Steele v. Department of Corrections

546 N.W.2d 725 (1996) 215 Mich. App. 710

Thomas STEELE, Plaintiff-Appellant,
v.
DEPARTMENT OF CORRECTIONS, Defendant-Appellee.

Docket No. 169906.

Court of Appeals of Michigan.

Submitted November 22, 1995, at Detroit. Decided March 12, 1996, at 9:10 a.m. Released for Publication April 29, 1996.

Foster Meadows & Ballard P.C. (by Michael J. Liddane), Detroit, for plaintiff.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Allan J.

Soros, Assistant Attorney General, for defendants.

Before: MICHAEL F. CAVANAGH, P.J., and TAYLOR and MARTLEW,^[*] JJ.

PER CURIAM.

Plaintiff appeals as of right orders by the trial court granting defendant's motions for summary disposition pursuant to MCR 2.116(C)(4), (7), and (8). We affirm.

In March 1986, plaintiff was a prison inmate. Plaintiff was a member of a work crew from the Department of Corrections under the supervision of Norman Stone. On March 25, 1986, plaintiff's work crew was involved in the renovation of a state building into a correctional facility. Plaintiff was paired with another inmate, Tom Knox. Because Knox had more experience than plaintiff, Knox directed plaintiff's work. Knox instructed plaintiff to go to the attic of the building to install a vent pipe. The attic was illuminated by a single bulb. The attic floor was not visible because it was covered with insulation. Plaintiff was walking toward what appeared to be the hole that had previously been drilled when he slipped on a heating duct and fell approximately twelve feet through a drop ceiling. Plaintiff broke two bones in his wrist, and his right heel was shattered. Afterward, it was determined that plaintiff had been moving in the wrong direction; if he had been in the correct area, he would have been walking on a solid surface.

On May 2, 1991, plaintiff filed a complaint against defendant and Stone in the Court of Claims. Plaintiff alleged that his injuries were the result of a defect in a public building, gross negligence, nuisance, and violations of 42 U.S.C. § 1983 and the Eighth and Fourteenth Amendments of the United States Constitution. On February 11, 1993, defendant and Stone moved for summary disposition. The trial court granted the motion with respect to all counts except the alleged public building defect. The trial court also dismissed Stone as a defendant.

After the release of Smith v. Michigan, unpublished memorandum opinion of the Court of Appeals, issued June 25, 1993 (Docket No. 134714), defendant renewed its motion for summary disposition. The trial court found Smith indistinguishable from the present case with regard to the issue of accessibility and accordingly granted defendant's motion for summary disposition. The order incorporating this ruling was entered on October 20,1993.

This Court reviews de novo as a question of law an order granting or denying summary disposition. Turner v. Mercy Hosps & Health Services of Detroit, 210 Mich.App. 345, 348, 533 N.W.2d 365 (1995). When reviewing a motion for summary disposition under MCR 2.116(C)(4), this Court must determine whether the pleadings demonstrate that the defendant was entitled to a judgment as a matter of law, or whether the affidavits and other proofs show that there was no genuine issue of material fact. Faulkner v. Flowers, 206 Mich.App. 562, 564, 522 N.W.2d 700 (1994).

MCR 2.116(C)(7) tests whether a claim is barred because of immunity granted by law. In order to survive a motion for summary disposition based on governmental immunity, the plaintiff must allege facts justifying the application of an exception to governmental immunity. Johnson v. Wayne Co., 213 Mich.App. 143, 158, 540 N.W.2d 66 (1995).

A summary disposition motion brought pursuant to MCR 2.116(C)(8) tests the legal sufficiency of the plaintiff's complaint and should be granted only if the claims are so clearly unenforceable as a matter of law that no factual development could possibly justify recovery. Rogalski v. Tavernier, 208 Mich.App. 302, 304, 527 N.W.2d 73 (1995).

I

Plaintiff argues that the trial court erred in holding that the public building exception to governmental immunity did not apply. The public building exception to governmental immunity provides 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. [M.C.L. § 691.1406; M.S.A. § 3.996(106).]

The purpose of this exception is to protect the general public from injury by imposing a duty on the government to maintain safe public buildings. Bush v. Oscoda Area Schools, 405 Mich. 716, 731-732, 275 N.W.2d 268 (1979). The scope of the exception is narrowly drawn. Hall v. Detroit Bd. of Ed., 186 Mich.App. 469, 470, 465 N.W.2d 12 (1990).

A five-part test determines whether the public building exception governs a particular case. 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 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. Jackson v. Detroit, 449 Mich. 420, 428, 537 N.W.2d 151 (1995).

The public building exception applies only when a building is open for use by members of the public. Jackson, supra; Taylor v. Detroit, 182 Mich.App. 583, 588, 452 N.W.2d 826 (1989).^[1] The focus is on the accessibility to members of the general public, rather than on the extent to which the building might benefit the community. Griffin v. Detroit, 178 Mich.App. 302, 306, 443 N.W.2d 406 (1989).

Plaintiff relies on Green v. Dep't of Corrections, 386 Mich. 459, 464, 192 N.W.2d 491 (1971), in which the Supreme Court held that, despite their incarceration, prisoners are members of the public. However, we believe the facts of this case are more analogous to those presented in Smith, supra, and Dudek v. Michigan, 152 Mich.App. 81, 393 N.W.2d 572 (1986). In Dudek, this Court held that where a construction worker is injured in a public building in the course of renovation activity, the public building exception does not apply. Id. at 86, 393 N.W.2d 572.

In Smith, supra,^[2] a prisoner was injured while working in the basement of a housing unit in a correctional facility. The basement was inaccessible to the general prison population. The Smith panel concluded that the public building exception did not apply to injuries sustained in a basement not open to members of the public. We, as did the trial court, find the reasoning in Smith to be persuasive.

The public building exception is applicable to buildings with limited access, such as schools and prisons. See, e.g., Bush, supra; Green, supra. However, the exception does not apply to buildings that are specifically closed to members of the public. Dudek, supra. Because the building in which plaintiff was injured was not open to the public during renovations, the trial court properly granted the department's motion for summary disposition.

II

Plaintiff next argues that the trial court erred in ruling that Stone was not subject to the court's jurisdiction because he was not a policy-making state official. We find no error. The Court of Claims has exclusive jurisdiction to hear claims against the state and any of its departments, commissions, boards, institutions, arms, or agencies. M.C.L. § 600.6419; M.S.A. § 27A.6419. The jurisdiction of the Court of Claims also extends to suits against state officers when the officer was acting in an official capacity when the acts at issue were committed. Kell v. Johnson, 186 Mich.App. 562, 564, 465 N.W.2d 26 (1990). State officers are the executive officers of state departments or commissions. Burnett v. Moore, 111 Mich.App. 646, 648, 314 N.W.2d 458 (1981). In determining whether an individual qualifies as a "state officer," the primary focus is on the degree of discretion and independence associated with the position. Lowery v. Dep't of Corrections, 146 Mich.App. 342, 348, 380 N.W.2d 99 (1985).

Plaintiff asserts that because Stone was the supervisor of the renovation project and had a great deal of discretion in the management of the project, he should be considered a state officer subject to the jurisdiction of the Court of Claims. We disagree. Stone was the supervisor of the renovation project and, according to his deposition testimony, had a considerable amount of discretion in that role. However, Stone was not an executive officer of a state department or commission. Accordingly, the trial court did not err in determining that Stone was not a state officer subject to the jurisdiction of the Court of Claims.

III

Finally, plaintiff argues that the trial court erred in dismissing the tort claim and the claim under 42 U.S.C. § 1983 against Stone. As discussed in the previous issue, the Court of Claims did not have jurisdiction over Stone. However, we briefly note that plaintiff failed to adequately allege that Stone acted in bad faith. Consequently, Stone was entitled to qualified immunity under Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 592, 363 N.W.2d 641 (1984).^[3] Furthermore, plaintiff's claim under 42 U.S.C. § 1983 fails because he has not established deliberate indifference on Stone's part. See Hickey v. Zezulka (On Resubmission), 439 Mich. 408, 428, 440 Mich. 1203, 487 N.W.2d 106 (1992).

Affirmed.

NOTES

[*] Jeffrey L. Martlew, 29th Circuit Judge, sitting on Court of Appeals by assignment pursuant to Const.1963, Art. 6, Sec. 23, as amended 1968.

[1] See also Andrews v. Detroit, 450 Mich. 874, 539 N.W.2d 506 (1995).

[2] Plaintiff argues that the trial court erred in relying on Smith. Plaintiff asserts that the trial court improperly treated Smith as binding legal precedent. We disagree. The trial court clearly recognized that Smith has no precedential value and that it was not required to follow Smith. Nevertheless, contrary to plaintiff's implicit assertion, a court is free to find the reasoning of an unpublished case persuasive. See Jackhill Oil Co. v. Powell Production, Inc., 210 Mich.App. 114, 118, 532 N.W.2d 866 (1995).

[3] Because plaintiff's claim arose before July 1, 1986, the Ross test for individual immunity applies, rather than the amended immunity statute, M.C.L. § 691.1407; M.S.A. § 3.996(107). Abraham v. Jackson, 189 Mich.App. 367, 369-370, 473 N.W.2d 699 (1991).