Lockaby v. Wayne County

Danhof, P. J.

Plaintiff brought a suit to recover for injuries purportedly suffered while in the custody of the Wayne County Sheriff’s Department and during transportation to and treatment at Detroit General Hospital. The trial court granted a motion for summary judgment in favor of defendants County of Wayne, Wayne County Board of Commissioners, William Lucas and Frank Wilkerson on April 5, 1974. A motion for summary and/ or accelerated judgment was granted in favor of the City of Detroit, and Detroit General Hospital on April 9, 1974. These motions were predicated upon the affirmative defense of governmental immunity.1 Plaintiff appeals raising four issues; we affirm.

On June 29, 1971 plaintiff was picked up by the police while hitchhiking on an interstate expressway. He was arraigned and taken to the Wayne *188County Jail. Jail records indicate that he was evaluated as having a "mental” problem. He was placed in Ward 612, an area designated for individuals with such problems. No provisions for psychiatric care or any type of specialized treatment other than segregated confinement is made for persons in that ward. Plaintiff injured himself while confined in this ward. The cause of his injuries is controverted; it is alleged both that plaintiff deliberately ran into a shower room wall, and that he was beaten by jail guards. He was taken by sheriff’s deputies to Detroit General Hospital where he received treatment. Plaintiff claims that he was again injured during the ambulance ride and that the treatment he received at the hospital was inadequate. As a result of these various acts, plaintiff maintains that he was rendered a quadriplegic, and will remain totally paralyzed from the neck down.

On appeal, plaintiff argues that his complaint stated a cause of action coming within the public buildings exception of the statutory provisions establishing governmental immunity, MCLA 691.1406; MSA 3.996(106), and that as a result, the trial court committed reversible error in granting the summary judgments. According to this argument, the Legislature intended to convey differing meanings by the use of the terms "dangerous” and "defective” in the pertinent parts of the statute.

Plaintiff relies on Green v Department of Corrections, 386 Mich 459; 192 NW2d 491 (1971), for the proposition that a correctional facility is a "public building” within the meaning of the statute. Recognizing that in Green it was necessary for the plaintiff to show that the machine by which he was injured was a physical part of the building so as to be a "defective condition of a public build*189ing”, plaintiff here theorizes that this connection need not be shown in the present case because he is here alleging a "dangerous” not a "defective” condition. To support this contention, plaintiff cites Samson v Saginaw Professional Building, Inc, 44 Mich App 658; 205 NW2d 833 (1973), aff'd 393 Mich 393; 224 NW2d 843 (1975), and Johnston v Harris, 387 Mich 569; 198 NW2d 409 (1972). Neither of these cases involved this statute or any aspect of the doctrine of governmental immunity, and they have no application to the present case.

Plaintiff argues that the failure to provide adequate psychiatric and medical care, the failure to provide adequate supervision, and the failure to provide padded cells resulted in a "dangerous condition” within the meaning of the statute. These deficiencies, with the possible exception of the last, have to do with providing human services, and not with the physical structure of the building. The statutory exception dealing in express terms with public buildings cannot be invoked under these circumstances.

The entire thrust of the statutory exception is to provide redress for injuries sustained due to a structural fault or to the failure to properly maintain a public building. Any laxity in the present case is in the failure to provide additional restraining equipment, and to diagnose the plaintiff’s condition as potentially hazardous. As to the failure to provide a padded cell, cell padding has not been shown to be more a part of the building than the "mini-trampoline” which was held in Cody v Southfield-Lathrup School District, 25 Mich App 33, 38-39; 181 NW2d 81 (1970), not to come within this exception. Thus, the trial court correctly concluded that the plaintiff’s claim did not come within the dangerous or defective public building *190exception, and he could not avoid summary dismissal on that basis.

The next issue raised by the plaintiff involves the assertion that the trial court erred in ruling that the motor vehicle exception to the governmental immunity provision did not apply in this case. Plaintiff contends that he suffered further injury as a result of the ambulance ride from the jail to the hospital and that he may maintain an action under the terms of MCLA 691.1405; MSA 3.996(105).

Although plaintiff was allowed to file an amended complaint, he merely reasserted a general allegation of negligence. He "did not set forth facts sufficient to reasonably apprise the defendant of the nature of the cause he was called upon to defend”. McLaughlin v Consumers Power Co, 52 Mich App 663, 668; 218 NW2d 122 (1974), GCR 1963, 111.1.

The only specific statement of fact related to plaintiff’s allegation that he was injured by a motor vehicle, consists of his assertion that he was placed in the ambulance "carelessly and with excessive force”. Under the test set forth in the case of Orlowski v Jackson State Prison, 36 Mich App 113, 116; 193 NW2d 206 (1971), the ambulance was not in operation within the meaning of the statute because the ambulance was not in a "state of being at work * * * at the time and place the injury is inflicted”. See also McNees v Scholley, 46 Mich App 702, 706; 208 NW2d 643 (1973).

Plaintiff maintains that his cause of action against defendant Detroit General Hospital is not barred by the doctrine of governmental immunity because the hospital is engaged in a proprietary function in that charges are made for the services it renders. This argument was considered and *191rejected in Snow v Freeman, 55 Mich App 84; 222 NW2d 43 (1974), wherein it was held that a municipally owned hospital was engaged in a governmental function despite the fact that medical services were provided for a fee.

Lastly, while conceding that the question has been decided by this Court, plaintiff contends that the statute establishing governmental immunity, MCLA 691.1407; MSA 3.996(107) is unconstitutional. This issue is presently pending before our Supreme Court, and, in the absence of higher authority to the contrary, we will follow established precedent in upholding the constitutionality of the statute. Anderson v Detroit, 54 Mich App 496; 221 NW2d 168 (1974), Kriger v South Oakland County Mutual Aid Pact, 49 Mich App 7; 211 NW2d 228 (1973), Snow v Freeman, supra.

Affirmed.

Quinn, J., concurred.

The written opinion filed in conjunction with these judgments indicates that they were based primarily upon the affirmative defense of governmental immunity; and therefore, the motions should have been brought under the accelerated judgment provisions of GCR 1963, 116. See Cibor v Oakwood Hospital, 14 Mich App 1, 3; 165 NW2d 326 (1968) fn 1, Lovitt v Concord School District (order of 3-10-75).