Design Defect Claims Cannot Defeat a Defense of Governmental Immunity Under Public-Building Exception

What’s the difference between repairs, maintenance and design defects and which one does a school district need to worry about?

The short answer to that question is that school districts need to worry about all of them. However, for purposes of asserting governmental immunity in order to avoid claims for injuries occurring at a district’s public building, context matters.football on field with bleachers

The Michigan Court of Appeals, in the unpublished case G.C., by Next Friend Crystal Cavazos v American Athletix, LLC, et al., Docket Nos. 357805 and 357966, 2022 WL 7723844 (Mich Ct App, Oct. 13, 2022), reaffirmed the notion that a design defect does not fall within the scope of the public-building exception to governmental immunity.

Three-year-old G.C. and his mother (the plaintiff), attended a football game at Collins Field, which is owned and maintained by Davison Community Schools in Genesee County, Michigan. The bleachers they were sitting on did not have riser planks between the seats and floorboards. During the game, G.C. slipped through the opening between the seat and floorboard, fell to the ground and was injured.

The plaintiff filed a three-count complaint that included a public-building defect claim against the district. The district then moved for summary disposition on the basis of governmental immunity, arguing that: (1) the public-building exception to governmental immunity did not apply to bleachers because bleachers are not a “building” and (2) the hazard at issue involved a design defect, which is outside the scope of the duty imposed by the public-building exception.

The trial court found that the bleachers were considered a “building,” but that the district was entitled to summary disposition because the gap in the bleachers was a design defect, which is not within the public-building exception to governmental immunity.

The appellate court affirmed the trial court’s ruling. In doing so, the appellate court observed that the district is immune from tort liability if the governmental agency is engaged in the exercise or discharge of a governmental function. See MCL 691.1407(1). However, an exception to governmental immunity is the public-building exception, which provides:

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 take action reasonably necessary to protect the public against the condition.

MCL 691.1406.

The plaintiff argued that the trial court erred when it determined the public-building exception did not apply because the lack of riser planks on the bleachers constituted a design defect, which falls outside a governmental agency’s duty to “repair and maintain” its public buildings.

However, the appellate court looked back to two previous decisions that distinguished between a “design defect” and “repair and maintenance.”

In Renny v Dept. of Transp., 478 Mich 490 (2007), the Michigan Supreme Court explained that the terms “repair” and “maintain” did not encompass a duty to design or redesign the public building in a particular manner. In fact, the Supreme Court found that the terms “repair” and “maintain” denote the restoring or returning something to a prior state or condition whereas “design” refers to the initial conception rather than restoration.

Similarly, in Tellin v Forsyth Tp., 291 Mich App 692 (2011), the Michigan Court of Appeals determined that a design defect consists of a dangerous condition inherent in the design itself while a failure to repair or maintain consists of something caused by extrinsic circumstances.

Applying the above principles from Renny and Tellin, the appellate court agreed that the plaintiff’s claim was one for a design defect because the gaps in the bleachers are conditions inherent to the design itself. Likewise, the gaps in the bleachers were not caused by extrinsic circumstances because they had been there since the bleachers were constructed. Because the plaintiff’s claim was for a design defect and not a failure to repair or maintain, the appellate court held that plaintiff’s claim was not within the governmental immunity exception.

The plaintiff also argued that current code required all existing bleachers to limit gaps between the seats and floorboards to less than four inches. Yet the appellate court found this argument unpersuasive because installing a new feature, for the sake of complying with the current code, was not restoring or returning the bleachers to a prior state or condition.

This recent opinion is important, especially for school districts, in delineating the difference between “repair and maintain” and “design defect” when the public-building exception is raised in avoidance of governmental immunity.

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