ZAWADZKI
v.
TAYLOR
Docket No. 25883.
Michigan Court of Appeals.
Decided August 5, 1976.Conlin, O'Hagan, Henry, Hurbis & Graf, for plaintiff.
Kerr, Wattles & Russell (by Donald C. Morgan), for Lincoln Consolidated School System.
Before: ALLEN, P.J., and D.E. HOLBROOK, JR., and E.H. PAPP,[*] JJ.
Leave to appeal applied for.
ALLEN, P.J.
The plaintiff suffered serious eye injuries when he was struck by an errantly aimed tennis ball during a physical education class at a school operated by the defendant school district. The trial court found that the defendant school district was protected against tort liability by the state's governmental immunity. Williams v Detroit, 364 Mich. 231; 111 NW2d 1 (1961); MCLA 691.1407; MSA 3.996(107). This is an appeal from an accelerated judgment granted on the defendant school district's motion. GCR 1963, 116.[1]
*547 Plaintiff and defendant Taylor were attending a gymnasium class playing tennis in the gymnasium room when a ball struck by Taylor hit plaintiff in the eye. The gymnasium room was laid out to provide two immediately adjacent tennis courts on one of which plaintiff was playing and on the other of which defendant Taylor was playing. Count II of plaintiff's complaint alleges that defendant school system negligently failed "to incorporate as part of the design or maintenance" of the gymnasium room "sufficient nets or other safety devices between tennis courts to prevent tennis balls from crossing from one tennis court into an adjacent tennis court". Student Taylor, though a defendant in this case, is not a party to the present appeal since that aspect of the litigation is unaffected by the governmental immunity question.
MCLA 691.1407; MSA 3.996(107), makes a general grant of immunity from tort liability for "governmental agencies * * * engaged in the exercise or discharge of a governmental function". Both parties agree that the quoted language covers the parties and activities involved in the present case. However, the statute also recognizes the existence of several statutory exceptions. The plaintiff argues that the "public building" exception is applicable here. MCLA 691.1406; MSA 3.996(106).[2] The plaintiff alleged that a "dangerous *548 or defective condition" existed in the defendant's gymnasium because of the absence of safety nets separating the two tennis courts. It is apparently conceded that such nets would have prevented the plaintiff's injury.
In his written opinion granting the defendant school district's motion for accelerated judgment, the trial judge found that the public building exception was not applicable in the present case. He reasoned that, while the accident occurred within a building, there was no allegation that it had been caused by any existing part of the building or permanently attached fixture. The trial judge relied upon Pichette v Manistique Public Schools, infra, fn 3, and Cody v Southfield-Lathrup School Dist, infra. Subsequent to the grant of accelerated judgment in this case, this Court's opinion in Lockaby v Wayne County, infra, was released.
The first opportunity for interpretation of the building exception came in Smith v Clintondale School Dist, 14 Mich. App. 153; 165 NW2d 332 (1968). The plaintiff in that case was struck by the door of a commode stall in a school restroom. The cause of the injury was said to have been the removal of the latching mechanism from the door. This Court held that the complaint alleged a "dangerous or defective condition of a public building" within the meaning of MCLA 691.1406; MSA 3.996(106). Note that, as in the present case, the "defect" in Smith might be classified as the absence of a safety device. In fairness, however, it should also be noted that Smith could be distinguished on the basis that the alleged negligence there was the removal of an original equipment *549 safety device whereas the present defendant is said to have acted negligently by failing to install a safety device (nets) in the first place.
The next important decision was Cody v Southfield-Lathrup School Dist, 25 Mich. App. 33; 181 NW2d 81 (1970).[3] The plaintiff in Cody was injured when she fell from a trampoline while performing an exercise during her physical education class. This Court rejected her argument that the building exception was applicable. Her complaint had alleged only the personal negligence of her teacher and other school officials. Absent at least an allegation that the trampoline was improperly manufactured or maintained, this Court held that the building exception could not be applied merely because the injury occurred inside a public building, i.e., an allegation of mere "personal" negligence will not suffice unless the alleged negligence is the creation or toleration of a "dangerous or defective condition". There is no indication that the plaintiff in Cody ever suggested that safety devices should have been installed around the trampoline.
In Green v Department of Corrections, 386 Mich. 459; 192 NW2d 491 (1971), the plaintiff, a prisoner in the Detroit House of Correction, lost a finger while working on a planing machine in the prison shop. All parties apparently conceded that the machine was defective. The principal issue on appeal was whether a permanently installed machine *550 becomes a part of the building for purposes of the statutory building exception. Both this Court and the Supreme Court answered that question affirmatively. Neither court commented on the nature of the alleged dangerous or defective condition in the machine-building. For present purposes, it is significant to note that the machine was defective because it "was without the proper protective shield and safety switch". Green v Department of Corrections, 30 Mich. App. 648, 651; 186 NW2d 792 (1971).
The controlling question in the present case is whether the absence of a safety device can be a "dangerous or defective condition" within the meaning of the statute. Although neither case recognized that question, both Smith v Clintondale School Dist, supra, (absence of a door-latching mechanism) and Green v Department of Corrections, supra, (absence of a machine safety guard) implicitly answered the question affirmatively. However, in each case, the missing equipment was or had become a structural part of the building itself. In the instant case the missing equipment (nets) is not and never would be a permanent part of the building. This distinction is important by reason of the wording of the statutory exception.
"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 action reasonably necessary to protect the public against the condition. Knowledge of the dangerous and defective condition of the public building and time to repair the same shall be conclusively presumed when such defect existed so as to *551 be readily apparent to an ordinary observant person for a period of 90 days or longer before the injury took place * * *". (Emphasis supplied.)
The thrust of the statute is to impose an obligation to "repair and maintain public buildings", viz.: to repair and maintain something that either was or should have been a structural part of the building. We do not construe the statute as referring to repair or maintenance of a piece of equipment which was not present in the first instance and which could not reasonably be considered to be part of the building. We hold that a complaint alleging a "dangerous or defective condition" resulting from the failure to provide an item of equipment,[4] does not fall within the "public building exception" unless the danger causing the injury resulted from a condition of the building itself rather than resulting from the activities or operations conducted within the building. To hold otherwise would expand the "building" exception into an operation or activities exception. See Lockaby v Wayne County, 63 Mich. App. 185, 234 NW2d 444 (1975).[5]
*552 Affirmed. No costs, a public question being involved.
NOTES
[*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.
[1] The motion was granted under GCR 1963, 116.1(2), on the ground that the defendant school district's governmental immunity deprived the circuit court of subject matter jurisdiction. While several of our cases have accepted such motions without comment see e.g., Knapp v Dearborn, 60 Mich. App. 18; 230 NW2d 293 (1975) it should be once again noted that the governmental immunity is a "disability of the moving party", not of the court. Therefore, the motion should have been made under subsection 5 of GCR 1963, 116.1, not subsection 2. Buddy v Department of Natural Resources, 59 Mich. App. 598; 229 NW2d 865 (1975). In the present case, we will ignore the technical procedural error in order to reach the more important issue raised by this appeal.
[2] "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 action reasonably necessary to protect the public against the condition * * *".
[3] Several other cases have interpreted MCLA 691.1406; MSA 3.996(106), in factual situations which are clearly distinguishable from the present case. Jackson v Detroit Board of Education, 18 Mich. App. 73; 170 NW2d 489 (1969), might be termed a "traditional" application of the building exception since the injury in that case was caused by a malfunction in a permanently installed piece of equipment. Pichette v Manistique Public Schools, 50 Mich. App. 770; 213 NW2d 784 (1973), and Knapp v Dearborn, supra, both involved defects in equipment which was located outdoors, rather than inside a building.
[4] Examples of "failure to provide" which would fall within the statutory exception would be the failure to provide a handrail on a stairway, a door on an elevator, a locking device on a window. Further, the failure to provide must refer to something inanimate. For example, an allegation that the plaintiff's teacher should have stationed himself between the tennis courts in order to deflect inaccurate shots would not survive a proper motion for accelerated judgment by defendant school district.
[5] In Lockaby, the plaintiff, a mentally disturbed prisoner, apparently injured himself by running into a wall. In his suit against the county, he sought to invoke the building exception by alleging that the county was negligent by failing to provide a padded cell for his confinement. The majority in Lockaby held that the statutory exception was inapplicable because "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 [supra] * * * not to come within this exception". 63 Mich. App. at 189. Stated another way, the majority appeared to be holding that unless the omitted item was or should be "a part of the building" then the statutory exception would not apply. Dissenting Judge N.J. KAUFMAN disagreed. He reasoned that by alleging that protective padding should have been installed, the plaintiff had made a sufficient allegation of a "dangerous condition" to avoid accelerated judgment on governmental immunity grounds. Actually, Lockaby was a stronger case for plaintiff than the instant case. There, the item which was omitted (padding) would have been a part of the building (walls). In the instant case the item omitted was something completely detached from the structure and would not be a permanent part of the gym room.