Collapse of a publicly operated outdoor deck; The public building exception to governmental immunity (MCL 691.1406); Maskery v University of MI Bd of Regents; Design defect claims; Renny v Department of Transp; Distinction between a design defect & a failure to repair & maintain; Tellin v Forsyth Twp; Constructive knowledge of the dangerous or defective condition; Echelon Homes, LLC v Carter Lumber Co

[This opinion was previously released as an unpublished opinion on 12/17/20.] The court concluded that plaintiffs in these consolidated cases sufficiently alleged that the publicly operated outdoor deck at issue collapsed due to a failure to maintain and repair, and that there was a genuine issue of material fact whether defendants-county and its parks and recreation department had constructive knowledge of the defective condition. Thus, it reversed summary disposition for defendants and remanded. “The trial court reasoned that the deck failed because LVL lumber was used in its design and construction, even though experts for plaintiffs and defendants opined that LVL was not fit for outdoor use.” But the court determined that while “the use of the LVL beam was a design defect, plaintiffs’ claims also arose out of defendants’ failure to repair and maintain the deck.” They offered evidence that it collapsed due to defendants’ failure to maintain and repair it. The Supreme Court in Renny “implied that a case can involve both a design defect and a failure to repair and maintain.” The evidence here suggested that “in normal conditions—or, in its initial condition—the LVL beam would have supported a normal weight load for a deck. However, when the LVL beam failed, it was only carrying a small fraction of that load.” The conclusion of the person (J) defendants hired to investigate the collapse reflected “that, but-for the rot in the LVL beam, the deck would not have collapsed.” The court further noted that the deck did not collapse for the first 12 years of its existence. “It only did so when the LVL beam failed because of rot.” Thus, the evidence showed it collapsed due to “deterioration, transforming a design defect into a failure to repair or maintain.” As to the issue of constructive knowledge, plaintiffs produced evidence showing “that if defendants had been reasonably diligent when they made repairs to the deck and discovered that some of sections of the deck had become rotted, they should have also discovered the rotted LVL beam.” A maintenance worker (D) testified that he made “repairs to areas of the deck that were rotted” and admitted he failed to “diligently inspect the LVL beam that supported the entire weight of the deck. If [D] had diligently inspected the LVL beam, the evidence, including an affidavit from plaintiffs’ expert, suggests that he would have discovered its rotted condition.”