum. Rather, Reardon held that the public building exception

“impose[s] a duty to maintain safe public buildings, not necessarily safety in

public buildings.”33

In subsequent cases, this Court has not endorsed a plaintiff’s design defect

claim. In Hickey, supra, responding to the plaintiff’s argument that the alleged

improper design of a Michigan State University Department of Public Safety

holding cell caused the decedent to hang himself, this Court stated that “[a]lthough

we agree that a claim of improper design may allow the public building exception

32
Bush, 405 Mich at 730-731, 728 n 7.
33
Reardon, 430 Mich at 415 (emphasis in original). Thus, the dissent
attributes too much significance to the Reardon Court’s recitation of the design
defect language from Bush and certainly is incorrect in suggesting that we are
overturning Reardon.

14

to be applied, that outcome is not required”34 because the connection between the

alleged design defect and the injury was too tenuous to invoke the exception. So,

this Court did not pass judgment on the plaintiff’s design defect claim. In de

Sanchez, supra, where the decedent hung himself in a restroom, this Court

expressly stated that the plaintiff’s design defect claim was not before the Court.35

In Johnson, supra, another suicide case, a majority of this Court concluded that the

public building exception was applicable because the police station holding cell

was defective given its intended use as a suicide-deterrent cell. This Court did not

focus on a design defect claim.

In addition to the Court of Appeals decision in this case, we are aware of

only two cases where a design defect claim was recognized implicitly or explicitly

by a court. In Williamson, supra, the Court of Appeals affirmed the Court of

Claims determination that the plaintiff alleged a design defect or absence of safety

features that was a proximate cause of the decedent’s death. The decedent, a

mildly retarded, epileptic teenager, drowned while taking an unsupervised bath at

a Department of Mental Health residential treatment facility. The Court of Claims

found that the plaintiff proved by a preponderance of the evidence that the

improper design of the shower and bathing facilities constituted a dangerous or

34
Hickey, 439 Mich at 423 (opinion by Brickley, J.).

35
de Sanchez, 455 Mich at 96.

15

defective condition of the public building that the defendant had a duty to alter or

modify with safety devices.

And, in Sewell, supra, this Court reversed summary disposition in favor of

the defendant Southfield Public Schools, where the minor plaintiff suffered a

spinal cord injury after diving into a shallow pool at the high school, holding that

the plaintiff created a question of fact regarding the existence of an actual defect in

the pool. We examined the intended use of the pool, and held that diving, and not

just swimming, was an intended use. Second, we held that the plaintiffs’

allegations of faulty construction and improper design sufficiently alleged an

actual defect. These defects included an uneven pool floor and mismarked depth

markers. The plaintiffs’ experts opined about the poor design and layout of the

pool, claiming that there was a design failure. We disagreed with the lower courts

that this was merely a case of improper supervision.

In light of our foregoing analysis of the public building exception, we

disavow the dicta in earlier decisions from this Court such as in Bush and

Reardon, and any dicta from Court of Appeals decisions, suggesting that a design

defect claim falls within the plain language of the provision. Also, we overrule

any cases such as Sewell and Williamson that can be construed to stand for the

proposition that design defects fall within the public building exception.36

36
To the extent that it overrules Sewell, our decision today does not
contravene the policy considerations that underpin the doctrine of stare decisis.
(continued…)

16

 IV. APPLICATION

Returning to the facts of this case, plaintiff alleges that she was injured by a

dangerous or defective condition of the rest area building. She argues that the

absence of gutters and downspouts, among other defects in the building, permitted

an unnatural accumulation of snow and ice on the sidewalks in front of an

entranceway and created slippery, hazardous conditions for members of the public.

__________________________
(…continued)
See Robinson, supra. First, without question, Sewell relied on dicta originating in
Bush that was clearly inconsistent with the plain language of the statute. This
explains why the dissent treats the duty of safe design as “implicit” in the statute
rather than “explicit” because that duty is nowhere to be found in the actual words.
Post at 1, 10. Therefore, we are faithfully discharging our judicial responsibility
by accurately interpreting and applying the statutory language in this case. Also,
we are largely disavowing dicta rather than overruling prior established cases. We
will not elevate dicta above the plain language of a statute. See Hanson, 465 Mich
at 501 n 7. And, by repudiating dicta that is patently contrary to the statutory
language, we are simply enforcing the plainly expressed intent of the Legislature.

Second, the practical workability of a design defect claim has elsewhere
been called into question by this Court. A majority of this Court (which included
the dissenting justice) noted that “whether a design defect may actually constitute
a defect in a public building sufficient to invoke the public building exception has
caused this Court considerable difficulty.” de Sanchez, 455 Mich at 96. Third,
turning to the question of reliance interests, it is hard to imagine that overruling
Sewell and precluding design defect claims will be so jarring as to create practical,
real-world dislocations. Robinson, 462 Mich at 466-467. Finally, contrary to
what the dissent claims, there have been substantial changes in the law since Bush
was decided, which undercuts the notion that Bush has functioned as an integral
part of our jurisprudence for 28 years. As we discussed earlier, subsequent cases
from this Court have undermined Bush and its progeny, including Sewell. See
Fane, supra; Hanson, supra; Nawrocki, supra; Ross, supra. The dissent’s correct
assertion that Hanson dealt with a different portion of the governmental tort
liability act and its belief that Hanson was wrongly decided misses the larger point
that the law of governmental immunity has significantly changed since Bush was
decided.

17

Consistent with today’s decision, to the extent that plaintiff’s claim is premised on

a design defect of a public building, it is barred by governmental immunity.

However, plaintiff also alleged that MDOT failed to repair and maintain the rest

area building.37 Indeed, there is record evidence suggesting that the rest area

building was once equipped with gutters and downspouts. Although we do not

pass judgment on the legal viability of plaintiff’s claim or whether her claim may

ultimately proceed to trial, plaintiff sufficiently pleaded in avoidance of

governmental immunity. Accordingly, we remand to the Court of Claims to

determine whether plaintiff’s suit may proceed with respect to the alleged failure

to repair and maintain the public building.

V. CONCLUSION

We hold that design defect claims are not cognizable under the

unambiguous, plain language of the public building exception, which refers only

37
For instance, her complaint alleged:

11. This accumulation of ice and snow occurred as a result of
the defective condition of the roof of the building located
immediately above this entrance/exit way to the building. By way of
illustration, not limitation, these defective conditions include the
failure to install and maintain gutters and downspouts to redirect
melting snow and ice on the roof above the entrance/exit away from
the walkway.
* * *

19. Defendant breached this statutory duty [MCL 691.1406]
by designing, constructing, keeping and/or maintaining the restroom
building described herein which had dangerous and/or defective
conditions . . . .

18

to the governmental agency’s duty to “repair and maintain” the public building.

Therefore, while we affirm the Court of Appeals reversal of summary disposition

in favor of MDOT, we reverse the Court of Appeals holding that design defects

are actionable under the public building exception, and we remand the case to the

Court of Claims for further proceedings consistent with this decision.

Robert P. Young, Jr.
Clifford W. Taylor
Maura D. Corrigan
Stephen J. Markman

19

 STATE OF MICHIGAN

SUPREME COURT

KAREN RENNY and CHARLES RENNY,

Plaintiffs-Appellees,

v No. 131086

MICHIGAN DEPARTMENT OF TRANSPORTATION,

Defendant-Appellant.

_______________________________

WEAVER, J. (concurring in result only).

I concur only in the result reached by the majority to affirm the Court of

Appeals reversal of summary disposition in favor of defendant Michigan

Department of Transportation and to remand this case to the Court of Claims for

further proceedings on the basis that plaintiffs’ complaint alternatively alleged that

defendant failed to “repair and maintain” a public building pursuant to MCL

691.1406.1

1
MCL 691.1406 provides, in pertinent 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
(continued…)
 Because a majority of this Court has concluded that plaintiffs’ complaint

adequately alleged a claim against defendant for injuries plaintiff Karen Renny

sustained as a result of defendant’s failure to “repair and maintain” the rest area

building, this Court need not address the issue whether plaintiffs could also pursue

a claim for defective building design. In this respect, our order2 granting leave to

appeal and requesting the parties to address this issue was unnecessary and

improvident. Moreover, any commentary by the majority on the question of

defective building design is obiter dictum.

Thus, because the Court can decide this case without resorting to

consideration of whether recovery is available under MCL 691.1406 for a plaintiff

who alleges that injuries occurred as a result of a defectively designed public

building, I would leave for another day consideration of the question whether

recovery is available on the basis of defective design.

Elizabeth A. Weaver

__________________________
(…continued)
action reasonably necessary to protect the public against the
condition.
2
Renny v Dep’t of Transportation, 477 Mich 958 (2006).

2

 STATE OF MICHIGAN

SUPREME COURT

KAREN RENNY and CHARLES RENNY,

Plaintiffs-Appellees,

v No. 131086

MICHIGAN DEPARTMENT OF
TRANSPORTATION,

Defendant-Appellant.

KELLY, J. (concurring in part and dissenting in part).

I believe that the public building exception to governmental immunity1

extends to the design of public buildings. The duty of safe design is implicit in the

duty to maintain safe buildings. This interpretation of the public building

exception is consistent with longstanding precedent of this Court. The Court

should not disturb it.

THE PUBLIC BUILDING EXCEPTION TO GOVERNMENTAL IMMUNITY

The public building exception to governmental immunity, MCL 691.1406,

states, 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

1
MCL 691.1406.
 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.

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.

MICHIGAN CASELAW ADDRESSING DESIGN DEFECT CLAIMS

My interpretation is consistent with longstanding precedent of this Court.

See Bush v Oscoda Area Schools, 405 Mich 716; 275 NW2d 268 (1979), Reardon

v Dep’t of Mental Health, 430 Mich 398; 424 NW2d 248 (1988), and Sewell v

Southfield Pub Schools, 456 Mich 670; 576 NW2d 153 (1998). However, today

the majority overturns this precedent. Not only do I find unpersuasive the

majority’s attempt to dismiss the holding in Bush as dictum, but I disagree that

Bush, Reardon, and Sewell should be overturned.

2

 BUSH V OSCODA AREA SCHOOLS

The issue in Bush, among others, was whether the defendant public school

district, its superintendent, a principal, and a classroom teacher were liable under

the public building exception. Bush, 405 Mich at 724-725. The plaintiff high

school student was enrolled in an introductory physical science class. Id. at 725.

Although the class regularly met in a chemical laboratory equipped with safety

features, because of increased enrollment, it met in a nonlaboratory room. Id. The

temporary classroom lacked gas lines and gas-fired burners. Id. at 726. The

students had to fill portable alcohol burners at a counter and carry them to and

from their desks. Id. It was while the plaintiff student was returning her burner to

the counter that an explosion occurred and she was enveloped in flames, suffering

severe burns.

During the lawsuit that followed, the plaintiffs alleged that the temporary

laboratory was dangerous and defective because of the improper design of the

room and the absence of safety devices. Id. at 730-731. In order to determine

whether the plaintiffs’ complaint was within the public building exception to

governmental immunity, it was necessary to interpret MCL 691.1406. Writing for

the Court, Justice Charles Levin stated:

We construe the defective building provision as we have the
defective highway provision. Governmental agencies are subject to
liability for a dangerous or defective condition of a public building
without regard to whether it arises out of a failure to repair and
maintain.

3

 As in the highway cases, a building may be dangerous or
defective because of improper design, faulty construction or the
absence of safety devices. [Bush, 405 Mich at 730.]

On the basis of its interpretation of the statute, the Bush Court concluded

that the plaintiffs’ complaint had sufficiently stated a claim upon which relief

could be granted. Id. at 733. The Court remanded the case to the trial court. Id.

It was left to the trier of fact the determination whether, among other things, the

classroom was defective when used as a physical science laboratory. Id. at 732.

Integral to the holding was Bush’s determination that a public building may fall

within the exception to governmental immunity as dangerous or defective because

of improper design. Therefore, the language cited from Bush was, by definition,

not dicta and constitutes binding precedent.

For the past 28 years, our courts have relied on that reasoning from Bush.

In the years immediately following Bush, the Michigan Court of Appeals cited the

case numerous times for the proposition that a design defect claim is actionable

under the public building exception to governmental immunity. See Lee v

Highland Park School Dist, 118 Mich App 305, 309; 324 NW2d 632 (1982);

Young v City of Ann Arbor, 119 Mich App 512, 520-521; 326 NW2d 547 (1982);

Landry v Detroit, 143 Mich App 16, 22; 371 NW2d 466 (1985).

REARDON V DEP’T OF MENTAL HEALTH

Nine years after Bush, in Reardon, this Court once again analyzed MCL

691.1406. Reardon, 430 Mich at 409-410. It considered carefully the first

sentence of the statute, imposing a duty to “repair and maintain public buildings.”

4

Id. at 410. It explicitly reaffirmed the holding in Bush that a building may be

defective because of improper design. Id. With regard to the second sentence of

the statute, the Court held that the phrase “dangerous or defective condition of a

public building” showed that the Legislature intended that the exception apply in

cases where the physical condition of a building causes injury. Id. at 411.

The Reardon Court specifically noted that its holding was consistent with

Bush: “As long as the danger of injury is presented by a physical condition of the

building, it little matters that the condition arose because of improper design,

faulty construction, or absence of safety devices.” Id. at 410. Therefore, when

this Court had the opportunity to reexamine its interpretation of MCL 691.1406, it

reaffirmed the holding in Bush that defective design is actionable under the public

building exception to governmental immunity.

WILLIAMSON V DEP’T OF MENTAL HEALTH2

In Williamson v Dep’t of Mental Health, the Court of Appeals cited Bush

for the proposition that a building may be dangerous for the purpose of MCL

691.1406 because of improper design, faulty construction, or the absence of safety

devices.3 The panel affirmed the trial court’s finding that the building exception

2
176 Mich App 752, 757; 440 NW2d 97 (1989).
3
Williamson, 176 Mich App at 757, noted that Reardon reiterated this
principle.

5

applied where the shower and bathing facilities of the building in question had

been improperly designed. Williamson, 176 Mich App at 758-760.

SEWELL V SOUTHFIELD PUB SCHOOLS

In Sewell, this Court again stated that a building may be dangerous or

defective because of improper design.4 We held that the grant of summary

disposition to the defendant was improper because the plaintiff had sufficiently

alleged a dangerous condition arising from faulty construction and improper

design. Sewell, 456 Mich at 671-672.5

Therefore, the frequently repeated proposition that design defect claims fall

within the public building exception to governmental immunity has become a

bedrock of Michigan jurisprudence. The majority distracts attention from this fact

by citing cases that this Court resolved without determining whether there was a

design defect. See Hickey v Zezulka (On Resubmission), 439 Mich 408; 487

NW2d 106 (1992); de Sanchez v Michigan Dep’t of Mental Health, 455 Mich 83;

565 NW2d 358 (1997); Johnson v Detroit, 457 Mich 695; 579 NW2d 895 (1998).

4
Sewell, 456 Mich at 675, cited Hickey v Zezulka (On Resubmission), 439
Mich 408, 422; 487 NW2d 106 (1992), which quoted Bush for the proposition that
a public building may be dangerous or defective because of improper design.
5
Sewell has been relied on for the proposition that a building may be
dangerous or defective because of improper design, faulty construction, or the
absence of safety devices. See Kruger v White Lake Twp, 250 Mich App 622,
626; 648 NW2d 660 (2002).

6

 However, in none of those cases did this Court overrule Bush or Sewell and

hold that design defects do not fall within the public building exception. Rather,

two of them, Hickey and Johnson, cited Bush for the proposition that a building

may be defective because of improper design. Hickey, 439 Mich at 422; Johnson,

457 Mich at 704. This Court in de Sanchez noted that it is an “oft-cited

proposition that a public building may be dangerous or defective because of its

improper design[.]” de Sanchez, 455 Mich at 96.6 Moreover, Hickey and de

Sanchez were decided before Sewell. If there had been any question about

whether a design defect claim could be brought under the public building

exception, Sewell resolved it.

Also, it should be noted that, had the Legislature disagreed with this

Court’s interpretation of MCL 691.1406, it had many years to amend the language

of the statute. Its failure to do so suggests that the Legislature’s intent was that a

design defect claim be actionable under the public building exception to

governmental immunity.7

6
Although it is true that this Court opined in de Sanchez that the
proposition has caused this Court difficulty, we did not disavow the proposition in
that case. Rather, we noted that it was inapplicable to the facts before us.
7
The majority, once again, takes issue with my use of the doctrine of
legislative acquiescence. However, as I have previously noted, legislative
acquiescence is a valid judicial tool for statutory interpretation. Karaczewski v
Farbman Stein & Co, 478 Mich 28, 53-54; 732 NW2d 56 (2007) (Kelly, J.,
dissenting); see also Rowland v Washtenaw Co Rd Comm, 477 Mich 197, 259-
264; 731 NW2d 41 (2007) (Kelly, J., concurring in part and dissenting in part).
(continued…)

7

 THE ROBINSON8 FACTORS

Because it erroneously characterizes the holding in Bush as dictum, the

majority finds no need to consider the factors set forth in Robinson for deciding

whether to overturn Bush. Robinson, 462 Mich at 464. But Bush’s holding that

design defects are actionable under the public building exception was not dictum.

Therefore, I will now review the Robinson factors.

The first consideration is whether the earlier decision was wrongly decided.

Robinson, 462 Mich at 464. I believe it was not. As discussed above, implicit in a

duty to “maintain and repair” a public building is a duty to properly design the

building. Therefore, I believe that Bush properly interpreted the public building

exception as including a duty to design public buildings to be safe. Moreover, the

Legislature has acquiesced in Bush’s interpretation of MCL 691.1406. This

suggests that Bush correctly interpreted the statute to mean that a design defect

claim is actionable.

The other Robinson factors are: (1) whether the decision at issue defies

“practical workability,” (2) whether reliance interests would work an undue

hardship if the authority is overturned, and (3) whether changes in the law or facts

make the decision no longer justified. Robinson, 462 Mich at 464.

__________________________
(…continued)

Merely because some members of the Court will not use it does not render it

unusable.

8
Robinson v Detroit, 462 Mich 439; 613 NW2d 307 (2000).

8

 Bush does not defy practical workability. Rather, it has functioned as an

integral part of our governmental immunity jurisprudence for the past 28 years.

Conversely, reliance interests would work an undue hardship if Bush were

overturned. As indicated above, it is a frequently cited proposition that design

defect claims fall within the public building exception.9 Clearly, overturning Bush

will mark a drastic shift in Michigan jurisprudence.

No changes in the law or the facts render the decision unjustified. It is true

that, in deciding Bush, the Court relied on the structural similarity between the

public building exception and the highway exception statutes. Bush, 405 Mich at

730. It is also true that the Court in Hanson v Mecosta Co Rd Comm’rs, 465 Mich

492, 502; 638 NW2d 396 (2002), held that the highway exception does not include

a duty to design or correct defects arising from the original design of highways.

However, Hanson is not on point with this case. Hanson concerned the highway

exception, whereas this case concerns the public building exception. Especially

considering that Hanson, in my estimation, was incorrectly decided, its holding

should not be extended to the public building exception.10

9
See Lee, supra; Young, supra; Landry, supra; Reardon, supra;
Williamson, supra; Hickey, supra; Kruger, supra; and Sewell, supra.
10
I would also note that I dissented in Hanson, and I continue to believe
that Hanson was incorrectly decided.

9

 The majority also claims that Bush has been undermined by subsequent

decisions of this Court. The majority notes that Bush was succeeded by Ross v

Consumers Power Co (On Rehearing),11 which altered the way this Court

construes the governmental immunity statute. However, Ross did not overrule

Bush. Moreover, Reardon and Sewell were decided after Bush and Ross. Neither

Reardon nor Sewell determined that Ross affected Bush’s holding that defective

designs are actionable under the public building exception. In fact, Reardon

quoted Ross in order to explain the Legislature’s rationale for enacting the

governmental immunity act. Reardon, 430 Mich at 408. Reardon then reiterated

the Bush holding that defective designs are actionable under the public building

exception.

The majority also contends that Fane v Detroit Library Comm12

undermines Bush. However, nothing in Fane undermines Bush’s holding that

design defects are actionable under the public building exception. Fane

interpreted the meaning of the phrase “of a building” in the public building

exception. Fane, 465 Mich at 77-78. Fane did not interpret the phrase “repair and

maintain.”

11
420 Mich 567; 363 NW2d 641 (1984).

12
465 Mich 68; 631 NW2d 678 (2001).

10

 CONCLUSION

I agree with the majority’s decision to remand this case to the Court of

Claims for further proceedings with regard to plaintiffs’ claim that defendant

failed to properly repair and maintain the public building.

But I would reaffirm the longstanding precedent of this Court that design

defects are actionable under the public building exception to governmental

immunity, MCL 691.1406. A duty to design safe public buildings is implicit in a

duty to repair and maintain them. This interpretation of MCL 691.1406 is

consistent with this Court’s longstanding precedent and, as demonstrated by a

review of the Robinson factors, should not be overruled.

Marilyn Kelly
Michael F. Cavanagh

11