Estate of Amarah Filizetti v. Gwinn Area Community Schools ( 2020 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
WAYNE FILIZETTI, Personal Representative of UNPUBLISHED
the ESTATE OF AMARAH FILIZETTI and Next August 27, 2020
Friend of LAILA FILIZETTI and MELISSA
FILIZETTI, and STACEY FILIZETTI,
Plaintiffs-Appellees,
V No. 344878
Marquette Circuit Court
GWINN AREA COMMUNITY SCHOOLS, LC No. 16-054781-NO
Defendant/Cross-Plaintiff/Cross-
Defendant-Appellant,
and
WEST EDUCATIONAL LEASING, INC., doing
business as PROFESSIONAL CONTRACT
MANAGEMENT,
Defendant,
and
TRACY BELUSAR, ANTHONY J. FILIZETTI,
and ROBERT SOYRING,
Defendants-Appellants,
and
GWINN AREA CLEANING AND
MAINTENANCE, INC.,
Defendant/Cross-Defendant/Cross-
Plaintiff.
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Before: METER, P.J., and O’BRIEN and TUKEL, JJ.
METER, P.J. (concurring in part and dissenting in part).
I concur with the majority opinion’s well-reasoned analysis concerning the individual
defendants-appellants, Tracy Belusar, Anthony J. Filizetti, and Robert Soyring. I dissent, however,
from the majority opinion’s analysis concerning defendants/cross-plaintiff/cross-defendant-
appellant Gwinn Area Community Schools (the school). In my view, the school official’s
replacement of the panels to cover the alcove opening can only be described as repair or
maintenance.
“Absent a statutory exception, a governmental agency is immune from tort liability when
it exercises or discharges a governmental function.” Maskery v Board of Regents of Univ of Mich,
468 Mich. 609, 613; 664 NW2d 165 (2003). The statutory exception relevant to this case is the
public building exception, which states in part:
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. [MCL 691.1406.]
The statutory exceptions to governmental immunity are to be narrowly construed. McLean v
McElhaney, 289 Mich. App. 592, 598; 798 NW2d 29 (2010).
“The public-building exception excludes claims of design defects. Therefore, to avoid
governmental immunity, a plaintiff must assert a claim that the defective condition was the result
of a failure to repair or maintain.” Tellin v Forsyth Twp, 291 Mich. App. 692, 700; 806 NW2d 359
(2011) (footnotes omitted). Our Supreme Court has recognized and explained the distinction
between design defects and a failure to repair or maintain:
The first sentence of MCL 691.1406 states that “[g]overnmental agencies have the
obligation to repair and maintain public buildings under their control when open
for use by members of the public.” This sentence unequivocally establishes the
duty of a governmental agency to “repair and maintain” public buildings. Neither
the term “repair” nor the term “maintain,” which we construe according to their
common usage, encompasses a duty to design or redesign the public building in a
particular manner. “Design” is defined as “to conceive; invent; contrive.” By
contrast, “repair” means “to restore to sound condition after damage or injury.”
Similarly, “maintain” means “to keep up” or “to preserve.” Central to the
definitions of “repair” and “maintain” is the notion of restoring or returning
something, in this case a public building, to a prior state or condition. “Design”
refers to the initial conception of the building, rather than its restoration. “Design”
and “repair and maintain,” then, are unmistakably disparate concepts, and the
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Legislature’s sole use of “repair and maintain” unambiguously indicates that it did
not intend to include design defect claims within the scope of the public building
exception. [Renny v Dep’t of Transp, 478 Mich. 490, 500-501; 734 NW2d 518
(2007) (footnotes omitted).]
A defect caused by the failure to repair or maintain a fixture “is considered to be a condition ‘of a
public building’ within the meaning of [MCL 691.1406].” Pierce v Lansing, 265 Mich. App. 174,
181; 694 NW2d 65 (2005). As the majority discusses, the panels in question are clearly fixtures,
and thus are considered part of the school for purposes of the public building exception.
Here, plaintiffs’ claim is not premised on a design defect because the alleged defect was
not “a dangerous condition inherent in the design itself, such as its characteristics, functioning, and
purpose.” Tellin, 291 Mich. App. at 705. Instead, the alleged defect was a failure to “restor[e] or
return[] something . . . to a prior state or condition.” Renny, 478 Mich. at 501. The panels, in their
original state, were secured over the alcove’s opening to cover the stage. The panels had been
removed from the alcove to allow the stage to be assembled for the school’s graduation ceremony.
On the date of the accident, the school intended to return the panels to their original state of being
secured to the wall. However, the school’s staff failed to properly return the panels to their original
state, which resulted in a 325-pound panel falling on a small child, resulting in her death. Thus,
this case falls squarely within the public building exception.
Because plaintiffs’ claim was premised on the school’s failure to repair or maintain the
panels, I would hold that the public building exception to governmental immunity applies and
affirm the trial court’s order denying the school’s motion for summary disposition.
/s/ Patrick M. Meter
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