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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 Robert P. Young, Jr. 

# Opinion

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 jai l caused i njuri es, 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 rever se t he Court of Appeals decision and reinstate the trial court’s grant of sum marydisposition to defendant. Although a jail is “open for use by members of the public,” an inmate is not a member of the “public” as contemplatedby 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 MichUniv , 458 Mich 525; 582 NW2d 828 (1998). 459 Mich 881 (1998). Onremand, the Court of Appeals reversed. 233 Mich App

1 Our resolution of this case does not re qui re us to co nsid er 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). 2325; 590 NW2d 603 (1998). It noted that Kerbersky mandates analysis of the public’s access to the buil ding i tself, 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. S TANDARD OF REVIEW We review the grant or denial of a motion for summary dispositionde novo. Maiden v Rozwood , 461 Mich109, 118; 597 NW2d 817 (1999). MCR2.116(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 Mich243, 248; 596 NW2d 574 (1999). III. A NALYSIS A. G OVERNMENTAL IMMUNITY Absent a s tatutory exception, a governmental agency is immune from tort liability when it exercises or discharges a governmental function. MCL 691.1407(1). A govern ment al functionis “an activity which is expressly or impliedly mandatedor authorized by constitution, statute, local charter or ordinance, or other law.” MCL 691.1401(f). MCL 45.16 expressly mand ates operation of jails: “each organized county shall, at its own cost and expense, provide 3at the county seat there of . . . 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. P UBLIC 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 openfor use by members of the public. Governmental agencies are liable for bodily injury andproperty damage resultin g fr om a dangerous or defective condition of a publ ic 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 conditionor take action reasonably necessary to protect the public against the cond ition. [MCL 691.1406.] For thi s exception to apply, a plaintiff must demonstrate: (1) a governmental agency is involved, (2) the pu blic building in question was open for use by members of the public, (3) a dangerous or defective conditionof the public building itself exists, (4) the governmental agency had actual or constructive knowledge of the alleged d efe ct, 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: th e h ighway 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). 4protect the public against the condition after a reasonable period. [ Kerbersky , supra at 529.] Today we wou ld hold that the plain statutory language also requires that the party seeking relief be a member of the “public.” 1. W AS 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 s hower stall in defendan t’s ja il. Under Kerbersky , we examine the public’s access to the jail rather than the shower area. Id . Greenv Dep’t of Corrections , 386 Mich 459; 192 NW2d 491 (1971), held that a jail falls within the scope of the st atutory exception. 4 In other decisions, this Court ha s

3 Examples of publicly owned buildings that are not open for use by members of the public include: a city-owned apartment usedas 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 bu ildin g that was not designedfor public access, Ta ylor v Detroit , 182 Mich App 583; 452 NW2d 826 (1989).

4 While we agree with Greenthat a jail is subject to the public building exception, we do not approve the reasoning in that decision. This Court in Greenfailed to analyze whether a jail is open for use by members of the public. Moreover, 5implicitly 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. Memb ers o f the public may also enter a jail for other r ea sons, 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 tho ughmembers of the public may not enter whenever and wherever they please. See Sewell v Southfield Public Schools , 456 Mich 670; 576 NW2d 153 (1998); Bushv Oscoda Area Schools , 405 Mich 716; 275 NW2d 268 (1979). The public building exceptionapplies to buildings with limitedaccess, including schools and prisons. Kerbersky , supra at 534; Steele v Dep’t of Corrections , 215 Mich App 710, 715; 546 NW2d 725 (1996). 2. I S 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 bu ildi ng exception. To answer this question, we examine the statutory text.

for reas ons di scussed below, we would overrule Greento the extent that it treats inmates as members of the “public” for purposes of the statutory exception. 6a. R ELEVANT 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 tas k in construing a statute, is to discern and gi ve eff ect to the intent of the Legislature. Murphy v Michiga n Be ll 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 statut e itself. The words of a statute prov ide “the most reliable evidence of its intent

. . . .” United State s 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 ex pr essed, and the statute must be enforced as written. No further judicial construction is required or perm itte d. Tryc v Michigan Veterans’ Facility , 451 Mich 129, 135; 545 NW2d 642 (1996). “Contextual understanding of statutes is generally groundedin 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 sta tute , 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. I NTERPRETATION The f ir st sentence of the public building exception

7articulates the governmental agency’s duty (“to repair and to maintainpublic buildings”) and a limit atio n 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 Le gislature 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 tha t are open to members of the publicif it had intendedto 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 s imi lar things). Thus, allowing anyone to sue would effectively nullify the limiting phrase.

8Read in context, therefore, the duty created in the statute protects members of the public f rom dangerous and defective conditions inpublic 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 personwho enters

a jail, e.g., to meet with an inmate, mak e 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

5 Our 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.

6 Our 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 regar ding 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. T hey have other choices, including charter schools, private schools, and home schooling. 9It 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. C ONCLUSION 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 decisionand reinstate the trial court’ s gr ant of summary disposition for defendant. WEAVER and Y OUNG , JJ., concurred with C ORRIGAN , C.J.

8 The dissent offers no analysis of the text of the public building exception to support its vi ew t hat inmates are “members of the public.” Instead, the dis sent r elies on the “logic” in Green , supra , and dicta from other cases. Our duty to honor the intent o f the Legislature, as expressed in unambiguous statutory text, is paramount. This Court in Greenoffered no ana lysis 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 decl ine to elevate an isolated, conclusory assertion in Green above the plainlanguage of the public building exception. 10S 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.

M

ARKMAN J. ( concurring ). I concur in the result reached in the plurality opinion be cause I agree that the public building exceptionto 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 inthe plurality opinion’s reversal of the decis ion of the C ourt o f 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 conc lusionthat 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 opinionreaches this conclusion. It reaches such a conclusion

onthe 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.” Incontrast, I reach this same conclusionon the basis of the statutory language that limits the government’s liability to injuries caused by failing to “take action reasonably necessary to protec t the public against the condition.” We bothconclude that a jail inmate is not a member of the public for purposes of the public building exception in order to avoidrendering the language of the statute meaningless by encompassing within the definition of public virtually everyone. The difference in our a nalys es is that I come to this conclusion inorder to avoid rendering the term “public”

as contained inthe last sentence of the statute meaningless, whereas the plurality opinion comes to the same conclusionin order to avoid rendering the term “public” as contained in the first sentence of the statute meaningless.

2Finally, I disagree with the plurality opinion’s

co nclusionthat a party seeking relief under the pub li c building exception must be a member of the public. The essential difference betweenmy 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. Inother words, I believe that the stat ute li mits the government’s liability to certain places , i.e., public buildings that are “open for use by members of the public.” Incontrast, the plurality opinion assert s th at the statute limits the government’s liability to certain people , i.e., members of the public.

I. A NALYSIS 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 conclu sion 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 whichbuildings are

3public buildings for pur pose s of the public building exception. Accordingly, a jail is a publi c buil ding within the meanin g o f 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 membe r of t he public, but rather whether action by the defenda nt “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 acti on r easonably 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

ac tio nwas “necessary to protect the public.” Because the government is on ly liable for injuries caused by failing to “take action reasonably necessary to protect the public,” if

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

4government may be liable. 1 However, because this liability is limited to failing to “take action reasonably necessary to protect the public,” if

a pers on who is not a member of the public is injured in a “public building,” the g overnment 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 thi s 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 andthat the governmental age ncy had knowledge of the conditionand failed to remedy the condition after a reasonable period.

2 Because the government is liable for failin g to “ take a ctionreasonably necessary to protect the public ,” th e gover nment may be serendipitously liable for failing to protect a person who is not a member of the public, if that pe rson is i njured 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. 5527; 582 NW2d 828 (1998). 3 Therefore, in order for the public building exception to apply, plaintiff must establish that (1) he was a mem ber of the public, or (2) he was injured in an area of the building open to the public. The plu rality opinion concludes that a party seeking relief under the public building exception must be a member of the public. Slipop 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 limi ts th e 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 t he public for injuries caused by dangerous or defect iv e condi tions 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 andpersons 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 t he public injured in an area of the building not open to members of the public, the government is not li able 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. 6The plurality opinion contends that “[t]he Legislature wouldnot 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 inthe original). Although I do not know with any certainty what motivated the Legisl ature in this regard, I suspect that it includedthis language to ensure that the public buil ding exceptionwould 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, suchas electrical substations an d data facilities. Had it merely limitedthe 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 wh at 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. I S A J AIL I NMATE A M EMBER OF THE P UBLIC W ITHIN THE M EANING OF THE P UBLIC B UILDING E XCEPTION ? In de termining whether the government is liable f o r

7injuries sustained by a plaintiff under the public build ing exception, the first inquiry is whether the plaintiff is a member of the public. “The primary goal of judicial interpretationis to ascertain and give effect to the intent of the Legislature. ” M cJunkin v Cellasto Plastic Corp , 461 Mich590, 59 8; 608 NW2d 57 (2000). This Court’s obligation is to determine the Legislature’s intent “as gathered fr om the act itself.” Id . MCL 691.1406 provides that a governmental agency is liable for failing to do what is “rea sonably necessary to protect the public” against dangerous or defective conditions in pu blic buildings. The logical reading of this st atute is that the Legislature intendedto limit the government’s liability to injuries causedby the government’s failure to protect members of the pub lic. It is clear from the plain words of the statute , i.e., “necessary to protect the public,” that the Legislature d id not intend under the public building exception for governmental agencies to be liable for injuries caused by the government’s failure to do what i s necessary to protect persons who are not members of the pu blic, such as jail inmates. A

jail inmate is not in the class of per so ns the Legislature intended to protect when it enacted th e public

8building exceptionto governmental immunity. 4 This is evidencedby the statutory language limitin g a governmental agency’s li ability to injuries caused by the government’s failure to take action to pr otec t members of the public. Pe op le 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 in terpre tation of a statute must avoid denying effect to portions of that statute. Piper v Pettibone Corp , 450 Mich565 , 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 bu ildi ng statute. The Legislature intended governmental agencies to only be liable for failing to protect members of the public. However, if we interpret “public” to inclu de i nmates, governmental agencies would effectively be liable to everyone because, if an inmate is a member of the public, it is diff ic ult to conceive of who would not be considered to be part of such a class. The inmate is segrega ted from the

4 The governme nt m ay 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. 9public, he is severely limited in his ability to intermingle withthe public, and under typical circumstances is confined to an area in which the public has no righ t to be. I would conclude that the statute do es 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 conclusionthat a jail inmate is not a member of the public withinthe 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 pub lic community whether in or out of jail. 5

5 The dissent criticizes the plurality opinion’s overru ling 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 thanthat 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 exp lain ed why it was necessary to overrule Greenin order to enforce the plain meaning of the statutory language. Although I, l ike the dissent, find considerable value in respecting precedent, I also find value inenforcin g t he 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 decisi ons that d epart from . . . the plain language of the statutory clause . . .”). I agree with the plurality opinion that thi s Co urt should not “elevate an isolated, conclusory assertionin Greenabove 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...) 10B. W AS P LAINTIFF I NJURED IN AN AREA OF THE B UILDING O PEN TO THE P UBLIC ? Indetermining whether the government i s liab le for injuries sustained by plaintiff under the pub li c building

exce pt ion, 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, gove rnm ental 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 “pu blic” from those

con dition s. Thus, governmental agencies are not liable for

5 (...continued) dur ing 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. Incontrast 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 fo cusedits analysis on whether the building was a pubi c building, i.e., “openfor use by members of the public.” The Court never discussed whether action was “necessary to protect the public.” Greenheld, 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 “n ecessary to protect the public” from a defective or dange rous condition of a public building, that an inmate is not a member of the public. 11failing to keepareas of public buildings to which the public does not h ave ac cess free from dangerous or defective conditions, unless that condition, in fa ct, causes a member of the public injury. See Kerbersky , supra at 527. Kerb ersky, supra at 527, held that “a member of the public injured as the result of a defect[ive] or dangerous conditionof a building that is open to members of the public may invoke the public building exception to gove rnment al immunity, even if the person is injured in an are a of th e 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 imm un ity if that person is injured inan area of the building not open to the public. However, a person who is not a membe r of th e pub lic ma y invoke the public building exception if that personwas 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 i s not a member of the public cannot invoke the public bui lding exception unless the accident site was ope n t o members of the public. I reach this conclusion, not because it necessarily conforms with my own views about the proper

12contours of governmental immunity, but because I believe that it most closely conf orms with the language of the public building exception. The Court, in Kerbe rsky , concluded that, when determining whether a b uildin g is a public building for purposes of t he p ublic building exception, the situs of the i njury is irrelevant. However, Kerbersky did not conclude that the situs of the injury is irrelevant for all purposes. I w ould concur with Kerbersky , in that, when determining whether a building is a public building, the pr oper 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, t he situs o f an injury is relevant when determining whether the gover nment is liable for failing to “take action reasonabl y necessary to protect the public.” In Kerbersky , the Court concludedthat the g ov ernment is liable to a member of the publicwho is injured as the r es ult of a dangerous or defective condition of a public building, reg ard less of whether th at person was injured in an area of the building op en 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 th e

13distinctionbetween members of the public and persons who are not members of the p ub lic. I now make this distinction, whichi s, in my judgment, mandated by the statute. The government is liable for i njur ies 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 p rotect the public.” But, the government is liable to perso ns 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.” T here fore , 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 jai l not open to the public. 6

6 The plurality opinion asserts that the statute does not su ppor t 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 opat 9, n 5. I respectfully disagree. The statute provides that governmental agencies are liable for in juri es caused by its failure to “take action reasonably neces sary 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 “pub lic buildings” that are open to the public because, in that c ase, 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...) 14Inthe present case, members of the public did not have

access to the shower area, which is where plaintiff was injured. Be cause plaintiff was not a member of the public and was injured in an area of the j ail that was not open to the public, defendant should not be held liab le unde r the public building exception for failing to keepthe shower area free of defective or dangerous conditions. II. C ONCLUSION 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 us e by members of the public.” I also agree that plaint iff i s 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 o nly h eld 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 governme ntal a gency’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. 15that it limits the government’s liability to certain people , i.e., members of the public. Th er efore, 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 conson ant withthe 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 gov ernm ent is only liable for injuries caused by failin g to take remedial action“reasonably n eces sary to protect the public.” Therefore, because plaint iff is not a member of the public, it is necessary to determine whether plaintiff was injured in

anarea of the building that was open to members of the public. Because plaintiff is not a member of the public, and because he was injur ed in an area of the building that was not open to memb er s of the public, defendant should not be heldliable under the public buildin g exce ption for failing to protect plaintiff from the alleged dangerous or defective condition. Accordingly, I concur in the plurality opinion’s reversal of the Court o f Appe als 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 inthi s c ase. 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 withthe lead opinion to the extent that it recognizes t hat jails are public buildings “open for use by members of the publ ic” for the purposes of the public building exception to governmental immuni ty, MCL 691.1406. However, I dissent from the plurality’s decisio n to e xamine the question whether inmates are member s of the public, andits decision to ov er rule 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 M CL 691. 1406. The lead opinion correctly concludes that it is. Slip op at 1. However, rather than resolving the case s ol ely on the merits of the question before it, the plurality chooses to address the question whether an inmate is a mem ber of the public. Moreover, the plurality dedi ca tes a solitary sentence in a footnote to the fact that the question it deems of utmost importance in this case has already beenaddressed 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 Greento the extent that it treats inmates as members of the public for purposes of th e statutory exception.” Corrig an, 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 p laintif f was an inmate in the Detroit Ho use of Corrections, a municipal facility operated by the Department of Corrections. He injured himself while operating machinery in a prison shop ar ea. This Court

2explicitly rejecte d the argument that the Detroit House of Corrections was nonpublic simply because i t wa s not open to the public at large. The Court held that the facility was a “public building” for immuni typurposes. The Court also statedthat, “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 oblig atio n to repair and maintainpublic buildings under their control when openfor use by members of the public.” MCL 691.1406; see also Greenat 464. Other than to effectuate a policy change, I see no reason for this Court to depart from the logic Green usedthirty years ag o an d that this Court has implicitly followedsince. The plurality offers nothing substantial in support of it s observation that “[j]ail inmates are not memb ers of the public for purposes of the public buil din g exception.” Slip op at 9. Given Gre en’s finding to the contrary, I believe that the conclusion is erroneous. Further, despite the plurality’s misguid ed b elief that

we can ignore pre ce dent whenever this Court’s reading of a statute wouldleadto a different result than that of a prior Court, I continue to find value in respecting precedent. The p lurality proclaims that Green is contrary to legislative

3intent, and believes that Greenmade an isolated observation about whether prisoners are members of the public. Given the plurali ty’ 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 GreenCourt defined the “controlling” issue in that case as “wh ether the state, throughthe Department of Corrections, may be held to respond indamages for tortious injury sustained by a state-sentenced

c onvict while he is incarcerated in the Detroit Hous e o f Correction.” Greenat 462. I would also note that the plurality completely ignores t he fact that this Court has historically permitted suit s arising out of pri soner injuries to be brought under the public build ing 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 De p’t of Corrections , 439 Mich 158; 4 83 NW2 d 26 (1992)(an inmate brought slip and fall action). Thus, the plurality’s plain observationnot only contravene s Green , but would eliminate

caus es 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 the y di d not squarely address whether prisoners are (continued...) 4For these reasons, I bel ieve no t only that leave was improvidently granted, but that the plural ity improvidently

uses this case as a vehicle for restrictin g the p ublic buildi ng ex ception to governmental immunity. Therefore, I dissent. K ELLY , J., concurred with C AVANAGH , J. T AYLOR , J., took no part in the decision of this case.

(...continued) members of the public. However, they didnot 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