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Michigan Supreme Court 

Lansing, Michigan 48909 

C hief Justice Justices 

Maura D. Corrigan	 Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly 

Clifford W. Taylor Opinion Robert P. Young, Jr. 

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 suicide 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 the plaintiffs’ claim
 
 

 

within the public building exception to the defendant’s
 

governmental immunity. MCL 691.1406 and 691.1407(1). 


The plaintiffs filed this Court of Claims lawsuit in
 

1984. On two previous occasions, the Court of Claims granted
 

summary disposition 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 of governmental
 

immunity and 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 Defendant’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. After that failed attempt was discovered,
 

Baltus was involuntarily committed to the Ypsilanti Regional
 

Psychiatric Hospital. Hospital personnel observed Baltus
 

continuously for more than five days. His behavior during
 

1 Sub nom de 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).
 

2
 
that time persuaded them that continuous monitoring was no
 

longer necessary and that 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 within the public building exception3 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 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. [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 is engaged in the


exercise or discharge of a governmental function.


[MCL 691.1407.]
 

3
 
stall-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
 

specifically assigned, 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 summary
 

disposition under MCR 2.116(C)(10) if there is no genuine
 

issue concerning 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 of the issue presented is controlled by
 

Jackson v Detroit, 449 Mich 420; 537 NW2d 151 (1995).5 In
 

5
 We held an earlier appeal in the present case in


abeyance for Jackson. That abeyance 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.
 

4
 
 

Jackson, 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 within 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 v Zezulka (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 condition of the hospital building. The
 

plaintiffs argue that a defect existed because the restroom
 

was intended for use by psychiatric patients, including
 

suicidal patients, and the support bar could be put to fatal
 

use by a suicidal patient. However, 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
 

5
 
that 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
 

case, MCL 691.1407 confers broad immunity, and the building
 

exception created by MCL 691.1406 is narrowly drawn.
 

de Sanchez v Mental Health 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
 

specifically assigned. 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 issue 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 dissent maintains that Jackson is distinguishable


from the present case because “the building areas where the


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 bathroom was


specifically designed for suicidal patients. Rather,


similarly to Jackson, the restroom was designed for use by the


general psychiatric population.
 

6
 
there was nothing wrong with the 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 that the
 

purpose of the public building exception is to promote the
 

maintenance of safe public buildings, not safety in public
 

buildings. “Thus, where proper supervision would have ‘offset
 

any shortcomings 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 defect 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 context of its
 

history, purpose, and wording. [Jackson, supra at
 

429; Hickey, supra at 426.]
 

Perhaps the present defendant could have designed the
 

restroom without 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
 

7
 
most, only negligence. Jackson, which is on point both
 

legally and 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 the
 

Court of Appeals and reinstate the judgment of the Court of
 

Claims. MCR 7.302(F)(1).
 

CORRIGAN, C.J., and WEAVER, TAYLOR, YOUNG, and MARKMAN, 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 Mich 430; 628 NW2d


471(2001). However, because we conclude that the stallpartition support bar here did not constitute a “defective


condition” within 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 with the 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 building areas where the bars were installed were
 

designated for significantly different uses. In Jackson the
 

overhead bar was in a prisoner holding cell designated for the
 

general jail population. In this case, the room was
 

designated exclusively for the care and treatment of persons
 
 

with mental diseases, including those with suicidal
 

tendencies. It is the use to which the building area is put
 

here that controls the determination whether a part of the
 

building, such as an overhead bar, constitutes a dangerous and
 

defective condition. See Bush v Oscoda Area Schs, 405 Mich
 

716, 730; 275 NW2d 268 (1979).
 

In the Jackson case, despite the fact that jail officials
 

had notice 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 Jackson than 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 errs, also, 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
 

an attempt to commit suicide. The bathroom in which he later
 

did commit suicide was used by patients who were like him,
 

mentally ill. In light of the use made of the room where it
 

2
 
was 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 potential for
 

being a dangerous and defective condition of the building.
 

The majority has neglected to consider adequately the
 

purposes for which the building area was specifically used.
 

It has ignored precedent holding that an overhead metal bar
 

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 Appeals decision reversing
 

summary disposition in favor of defendant. Plaintiffs created
 

a genuine issue of material fact regarding whether the
 

placement of a solid, accessible overhead bar in an area
 

housing suicidal mentally ill patients constituted a dangerous
 

and defective condition within MCL 691.1406.
 

3