Appellant, an inmate at the Ionia Reformatory, claims he was sexually at*791tacked by other inmates, resulting in physical and emotional injury. Suit was filed against the Department of Corrections and Dale Fontz alleging that plaintiffs injuries were the result of defendants’ negligence. The Department of Corrections filed its answer but did not raise the defense of governmental immunity. Such defense was raised by means of a motion for accelerated judgment approximately four months later. Thereafter plaintiff attempted to amend his complaint to include an allegation that the case fell within the public building exception to governmental immunity, MCL 691.1406; MSA 3.996(106). The motion to amend was never granted although the claims therein contained were examined by the trial court. Thereafter defendant’s motion for accelerated judgment was granted. Plaintiff appeals as of right.
Plaintiff claims that failure to raise the defense of governmental immunity in the first responsive pleading constitutes waiver. We disagree.
GCR 1963, 111.3 provides that defenses not asserted in the responsive pleading are waived, while GCR 1963, 118.1 permits amendment of pleadings by leave of the court. Affirmative defenses may be raised by amendment, even if not raised in the initial answer. Ben P. Fyke & Sons v Gunter Co, 390 Mich 649; 213 NW2d 134 (1973). Clearly, the affirmative defense of governmental immunity can only be waived when not asserted.
Defendant raised governmental immunity as a defense through a motion for accelerated judgment. Said motion not being brought within the time set by GCR 1963, 108.2, it must be considered a motion out of time. GCR 1963, 108.7(2) grants the trial court discretion to hear motions out of time. Guastello v Citizens Mutual Ins Co, 11 Mich *792App 120; 160 NW2d 725 (1968). This discretion applies to motions for accelerated judgment made out of time as well as other motions. Manufacturers Construction Co v Covenant Investment Co, 43 Mich App 123; 204 NW2d 54 (1972). While appellee should have proceeded by means of amendment to its answer with a hearing on the merits of the claim, as prescribed by GCR 1963, 116.3, similar results would have occurred since a defense raised by responsive pleading is treated as if raised by a motion for accelerated judgment. The trial court did not err in hearing the motion for accelerated judgment or in its determination that governmental immunity had not been waived.
Appellant contends this case falls within the defective condition exception to governmental immunity. MCL 691.1406; MSA 3.996(106). We reject this argument. The fact that an injury occurred in a public building does not in and of itself bring that injury within the defective condition exception. Cody v Southfield-Lathrup School Dist, 25 Mich App 33; 181 NW2d 81 (1970). Plaintiffs injuries were caused by inmates rather than the physical building. His allegation of defective condition is in effect a claim that the physical structure was so designed that inmates could not be adequately supervised. Plaintiff cannot invoke the defective condition exception for failure to provide adequate supervision since the thrust of the exception is to provide redress for injuries caused by structural fault or failure to properly maintain a building. Lockaby v Wayne County, 63 Mich App 185; 234 NW2d 444 (1975). Such was hot the case here.
Plaintiffs contention that the governmental immunity statute is unconstitutional is without merit. White v Detroit, 74 Mich App 545; 254 *793NW2d 572 (1977). See Thomas v Dept of State Highways, 398 Mich 1; 247 NW2d 530 (1976).
With respect to plaintiffs nuisance claim it is based upon maintaining and operating the Ionia Reformatory in a fashion hazardous to the inmates. This claim fails even in light of the Michigan Supreme Court’s decision in Gerzeski v Dept of State Highways, 403 Mich 149; 268 NW2d 525 (1978). Gerzeski held that the nuisance exception to governmental immunity applies to intentional but not negligent nuisances. The claim in the instant case was predicated upon negligently maintaining a nuisance.
Affirmed. No costs, interpretation of a statute involved.
W. Van Valkenburg, J., concurred.