LOCKABY
v.
WAYNE COUNTY
Docket No. 20075.
Michigan Court of Appeals.
Decided August 12, 1975.*187 Goodman, Eden, Millender, Goodman & Bedrosian, for plaintiff.
Aloysius J. Suchy, Corporation Counsel, and David J. Curran, Assistant Corporation Counsel, for Wayne County, Wayne County Sheriff and Administrator of Wayne County Jail.
Kitch, Suhrheinrich & Getto, P.C. (by Michael L. Freeman), for the City of Detroit and Detroit General Hospital.
Before: DANHOF, P.J., and QUINN and N.J. KAUFMAN, JJ.
Leave to appeal applied for.
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 *188 County 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 building", *189 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 *190 exception, 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 *191 rejected 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.
N.J. KAUFMAN, J. (dissenting in part, concurring in part).
The trial court granted defendant an accelerated judgment based on the provisions of GCR 1963, 116.1(2), that "the court lack[ed] jurisdiction of the subject matter". The procedure for determining a motion based on this rule is provided in GCR 1963, 116.3 which states in relevant part:
"As to defenses and objections based upon * * * (2), * * * in sub-rule 116.1, the court may order immediate trial of any disputed questions of fact, and judgment may be rendered forthwith if the proof shows that the moving party is entitled to judgment upon the facts as determined; or the court may postpone the hearing on the matter until the trial on the merits." *192 According to the Advisory Committee notes to Rule 116.3, the section "gives the court discretion to determine any disputed issues of fact by means of a trial at the hearing stage. If a right to jury is involved and demanded, the court must postpone the hearing until the trial." 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 324.[1] Plaintiff made a timely motion for jury trial.
I find that plaintiff's pleadings presented a disputed question of fact for jury determination, viz. whether plaintiff's injuries arose from the dangerous condition of defendant's (Wayne County's) building. The statute under which plaintiff asserted an exemption from defendant's claim of governmental immunity, MCLA 691.1406; MSA 3.996(106) provides:
"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." (Emphasis supplied.)
The pleadings showed that the jail officials were aware of plaintiff's mental instability. They show that the jailers placed plaintiff in an area reserved for individuals with such propensities and that the jail officials took affirmative steps to recognize and segregate such potentially unstable inmates. Plaintiff *193 also alleged that, having recognized the dangers and segregated the unstable prisoners, the jail officials took no steps to provide the minimum physical protections required by such prisoners. From these allegations, I find a clear question of fact whether a "dangerous condition" existed.
I cannot agree with the majority's statement that "as to the failure to provide a padded cell, cell padding has not been shown to be more of 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". First, the plaintiff in Cody did not, as did plaintiff here, allege any facts to show that defendants had allowed a "dangerous condition", within the meaning of the statute, to exist. As the Cody court noted:
"Their action was based solely on the alleged negligence of the defendants. They assert the injuries were caused by the child's use of the `mini-trampoline', an object in the building, but in no way attached to it.
* * *
"A `mini-trampoline', which plaintiffs have never alleged to be improperly manufactured, negligently erected, or dangerously maintained, is not within the exception." (Emphasis supplied.) Id., pp 38-39.
Plaintiff here, by alleging the facts I noted above, has presented enough to constitute a factual dispute within the statutory exception. Second, bare walls or iron bars are clearly as much a part of the Wayne County Jail as was the machine which the Supreme Court, in Green v Department of Corrections, 386 Mich. 459; 192 NW2d 491 (1971), found to be part of the building. Finally, Cody stressed the portion of the statute which relates to *194 "defective" conditions. The pleadings here allege "dangerous" conditions. The statute clearly distinguishes the two types of conditions by stating them in the disjunctive, "dangerous or defective condition". (Emphasis supplied.)
I concur in the majority's disposition of the other issues involved here. I would remand this case to the trial court for a trial to determine the applicability of the building exception to defendant's (Wayne County's) statutory immunity. I agree with the learned trial judge's dismissal of claims against all defendants except for Wayne County.
NOTES
[1] 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).
[1] While the committee notes do not bind this Court they are, nonetheless, relevant and persuasive authority in interpreting the General Court Rules. Buscaino v Rhodes, 385 Mich. 474, 481; 189 NW2d 202 (1971).