McLean v. University of Michigan Medical Center , 192 Mich. App. 128 ( 1991 )

192 Mich. App. 128 (1991) 480 N.W.2d 602

McLEAN
v.
UNIVERSITY OF MICHIGAN MEDICAL CENTER

Docket No. 121721.

Michigan Court of Appeals.

Decided December 2, 1991, at 9:00 A.M.

L. Ray Bishop & Associates, P.C. (by Barry J. Gates), for the plaintiffs.

Boothman, Hebert, Eller & Yockey, P.C. (by Dale L. Hebert), for the defendant.

Before: REILLY, P.J., and WEAVER and McDONALD, JJ.

PER CURIAM.

Plaintiff Phyllis McLean was injured when she slipped on a grease spot and fell in a hospital cafeteria maintained by defendant. She and her husband sued in the Court of Claims, citing the public building exception to governmental immunity. MCL 691.1406; MSA 3.996(106). Defendant claimed governmental immunity as an affirmative defense. Following a bench trial, the court found that the greasy condition was present and it constituted a dangerous or defective condition, that defendant had actual or constructive knowledge of the defect, and that defendant failed to remedy the defect within a reasonable time, resulting in plaintiff's injuries. Judgment was entered for both plaintiffs. Defendant appealed as of right. We reverse.

We agree with Judge MacKENZIE'S dissent in Wade v Dep't of Corrections, 182 Mich. App. 519; 453 NW2d 683 (1990), lv gtd 437 Mich. 968 (1991). A careful reading of the governmental immunity statute requires a determination that the public building exception to governmental immunity is limited to dangerous or defective conditions in the structure of the building itself resulting from faulty design, construction, repair, or maintenance.

MCL 691.1406; MSA 3.996(106) 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. Knowledge of the dangerous and defective condition of the public building and time to repair the same shall be conclusively presumed when such defect existed so as to be readily apparent to an ordinary observant person for a period of 90 days or longer before the injury took place. As a condition to any recovery for injuries sustained by reason of any dangerous or defective public building, the injured person, within 120 days from the time the injury occurred, shall serve a notice on the responsible governmental agency of the occurrence of the injury and the defect. The notice shall specify the exact location and nature of the defect, the injury sustained and the names of the witness known at the time by the claimant. [Emphasis added.]

We believe the repetitive use of the word "defect" without the accompanying word "dangerous," the provision for a ninety-day period before the injury in which the defect must be readily apparent before knowledge of the existence of the defect may be conclusively presumed, and the phrase "of the building" clearly indicate that the exception relates to a defective condition of the structure of the building, and not to a dangerous condition in the building caused by a foreign substance that was dropped on the floor. As stated by Judge MacKENZIE, the exception does not extend to negligent janitorial care. Wade, supra at 527; see also Reardon v Dep't of Mental Health, 430 Mich. 398, 410-411; 424 NW2d 248 (1988). In this action, the trial court found negligent janitorial care to have occurred.

This conclusion is also supported by the broad scope of governmental immunity and the concomitant narrowness of the exceptions. Reardon, supra.

Reversed and remanded for entry of judgment for the defendant.