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