Brown v. Genesee County Board of Commissioners ( 2001 )

628 N.W.2d 471 (2001)

Chester E. BROWN, Jr., Plaintiff-Appellee,
v.
GENESEE COUNTY BOARD OF COMMISSIONERS, Defendant-Appellant.

Docket No. 113915, Calendar No. 4.

Supreme Court of Michigan.

Argued November 14, 2000. Decided July 3, 2001.

Schreier & Schreier, P.C. (by Mark Schreier), Royal Oak, for plaintiff-appellee.

Plunkett & Cooney, P.C. (by Christine D. Oldani and H. William Reising), Detroit, for the defendant-appellant.

Before the Entire Bench (except TAYLOR, J.).

OPINION

CORRIGAN, C.J.

We granted leave to consider whether an inmate, who claims that a dangerous or defective condition in a jail caused injuries, may avoid governmental immunity for tort liability under the statutory exception for public buildings, M.C.L. § 691.1406. The trial court granted summary disposition to defendant-county, but the Court of Appeals reversed and held that a jail falls within the exception.

We would reverse the Court of Appeals decision and reinstate the trial court's grant of summary disposition to defendant. Although a jail is "open for use by members of the public," an inmate is not a member of the "public" as contemplated by the Legislature when it enacted the public building exception to governmental immunity.

I. UNDERLYING FACTS AND PROCEDURAL HISTORY

Plaintiff, an inmate in the Genesee County jail, injured himself when he slipped on water near a shower stall. He sued the county under the public building exception, M.C.L. § 691.1406. He alleged that improper drainage and the absence of a shower curtain had caused water to accumulate on the floor.^[1]

The trial court granted summary disposition to defendant under MCR 2.116(C)(7) on the ground that the public building exception did not apply. The Court of Appeals initially affirmed. 222 Mich.App. 363, 564 N.W.2d 125 (1997). It observed that the shower area of the jail was not open to members of the public. This Court then remanded the case to the Court of Appeals for reconsideration in light of Kerbersky v. Northern Mich. Univ., 458 Mich. 525, 582 N.W.2d 828 (1998). 459 Mich. 883, 587 N.W.2d 498 (1998).

On remand, the Court of Appeals reversed. 233 Mich.App. 325, 590 N.W.2d 603 (1998). It noted that Kerbersky mandates analysis of the public's access to the building itself, not the specific accident site within the building. The Court of Appeals assumed that a jail is open for use by members of the public. Defendant now appeals.

II. STANDARD OF REVIEW

We review the grant or denial of a motion for summary disposition de novo. Maiden v. Rozwood, 461 Mich. 109, 118, 597 N.W.2d 817 (1999). MCR 2.116(C)(7) permits summary disposition where immunity granted by law bars a claim. Courts must consider documentary evidence submitted by the parties. Glancy v. Roseville, 457 Mich. 580, 583, 577 N.W.2d 897 (1998). We review de novo questions of statutory interpretation. Donajkowski v. Alpena Power Co., 460 Mich. 243, 248, 596 N.W.2d 574 (1999).

III. ANALYSIS

A. GOVERNMENTAL IMMUNITY

Absent a statutory exception, a governmental agency is immune from tort liability when it exercises or discharges a governmental function. M.C.L. § 691.1407(1). A governmental function is "an activity which is expressly or impliedly mandated or authorized by constitution, statute, local charter or ordinance, or other law." M.C.L. § 691.1401(f).

M.C.L. § 45.16 expressly mandates operation of jails: "each organized county shall, at its own cost and expense, provide at the county seat thereof ... a suitable and sufficient jail ... and keep the same in good repair." Defendant thus enjoys general immunity from tort liability in its maintenance and operation of the county jail. See Jackson v. County of Saginaw, 458 Mich. 141, 148, 580 N.W.2d 870 (1998).

B. PUBLIC BUILDING EXCEPTION

Several statutory exceptions to immunity exist.^[2] This case implicates the public building 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 take action reasonably necessary to protect the public against the condition. [M.C.L. § 691.1406.]

For this exception to apply, a plaintiff must demonstrate:

(1) a governmental agency is involved, (2) the public building in question was 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 or failed to take action reasonably necessary to protect the public against the condition after a reasonable period. [Kerbersky, supra at 529, 582 N.W.2d 828.]

Today we would hold that the plain statutory language also requires that the party seeking relief be a member of the "public."

1. WAS THE JAIL OPEN FOR USE BY MEMBERS OF THE PUBLIC?

Mere public ownership of a structure does not satisfy the express language of the public building exception. A building must also be open for use by members of the public. Kerbersky, supra at 533, 582 N.W.2d 828.^[3] When determining the public's access, we analyze the building itself, not the specific accident site within the building. Id. at 527, 582 N.W.2d 828.

Plaintiff claims to have injured himself near a shower stall in defendant's jail. Under Kerbersky, we examine the public's access to the jail rather than the shower area. Id.

Green v. Dep't of Corrections, 386 Mich. 459, 192 N.W.2d 491 (1971), held that a jail falls within the scope of the statutory exception.^[4] In other decisions, this Court has implicitly assumed as much. See, e.g., Wade v. Dep't of Corrections, 439 Mich. 158, 483 N.W.2d 26 (1992).

We would reaffirm that a jail is open for use by members of the public. Family, friends, and attorneys may generally visit inmates. Members of the public may also enter a jail for other reasons, e.g., to apply for a job or make a delivery.

The fact that public access to a jail is limited does not alter our conclusion. Schools fall within the exception even though members of the public may not enter whenever and wherever they please. See Sewell v. Southfield Public Schools, 456 Mich. 670, 576 N.W.2d 153 (1998); Bush v. Oscoda Area Schools, 405 Mich. 716, 275 N.W.2d 268 (1979). The public building exception applies to buildings with limited access, including schools and prisons. Kerbersky, supra at 534, 582 N.W.2d 828; Steele v. Dep't of Corrections, 215 Mich.App. 710, 715, 546 N.W.2d 725 (1996).

2. IS A JAIL INMATE A MEMBER OF THE PUBLIC?

We next consider whether an inmate is a member of the "public" who may avoid immunity under the public building exception. To answer this question, we examine the statutory text.

a. RELEVANT PRINCIPLES OF STATUTORY INTERPRETATION

Sun Valley Foods Co. v. Ward, 460 Mich. 230, 236, 596 N.W.2d 119 (1999), articulated the proper mode of interpretation:

The rules of statutory construction are well established. The foremost rule, and our primary task in construing a statute, is to discern and give effect to the intent of the Legislature. Murphy v. Michigan Bell Telephone Co., 447 Mich. 93, 98, 523 N.W.2d 310 (1994). See also Nation v. W.D.E. Electric Co., 454 Mich. 489, 494, 563 N.W.2d 233 (1997). This task begins by examining the language of the statute itself. The words of a statute provide "the most reliable evidence of its intent...." United States v. Turkette, 452 U.S. 576, 593, 101 S. Ct. 2524, 69 L. Ed. 2d 246 (1981). If the language of the statute is unambiguous, the Legislature must have intended the meaning clearly expressed, and the statute must be enforced as written. No further judicial construction is required or permitted. Tryc v. Michigan Veterans' Facility, 451 Mich. 129, 135, 545 N.W.2d 642 (1996).

"Contextual understanding of statutes is generally grounded in the doctrine of noscitur a sociis: `[i]t is known from its associates,' see Black's Law Dictionary (6th ed), p. 1060. This doctrine stands for the principle that a word or phrase is given meaning by its context or setting." Tyler v. Livonia Public Schools, 459 Mich. 382, 390-391, 590 N.W.2d 560 (1999).

Also, when construing a statute, we presume that every word has meaning; our interpretation should not render any part of the statute nugatory. People v. Borchardr-Ruhland, 460 Mich. 278, 285, 597 N.W.2d 1 (1999).

b. INTERPRETATION

The first sentence of the public building exception articulates the governmental agency's duty ("to repair and to maintain public buildings") and a limitation of that duty ("when [the buildings are] open for use by members of the public"). As discussed above, the limiting phrase explicitly restricts the types of buildings to which the duty extends. Unless a building is open for use by members of the public, it does not fall within the exception. But this phrase also limits implicitly the class of persons who may sue. It excludes persons who are not members of the public, i.e., those persons who are not present in the building as potential invitees.

The Legislature simply could have ended the first sentence of the statute after it articulated the duty owed by governmental agencies. It instead set forth a limitation of the duty. The Legislature would not have limited the duty to buildings that are open to members of the public if it had intended to protect persons who are not members of the public.

By including the public within the protected class, the Legislature implicitly excluded persons who are not members of the public. See Hoste v. Shanty Creek Management, Inc., 459 Mich. 561, 572, n. 8, 592 N.W.2d 360 (1999) (the express mention of one thing in a statute impliedly excludes other similar things). Thus, allowing anyone to sue would effectively nullify the limiting phrase.

Read in context, therefore, the duty created in the statute protects members of the public from dangerous and defective conditions in public buildings. We decline to read the statutory language out of context or to "stretch" the common, ordinary meaning of the words to include a class of persons whom the Legislature expressed no intent to protect.^[5]

Jail inmates are not members of the public for purposes of the public building exception.^[6] Unlike a person who enters a jail, e.g., to meet with an inmate, make a delivery, or apply for a job, an inmate does not visit a jail as a potential invitee. Instead, inmates are legally compelled to be there. Inmates thus are not within the class of persons the Legislature intended to protect from defects in public buildings.^[7]

It is undisputed that plaintiff was an inmate when he injured himself near a shower stall in defendant's jail. He therefore was not a member of the public for purposes of the public building exception.^[8]

IV. CONCLUSION

A jail is open for use by members of the public. However, jail inmates are not members of the public and thus cannot avoid governmental immunity under the public building exception. Accordingly, we would reverse the Court of Appeals decision and reinstate the trial court's grant of summary disposition for defendant.

WEAVER and YOUNG, JJ., concurred with CORRIGAN, C.J.

MARKMAN J. (concurring).

I concur in the result reached in the plurality opinion because I agree that the public building exception to governmental immunity is not applicable in this case, although I reach this conclusion on the basis of a different analysis than that of the plurality opinion's. Accordingly, I concur in the plurality opinion's reversal of the decision of the Court of Appeals and the reinstatement of the trial court's grant of summary disposition in favor of defendant.

First, I agree with the plurality opinion's conclusion that a jail is "open for use by members of the public," as well as in its analysis in reaching this conclusion. Second, I agree that an inmate is not a member of the public within the meaning of the public building exception. However, I respectfully disagree with the analysis by which the plurality opinion reaches this conclusion. It reaches such a conclusion on the basis of the statutory language that limits the government's duty to repairing and maintaining public buildings that are "open for use by members of the public." In contrast, I reach this same conclusion on the basis of the statutory language that limits the government's liability to injuries caused by failing to "take action reasonably necessary to protect the public against the condition." We both conclude that a jail inmate is not a member of the public for purposes of the public building exception in order to avoid rendering the language of the statute meaningless by encompassing within the definition of public virtually everyone. The difference in our analyses is that I come to this conclusion in order to avoid rendering the term "public" as contained in the last sentence of the statute meaningless, whereas the plurality opinion comes to the same conclusion in order to avoid rendering the term "public" as contained in the first sentence of the statute meaningless.

Finally, I disagree with the plurality opinion's conclusion that a party seeking relief under the public building exception must be a member of the public. The essential difference between my interpretation of the statute and that of the plurality is that I view the statute as a "where" statute while it views the statute as a "who" statute. In other words, I believe that the statute limits the government's liability to certain places, i.e., public buildings that are "open for use by members of the public." In contrast, the plurality opinion asserts that the statute limits the government's liability to certain people, i.e., members of the public.

I. ANALYSIS

I agree with the plurality opinion's conclusion that an inmate is not a member of the public within the meaning of the public building exception. However, I come to this conclusion for reasons different from the plurality opinion's. The plurality reaches this conclusion on the basis that the limitation of the government's duty to only public buildings that are "open for use by members of the public" also implicitly limits the government's duty to only members of the public. Slip at 475. In my view, the language "open for use by members of the public" limits only which buildings are public buildings for purposes of the public building exception. Accordingly, a jail is a public building within the meaning of the public building exception because it is "open for use by members of the public."

In my judgment, the important issue in this case is not merely whether defendant was a member of the public, but rather whether action by the defendant "was reasonably necessary to protect the public against the [alleged dangerous or defective] condition" of the public building. The public building exception statute provides:

Governmental agencies are liable for bodily injury and property damages resulting from a dangerous or defective condition of a public building if the governmental agency ... failed to ... take action reasonably necessary to protect the public against the condition. [M.C.L. § 691.1406 (emphasis added).]

It is clear from the language of the statute, i.e., "necessary to protect the public," that the Legislature intended to limit the government's liability, in that the government only is liable for failing to "take action reasonably necessary to protect the public." Thus, the relevant question is whether action was "necessary to protect the public." Because the government is only liable for injuries caused by failing to "take action reasonably necessary to protect the public," if a member of the public is injured in a "public building," the government may be liable.^[1]

However, because this liability is limited to failing to "take action reasonably necessary to protect the public," if a person who is not a member of the public is injured in a "public building," the government may only be liable if the plaintiff was injured in an area of the building open to the public. This is true because, in order to protect members of the public, the government must keep areas of public buildings that are open to members of the public free from dangerous or defective conditions.^[2] However, because this liability is limited to failing to "take action reasonably necessary to protect the public," the government is not liable for failing to repair and maintain areas of public buildings not open to the public, unless a member of the public is actually injured therein. See Kerbersky v. Northern Mich. Univ., 458 Mich. 525, 527, 582 N.W.2d 828 (1998).^[3] Therefore, in order for the public building exception to apply, plaintiff must establish that (1) he was a member of the public, or (2) he was injured in an area of the building open to the public.

The plurality opinion concludes that a party seeking relief under the public building exception must be a member of the public. Op. at 474. It asserts that the limitation of the government's duty to public buildings that are "open for use by members of the public" also implicitly limits the government's duty to only members of the public. Op. at 475. I respectfully disagree. The statutory language clearly expresses the Legislature's intent for the government's duty to only apply to certain buildings, but it says nothing about limiting the government's duty to certain people.

The plurality opinion contends that "[t]he Legislature would not have limited the duty to buildings that are open to members of the public if it had intended to protect persons who are not members of the public." Id. at 8 (emphasis in the original). Although I do not know with any certainty what motivated the Legislature in this regard, I suspect that it included this language to ensure that the public building exception would apply to buildings that are open, to some degree, to the public, such as jails and office buildings, but not to buildings that are altogether closed to the public, such as electrical substations and data facilities. Had it merely limited the government's duty to members of the public, without limiting the government's duty to public buildings that are "open for use by members of the public," the statute may well have imposed what the Legislature perceived as an unreasonable burden upon the government to maintain and repair such "public buildings" as substations and data facilities at an unnecessarily high level. The corollary to the plurality opinion's argument, of course, is that if the Legislature had intended to protect only members of the public, it could have just as easily stated that proposition, as well.

A. IS A JAIL INMATE A MEMBER OF THE PUBLIC WITHIN THE MEANING OF THE PUBLIC BUILDING EXCEPTION?

In determining whether the government is liable for injuries sustained by a plaintiff under the public building exception, the first inquiry is whether the plaintiff is a member of the public. "The primary goal of judicial interpretation is to ascertain and give effect to the intent of the Legislature." McJunkin v. Cellasto Plastic Corp., 461 Mich. 590, 598, 608 N.W.2d 57 (2000). This Court's obligation is to determine the Legislature's intent "as gathered from the act itself." Id. M.C.L. § 691.1406 provides that a governmental agency is liable for failing to do what is "reasonably necessary to protect the public" against dangerous or defective conditions in public buildings. The logical reading of this statute is that the Legislature intended to limit the government's liability to injuries caused by the government's failure to protect members of the public. It is clear from the plain words of the statute, i.e., "necessary to protect the public," that the Legislature did not intend under the public building exception for governmental agencies to be liable for injuries caused by the government's failure to do what is necessary to protect persons who are not members of the public, such as jail inmates.

A jail inmate is not in the class of persons the Legislature intended to protect when it enacted the public building exception to governmental immunity.^[4] This is evidenced by the statutory language limiting a governmental agency's liability to injuries caused by the government's failure to take action to protect members of the public. People who enter jails to visit inmates are members of the public whom the Legislature intended to protect. However, in my judgement, an inmate who is legally compelled to be at the jail is not a member of the public for purposes of the public building exception.

This Court's interpretation of a statute must avoid denying effect to portions of that statute. Piper v. Pettibone Corp., 450 Mich. 565, 571-572, 542 N.W.2d 269 (1995). If we were to interpret "public" to include inmates, we would be denying effect to a portion of the public building statute. The Legislature intended governmental agencies to only be liable for failing to protect members of the public. However, if we interpret "public" to include inmates, governmental agencies would effectively be liable to everyone because, if an inmate is a member of the public, it is difficult to conceive of who would not be considered to be part of such a class. The inmate is segregated from the public, he is severely limited in his ability to intermingle with the public, and under typical circumstances is confined to an area in which the public has no right to be. I would conclude that the statute does not impose liability upon governmental agencies for failing to do what is necessary to protect inmates of a jail for purposes of the public building exception. Accordingly, I agree with the plurality opinion's conclusion that a jail inmate is not a member of the public within the meaning of the public building exception, and thus I concur with the plurality opinion's overruling of that part of Green v. Dep't of Corrections, 386 Mich. 459, 192 N.W.2d 491 (1971), which held that inmates are members of the public community whether in or out of jail.^[5]

B. WAS PLAINTIFF INJURED IN AN AREA OF THE BUILDING OPEN TO THE PUBLIC?

In determining whether the government is liable for injuries sustained by plaintiff under the public building exception, the second inquiry is whether the plaintiff was injured in an area of the building open to the public. In order to protect the public, governmental agencies must ensure that all areas of public buildings, to which the public has access, contain no dangerous or defective conditions. It would be illogical to hold that a governmental agency must keep all areas of a public building free from dangerous or defective conditions, because the statute expressly provides that a governmental agency only is liable for failing to protect the "public" from those conditions. Thus, governmental agencies are not liable for failing to keep areas of public buildings to which the public does not have access free from dangerous or defective conditions, unless that condition, in fact, causes a member of the public injury. See Kerbersky, supra at 527, 582 N.W.2d 828.

Kerbersky, supra at 527, 582 N.W.2d 828, held that "a member of the public injured as the result of a defect[ive] or dangerous condition of a building that is open to members of the public may invoke the public building exception to governmental immunity, even if the person is injured in an area of the building not open for use by members of the general public." I would reaffirm that holding. What I would hold today is that a person who is not a member of the public cannot invoke the public building exception to governmental immunity if that person is injured in an area of the building not open to the public. However, a person who is not a member of the public may invoke the public building exception if that person was injured in a part of the building that is open to the public. In sum, a member of the public can invoke the public building exception, regardless of whether the specific accident site was open to members of the public, but a person who is not a member of the public cannot invoke the public building exception unless the accident site was open to members of the public. I reach this conclusion, not because it necessarily conforms with my own views about the proper contours of governmental immunity, but because I believe that it most closely conforms with the language of the public building exception.

The Court, in Kerbersky, concluded that, when determining whether a building is a public building for purposes of the public building exception, the situs of the injury is irrelevant. However, Kerbersky did not conclude that the situs of the injury is irrelevant for all purposes. I would concur with Kerbersky, in that, when determining whether a building is a public building, the proper inquiry is into the public nature of the building itself, not merely the specific accident site. Thus, in deciding that a jail is a public building, I examined the jail itself, not merely the shower area in which plaintiff was injured. However, the situs of an injury is relevant when determining whether the government is liable for failing to "take action reasonably necessary to protect the public." In Kerbersky, the Court concluded that the government is liable to a member of the public who is injured as the result of a dangerous or defective condition of a public building, regardless of whether that person was injured in an area of the building open to the public. Therefore, the situs of an injury is irrelevant when determining the government's liability to a member of the public. However, Kerbersky did not make the distinction between members of the public and persons who are not members of the public. I now make this distinction, which is, in my judgment, mandated by the statute. The government is liable for injuries to members of the public, regardless of where they are injured in the building, because the government is liable for injuries caused by failing to take remedial action "reasonably necessary to protect the public." But, the government is liable to persons who are not members of the public only if they are injured in an area of the building open to the public because the government is only liable for injuries caused by failing to take remedial action when such action was "reasonably necessary to protect the public." Therefore, I would conclude that, even though a jail is a public building, the public building exception does not apply to an inmate injured in an area of that jail not open to the public.^[6]

In the present case, members of the public did not have access to the shower area, which is where plaintiff was injured. Because plaintiff was not a member of the public and was injured in an area of the jail that was not open to the public, defendant should not be held liable under the public building exception for failing to keep the shower area free of defective or dangerous conditions.

II. CONCLUSION

The government is generally immune from tort liability. However, there are several statutory exceptions that apply to this broad grant of immunity, one being the public building exception. I agree with the plurality opinion that a jail is a public building "open for use by members of the public." I also agree that plaintiff is not a member of the public. However, in my judgment, that is not the end of the inquiry. The plurality views this statute as a "who" statute, meaning that it limits the government's liability to certain people, i.e., members of the public. Therefore, the plurality concludes that because plaintiff is not a member of the public, he cannot recover under the public building exception. In my judgment, however, it is more consonant with the statutory language to view this statute as a "where" statute, meaning that it limits the government's liability to certain places, i.e., public buildings that are "open for use by members of the public." Additionally, the government is only liable for injuries caused by failing to take remedial action "reasonably necessary to protect the public." Therefore, because plaintiff is not a member of the public, it is necessary to determine whether plaintiff was injured in an area of the building that was open to members of the public. Because plaintiff is not a member of the public, and because he was injured in an area of the building that was not open to members of the public, defendant should not be held liable under the public building exception for failing to protect plaintiff from the alleged dangerous or defective condition. Accordingly, I concur in the plurality opinion's reversal of the Court of Appeals decision and the reinstatement of the circuit court's grant of summary disposition in favor of defendant.

TAYLOR, J., took no part in the decision of this case.

MICHAEL F. CAVANAGH, J. (dissenting).

I believe that leave was improvidently granted in this case. Further, I believe that the lead opinion unwisely departs from precedent and reaches out to discuss issues that have already been adequately addressed by the courts of this state. I agree with the lead opinion to the extent that it recognizes that jails are public buildings "open for use by members of the public" for the purposes of the public building exception to governmental immunity, M.C.L. § 691.1406. However, I dissent from the plurality's decision to examine the question whether inmates are members of the public, and its. decision to overrule a prior decision of this Court in favor of its own interpretation.

The issue argued by the parties in this case was whether the Genesee County jail is a public building open for use by members of the public within the meaning of M.C.L. § 691.1406. The lead opinion correctly concludes that it is. Op. at 471. However, rather than resolving the case solely on the merits of the question before it, the plurality chooses to address the question whether an inmate is a member of the public. Moreover, the plurality dedicates a solitary sentence in a footnote to the fact that the question it deems of utmost importance in this case has already been addressed by this Court, Green v. Dep't of Corrections, 386 Mich. 459, 192 N.W.2d 491 (1971).

I cannot join the plurality's unsupportable decision to "overrule Green to the extent that it treats inmates as members of the public for purposes of the statutory exception." Corrigan, C.J., op. at 474, n. 4. Rather, assuming that the question should even be addressed in the context of this case, I would apply Green.

In Green, the plaintiff was an inmate in the Detroit House of Corrections, a municipal facility operated by the Department of Corrections. He injured himself while operating machinery in a prison shop area. This Court explicitly rejected the argument that the Detroit House of Corrections was nonpublic simply because it was not open to the public at large. The Court held that the facility was a "public building" for immunity purposes. The Court also stated that, "plaintiff is a member of the community whether in or out of jail." Id. at 464, 192 N.W.2d 491.

The basis for the present suit is the same as it was in Green. Both cases were granted to examine the same statutory language, "[g]overnmental agencies have the obligation to repair and maintain public buildings under their control when open for use by members of the public." M.C.L. § 691.1406; see also Green at 464, 192 N.W.2d 491. Other than to effectuate a policy change, I see no reason for this Court to depart from the logic Green used thirty years ago and that this Court has implicitly followed since. The plurality offers nothing substantial in support of its observation that "[j]ail inmates are not members of the public for purposes of the public building exception." Op. at 476. Given Green's finding to the contrary, I believe that the conclusion is erroneous.

Further, despite the plurality's misguided belief that we can ignore precedent whenever this Court's reading of a statute would lead to a different result than that of a prior Court, I continue to find value in respecting precedent. The plurality proclaims that Green is contrary to legislative intent, and believes that Green made an isolated observation about whether prisoners are members of the public. Given the plurality's distaste for precedent that would support a different view than its own, I question whether it gives any credence to the fact that the Green Court defined the "controlling" issue in that case as "whether the state, through the Department of Corrections, may be held to respond in damages for tortious injury sustained by a state-sentenced convict while he is incarcerated in the Detroit House of Correction." Green at 462, 192 N.W.2d 491.

I would also note that the plurality completely ignores the fact that this Court has historically permitted suits arising out of prisoner injuries to be brought under the public building exception. See Johnson v. Detroit, 457 Mich. 695, 579 N.W.2d 895 (1998)(a prisoner hanged himself in a jail cell); Hickey v. Zezulka, 439 Mich. 408, 487 N.W.2d 106 (1992)(a prisoner committed suicide in a jail cell); Wade v. Dep't of Corrections, 439 Mich. 158, 483 N.W.2d 26 (1992) (an inmate brought slip and fall action). Thus, the plurality's plain observation not only contravenes Green, but would eliminate causes of actions that have been repeatedly recognized by this Court as being available.^[1]

For these reasons, I believe not only that leave was improvidently granted, but that the plurality improvidently uses this case as a vehicle for restricting the public building exception to governmental immunity. Therefore, I dissent.

MARILYN J. KELLY, J., concurred with MICHAEL F. CAVANAGH, J.

NOTES

[1] Our resolution of this case does not require us to consider whether a structural defect, as opposed to a transitory condition, caused the accident. Cf. Wade v. Dep't of Corrections, 439 Mich. 158, 483 N.W.2d 26 (1992).

[2] They include: the highway exception, M.C.L. § 691.1402; the motor vehicle exception, M.C.L. § 691.1405; the public building exception, M.C.L. § 691.1406; the proprietary function exception, M.C.L. § 691.1413; and the governmental hospital exception, M.C.L. § 691.1407(4).

[3] Examples of publicly owned buildings that are not open for use by members of the public include: a city-owned apartment used as a private residence, Griffin v. Detroit, 178 Mich.App. 302, 443 N.W.2d 406 (1989); a publicly owned building that is closed for renovations, Dudek v. Michigan, 152 Mich.App. 81, 393 N.W.2d 572 (1986); and a locked building that was not designed for public access, Taylor v. Detroit, 182 Mich.App. 583, 452 N.W.2d 826 (1989).

[4] While we agree with Green that a jail is subject to the public building exception, we do not approve the reasoning in that decision. This Court in Green failed to analyze whether a jail is open for use by members of the public. Moreover, for reasons discussed below, we would overrule Green to the extent that it treats inmates as members of the "public" for purposes of the statutory exception.

[5] Our concurring colleague believes that a person who is not a member of the public may sue for injuries that occur in an area of a public building that is open to the public. The statutory text, however, plainly refers to buildings that are open to members of the public; it does not refer to areas of public buildings that are open to persons who are not members of the public. Moreover, Kerbersky, supra, held that the situs of an injury in a public building is not relevant.

[6] Our concurring colleague agrees that an inmate is not a member of the public, but relies on different language in the statute to reach that conclusion.

[7] Our proposed holding today is limited to jail inmates; we offer no view regarding other classes of persons. It is worth observing, however, that unlike jail inmates, students attending a public school are not legally compelled to be there. They have other choices, including charter schools, private schools, and home schooling.

[8] The dissent offers no analysis of the text of the public building exception to support its view that inmates are "members of the public." Instead, the dissent relies on the "logic" in Green, supra, and dicta from other cases.

Our duty to honor the intent of the Legislature, as expressed in unambiguous statutory text, is paramount. This Court in Green offered no analysis to support its assertion that an inmate "is a member of the public community." Id. at 464, 192 N.W.2d 491. As we have explained, treating inmates as "members of the public" would nullify the limiting phrase in the public building exception. We decline to elevate an isolated, conclusory assertion in Green above the plain language of the public building exception.

[1] Plaintiff would still have to prove that the injury was caused by a dangerous or defective condition of the building and that the governmental agency had knowledge of the condition and failed to remedy the condition after a reasonable period.

[2] Because the government is liable for failing to "take action reasonably necessary to protect the public," the government may be serendipitously liable for failing to protect a person who is not a member of the public, if that person is injured in an area of the building open to the public. This liability does not arise because of some duty owed to the person who is not a member of the public; rather, it arises from the duty owed to protect members of the public. The person who is not a member of the public is merely an incidental beneficiary of this duty owed to the public.

[3] Kerbersky held that the government is liable to members of the public for injuries caused by dangerous or defective conditions of public buildings, regardless of whether the accident site was open to members of the public. However, Kerbersky did not distinguish between members of the public and persons who are not members of the public. Thus, consistent with Kerbersky, I would continue to hold that the government may be liable to members of the public, regardless of whether the specific accident site was open to members of the public. However, I would now make the distinction mandated, in my judgement, by the statute, between members of the public and persons who are not members of the public. I would conclude that, even though the government may be liable to members of the public injured in an area of the building not open to members of the public, the government is not liable to persons who are not members of the public who are injured in an area of the building not open to members of the public.

[4] The government may still be liable to persons who are not members of the public, such as jail inmates, if they are injured in an area of a public building open to the public, as discussed above.

[5] The dissent criticizes the plurality opinion's overruling of Green. Post at 628 N.W.2d 483. The dissent asserts that, "despite the plurality's misguided belief that we can ignore precedent whenever this Court's reading of a statute would lead to a different result than that of a prior Court, I continue to find value in respecting precedent." Id. In my judgment, the plurality opinion did not ignore precedent; rather, it accurately explained why it was necessary to overrule Green in order to enforce the plain meaning of the statutory language. Although I, like the dissent, find considerable value in respecting precedent, I also find value in enforcing the plain meaning of statutory language. See Nawrocki v. Macomb Co. Rd. Comm., 463 Mich. 143, 151, 615 N.W.2d 702 (2000) (holding that "we are duty-bound to overrule past decisions that depart from ... the plain language of the statutory clause ..."). I agree with the plurality opinion that this Court should not "elevate an isolated, conclusory assertion in Green above the plain language of the public building exception." Op. at 476, n. 8. Further, to place the Green decision in context, I note that Green was decided during a period in which this Court gave the term "governmental function" a narrow reading, while giving broad readings of the statutory exceptions to governmental immunity. In contrast with that prior era, we now interpret the term "governmental function" broadly and construe the exceptions narrowly. Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 363 N.W.2d 641 (1984). Moreover, in Green, the Court focused its analysis on whether the building was a public building, i.e., "open for use by members of the public." The Court never discussed whether action was "necessary to protect the public." Green held, in the context of whether a jail is a public building, that an inmate is a member of the public, whereas I would now hold in the context of whether action is "necessary to protect the public" from a defective or dangerous condition of a public building, that an inmate is not a member of the public.

[6] The plurality opinion asserts that the statute does not support my position that the public building exception is applicable to people who are not members of the public who are injured in an area of a "public building" that is open to the public. Op. at 476, n. 5. I respectfully disagree. The statute provides that governmental agencies are liable for injuries caused by its failure to "take action reasonably necessary to protect the public against the condition." Clearly, this means that governmental agencies are liable for injuries caused by its failure to repair and maintain areas of "public buildings" that are open to the public because, in that case, action would be "reasonably necessary to protect the public." What the statute does not support, in my judgment, is the plurality's holding that governmental agencies are never liable for injuries sustained by people who are not members of the public.

The plurality opinion also asserts that "Kerbersky, supra, held that the situs of an injury in a public building is not relevant." Op. at 476, n. 6. However, as I have already noted, Kerbersky only held that the situs of an injury in a public building is irrelevant when determining a governmental agency's liability to a member of the public. It did not hold that the situs of an injury is irrelevant when determining a governmental agency's liability to a person who is not a member of the public. This is the distinction I now make, which, in my judgment, is mandated by the statute.

[1] The plurality finds these decisions to be of no import since they did not squarely address whether prisoners are members of the public. However, they did not need to address the issue since it had already been decided in Green. Quite simply, the plurality today would change an established principle of Michigan law.