Horace v. City of Pontiac

Kelly, J.

{concurring in part and dissenting in part). I concur with the result only in the matter of Adams v Michigan. I respectfully dissent from the majority decision in Horace v Pontiac.

The issue in Horace is whether the public building exception to governmental immunity1 extends to sidewalks used as entrance ways. I agree with the majority that the exception is to be narrowly construed. However, the majority’s narrow reading of the exception overly constricts necessary factual inquiry. I would affirm the Court of Appeals decision and *759remand the case to the trial court for specific findings of fact.

Initially, I note that the majority’s statement of the issue begs the key question posed in this case: When is a structure part of a building? The majority summarily answers this question before reaching any analysis by posing the issue as “whether the public building exception to governmental immunity applies to slip and fall injuries arising from a dangerous or defective condition existing in an area adjacent to an entrance or exit, but nevertheless still not part of a public building.” Ante at 746. With the issue phrased in this way, it appears that the Court granted leave to determine if something not part of a public building is part of a public building. Properly stated, the issue is whether a sidewalk used as an entrance way should be considered part of a public building.

I find helpful the analysis in Maurer v Oakland Co Parks & Recreation Dep’t (On Remand), 201 Mich App 223; 506 NW2d 261 (1993). Although this decision was reversed on other grounds, sub nom Bertrand v Alan Ford, Inc,2 its analysis relating to the public building exception to governmental immunity is instructive.

In Maurer, the Court of Appeals concluded that the steps leading to a bathroom “provide the building’s only means of ingress and egress. These steps are not merely adjacent to the restroom building, but are related to the ‘permanent structure or physical integrity of the building.’ ” Id. at 229. The Court went on to state that “the steps must be viewed as part of the building itself because they are intimately associated, *760or connected, with the building itself, because it is impossible to enter or leave the building without going up or down them.” Id. at 230. By extension, I would hold that a structure is part of a building if the two are so intimately associated that the building would be incomplete or inaccessible without it.

This holding does not conflict with the Court’s decision in Wade v Dep’t of Corrections, 439 Mich 158; 483 NW2d 26 (1992). The facts in Wade differ from those in this case. In Wade, the dangerous condition was a foreign substance on the floor inside the Lakeland Correctional Facility that caused Wade to slip and be injured. We held that the public building exception does not apply where the transitory condition was not caused by a dangerous or defective condition of the building, itself. Id. at 161. Thus, we concluded that the public building exception is to be narrowly construed and does not include claims of negligent janitorial care. Id. at 170.

In the present case, we remanded to the circuit court, instructing it to reconsider defendant’s motion for summary disposition in light of Wade. The court properly found that the pothole in the entryway is not a transitory condition; it is a structural defect in an entryway that provides access to a public building. In granting the defendant’s motion, however, the trial court construed the public building exception too narrowly. It determined that, as the defect was in the entryway, it was not in the building itself. Hence, the exception did not apply.

On occasion, the entryway of a building, because of the building’s design, is so intimately associated with the building that it becomes part of it. In the companion case of Adams v Michigan, the entry on which *761plaintiff was injured led to several termini. By contrast, in this case, plaintiff fell on a walkway that had to be traversed in order to enter the Silverdome. She had to present an admission ticket at a turnstile, pass through the turnstile and proceed to an entry door. The entire area was paved with concrete. Concrete walls funneled patrons downward from the turnstiles toward the doors. Given these facts, I conclude that the entry area was intimately associated with the building.

Under the majority opinion, it is unclear how, in the future, a lower court is to go about determining when the exception applies to an iiyury outside a public building. It cannot be said that the public building exception cannot be invoked if an accident occurs outside a public building. This Court’s decision in Reardon v Dep’t of Mental Health,3 extends the duty imposed by the public building exception to the condition of the immediately adjacent premises.

But under what circumstances can it be invoked? If an outside overhang on a public building collapses and crushes a person standing eighteen to twenty-eight feet outside it, would not the exception adhere? What of an injury on stairs leading up to or down from an elevated building entrance, an underground tunnel leading into a building, an attached external ramp or railing? Applying the holding of the majority, if any of the latter structures collapsed and injured or killed a passerby, would the government be immune from liability?

A workable manner of determining whether an area is part of a public building would be to provide for *762additional factual inquiry into the layout of the building and grounds under consideration. A nonexhaustive list of factors for a trial court to consider includes: (1) whether the surface or area where the injury occurred is actually surrounded by the walls or covered by the roof of the building; (2) whether it is physically connected to the superstructure of the building; (3) whether it is essential to the use of the building; (4) whether it provides the only means of ingress and egress to and from the building; (5) its proximity to the building’s superstructure; (6) whether the building was designed to include it.

Today’s opinion should give direction to the courts, instructing them how to determine whether a structure outside the four walls of a public building is part of the building. Such guidance is not here.

In today’s opinion, the only direction is the statement that these particular walkways are not part of these particular buildings. The majority opinion does little to avoid confusion and potentially conflicting results in the lower courts. Instead, it should permit additional factual inquiry regarding the nature of the entrance to the public building in question. Therefore, I would affirm the decision of the Court of Appeals and remand the case to the trial court for specific findings of fact.

Cavanagh, J., concurred with Kelly, J.

MCL 691.1406; MSA 3.996(106).

449 Mich 606; 537 NW2d 185 (1995).

430 Mich 398, 415; 424 NW2d 248 (1988).