____________________________________________________________________________________________

____________________________________________________________________________________________________________________________

________________________________ Michigan Supreme Court Lansing, Michigan 48909

C hief Justice Justices Maura D. Corrigan Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. 

# Opinion
Stephen J. Markman
FILED SEPTEMBER 11, 2002

FRANCINE CULLARI de SANCHEZ and STEVEN JASON, co-personal representatives of the estate of Thomas A. Baltus, deceased, Plaintiffs-Appellees,
v No. 117298 STATE OF MICHIGAN, MICHIGAN DEPARTMENT OF MENTAL HEALTH, Defendant-Appellant.
PER CURIAM The plaintiffs’ decedent, an involuntary patient in a state psychiatric hospital, committed su icid e in a hospital restroom. Plaintiffs, the personal representatives of decedent’s estate, filed a wrongful death suit, alleging that the overhead bar from which decedent hanged himself was a "dangerous or defective condition of a public building." If proved, that allegation would bring th e pla intiffs’ claimwithin the public buildin g exce ption to the defendant’s governmental immunity. MCL 691.1406 and 691.1407(1). The plai ntif fs filed this Court of Claims lawsuit in 1984. On two previous occasions, the Court of Claims granted summarydisposition to defendant, but those judgments were reversed or vacated on appeal. 1 In 1998, the Court of Claims once again granted summary disposition to defendant, upon the bases o f governmental immunityand MCR 2.116(C)(10). The judge ruled that plaintiffs failed to establish a genuine issue of material fact about any "dangerous or defective condition." The Court of Appeals again reversed the grant of summary disposition. 2 De fendant’s appeal was held in abeyance for Brown v Genesee Co Bd of Comm’rs (After Remand) , 464 Mich 430; 628 NW2d 471 (2001). We now reverse the Court of Appeals and reinstate the Court of Claims judgment. I. FACTUAL AND PROCEDURAL BACKGROUND In 1983, Thomas Baltus attempted suicide by trying to drown himself. Af ter that failed attempt was discovered, Baltus was involuntarily committed to the Ypsilanti Regional Psychiatric Hospital. Hospital personnel observed Baltus continuouslyfor more than five days. His be havior during

1 Sub nomde Sanchez v Genoves-Andrews , 161 Mich App 245; 410 NW2d 803 (1987), rem’d 430 Mich 894(1988), ( On Remand ) 179 Mich App 661 (1989), and de Sanchez v Dep’t of Mental Health (After Remand) , 455 Mich 83; 565 NW2d 358 (1997).
2 de Sanchez v Dep’ t of Mental Health , unpublished opinion per curiam, issued June 30, 2000 (Docket No. 214318). 2that time persuaded them that continuous monitoring was no longer necessary a nd t hat periodic monitoring would be an adequate suicide precaution. The next day, allowed to use the restroom unattended, Baltus hanged himself. He used a cloth belt, which he attached to an overhead bar that supported a partition between toilet stalls. The plaintiffs’ wrongful death complaint alleged that the support bar from which Baltus hanged himself constituted a "dangerous or defective condition of a public building," thus bringing the claim wit hin the public building exception 3 to governmental immunity. 4 Defendant moved for summary disposition pursuant to MCR 2.116(C)(10), contending that no genuine issue of material fact existed regarding whether the

3 Governmental agencies have the obligation to repair and maintain public buildings under their control when open for use bymembers of the public. Governmental agencies are liable for bodily injury and property damage resulting from a da nger ous or defective condition of a publi c bui ldingif 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 buildingand time to repair the same shall be conclusively presumed when such defect existed so as to be readilyapparent to an ordinary observant person for a period of 90 days or longer before the injury took place. [MCL 691.1406 (emphasis added).]
4 Except as otherwise provided in this act, a governmental agency is immune from tort liability if the governmental agency i s e ngaged in the exercise or discharge of a governmental function. [MCL 691.1407.] 3stall-partition support bar was a "defective condition." The trial court agreed and granted summary disposition. The Court of Appeals reversed, holding that “plaintiffs presented evidence to create a genuine issue of material fact regarding whether the placement of a solid bar in the bathroom of the facility constituted a dangerous and defective condition . . . in light of the use for which the bathroom was specificallyassigned, that is, for the use of potentially suicidal mentally ill patients.” Slip op at 4. II. STANDARD OF REVIEW We review de novo a trial court’s decision on a motion for summary disposition. A motion for summary disposition brought under MCR 2.116(C)(10) tests the factual support of a claim. After reviewing the evidence in a light most favorable to the nonmoving party, a trial court may grant summar y disposition under MCR 2.116(C)(10) if there is no genu ine issue conc ern ing any material fact and the moving party is entitled to judgment as a matter of law. Smith v Globe Life Ins Co , 460 Mich 446; 597 NW2d 28 (1999); Hazle v Ford Motor Co , 464 Mich 456; 628 NW2d 515 (2001). III. ANALYSIS Resolution o f the issue presented is controlled by Jackson v Detroit , 449 Mich 420; 537 NW2d 151 (1995). 5 In

5We held an earlier appea l in the present case in abeyance for Jackson . That abeyan ce was resolved by our decision in de Sanchez v Dep't of Mental Health (After Remand) , n 1 supra , in which we concluded that the defective condition issue was not then properly before us. Id . at 88. 4Jackson , an inmate attempted to hang himself from the overhead bars of a police station holding cell. Jackson set forth what
a plaintiff must prove in order to bring a case with in the public building exception to governmental immunity: This Court [has] held that a five-part test determines whether the public building exception governs a particular case. To fall within the narrow confines of the exception, 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 itself 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 of time. [ Id . at 428, citing Hickey vZezulka (On Resubmission) , 439 Mich 408 , 421; 487 NW2d 106 (1992) (emphasis added).] The present appeal involves only the third part of that test: whether the stall-partition support bar was a dangerous
or defective conditio n of the hospital building. The plaintiffs argue that a defect e xist ed because the restroom
was inte nded f or use by psychiatric patients, including suicidal patients, and the support bar could be put to fatal
use by a suicidal patient . Ho wever, the issue before us is not whether a suicide was foreseeable, but whether the restroom had a "dangerous or defective condition" as that term is used in MCL 691.1406. In Jackson , the plaintiff presented evidence that Detroit Police Department detainees had made more than one hundred similar suicide attempts during the previous five years, and that the officers responsible for the Jackson detainee knew

5that he had attempted to hang himself in the same precinct station just one day earlier. Jackson, supra at 423-425, 429,
n 12. Thus, the dangers to confined persons generally and to the individual plaintiff were far more obvious in Jackson than in the present case. Nevertheless, Jackson held that the cell's overhead bars were not a "defective condition." 6 Evidence of foreseeability is not necessarily evidence of
a defect. As we said in our earlier decision in this very
cas e, M CL 691.1407 confers broad immunity, and the building exception create d by MCL 691.1406 is narrowly drawn. de Sanchez v Mental H ealth Dep’t , 455 Mich 83, 90; 565 NW2d 358 (1997). Whether the physical condition of a room is defective depends on the uses for which the room was specificallyassigned. Id . at 91. The present case involves a restroom used by mentally ill hospital patients, including patients who were suicidal. There is no evidence that the support bar at i ssue defectively supported the toilet stall partition or that it posed any danger to psychiatric patients generally. To paraphrase an observation made in Jackson ,

6 The di ssent maintains that Jackson is distinguishable fr omthe present case because “the building areas wher e th e bars were installed were designed for significantly different uses.” Slip op at 1. However, scrutiny of the facts in this case reveals more similarities than differences. In Jackson , the holding cell at issue was designed for the general prisoner population, some of whom were suicidal. In this case, the bathroom was designed and used by “mentally ill patients, some of whom were suicidal.” (Emphasis added.) There is no evidence in the record suggesting that the bat hroom was specificallydesigned for suicidal patients. Rather, similarlyto Jackson , the restroom was designed for use by the general psychiatric population. 6there was nothingwrong with th e bathroom. “There was, however, something tragically wrong with the decedent.” Jackson , supra at 428. One person’s self-destructive use of an otherwise benign stall-partition support bar does not transform that bar into
a "defective condition." In Jackson , we observed th at the purpose of the public building exc ept ion is to promote the maintenance of safe public buildings, not safety in public buildings. “Thus, where proper supervision would have ‘offset anyshortcomings in the configuration of the room,’ the public building exception does not apply .” Id . at 428, quoting Hickey , supra at 422. We noted that plaintiff’s claim "is
more closely related to safety in public buildings than it is to a de fect in a public building." Jackson, supra at 429 (emphasis added). To illustrate that distinction, Jackson quoted again from Hickey . To suggest that any physical feature of a jail cell, otherwise benign, that can conceivably become part of a plan of one who is desperately driven to self destruction can become a 'dangerous or defective condition' under the public building exception statute, simply crosses the outer limits of any reasonable reading of the intent of that statute when considered in the c ontext of its history, purpose, and wording. [ Jackson, supra at 429; Hickey, supra at 426.] Perhaps the present defendant could have designed the restroomwithout partition support bars. It is also arguable that the defendant’s employees were too quick to decide that the plaintiffs’ decedent no longer required continuous individual observation. But those "might haves" prove, at 7most, only negligence. Jack son , which is on point both legallyand factually, precludes finding that a selfdestructive act transformed the otherwise benign stallpartition support bar into a "defective condition." 7 For the reasons stated, we reverse the judgment of th e Court of Appeals and reinstate the judgment of the Court of Claims. MCR 7.302(F)(1). C ORRIGAN , C.J., and WEAVER , T AYLOR , Y OUNG , and M ARKMAN , JJ., concurred. CAVANAGH, J., concurs in the result only.

7 This case was held in abeyance for Brown v Genessee Co Bd of Comm’rs (After Remand) , 464 M ich 430; 628 NW2d 471(2001). However, because we conclude th at the stallpartition support bar here did not constitute a “defective condition” withi n a public building, it is unnecessary to decide the applicability of Brown to the facts of this case. 8___________________________________ v S T A T E O F M I C H I G A N SUPREME COURT

FRANCINE CULLARI deSANCHEZ and STEVEN JASON, copersonal representatives of the estate of Thomas A. Baltus, deceased, Plaintiffs-Appellees, No. 117298 STATE OF MICHIGAN, MICHIGAN DEPARTMENT OF MENTAL HEALTH, Defendant-Appellant.
KELLY, J. ( dissenting ). I disagree withthe majority's conclusion that this case is controlled by the holding in Jackson v Detroit, 449 Mich 420; 537 NW2d 151 (1995). Although both involve overhead bars from which a person hanged himself, a key difference is that the bu ilding areas where the bars were installed were designated for significantly different uses. In Jacksonthe overheadbar was in a prisoner holding cell designated for the general jail p opu lation. In this case, the room was designated exclusively for the care and treatment of personswithmental diseases, including those with suicidal tendencies. It is the use to which the building area is put here that con trols the determination whether a part of the building, such as anoverhead bar, constitutes a dangerous and defective condition. See Bush v Oscoda Area Schs , 405 Mich 716, 730; 275 NW2d 268 (1979). Inthe Jacksoncase, despite the fact that jail officials hadnotice of the potential for suicide in their holding cell, the vast majority of prisoners held there were not suicidal. See Jackson, supra at 424. The situation is quite different in a mental hospital. The majority states that "the dangers to confined persons generally and to the individual plaintiff
were far more obvious in Jacksonthan in the present case." Slip op at 6. I believe a much more accurate statement is that the dangers were obvious in both cases, but far more likely to result in death in this case than in Jackson . And, in fact, that was the difference. The majority err s, a lso, in reasoning that the current
case involves a question of safety in a public building and not an unsafe building, itself. Plaintiffs' decedent had been involuntarily committed to the defendant's facility following
anattempt to commit suicide. The bathroom in which he later didcommit suicide was used by patients who were like him, mentally ill. In light of the use made of the room where it
2was installed, the overhead bar that plaintiff's decedent used to support the noose cannot be characterized as a "benign physical feature." Rather, given the use, that rigid exposed overhead bar accessed for suicide had every p oten tial for being a dangerous and defective condition of the building. The majority has neglected to consider adequately the pu rpos es for which the building area was specifically used. It has ignored precedent holding that an overhead met al ba r might present a "safety in a building" question in one place, but be a "dangerous and defective condition" in another. I would affirm the Court of Ap peal s decision reversing summary dispositionin favor of defendant. Plaintiffs created
a genuine issue of material fact regarding whether the placement of a sol id, accessible overhead bar in an area housing suicidal mentally ill patients constituted a dangerous and defective condition within MCL 691.1406.

3