De Sanchez v. Department of Mental Health

Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan Michael F. Cavanagh

Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman

____________________________________________________________________________________________________________________________

FILED SEPTEMBER 11, 2002

FRANCINE CULLARI de SANCHEZ and

STEVEN JASON, co-personal

representatives of the estate of

Thomas A. Baltus, deceased,

Plaintiffs-Appellees,

v No. 117298

STATE OF MICHIGAN, MICHIGAN

DEPARTMENT OF MENTAL HEALTH,

Defendant-Appellant.

________________________________

PER CURIAM

The plaintiffs’ decedent, an involuntary patient in a

state psychiatric hospital, committed suicide in a hospital

restroom. Plaintiffs, the personal representatives of

decedent’s estate, filed a wrongful death suit, alleging that

the overhead bar from which decedent hanged himself was a

"dangerous or defective condition of a public building." If

proved, that allegation would bring the plaintiffs’ claim

within the public building exception to the defendant’s

governmental immunity. MCL 691.1406 and 691.1407(1).

The plaintiffs filed this Court of Claims lawsuit in

1984. On two previous occasions, the Court of Claims granted

summary disposition to defendant, but those judgments were

reversed or vacated on appeal.1

In 1998, the Court of Claims once again granted summary

disposition to defendant, upon the bases of governmental

immunity and MCR 2.116(C)(10). The judge ruled that

plaintiffs failed to establish a genuine issue of material

fact about any "dangerous or defective condition."

The Court of Appeals again reversed the grant of summary

disposition.2 Defendant’s appeal was held in abeyance for

Brown v Genesee Co Bd of Comm’rs (After Remand), 464 Mich 430;

628 NW2d 471 (2001). We now reverse the Court of Appeals and

reinstate the Court of Claims judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 1983, Thomas Baltus attempted suicide by trying to

drown himself. After that failed attempt was discovered,

Baltus was involuntarily committed to the Ypsilanti Regional

Psychiatric Hospital. Hospital personnel observed Baltus

continuously for more than five days. His behavior during

1
Sub nom de Sanchez v Genoves-Andrews, 161 Mich App 245;

410 NW2d 803 (1987), rem’d 430 Mich 894(1988), (On Remand) 179

Mich App 661 (1989), and de Sanchez v Dep’t of Mental Health

(After Remand), 455 Mich 83; 565 NW2d 358 (1997).

2

de Sanchez v Dep’t of Mental Health, unpublished

opinion per curiam, issued June 30, 2000 (Docket No. 214318).

2

that time persuaded them that continuous monitoring was no

longer necessary and that periodic monitoring would be an

adequate suicide precaution. The next day, allowed to use the

restroom unattended, Baltus hanged himself. He used a cloth

belt, which he attached to an overhead bar that supported a

partition between toilet stalls.

The plaintiffs’ wrongful death complaint alleged that the

support bar from which Baltus hanged himself constituted a

"dangerous or defective condition of a public building," thus

bringing the claim within the public building exception3 to

governmental immunity.4 Defendant moved for summary

disposition pursuant to MCR 2.116(C)(10), contending that no

genuine issue of material fact existed regarding whether the

3

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 be readily apparent to an ordinary

observant person for a period of 90 days or longer

before the injury took place. [MCL 691.1406

(emphasis added).]

4

Except as otherwise provided in this act, a

governmental agency is immune from tort liability

if the governmental agency is engaged in the

exercise or discharge of a governmental function.

[MCL 691.1407.]

3

stall-partition support bar was a "defective condition." The

trial court agreed and granted summary disposition.

The Court of Appeals reversed, holding that “plaintiffs

presented evidence to create a genuine issue of material fact

regarding whether the placement of a solid bar in the bathroom

of the facility constituted a dangerous and defective

condition . . . in light of the use for which the bathroom was

specifically assigned, that is, for the use of potentially

suicidal mentally ill patients.” Slip op at 4.

II. STANDARD OF REVIEW

We review de novo a trial court’s decision on a motion

for summary disposition. A motion for summary disposition

brought under MCR 2.116(C)(10) tests the factual support of a

claim. After reviewing the evidence in a light most favorable

to the nonmoving party, a trial court may grant summary

disposition under MCR 2.116(C)(10) if there is no genuine

issue concerning any material fact and the moving party is

entitled to judgment as a matter of law. Smith v Globe Life

Ins Co, 460 Mich 446; 597 NW2d 28 (1999); Hazle v Ford Motor

Co, 464 Mich 456; 628 NW2d 515 (2001).

III. ANALYSIS

Resolution of the issue presented is controlled by

Jackson v Detroit, 449 Mich 420; 537 NW2d 151 (1995).5 In

5

We held an earlier appeal in the present case in

abeyance for Jackson. That abeyance was resolved by our

decision in de Sanchez v Dep't of Mental Health (After

Remand), n 1 supra, in which we concluded that the defective

condition issue was not then properly before us. Id. at 88.

4

Jackson, an inmate attempted to hang himself from the overhead

bars of a police station holding cell. Jackson set forth what

a plaintiff must prove in order to bring a case within the

public building exception to governmental immunity:

This Court [has] held that a five-part test

determines whether the public building exception

governs a particular case. To fall within the

narrow confines of the exception, a plaintiff must

prove that 1) a governmental agency is involved, 2)

the public building in question is open for use by

members of the public, 3) a dangerous or defective

condition of the public building itself exists, 4)

the governmental agency had actual or constructive

knowledge of the alleged defect, and 5) the

governmental agency failed to remedy the alleged

defective condition after a reasonable period of

time. [Id. at 428, citing Hickey v Zezulka (On

Resubmission), 439 Mich 408, 421; 487 NW2d 106

(1992) (emphasis added).]

The present appeal involves only the third part of that

test: whether the stall-partition support bar was a dangerous

or defective condition of the hospital building. The

plaintiffs argue that a defect existed because the restroom

was intended for use by psychiatric patients, including

suicidal patients, and the support bar could be put to fatal

use by a suicidal patient. However, the issue before us is

not whether a suicide was foreseeable, but whether the

restroom had a "dangerous or defective condition" as that term

is used in MCL 691.1406.

In Jackson, the plaintiff presented evidence that Detroit

Police Department detainees had made more than one hundred

similar suicide attempts during the previous five years, and

that the officers responsible for the Jackson detainee knew

5

that he had attempted to hang himself in the same precinct

station just one day earlier. Jackson, supra at 423-425, 429,

n 12. Thus, the dangers to confined persons generally and to

the individual plaintiff were far more obvious in Jackson than

in the present case. Nevertheless, Jackson held that the

cell's overhead bars were not a "defective condition."6

Evidence of foreseeability is not necessarily evidence of

a defect. As we said in our earlier decision in this very

case, MCL 691.1407 confers broad immunity, and the building

exception created by MCL 691.1406 is narrowly drawn.

de Sanchez v Mental Health Dep’t, 455 Mich 83, 90; 565 NW2d

358 (1997). Whether the physical condition of a room is

defective depends on the uses for which the room was

specifically assigned. Id. at 91. The present case involves

a restroom used by mentally ill hospital patients, including

patients who were suicidal. There is no evidence that the

support bar at issue defectively supported the toilet stall

partition or that it posed any danger to psychiatric patients

generally. To paraphrase an observation made in Jackson,

6
The dissent maintains that Jackson is distinguishable

from the present case because “the building areas where the

bars were installed were designed for significantly different

uses.” Slip op at 1. However, scrutiny of the facts in this

case reveals more similarities than differences. In Jackson,

the holding cell at issue was designed for the general

prisoner population, some of whom were suicidal. In this case,

the bathroom was designed and used by “mentally ill patients,

some of whom were suicidal.” (Emphasis added.) There is no

evidence in the record suggesting that the bathroom was

specifically designed for suicidal patients. Rather,

similarly to Jackson, the restroom was designed for use by the

general psychiatric population.

6

there was nothing wrong with the bathroom. “There was,

however, something tragically wrong with the decedent.”

Jackson, supra at 428.

One person’s self-destructive use of an otherwise benign

stall-partition support bar does not transform that bar into

a "defective condition." In Jackson, we observed that the

purpose of the public building exception is to promote the

maintenance of safe public buildings, not safety in public

buildings. “Thus, where proper supervision would have ‘offset

any shortcomings in the configuration of the room,’ the public

building exception does not apply.” Id. at 428, quoting

Hickey, supra at 422. We noted that plaintiff’s claim "is

more closely related to safety in public buildings than it is

to a defect in a public building." Jackson, supra at 429

(emphasis added). To illustrate that distinction, Jackson

quoted again from Hickey.

To suggest that any physical feature of a jail

cell, otherwise benign, that can conceivably become

part of a plan of one who is desperately driven to

self destruction can become a 'dangerous or

defective condition' under the public building

exception statute, simply crosses the outer limits

of any reasonable reading of the intent of that

statute when considered in the context of its

history, purpose, and wording. [Jackson, supra at

429; Hickey, supra at 426.]

Perhaps the present defendant could have designed the

restroom without partition support bars. It is also arguable

that the defendant’s employees were too quick to decide that

the plaintiffs’ decedent no longer required continuous

individual observation. But those "might haves" prove, at

7

most, only negligence. Jackson, which is on point both

legally and factually, precludes finding that a self­

destructive act transformed the otherwise benign stall­

partition support bar into a "defective condition."7

For the reasons stated, we reverse the judgment of the

Court of Appeals and reinstate the judgment of the Court of

Claims. MCR 7.302(F)(1).

CORRIGAN , C.J., and WEAVER , TAYLOR , YOUNG , and MARKMAN , JJ.,

concurred.

CAVANAGH, J., concurs in the result only.

7
This case was held in abeyance for Brown v Genessee Co

Bd of Comm’rs (After Remand), 464 Mich 430; 628 NW2d

471(2001). However, because we conclude that the stall­
partition support bar here did not constitute a “defective

condition” within a public building, it is unnecessary to

decide the applicability of Brown to the facts of this case.

8

 S T A T E O F M I C H I G A N

SUPREME COURT

FRANCINE CULLARI deSANCHEZ and

STEVEN JASON, copersonal

representatives of the estate of

Thomas A. Baltus, deceased,

Plaintiffs-Appellees,

v No. 117298

STATE OF MICHIGAN, MICHIGAN

DEPARTMENT OF MENTAL HEALTH,

Defendant-Appellant.

___________________________________

KELLY, J. (dissenting).

I disagree with the majority's conclusion that this case

is controlled by the holding in Jackson v Detroit, 449 Mich

420; 537 NW2d 151 (1995). Although both involve overhead bars

from which a person hanged himself, a key difference is that

the building areas where the bars were installed were

designated for significantly different uses. In Jackson the

overhead bar was in a prisoner holding cell designated for the

general jail population. In this case, the room was

designated exclusively for the care and treatment of persons

with mental diseases, including those with suicidal

tendencies. It is the use to which the building area is put

here that controls the determination whether a part of the

building, such as an overhead bar, constitutes a dangerous and

defective condition. See Bush v Oscoda Area Schs, 405 Mich

716, 730; 275 NW2d 268 (1979).

In the Jackson case, despite the fact that jail officials

had notice of the potential for suicide in their holding cell,

the vast majority of prisoners held there were not suicidal.

See Jackson, supra at 424. The situation is quite different

in a mental hospital. The majority states that "the dangers

to confined persons generally and to the individual plaintiff

were far more obvious in Jackson than in the present case."

Slip op at 6. I believe a much more accurate statement is

that the dangers were obvious in both cases, but far more

likely to result in death in this case than in Jackson. And,

in fact, that was the difference.

The majority errs, also, in reasoning that the current

case involves a question of safety in a public building and

not an unsafe building, itself. Plaintiffs' decedent had been

involuntarily committed to the defendant's facility following

an attempt to commit suicide. The bathroom in which he later

did commit suicide was used by patients who were like him,

mentally ill. In light of the use made of the room where it

2

was installed, the overhead bar that plaintiff's decedent used

to support the noose cannot be characterized as a "benign

physical feature." Rather, given the use, that rigid exposed

overhead bar accessed for suicide had every potential for

being a dangerous and defective condition of the building.

The majority has neglected to consider adequately the

purposes for which the building area was specifically used.

It has ignored precedent holding that an overhead metal bar

might present a "safety in a building" question in one place,

but be a "dangerous and defective condition" in another.

I would affirm the Court of Appeals decision reversing

summary disposition in favor of defendant. Plaintiffs created

a genuine issue of material fact regarding whether the

placement of a solid, accessible overhead bar in an area

housing suicidal mentally ill patients constituted a dangerous

and defective condition within MCL 691.1406.

3