Injury on school property; Governmental immunity; The public building exception (MCL 691.1406); “Design defect” claim; Renny v Department of Transp; Bush v Oscoda Area Sch; Tellin v Forsyth Twp; Waiver

The court held that plaintiff’s injury while exiting a school owned by defendant did not arise out of its failure to repair and maintain a public building and thus, the public building exception to governmental immunity did not apply. Plaintiff, who was using a walker, fell when she exited after voting in the school gym. She asserted “that the cause of her fall was the drop off and the sloped sidewalk in the area outside the door.” But she conceded “there was nothing wrong with the area where she fell or the door.” In granting defendant summary disposition, the trial court held that plaintiff’s claim did not come within MCL 691.1406’s exception because she “was alleging a design defect, and such claims are not cognizable under” the statute. The court agreed “that the condition that caused plaintiff’s injury did not arise out of defendant’s failure to repair and maintain a public building.” She contended “the condition that caused her injury was the drop off and sloped landing outside of Door 15.” She did not allege “that defendant needed to restore or return the area outside of Door 15 to a different state or condition” nor did she allege “that the cause of her fall was some type of ‘malfunction, deterioration, [or] instability’ in the area” of her fall. Rather, she alleged “that the inherent characteristics of that area—the drop off and sloped landing—is what caused her injury, which is a design defect.” While she focused on the second sentence of MCL 691.1406, the Supreme Court explained in Renny that the first sentence “provides that a governmental agency owes a duty to repair and maintain public buildings under its control, and the second sentence of the statute ‘does not expand the duty beyond the repair and maintenance of a public building’ to include ‘a duty to prevent “dangerous or defective condition[s]” in public buildings . . . .’” The court added that, even if the “construction differed from the intended design,” this did “not constitute a failure to repair and maintain because a building cannot be restored or returned to a prior state or condition that it was never in.” Affirmed.