Wing v. City of Detroit , 178 Mich. App. 628 ( 1989 )

178 Mich. App. 628 (1989) 444 N.W.2d 539

WING
v.
CITY OF DETROIT

Docket No. 103982.

Michigan Court of Appeals.

Decided May 18, 1989.

Bloom, Prahler & Kavanaugh (by James M. Prahler), and Mark R. Granzotto, for plaintiffs.

Donald Pailen, Corporation Counsel, and Brenda E. Braceful and Linda D. Fegins, Assistant Corporation Counsel, for defendants.

Before: GRIBBS, P.J., and HOLBROOK, JR., and REILLY, JJ.

PER CURIAM.

Plaintiffs appeal as of right from the circuit court's grant of defendants' motion for summary disposition. We affirm and hold that plaintiffs' action is precluded by governmental immunity.

The parties agree in their briefs that plaintiff Gisele Wing was injured when she fell on the main walkway, also known as the Elephant Walk, of the Detroit Zoo. Plaintiffs argue on appeal that the public building exception to governmental immunity should apply in this case because Mrs. Wing fell on a section of the walkway "adjacent to" the Penguin House. Defendants do not dispute that operation of the zoo constitutes a governmental function and that the Penguin House is a public building.

As a general rule, a governmental entity is immune from tort liability when it is engaged in a governmental function. MCL 691.1407; MSA 3.996(107). Governmental immunity is broad in scope, but subject to a limited number of narrowly drawn exceptions. Ross v Consumers Power Co (On Rehearing), 420 Mich. 567, 618; 363 NW2d 641 (1984). One of these is the public building exception. MCL 691.1406; MSA 3.996(106).

The public building exception imposes liability on governmental agencies for injuries arising out of a dangerous or defective condition of a building itself. Velmer v Baraga Area Schools, 430 Mich. 385, 394; 424 NW2d 770 (1988); Reardon v Dep't of Mental Health, 430 Mich. 398; 424 NW2d 248 (1988). Fixtures are considered part of the building, but liability cannot be imposed for injuries resulting from furnishings, persons or activities within the building. Velmer, supra at 393-394; Reardon, supra at 413.

In this case, plaintiffs primarily rely upon cases decided by the courts before Ross. In Pichette v Manistique Public Schools, 403 Mich. 268; 269 NW2d 143 (1978), our Supreme Court found the public building exception applicable to a permanently attached playground slide immediately adjacent to defendant's school building. In Tilford v Wayne Co General Hospital, 403 Mich. 293; 269 NW2d 153 (1978), the Court ruled that the entrance walk of a public building came within the public building exception. The Supreme Court also reversed this Court's decision in Stanton v Garfield Twp, 75 Mich. App. 537; 255 NW2d 675 (1977), rev'd 404 Mich. 802 (1978), where we ruled that the ground adjacent to a public building was not covered by the exception. See also Monfils v Sterling Heights, 84 Mich. App. 330; 269 NW2d 588 (1978), lv den 404 Mich. 818 (1979) (school playground adjacent to public school fits within the public building exception); Dristy v Waterford School Dist, 146 Mich. App. 217; 379 NW2d 428 (1985) (school entrance walk included in the public building exception).

We reject plaintiffs' claim that the public building exception applies to the zoo walkway in this case. First, the walkway where Mrs. Wing fell was not part of the entrance to the Penguin House, so we do not believe that Tilford or Dristy apply. In addition, we do not believe the zoo's main walkway can be considered part of the surrounding grounds or premises of the Penguin House, as in Pichette or Monfils.

Furthermore, we are convinced that the scope of the public building exception is now more narrow than it was before Ross was decided. When our Supreme Court reconsidered the public building exception in Reardon, it specifically noted most of the cases cited here by plaintiffs and concluded that "[t]he rather broad statement of the legislative purpose contained in the above cases could be explained by the fact that they were all decided prior to Ross." Reardon, supra at 413.

While Reardon did not expressly overrule the pre-Ross cases, Reardon held that the public building exception now applies in cases where the injury is occasioned by the physical condition of the building itself:

By today's holding we wish to clarify that the duty imposed by the public building exception relates to dangers actually presented by the building itself. [Reardon, supra at 415.]

Since plaintiffs' claim would require that we further expand the pre-Ross interpretation, it is necessarily precluded by the narrower exception defined by Reardon.

Plaintiffs also argue that zoo superintendent Floyd Lodge, the individual defendant named in this action, was not entitled to immunity. The parties agree that the issue is whether defendant Lodge was performing discretionary or ministerial acts when he inspected the walkway and determined that it contained no defect and needed no repair. Under Ross, defendant Lodge would be immune from tort liability only if he was performing discretionary acts:

"Discretionary" acts have been defined as those which require personal deliberation, decision, and judgment. [Prosser, Torts (4th ed), § 132, p 988.] This definition encompasses more than quasi-judicial or policy-making authority, which typically is granted only to members of administrative tribunals, prosecutors, and higher level executives. However, it does not encompass every trivial decision, such as "the driving of a nail," which may be involved in performing an activity. For clarity, we would add the word "decisional" so the operative term would be "discretionary-decisional" acts.

"Ministerial" acts have been defined as those which constitute merely an obedience to orders or the performance of a duty in which the individual has little or no choice. Id. We believe that this definition is not sufficiently broad. An individual who decides whether to engage in a particular activity and how best to carry it out engages in discretionary activity. However, the actual execution of this decision by the same individual is a ministerial act, which must be performed in a nontortious manner. In a nutshell, the distinction between "discretionary" and "ministerial" acts is that the former involves significant decision-making, while the latter involves the execution of a decision and might entail some minor decision-making. Here too, for clarity, we would add the word "operational" so the operative term would be "ministerial-operational" acts. [Ross, supra at 634-635.]

We believe that defendant Lodge was performing discretionary acts in this case and that he is entitled to immunity. While Lodge's job duties may have included both ministerial and discretionary acts, the determination of what type of action to take is discretionary. Ross, supra at 659-660. Cf. Scameheorn v Bucks, 167 Mich. App. 302, 311-312; 421 NW2d 918 (1988) (the addition and maintenance of speed bumps on school driveways are discretionary acts).

We need not address plaintiffs' remaining issue in view of our decision that defendants are entitled to immunity.

Affirmed.