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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 JULY 3, 2001
 

CHESTER E. BROWN, JR.,
 

Plaintiff-Appellee,
 

v	 No. 113915
 

GENESEE COUNTY BOARD OF 


COMMISSIONERS,
 

Defendant-Appellant.
 

BEFORE THE ENTIRE BENCH (except TAYLOR, J.).
 

CORRIGAN, C.J.
 

We granted leave to consider whether an inmate, who
 

claims that a dangerous or defective condition in a jail
 

caused injuries, may avoid governmental immunity for tort
 

liability under the statutory exception for public buildings,
 

MCL 691.1406. The trial court granted summary disposition to
 

defendant-county, but the Court of Appeals reversed and held
 

that a jail falls within the exception.
 
We would reverse the Court of Appeals decision and
 

reinstate the trial court’s grant of summary disposition to
 

defendant. Although a jail is “open for use by members of the
 

public,” an inmate is not a member of the “public” as
 

contemplated by the Legislature when it enacted the public
 

building exception to governmental immunity.
 

I. UNDERLYING FACTS AND PROCEDURAL HISTORY
 

Plaintiff, an inmate in the Genesee County jail, injured
 

himself when he slipped on water near a shower stall. He sued
 

the county under the public building exception, MCL 691.1406.
 

He alleged that improper drainage and the absence of a shower
 

curtain had caused water to accumulate on the floor.1
 

The trial court granted summary disposition to defendant
 

under MCR 2.116(C)(7) on the ground that the public building
 

exception did not apply. The Court of Appeals initially
 

affirmed. 222 Mich App 363; 564 NW2d 125 (1997). It observed
 

that the shower area of the jail was not open to members of
 

the public. This Court then remanded the case to the Court of
 

Appeals for reconsideration in light of Kerbersky v Northern
 

Mich Univ, 458 Mich 525; 582 NW2d 828 (1998). 459 Mich 881
 

(1998).
 

On remand, the Court of Appeals reversed. 233 Mich App
 

1Our resolution of this case does not require us to


consider whether a structural defect, as opposed to a


transitory condition, caused the accident. Cf. Wade v Dep’t
 

of Corrections, 439 Mich 158; 483 NW2d 26 (1992).
 

2
 
325; 590 NW2d 603 (1998). It noted that Kerbersky mandates
 

analysis of the public’s access to the building itself, not
 

the specific accident site within the building. The Court of
 

Appeals assumed that a jail is open for use by members of the
 

public. Defendant now appeals.
 

II. STANDARD OF REVIEW
 

We review the grant or denial of a motion for summary
 

disposition de novo. Maiden v Rozwood, 461 Mich 109, 118; 597
 

NW2d 817 (1999). MCR 2.116(C)(7) permits summary disposition
 

where immunity granted by law bars a claim. Courts must
 

consider documentary evidence submitted by the parties.
 

Glancy v Roseville , 457 Mich 580, 583; 577 NW2d 897 (1998).
 

We review de novo questions of statutory interpretation.
 

Donajkowski v Alpena Power Co, 460 Mich 243, 248; 596 NW2d 574
 

(1999).
 

III. ANALYSIS
 

A. GOVERNMENTAL IMMUNITY
 

Absent a statutory exception, a governmental agency is
 

immune from tort liability when it exercises or discharges a
 

governmental function. MCL 691.1407(1). A governmental
 

function is “an activity which is expressly or impliedly
 

mandated or authorized by constitution, statute, local charter
 

or ordinance, or other law.” MCL 691.1401(f).
 

MCL 45.16 expressly mandates operation of jails: “each
 

organized county shall, at its own cost and expense, provide
 

3
 
at the county seat thereof . . . a suitable and sufficient
 

jail . . . and keep the same in good repair.” Defendant thus
 

enjoys general immunity from tort liability in its maintenance
 

and operation of the county jail. See Jackson v Saginaw Co,
 

458 Mich 141, 148; 580 NW2d 870 (1998).
 

B. PUBLIC BUILDING EXCEPTION
 

Several statutory exceptions to immunity exist.2 This
 

case implicates the public building exception:
 

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.] 


For this exception to apply, a plaintiff must
 

demonstrate:
 

(1) a governmental agency is involved, (2) the


public building in question was 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 or


failed to take action reasonably necessary to
 

2

They include: the highway exception, MCL 691.1402; the


motor vehicle exception, MCL 691.1405; the public building


exception, MCL 691.1406; the proprietary function exception,


MCL 691.1413; and the governmental hospital exception, MCL


691.1407(4).
 

4
 
protect the public against the condition after a


reasonable period. [Kerbersky, supra at 529.]
 

Today we would hold that the plain statutory language also
 

requires that the party seeking relief be a member of the
 

“public.”
 

1. WAS THE JAIL OPEN FOR USE BY MEMBERS OF THE PUBLIC?
 

Mere public ownership of a structure does not satisfy the
 

express language of the public building exception. A building
 

must also be open for use by members of the public.
 

Kerbersky, supra at 533.3 When determining the public’s
 

access, we analyze the building itself, not the specific
 

accident site within the building. Id. at 527.
 

Plaintiff claims to have injured himself near a shower
 

stall in defendant’s jail. Under Kerbersky, we examine the
 

public’s access to the jail rather than the shower area. Id.
 

Green v Dep’t of Corrections, 386 Mich 459; 192 NW2d 491
 

(1971), held that a jail falls within the scope of the
 

statutory exception.4 In other decisions, this Court has
 

3Examples of publicly owned buildings that are not open


for use by members of the public include: a city-owned


apartment used as a private residence, Griffin v Detroit, 178


Mich App 302; 443 NW2d 406 (1989); a publicly owned building


that is closed for renovations, Dudek v Michigan, 152 Mich App


81; 393 NW2d 572 (1986); and a locked building that was not


designed for public access, Taylor v Detroit, 182 Mich App


583; 452 NW2d 826 (1989).
 

4While we agree with Green that a jail is subject to the


public building exception, we do not approve the reasoning in


that decision. This Court in Green failed to analyze whether


a jail is open for use by members of the public. Moreover,
 

5
 
implicitly assumed as much. See, e.g., Wade v Dep’t of
 

Corrections, 439 Mich 158; 483 NW2d 26 (1992).
 

We would reaffirm that a jail is open for use by members
 

of the public. Family, friends, and attorneys may generally
 

visit inmates. Members of the public may also enter a jail
 

for other reasons, e.g., to apply for a job or make a
 

delivery.
 

The fact that public access to a jail is limited does not
 

alter our conclusion. Schools fall within the exception even
 

though members of the public may not enter whenever and
 

wherever they please. See Sewell v Southfield Public Schools,
 

456 Mich 670; 576 NW2d 153 (1998); Bush v Oscoda Area Schools,
 

405 Mich 716; 275 NW2d 268 (1979). The public building
 

exception applies to buildings with limited access, including
 

schools and prisons. Kerbersky, supra at 534; Steele v Dep’t
 

of Corrections, 215 Mich App 710, 715; 546 NW2d 725 (1996).
 

2. IS A JAIL INMATE A MEMBER OF THE PUBLIC?
 

We next consider whether an inmate is a member of the
 

“public” who may avoid immunity under the public building
 

exception. To answer this question, we examine the statutory
 

text.
 

for reasons discussed below, we would overrule Green to the
 

extent that it treats inmates as members of the “public” for


purposes of the statutory exception.
 

6
 
 

a. RELEVANT PRINCIPLES OF STATUTORY INTERPRETATION
 

Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d
 

119 (1999), articulated the proper mode of interpretation:
 

The rules of statutory construction are well


established. The foremost rule, and our primary


task in construing a statute, is to discern and


give effect to the intent of the Legislature.


Murphy v Michigan Bell Telephone Co, 447 Mich 93,


98; 523 NW2d 310 (1994). See also Nation v W D E
 

Electric Co, 454 Mich 489, 494; 563 NW2d 233


(1997). This task begins by examining the language


of the statute itself. The words of a statute
 

provide “the most reliable evidence of its intent


. . . .” United States v Turkette, 452 US 576,


593; 101 S Ct 2524; 69 L Ed 2d 246 (1981). If the
 

language of the statute is unambiguous, the
 

Legislature must have intended the meaning clearly


expressed, and the statute must be enforced as


written. No further judicial construction is


required or permitted. Tryc v Michigan Veterans’
 

Facility, 451 Mich 129, 135; 545 NW2d 642 (1996).
 

“Contextual understanding of statutes is generally
 

grounded in the doctrine of noscitur a sociis: ‘[i]t is known
 

from its associates,’ see Black’s Law Dictionary (6th ed), p
 

1060. This doctrine stands for the principle that a word or
 

phrase is given meaning by its context or setting.” Tyler v
 

Livonia Schools, 459 Mich 382, 390-391; 590 NW2d 560 (1999).
 

Also, when construing a statute, we presume that every
 

word has meaning; our interpretation should not render any
 

part of the statute nugatory. People v Borchard-Ruhland, 460
 

Mich 278, 285; 597 NW2d 1 (1999).
 

b. INTERPRETATION
 

The first sentence of the public building exception
 

7
 
articulates the governmental agency’s duty (“to repair and to
 

maintain public buildings”) and a limitation of that duty
 

(“when [the buildings are] open for use by members of the
 

public”). As discussed above, the limiting phrase explicitly
 

restricts the types of buildings to which the duty extends.
 

Unless a building is open for use by members of the public, it
 

does not fall within the exception. But this phrase also
 

limits implicitly the class of persons who may sue. It
 

excludes persons who are not members of the public, i.e.,
 

those persons who are not present in the building as potential
 

invitees.
 

The Legislature simply could have ended the first
 

sentence of the statute after it articulated the duty owed by
 

governmental agencies. It instead set forth a limitation of
 

the duty. The Legislature would not have limited the duty to
 

buildings that are open to members of the public if it had
 

intended to protect persons who are not members of the public.
 

By including the public within the protected class, the
 

Legislature implicitly excluded persons who are not members of
 

the public. See Hoste v Shanty Creek Management, Inc, 459
 

Mich 561, 572, n 8; 592 NW2d 360 (1999) (the express mention
 

of one thing in a statute impliedly excludes other similar
 

things). Thus, allowing anyone to sue would effectively
 

nullify the limiting phrase.
 

8
 
Read in context, therefore, the duty created in the
 

statute protects members of the public from dangerous and
 

defective conditions in public buildings. We decline to read
 

the statutory language out of context or to “stretch” the
 

common, ordinary meaning of the words to include a class of
 

persons whom the Legislature expressed no intent to protect.5
 

Jail inmates are not members of the public for purposes
 

of the public building exception.6 Unlike a person who enters
 

a jail, e.g., to meet with an inmate, make a delivery, or
 

apply for a job, an inmate does not visit a jail as a
 

potential invitee. Instead, inmates are legally compelled to
 

be there. Inmates thus are not within the class of persons
 

the Legislature intended to protect from defects in public
 

buildings.7
 

5Our concurring colleague believes that a person who is


not a member of the public may sue for injuries that occur in


an area of a public building that is open to the public. The
 

statutory text, however, plainly refers to buildings that are
 

open to members of the public; it does not refer to areas of
 

public buildings that are open to persons who are not members
 

of the public. Moreover, Kerbersky, supra, held that the


situs of an injury in a public building is not relevant.
 

6Our concurring colleague agrees that an inmate is not a


member of the public, but relies on different language in the


statute to reach that conclusion.
 

7 Our proposed holding today is limited to jail inmates;


we offer no view regarding other classes of persons. It is
 

worth observing, however, that unlike jail inmates, students


attending a public school are not legally compelled to be


there. They have other choices, including charter schools,


private schools, and home schooling.
 

9
 
It is undisputed that plaintiff was an inmate when he
 

injured himself near a shower stall in defendant’s jail. He
 

therefore was not a member of the public for purposes of the
 

public building exception.8
 

IV. CONCLUSION
 

A jail is open for use by members of the public.
 

However, jail inmates are not members of the public and thus
 

cannot avoid governmental immunity under the public building
 

exception. Accordingly, we would reverse the Court of Appeals
 

decision and reinstate the trial court’s grant of summary
 

disposition for defendant.
 

WEAVER and YOUNG, JJ., concurred with CORRIGAN, C.J.
 

8The dissent offers no analysis of the text of the public


building exception to support its view that inmates are


“members of the public.” Instead, the dissent relies on the


“logic” in Green, supra, and dicta from other cases.
 

Our duty to honor the intent of the Legislature, as


expressed in unambiguous statutory text, is paramount. This
 

Court in Green offered no analysis to support its assertion


that an inmate “is a member of the public community.” Id. at
 

464. As we have explained, treating inmates as “members of


the public” would nullify the limiting phrase in the public


building exception. We decline to elevate an isolated,
 

conclusory assertion in Green above the plain language of the
 

public building exception.
 

10
 
 

 

S T A T E O F M I C H I G A N
 

SUPREME COURT
 

CHESTER E. BROWN, JR.,
 

Plaintiff-Appellee,
 

v No. 113915
 

GENESEE COUNTY BOARD OF
 

COMMISSIONERS,
 

Defendant-Appellant.
 

MARKMAN J. (concurring).
 

I concur in the result reached in the plurality opinion
 

because I agree that the public building exception to
 

governmental immunity is not applicable in this case, although
 

I reach this conclusion on the basis of a different analysis
 

than that of the plurality opinion’s. Accordingly, I concur
 

in the plurality opinion’s reversal of the decision of the
 

Court of Appeals and the reinstatement of the trial court’s
 

grant of summary disposition in favor of defendant.
 

First, I agree with the plurality opinion’s conclusion
 
that a jail is “open for use by members of the public,” as
 

well as in its analysis in reaching this conclusion. Second,
 

I agree that an inmate is not a member of the public within
 

the meaning of the public building exception. However, I
 

respectfully disagree with the analysis by which the plurality
 

opinion reaches this conclusion. It reaches such a conclusion
 

on the basis of the statutory language that limits the
 

government’s duty to repairing and maintaining public
 

buildings that are “open for use by members of the public.”
 

In contrast, I reach this same conclusion on the basis of the
 

statutory language that limits the government’s liability to
 

injuries caused by failing to “take action reasonably
 

necessary to protect the public against the condition.” We
 

both conclude that a jail inmate is not a member of the public
 

for purposes of the public building exception in order to
 

avoid rendering the language of the statute meaningless by
 

encompassing within the definition of public virtually
 

everyone. The difference in our analyses is that I come to
 

this conclusion in order to avoid rendering the term “public”
 

as contained in the last sentence of the statute meaningless,
 

whereas the plurality opinion comes to the same conclusion in
 

order to avoid rendering the term “public” as contained in the
 

first sentence of the statute meaningless.
 

2
 
 

Finally, I disagree with the plurality opinion’s
 

conclusion that a party seeking relief under the public
 

building exception must be a member of the public. The
 

essential difference between my interpretation of the statute
 

and that of the plurality is that I view the statute as a
 

“where” statute while it views the statute as a “who” statute.
 

In other words, I believe that the statute limits the
 

government’s liability to certain places, i.e., public
 

buildings that are “open for use by members of the public.”
 

In contrast, the plurality opinion asserts that the statute
 

limits the government’s liability to certain people, i.e.,
 

members of the public.
 

I. ANALYSIS
 

I agree with the plurality opinion’s conclusion that an
 

inmate is not a member of the public within the meaning of the
 

public building exception. However, I come to this conclusion
 

for reasons different from the plurality opinion’s. The
 

plurality reaches this conclusion on the basis that the
 

limitation of the government’s duty to only public buildings
 

that are “open for use by members of the public” also
 

implicitly limits the government’s duty to only members of the
 

public. Slip op at 8. In my view, the language “open for use
 

by members of the public” limits only which buildings are
 

3
 
public buildings for purposes of the public building
 

exception. Accordingly, a jail is a public building within
 

the meaning of the public building exception because it is
 

“open for use by members of the public.” 


In my judgment, the important issue in this case is not
 

merely whether defendant was a member of the public, but
 

rather whether action by the defendant “was reasonably
 

necessary to protect the public against the [alleged dangerous
 

or defective] condition” of the public building. The public
 

building exception statute provides: 


Governmental agencies are liable for bodily


injury and property damages resulting from a
 

dangerous or defective condition of a public


building if the governmental agency . . . failed to


. . . take action reasonably necessary to protect
 

the public against the condition. [MCL 691.1406


(emphasis added).] 


It is clear from the language of the statute, i.e., “necessary
 

to protect the public,” that the Legislature intended to limit
 

the government’s liability, in that the government only is
 

liable for failing to “take action reasonably necessary to
 

protect the public.” Thus, the relevant question is whether
 

action was “necessary to protect the public.” Because the
 

government is only liable for injuries caused by failing to
 

“take action reasonably necessary to protect the public,” if
 

a member of the public is injured in a “public building,” the
 

4
 
government may be liable.1
 

However, because this liability is limited to failing to
 

“take action reasonably necessary to protect the public,” if
 

a person who is not a member of the public is injured in a
 

“public building,” the government may only be liable if the
 

plaintiff was injured in an area of the building open to the
 

public. This is true because, in order to protect members of
 

the public, the government must keep areas of public buildings
 

that are open to members of the public free from dangerous or
 

defective conditions.2

 However, because this liability is
 

limited to failing to “take action reasonably necessary to
 

protect the public,” the government is not liable for failing
 

to repair and maintain areas of public buildings not open to
 

the public, unless a member of the public is actually injured
 

therein. See Kerbersky v Northern Mich Univ; 458 Mich 525,
 

1

 Plaintiff would still have to prove that the injury was


caused by a dangerous or defective condition of the building


and that the governmental agency had knowledge of the


condition and failed to remedy the condition after a
 

reasonable period.
 

2 Because the government is liable for failing to “take


action reasonably necessary to protect the public,” the


government may be serendipitously liable for failing to
 

protect a person who is not a member of the public, if that


person is injured in an area of the building open to the


public. This liability does not arise because of some duty


owed to the person who is not a member of the public; rather,


it arises from the duty owed to protect members of the public.


The person who is not a member of the public is merely an


incidental beneficiary of this duty owed to the public.
 

5
 
527; 582 NW2d 828 (1998).3

 Therefore, in order for the public
 

building exception to apply, plaintiff must establish that (1)
 

he was a member of the public, or (2) he was injured in an
 

area of the building open to the public.
 

The plurality opinion concludes that a party seeking
 

relief under the public building exception must be a member of
 

the public. Slip op at 5. It asserts that the limitation of
 

the government’s duty to public buildings that are “open for
 

use by members of the public” also implicitly limits the
 

government’s duty to only members of the public. Slip op at
 

8. I respectfully disagree. The statutory language clearly
 

expresses the Legislature’s intent for the government’s duty
 

to only apply to certain buildings, but it says nothing about
 

limiting the government’s duty to certain people.
 

3 Kerbersky held that the government is liable to members


of the public for injuries caused by dangerous or defective


conditions of public buildings, regardless of whether the


accident site was open to members of the public. However,


Kerbersky did not distinguish between members of the public


and persons who are not members of the public. Thus,


consistent with Kerbersky, I would continue to hold that the


government may be liable to members of the public, regardless


of whether the specific accident site was open to members of


the public. However, I would now make the distinction


mandated, in my judgement, by the statute, between members of
 

the public and persons who are not members of the public. I
 

would conclude that, even though the government may be liable


to members of the public injured in an area of the building


not open to members of the public, the government is not


liable to persons who are not members of the public who are


injured in an area of the building not open to members of the


public.
 

6
 
 

 

The plurality opinion contends that “[t]he Legislature
 

would not have limited the duty to buildings that are open to
 

members of the public if it had intended to protect persons
 

who are not members of the public.” Id. at 8 (emphasis in the
 

original). Although I do not know with any certainty what
 

motivated the Legislature in this regard, I suspect that it
 

included this language to ensure that the public building
 

exception would apply to buildings that are open, to some
 

degree, to the public, such as jails and office buildings, but
 

not to buildings that are altogether closed to the public,
 

such as electrical substations and data facilities. Had it
 

merely limited the government’s duty to members of the public,
 

without limiting the government’s duty to public buildings
 

that are “open for use by members of the public,” the statute
 

may well have imposed what the Legislature perceived as an
 

unreasonable burden upon the government to maintain and repair
 

such “public buildings” as substations and data facilities at
 

an unnecessarily high level. The corollary to the plurality
 

opinion’s argument, of course, is that if the Legislature had
 

intended to protect only members of the public, it could have
 

just as easily stated that proposition, as well. 


A. IS A JAIL INMATE A MEMBER OF THE PUBLIC WITHIN THE MEANING OF THE
 

PUBLIC BUILDING EXCEPTION?
 

In determining whether the government is liable for
 

7
 
 

injuries sustained by a plaintiff under the public building
 

exception, the first inquiry is whether the plaintiff is a
 

member of the public. “The primary goal of judicial
 

interpretation is to ascertain and give effect to the intent
 

of the Legislature.” McJunkin v Cellasto Plastic Corp, 461
 

Mich 590, 598; 608 NW2d 57 (2000). This Court’s obligation
 

is to determine the Legislature’s intent “as gathered from
 

the act itself.” Id. MCL 691.1406 provides that a
 

governmental agency is liable for failing to do what is
 

“reasonably necessary to protect the public” against
 

dangerous or defective conditions in public buildings. The
 

logical reading of this statute is that the Legislature
 

intended to limit the government’s liability to injuries
 

caused by the government’s failure to protect members of the
 

public. It is clear from the plain words of the statute,
 

i.e., “necessary to protect the public,” that the Legislature
 

did not intend under the public building exception for
 

governmental agencies to be liable for injuries caused by the
 

government’s failure to do what is necessary to protect
 

persons who are not members of the public, such as jail
 

inmates.
 

A jail inmate is not in the class of persons the
 

Legislature intended to protect when it enacted the public
 

8
 
 

 

building exception to governmental immunity.4 This is
 

evidenced by the statutory language limiting a governmental
 

agency’s liability to injuries caused by the government’s
 

failure to take action to protect members of the public.
 

People who enter jails to visit inmates are members of the
 

public whom the Legislature intended to protect. However, in
 

my judgement, an inmate who is legally compelled to be at the
 

jail is not a member of the public for purposes of the public
 

building exception. 


This Court’s interpretation of a statute must avoid
 

denying effect to portions of that statute. Piper v
 

Pettibone Corp, 450 Mich 565, 571-572; 542 NW2d 269 (1995).
 

If we were to interpret “public” to include inmates, we would
 

be denying effect to a portion of the public building
 

statute. The Legislature intended governmental agencies to
 

only be liable for failing to protect members of the public.
 

However, if we interpret “public” to include inmates,
 

governmental agencies would effectively be liable to everyone
 

because, if an inmate is a member of the public, it is
 

difficult to conceive of who would not be considered to be
 

part of such a class. The inmate is segregated from the
 

4 The government may still be liable to persons who are


not members of the public, such as jail inmates, if they are


injured in an area of a public building open to the public, as


discussed above.
 

9
 
public, he is severely limited in his ability to intermingle
 

with the public, and under typical circumstances is confined
 

to an area in which the public has no right to be. I would
 

conclude that the statute does not impose liability upon
 

governmental agencies for failing to do what is necessary to
 

protect inmates of a jail for purposes of the public building
 

exception. Accordingly, I agree with the plurality opinion’s
 

conclusion that a jail inmate is not a member of the public
 

within the meaning of the public building exception, and thus
 

I concur with the plurality opinion’s overruling of that part
 

of Green v Dep’t of Corrections, 386 Mich 459; 192 NW2d 491
 

(1971), which held that inmates are members of the public
 

community whether in or out of jail.5
 

5

 The dissent criticizes the plurality opinion’s
 

overruling of Green. Post at 3. The dissent asserts that,


“despite the plurality’s misguided belief that we can ignore


precedent whenever this Court’s reading of a statute would


lead to a different result than that of a prior Court, I


continue to find value in respecting precedent.” Id. In my


judgment, the plurality opinion did not ignore precedent;


rather, it accurately explained why it was necessary to


overrule Green in order to enforce the plain meaning of the


statutory language. Although I, like the dissent, find


considerable value in respecting precedent, I also find value


in enforcing the plain meaning of statutory language. See
 

Nawrocki v Macomb Co Rd Comm, 463 Mich 143, 151; 615 NW2d 702


(2000) (holding that “we are duty-bound to overrule past


decisions that depart from . . . the plain language of the


statutory clause . . .”). I agree with the plurality opinion


that this Court should not “elevate an isolated, conclusory


assertion in Green above the plain language of the public


building exception.” Slip op at 10, n 8. Further, to place


the Green decision in context, I note that Green was decided
 

(continued...)
 

10
 
B. WAS PLAINTIFF INJURED IN AN AREA OF THE BUILDING OPEN TO THE
 

PUBLIC?
 

In determining whether the government is liable for
 

injuries sustained by plaintiff under the public building
 

exception, the second inquiry is whether the plaintiff was
 

injured in an area of the building open to the public. In
 

order to protect the public, governmental agencies must
 

ensure that all areas of public buildings, to which the
 

public has access, contain no dangerous or defective
 

conditions. It would be illogical to hold that a
 

governmental agency must keep all areas of a public building
 

free from dangerous or defective conditions, because the
 

statute expressly provides that a governmental agency only is
 

liable for failing to protect the “public” from those
 

conditions. Thus, governmental agencies are not liable for
 

5(...continued)


during a period in which this Court gave the term
 

“governmental function” a narrow reading, while giving broad


readings of the statutory exceptions to governmental immunity.


In contrast with that prior era, we now interpret the term


“governmental function” broadly and construe the exceptions


narrowly. Ross v Consumers Power Co(On Rehearing), 420 Mich
 

567; 363 NW2d 641 (1984). Moreover, in Green, the Court


focused its analysis on whether the building was a pubic


building, i.e., “open for use by members of the public.” The
 

Court never discussed whether action was “necessary to protect


the public.” Green held, in the context of whether a jail is


a public building, that an inmate is a member of the public,


whereas I would now hold in the context of whether action is
 

“necessary to protect the public” from a defective or
 

dangerous condition of a public building, that an inmate is


not a member of the public. 


11
 
failing to keep areas of public buildings to which the public
 

does not have access free from dangerous or defective
 

conditions, unless that condition, in fact, causes a member
 

of the public injury. See Kerbersky, supra at 527. 


Kerbersky, supra at 527, held that “a member of the
 

public injured as the result of a defect[ive] or dangerous
 

condition of a building that is open to members of the public
 

may invoke the public building exception to governmental
 

immunity, even if the person is injured in an area of the
 

building not open for use by members of the general public.”
 

I would reaffirm that holding. What I would hold today is
 

that a person who is not a member of the public cannot invoke
 

the public building exception to governmental immunity if
 

that person is injured in an area of the building not open to
 

the public. However, a person who is not a member of the
 

public may invoke the public building exception if that
 

person was injured in a part of the building that is open to
 

the public. In sum, a member of the public can invoke the
 

public building exception, regardless of whether the specific
 

accident site was open to members of the public, but a person
 

who is not a member of the public cannot invoke the public
 

building exception unless the accident site was open to
 

members of the public. I reach this conclusion, not because
 

it necessarily conforms with my own views about the proper
 

12
 
contours of governmental immunity, but because I believe that
 

it most closely conforms with the language of the public
 

building exception. 


The Court, in Kerbersky, concluded that, when
 

determining whether a building is a public building for
 

purposes of the public building exception, the situs of the
 

injury is irrelevant. However, Kerbersky did not conclude
 

that the situs of the injury is irrelevant for all purposes.
 

I would concur with Kerbersky, in that, when determining
 

whether a building is a public building, the proper inquiry
 

is into the public nature of the building itself, not merely
 

the specific accident site. Thus, in deciding that a jail is
 

a public building, I examined the jail itself, not merely the
 

shower area in which plaintiff was injured. However, the
 

situs of an injury is relevant when determining whether the
 

government is liable for failing to “take action reasonably
 

necessary to protect the public.” In Kerbersky, the Court
 

concluded that the government is liable to a member of the
 

public who is injured as the result of a dangerous or
 

defective condition of a public building, regardless of
 

whether that person was injured in an area of the building
 

open to the public. Therefore, the situs of an injury is
 

irrelevant when determining the government’s liability to a
 

member of the public. However, Kerbersky did not make the
 

13
 
distinction between members of the public and persons who are
 

not members of the public. I now make this distinction,
 

which is, in my judgment, mandated by the statute. The
 

government is liable for injuries to members of the public,
 

regardless of where they are injured in the building, because
 

the government is liable for injuries caused by failing to
 

take remedial action “reasonably necessary to protect the
 

public.” But, the government is liable to persons who are
 

not members of the public only if they are injured in an area
 

of the building open to the public because the government is
 

only liable for injuries caused by failing to take remedial
 

action when such action was “reasonably necessary to protect
 

the public.” Therefore, I would conclude that, even though
 

a jail is a public building, the public building exception
 

does not apply to an inmate injured in an area of that jail
 

not open to the public.6
 

6

 The plurality opinion asserts that the statute does not


support my position that the public building exception is


applicable to people who are not members of the public who are


injured in an area of a “public building” that is open to the


public. Slip op at 9, n 5. I respectfully disagree. The
 

statute provides that governmental agencies are liable for


injuries caused by its failure to “take action reasonably


necessary to protect the public against the condition.”


Clearly, this means that governmental agencies are liable for


injuries caused by its failure to repair and maintain areas of


“public buildings” that are open to the public because, in


that case, action would be “reasonably necessary to protect


the public.” What the statute does not support, in my


judgment, is the plurality’s holding that governmental


(continued...)
 

14
 
 

 

In the present case, members of the public did not have
 

access to the shower area, which is where plaintiff was
 

injured. Because plaintiff was not a member of the public
 

and was injured in an area of the jail that was not open to
 

the public, defendant should not be held liable under the
 

public building exception for failing to keep the shower area
 

free of defective or dangerous conditions.
 

II. CONCLUSION
 

The government is generally immune from tort liability.
 

However, there are several statutory exceptions that apply to
 

this broad grant of immunity, one being the public building
 

exception. I agree with the plurality opinion that a jail is
 

a public building “open for use by members of the public.”
 

I also agree that plaintiff is not a member of the public.
 

However, in my judgment, that is not the end of the inquiry.
 

The plurality views this statute as a “who” statute, meaning
 

6(...continued)


agencies are never liable for injuries sustained by people who


are not members of the public.
 

The plurality opinion also asserts that “Kerbersky,
 

supra, held that the situs of an injury in a pubic building is


not relevant.” Slip op at 9, n 6. However, as I have already
 

noted, Kerbersky only held that the situs of an injury in a


public building is irrelevant when determining a governmental


agency’s liability to a member of the public. It did not hold
 

that the situs of an injury is irrelevant when determining a


governmental agency’s liability to a person who is not a


member of the public. This is the distinction I now make,


which, in my judgment, is mandated by the statute. 


15
 
that it limits the government’s liability to certain people,
 

i.e., members of the public. Therefore, the plurality
 

concludes that because plaintiff is not a member of the
 

public, he cannot recover under the public building
 

exception. In my judgment, however, it is more consonant
 

with the statutory language to view this statute as a “where”
 

statute, meaning that it limits the government’s liability to
 

certain places, i.e., public buildings that are “open for use
 

by members of the public.” Additionally, the government is
 

only liable for injuries caused by failing to take remedial
 

action “reasonably necessary to protect the public.”
 

Therefore, because plaintiff is not a member of the public,
 

it is necessary to determine whether plaintiff was injured in
 

an area of the building that was open to members of the
 

public. Because plaintiff is not a member of the public, and
 

because he was injured in an area of the building that was
 

not open to members of the public, defendant should not be
 

held liable under the public building exception for failing
 

to protect plaintiff from the alleged dangerous or defective
 

condition. Accordingly, I concur in the plurality opinion’s
 

reversal of the Court of Appeals decision and the
 

reinstatement of the circuit court’s grant of summary
 

disposition in favor of defendant.
 

16
 
________________________________ 

S T A T E O F M I C H I G A N
 

SUPREME COURT
 

CHESTER E. BROWN, JR.,
 

Plaintiff-Appellee,
 

v N o .
 

113915
 

GENESEE COUNTY BOARD OF
 

COMMISSIONERS,
 

Defendant-Appellant.
 

CAVANAGH, J. (dissenting).
 

I believe that leave was improvidently granted in this
 

case. Further, I believe that the lead opinion unwisely
 

departs from precedent and reaches out to discuss issues that
 

have already been adequately addressed by the courts of this
 

state. I agree with the lead opinion to the extent that it
 

recognizes that jails are public buildings “open for use by
 

members of the public” for the purposes of the public
 

building exception to governmental immunity, MCL 691.1406.
 

However, I dissent from the plurality’s decision to examine
 

the question whether inmates are members of the public, and
 
its decision to overrule a prior decision of this Court in
 

favor of its own interpretation.
 

The issue argued by the parties in this case was whether
 

the Genesee County jail is a public building open for use by
 

members of the public within the meaning of MCL 691.1406.
 

The lead opinion correctly concludes that it is. Slip op at
 

1. However, rather than resolving the case solely on the
 

merits of the question before it, the plurality chooses to
 

address the question whether an inmate is a member of the
 

public. Moreover, the plurality dedicates a solitary
 

sentence in a footnote to the fact that the question it deems
 

of utmost importance in this case has already been addressed
 

by this Court, Green v Dep’t of Corrections, 386 Mich 459;
 

192 NW2d 491 (1971). 


I cannot join the plurality’s unsupportable decision to
 

“overrule Green to the extent that it treats inmates as
 

members of the public for purposes of the statutory
 

exception.” Corrigan, C.J. slip op at 6, n 4. Rather,
 

assuming that the question should even be addressed in the
 

context of this case, I would apply Green. 


In Green, the plaintiff was an inmate in the Detroit
 

House of Corrections, a municipal facility operated by the
 

Department of Corrections. He injured himself while
 

operating machinery in a prison shop area. This Court
 

2
 
explicitly rejected the argument that the Detroit House of
 

Corrections was nonpublic simply because it was not open to
 

the public at large. The Court held that the facility was a
 

“public building” for immunity purposes. The Court also
 

stated that, “plaintiff is a member of the community whether
 

in or out of jail.” Id. at 464.
 

The basis for the present suit is the same as it was in
 

Green. Both cases were granted to examine the same statutory
 

language, “[g]overnmental agencies have the obligation to
 

repair and maintain public buildings under their control when
 

open for use by members of the public.” MCL 691.1406; see
 

also Green at 464. Other than to effectuate a policy change,
 

I see no reason for this Court to depart from the logic Green
 

used thirty years ago and that this Court has implicitly
 

followed since. The plurality offers nothing substantial in
 

support of its observation that “[j]ail inmates are not
 

members of the public for purposes of the public building
 

exception.” Slip op at 9. Given Green’s finding to the
 

contrary, I believe that the conclusion is erroneous. 


Further, despite the plurality’s misguided belief that
 

we can ignore precedent whenever this Court’s reading of a
 

statute would lead to a different result than that of a prior
 

Court, I continue to find value in respecting precedent. The
 

plurality proclaims that Green is contrary to legislative
 

3
 
intent, and believes that Green made an isolated observation
 

about whether prisoners are members of the public. Given the
 

plurality’s distaste for precedent that would support a
 

different view than its own, I question whether it gives any
 

credence to the fact that the Green Court defined the
 

“controlling” issue in that case as “whether the state,
 

through the Department of Corrections, may be held to respond
 

in damages for tortious injury sustained by a state-sentenced
 

convict while he is incarcerated in the Detroit House of
 

Correction.” Green at 462. 


I would also note that the plurality completely ignores
 

the fact that this Court has historically permitted suits
 

arising out of prisoner injuries to be brought under the
 

public building exception. See Johnson v Detroit, 457 Mich
 

695; 579 NW2d 895 (1998)(a prisoner hanged himself in a jail
 

cell); Hickey v Zezulka, 439 Mich 408; 487 NW2d 106 (1992)(a
 

prisoner committed suicide in a jail cell); Wade v Dep’t of
 

Corrections, 439 Mich 158; 483 NW2d 26 (1992)(an inmate
 

brought slip and fall action). Thus, the plurality’s plain
 

observation not only contravenes Green, but would eliminate
 

causes of actions that have been repeatedly recognized by
 

this Court as being available.1
 

1 The plurality finds these decisions to be of no import


since they did not squarely address whether prisoners are


(continued...)
 

4
 
For these reasons, I believe not only that leave was
 

improvidently granted, but that the plurality improvidently
 

uses this case as a vehicle for restricting the public
 

building exception to governmental immunity. Therefore, I
 

dissent.
 

KELLY, J., concurred with CAVANAGH, J.
 

TAYLOR, J., took no part in the decision of this case.
 

(...continued)


members of the public. However, they did not need to address


the issue since it had already been decided in Green. Quite


simply, the plurality today would change an established


principle of Michigan law.
 

5