Ali v. City of Detroit , 218 Mich. App. 581 ( 1996 )

554 N.W.2d 384 (1996) 218 Mich. App. 581

Mohammed ALI and Maria Ali, Plaintiffs-Appellees,
v.
CITY OF DETROIT, Detroit Engineering Department and Detroit Transportation Department, Defendants-Appellants, and
Suburban Mobility Authority for Regional Transportation a/k/a SMART, Defendant-Appellee, and
County of Wayne and Wayne County Road Commission, Defendants, and
City of Dearborn, Defendant-Appellee, and
Ford Motor Co., Defendant.
Mohammed ALI and Maria Ali, Plaintiffs-Appellees,
v.
CITY OF DETROIT, Detroit Engineering Department, Detroit Transportation Department and Suburban Mobility Authority for Regional Transportation a/k/a SMART, Defendants-Appellees, and
County of Wayne and Wayne County Road Commission, Defendants, and
City of Dearborn, Defendant-Appellant, and
Ford Motor Co., Defendant.
Mohammed ALI and Maria Ali, Plaintiffs-Appellees,
v.
CITY OF DETROIT, Detroit Engineering Department and Detroit Transportation Department, Defendants-Appellees, and
Suburban Mobility Authority for Regional Transportation a/k/a SMART, Defendant-Appellant, and
City of Dearborn, Defendant.

Docket Nos. 179412, 179556 and 180067.

Court of Appeals of Michigan.

Submitted June 13, 1996, at Detroit. Decided September 3, 1996, at 9:05 a.m. Released for Publication October 15, 1996.

Donald M. Fulkerson, Westland, for Mohammed and Maria Ali.

Linda D. Fegins, Principal Assistant Corporation Counsel, for City of Detroit.

Laurie M. Sabon, Dearborn, for City of Dearborn.

Miller, Canfield, Paddock and Stone, P.L.C. by Jerome R. Watson, Irene Bruce Hathaway, and Brian K. Telfair, Detroit, for Suburban Mobility Authority for Regional Transportation.

Before MICHAEL J. KELLY, P.J., and HOOD and J.L. MARTLEW,^[*] JJ.

PER CURIAM.

In this negligence action, defendants City of Detroit and its departments (Docket No. 179412), Suburban Mobility Authority for Regional Transportation (SMART) (Docket No. 180067), and City of Dearborn (Docket No. 179556) appeal by leave granted orders denying their respective motions for summary disposition under MCR 2.116(C)(7) and (C)(10) pursuant to governmental immunity. These appeals have been consolidated. We affirm with respect to defendants City of Detroit and SMART, reverse with respect to City of Dearborn, and remand for further proceedings.

Defendants City of Detroit and SMART argue that the trial court erred in denying their respective motions for summary disposition based on governmental immunity, because the public building exception, M.C.L. § 691.1406; M.S.A. § 3.996(106), does not govern this case. We disagree.

The Supreme Court in Jackson v. Detroit, 449 Mich. 420, 428, 537 N.W.2d 151 (1995), citing Hickey v. Zezulka (On Resubmission), 439 Mich. 408, 421, 487 N.W.2d 106 (1992), stated 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.

Defendants initially contend that the bus passenger shelter that collapsed on plaintiff Mohammed Ali was not a building for purposes of the exception. Because the term "building" is not defined in the statute, we give it its plain and ordinary meaning, and consult dictionary definitions. Welch Foods, Inc. v. Attorney General, 213 Mich. App. 459, 463, 540 N.W.2d 693 (1995). "Building" is defined as a "relatively permanent, essentially boxlike construction having a roof and used for any of a wide variety of activities, as living, entertaining, or manufacturing," The Random House College Dictionary: Revised Edition (1984), and a "structure designed for habitation, shelter, storage, trade, manufacturing, religion, business, education and the like. A structure or edifice enclosing a space within its walls, and usually, but not necessarily covered with a roof." Black's Law Dictionary (5th ed). Considering these definitions, we conclude that the bus passenger shelter was a building. The shelter was a walled structure made of plexiglas and steel and was designed to protect people from inclement weather.

Our holding in Freedman v. Oak Park, 170 Mich.App. 349, 427 N.W.2d 557 (1988), was based on facts that are different from those in the present case. In Freedman, we held that a "park bench shelter" was not a building for the purpose of the exception. Unlike the present case involving a walled structure specifically designed as a permanent shelter, the shelter in Freedman was merely a portable bench with a roof over it. We also decline plaintiffs' invitation to adopt the definition of "building" contained in the State Construction Code Act, M.C.L. § 125.1502(1)(f); M.S.A. § 5.2949(2)(1)(f). That definition is broad enough to encompass the structure found not to be a building in Freedman, supra. Moreover, the Legislature did not intend an expansive reading of the public building exception. Reardon v. Dep't of Mental Health, 430 Mich. 398, 409, 424 N.W.2d 248 (1988). In summary, giving the term "building" its ordinary meaning, we find that the trial court correctly found that the bus passenger shelter was a building for purposes of the public building exception to governmental immunity.

Defendants City of Detroit and SMART next argue that the trial court erred in denying their respective motions, because there was no issue of fact regarding whether they owned or controlled the shelter. We disagree. In order to be liable under the public building exception to governmental immunity, the agency must first be shown to be "an owner, a lessee, or in control of the premises." Mitchell v. Dep't of Corrections, 113 Mich.App. 739, 743, 318 N.W.2d 507 (1982). Upon review of the record, we find factual issues regarding whether SMART was the owner of the shelter and whether the City of Detroit controlled the shelter. SMART constructed the shelter in 1978, used it until 1983, and repaired it in 1988.^[1] There is no evidence that SMART relinquished ownership. With respect to the City of Detroit, there is no evidence that it owned the shelter, but its control over the shelter may be inferred from evidence that its buses stopped at the shelter over one hundred times a day and its employees were at the scene of the accident, surveying the wreckage, the day after the shelter collapsed.

Defendants City of Detroit and SMART also contend that summary disposition was appropriate because they did not have actual or constructive notice of the defect in the bus passenger shelter. Although the trial court did not address this argument, we consider it because it presents a question of law and the facts necessary for its resolution have been presented. Detroit v. Dep't of Social Services, 197 Mich.App. 146, 158, 494 N.W.2d 805 (1992). In order for the public building exception to governmental immunity to apply, the governmental agency must have actual or constructive knowledge of the defect. Jackson, supra at 428, 537 N.W.2d 151. Constructive notice is demonstrated by showing that the agency should have discovered the defect in the exercise of reasonable diligence. Peterson v. Dep't of Transportation, 154 Mich.App. 790, 795, 399 N.W.2d 414 (1986). Upon review of the deposition testimony of plaintiffs' experts, we conclude that there is an issue of fact concerning defendants' constructive knowledge of the defect. A complete reading of that testimony reveals that the experts testified that a reasonable maintenance and inspection schedule would have resulted in the discovery of the shelter's instability and prompted its repair.

Defendant City of Detroit contends that plaintiffs' claims are barred because they failed to provide timely notice of the accident, as required by M.C.L. § 691.1406; M.S.A. § 3.996(106). This issue was not raised in the lower court. Issues first raised on appeal are ordinarily not subject to review. Michigan Up & Out of Poverty Now Coalition v. Michigan, 210 Mich.App. 162, 167, 533 N.W.2d 339 (1995). There exist no exigent circumstances in this case that require our review of this issue. Booth Newspapers, Inc. v. Univ. of Michigan Bd. of Regents, 444 Mich. 211, 234, n. 23, 507 N.W.2d 422 (1993).

Defendant SMART additionally argues that the statute of repose, M.C.L. § 600.5839(1); M.S.A. § 27A.5839(1), bars plaintiffs' claims arising out of the design, testing, assembly, and installation of the shelter because SMART is a "contractor" for purposes of the statute. Although the trial court did not address this argument, we consider it because it presents a question of law and the facts necessary for its resolution have been presented. Dep't of Social Services, supra at 158, 494 N.W.2d 805. We hold that SMART is not protected by the statute. The purpose of the statute of repose is to shield architects, engineers, and contractors from stale claims and relieve them of open-ended liability for defects in workmanship. Witherspoon v. Guilford, 203 Mich.App. 240, 245-247, 511 N.W.2d 720 (1994). As demonstrated by the fact that the repose period begins to run from "the time of occupancy of the completed improvement, use, or acceptance of the improvement," M.C.L. § 600.5839(1); M.S.A. § 27A.5839(1), the statute is not designed to protect owners of the property, building, or improvement. Defendant SMART's duty arises from its ownership or control over the building, without regard to whether "the condition arose because of improper design, faulty construction, or absence of safety devices." Wade v. Dep't of Corrections, 439 Mich. 158, 168, 483 N.W.2d 26 (1992). Accordingly, we conclude that the trial court properly denied defendants City of Detroit's and SMART's motions for summary disposition.

Defendant City of Dearborn argues that the trial court improperly denied its motion for summary disposition, because plaintiffs' claims do not fall within the highway exception to governmental immunity, M.C.L. § 691.1402(1); M.S.A. § 3.996(102)(1). We agree. Because the City of Dearborn is a municipality, its duty with regard to a highway extends to the sidewalk. Cox v. Dearborn Heights, 210 Mich.App. 389, 393, 534 N.W.2d 135 (1995). Plaintiffs contend that because the public building exception to governmental immunity has been construed to include fixtures, Velmer v. Baraga Area Schools, 430 Mich. 385, 424 N.W.2d 770 (1988), we should likewise construe the highway exception to include fixtures attached to the sidewalk. We decline to do so. The primary goal of statutory interpretation is to ascertain and give effect to the Legislature's intent. Musulin v. Univ. of Michigan Bd. of Regents, 214 Mich. App. 277, 543 N.W.2d 337 (1995). The Legislature's exclusion of light poles and trees from the scope of the highway exception, M.C.L. § 691.1401(e); M.S.A. § 3.996(101)(e), evinces its intent that the exception not include fixtures. In Messecar v. Garden City, 172 Mich.App. 519, 522, 432 N.W.2d 311 (1988), we held that a municipality was liable for the defective construction and maintenance of a sidewalk and berm that produced the drop-off where a pedestrian fell. Unlike a berm, which can be considered a natural extension of the sidewalk, a bus passenger shelter is a freestanding structure that is linked with the sidewalk solely by its placement. Narrowly construing the highway exception, we conclude that it does not encompass bus passenger shelters that are attached to the sidewalk. Scheurman v. Dep't of Transportation, 434 Mich. 619, 456 N.W.2d 66 (1990).

Plaintiffs additionally argue that the City of Dearborn is liable under the public building exception because it had a duty under M.C.L. § 247.334; M.S.A. § 9.391(4) to supervise the construction and maintenance of the shelter. The statute, however, does not impose a duty, but merely gives municipalities power to supervise construction and maintenance. Liability for a defect in a public building is imposed by the public building exception to governmental immunity, M.C.L. § 691.1406; M.S.A. § 3.996(106), and arises out of the ownership or control of the building. Wade, supra at 168, 483 N.W.2d 26. Although defendant City of Dearborn had the power to supervise the maintenance of the shelter, there is no evidence in the record that it owned or controlled the shelter. Accordingly, we find that plaintiffs' claims do not fall within the public building exception to governmental immunity. Mitchell, supra at 743, 318 N.W.2d 507. Because plaintiffs' claims against the City of Dearborn do not fall within either the highway exception or the public building exception, we conclude that the trial court erred in denying defendant City of Dearborn's motion for summary disposition.

Affirmed in Docket Nos. 179412 and 180067, reversed in Docket No. 179556, and remanded. We do not retain jurisdiction.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] SMART's contention that it did not own the shelter because it had no right of way on the land upon which the shelter was constructed is without merit. By statute, SMART was granted the opportunity to enter upon, construct, and maintain the shelter. M.C.L. § 247.332; M.S.A. § 9.391(2).