                          STATE OF MICHIGAN

                           COURT OF APPEALS



DIANA M. STANDEN and JERE STANDEN,                                 UNPUBLISHED
                                                                   December 9, 2014
               Plaintiffs-Appellees,

v                                                                  No. 317466
                                                                   Alpena Circuit Court
ALPENA COMMUNITY COLLEGE,                                          LC No. 12-005047-NO

               Defendant-Appellant.


Before: K. F. KELLY, P.J., and SAWYER and METER, JJ.

PER CURIAM.

       In this premises liability action, defendant appeals as of right from the trial court order
that denied it summary disposition under MCR 2.116(C)(7) (immunity granted by law) and
(C)(10) (no genuine issue of material fact). We reverse and remand.

        Plaintiff Diana M. Standen (hereinafter plaintiff)1 was injured when she fell while
walking along a walkway from the exit of a building on defendant’s campus. She fell as she was
about to reach the parking lot where her car was parked, which was approximately 81 feet from
the building’s exit. No one witnessed plaintiff’s fall. Grounds keepers also indicated that the
walkway plaintiff traversed does have a descending slope away from the building due to grading
done to ensure proper drainage away from the building. The grounds keepers testified that the
building would still be accessible even if the walkway was removed.

       During her deposition, plaintiff stated that she did not remember what caused her to fall.
However, in a Michigan Municipal Risk Management Authority-Claims Documentation
Questionnaire, she indicated that her fall was caused by either a loose brick or a hole in the
walkway, which, she maintained, was found and pointed out as the cause of her fall by one of the
responding paramedics. Plaintiff indicated something similar in an accident report that she filled
out shortly after the fall and in an e-mail to a friend later that evening. None of the responding
paramedics recall making such a statement.


1
 Plaintiff’s husband, Jere Standen, brought a claim for “loss of consortium, loss of society and
companionship, and other damages.”



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        During the hearing on defendant’s motion for summary disposition, plaintiff’s counsel
indicated that he had a study of the walkway’s elevation change conducted to determine its exact
grade. Plaintiff indicated he would forward the results of that study to the trial court upon
receipt. Several days later, plaintiff forwarded a signed but unsworn letter from a surveying
company that stated there was a 1.8-foot elevation difference between the approximate location
where plaintiff fell and the entrance to the building she had exited.

        The court denied defendant’s motion, finding that because of the elevation change, the
walkway fell within the public buildings exception to governmental immunity and that a genuine
issue of material fact existed with respect to the issue of causation. Defendant claims the court
erred and that summary disposition in its favor should have been granted. The grant or denial of
a motion for summary disposition is subject to review de novo on appeal “to determine if the
moving party is entitled to judgment as a matter of law.” Maiden v Rozwood, 461 Mich 109,
118; 597 NW2d 817 (1999).

      “MCR 2.116(C)(7) permits summary disposition where the claim is barred by immunity.”
Id. While a party may submit additional proofs, it is not required, and any proofs submitted must
be admissible evidence. Id. at 119.

         “Except as otherwise provided in [the Government Tort Liability Act, MCL 691.1401 et
seq.], 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(1). However,
“[g]overnmental 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 . . . failed to remedy the condition.” MCL 691.1406.
In order to establish a prima facie case under the public buildings exception, a plaintiff must
show 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 amount of
       time. [Renny v Michigan Dep’t of Transp, 478 Mich 490, 496; 734 NW2d 518
       (2007).]

At issue in this appeal is whether there was a dangerous or defective condition of the public
building itself.

        In Horace v City of Pontiac, 456 Mich 744, 747; 575 NW2d 762 (1998), the plaintiff fell
“while proceeding toward the south entrance of the Pontiac Silverdome on a descending
walkway.” The plaintiff “had passed through a turnstile and was between eighteen and twenty
eight feet from the south entrance.” Id. The Horace Court explained that its analysis was to be
guided by the perspective that it was necessary to employ “a narrow reading of the public
building exception.” Id. at 755. The Court concluded that the ground adjacent to a public
building is not “statutorily speaking” part of the public building. Id. at 757. The Court explained


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that “liability does not extend to walkways” and that “[a] danger of injury caused by the area in
front of an entrance or exit is not a danger that is presented by a physical condition of the
building itself.” Id.

        Nonetheless, in Fane v Detroit Library Comm, 465 Mich 68, 70; 651 NW2d 678 (2001),
the Court held that “the public building exception can apply to parts of a building that extend
beyond the walls.” The plaintiff in Fane fell while walking toward the main entrance of the
Detroit Public Library, which required her to climb several steps up to an elevated stone terrace
that provided the access to the main entrance. Id. at 71. Plaintiff fell while on the terrace
approximately thirty-five yards from the entrance. Id.

         Drawing on a footnote in Horace, the Court in Fane determined that the former case did
not stand for the proposition that the public buildings exception could never be applied “outside
the four walls of a building.” Id. at 76. The Fane Court stated that an initial step was to see if
the area where the plaintiff fell could be considered a fixture. Id. at 77. However, “[w]here the
facts do not lend themselves to a fixture analysis[,] the courts must look beyond . . . to determine
whether an item or area outside the four walls of a building is ‘of a public building.’ ” Id. at 78.
The Fane Court explained that when a fixture analysis in inapplicable, a court should consider
“whether the item or area where the injury occurred is physically connected to and not intended
to be removed from the building.” Id. Applying that standard, the Court concluded that the
terrace where the plaintiff fell was “physically abutting and built into the library building,” and
that “[i]t is not intended to be removed from the rest of the building.” Id. at 79. The Court cited
to the elevation difference as evidence that the terrace was “not intended to be removed.” Id.
Therefore, it concluded, the terrace was part of the building within the meaning of the public
buildings exception. Id.

        Plaintiff in the case before us relies upon the elevation difference between where she fell
and the entrance to the building. However, while noting the issue of the elevation difference, the
Fane Court did not hold that elevation was dispositive. See id. Indeed, the Court in Fane
explicitly stated that “we must determine whether it [the terrace] is physically connected to and
not intended to be removed from the building.” Id. In the present case, there are no facts in the
record to suggest the walkway was physically abutting, built into, or otherwise connected to the
building. Therefore, there is no need to consider whether the walkway was intended to be
removed, and the elevation difference has no bearing on the ultimate outcome.

       Furthermore, the trial court and plaintiff are incorrect in assuming that if the walkway
were removed there would be a 21.6-inch depression between the ground and the building
entrance. In order for this to be correct, not only would the walkway have to be removed, but the
grading itself would have to be changed. The record makes clear that the ground was not sloped
for purposes of constructing the walkway; it was graded that way to ensure proper drainage. If
the walkway were removed, a person could still ascend the grading to the building entrance.

        Accordingly, because plaintiff has failed to present evidence that the area where she fell
fits within the public buildings exception, plaintiff’s claim is barred by governmental immunity
and summary disposition pursuant to MCR 2.116(C)(7) is required.



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        Reversed and remanded for entry of an order consistent with this opinion. We do not
retain jurisdiction. Defendant may tax costs.

                                                       /s/ Kirsten Frank Kelly
                                                       /s/ David H. Sawyer
                                                       /s/ Patrick M. Meter




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