                           STATE OF MICHIGAN

                            COURT OF APPEALS



VERNA DEMARTIN,                                                       UNPUBLISHED
                                                                      May 19, 2015
               Plaintiff-Appellee,

v                                                                     No. 319803
                                                                      Court of Claims
UNIVERSITY OF MICHIGAN REGENTS,                                       LC No. 12-000127-MZ

               Defendant-Appellant.


Before: SAAD, P.J., and O’CONNELL and MURRAY, JJ.

PER CURIAM.

       Defendant appeals by right from an order of the Court of Claims denying its motion for
summary disposition under MCR 2.116(C)(7) (government immunity) and (C)(10) (no genuine
issue of material fact). For the reasons set forth below, we reverse and remand for entry of
judgment in favor of defendant pursuant to MCR 2.116(C)(7).

        Plaintiff and her daughter Laura Farmer arrived at the University of Michigan Dental
School in April 2012 for a dental procedure. After the procedure, Farmer and plaintiff exited the
building through an automatic door operated by a push button device. Farmer proceeded a few
steps ahead of plaintiff. Before plaintiff could clear the door, it began to close, striking plaintiff
on her right shoulder and knocking her down. The door had its hydraulic closing mechanism
replaced in February or March 2012 due to reports that the door was slamming closed. A police
officer who responded to the scene of plaintiff’s accident did not detect any abnormal operation
of the door.

       Defendant argues that the Court of Claims erred in not summarily dismissing plaintiff’s
complaint. We review de novo a trial court’s decision on a motion for summary disposition, Pew
v Mich State Univ, 307 Mich App 328, 331; 859 NW2d 246 (2014), as well as “the determination
regarding the applicability of governmental immunity and a statutory exception to governmental
immunity,” Snead v John Carlo, Inc, 294 Mich App 343, 354; 813 NW2d 294 (2011).

        Summary disposition will be granted under MCR 2.116(C)(7) “if the plaintiff’s claims
are barred because of immunity granted by law.” Pew, 307 Mich App at 332. Defendant, as the
moving party, “may submit affidavits, depositions, admissions, or other documentary evidence”
if it would be admissible at trial. Snead, 294 Mich App at 354. Submitted evidence is viewed in
a light most favorable to the nonmoving party. Id. If a “pertinent factual dispute exists,
summary disposition is not appropriate.” Id. When suing a unit of government, a plaintiff must
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plead in avoidance of governmental immunity. Mack v Detroit, 467 Mich 186, 203; 649 NW2d
47 (2002).

        The Governmental Tort Liability Act (GTLA), MCL 691.1401 et seq., provides that
“[e]xcept as otherwise provided in this act, a governmental agency is immune from tort liability
if the governmental agency is engaged in the exercise or discharge of a governmental function.”
MCL 691.1407(1). Exceptions to governmental immunity are narrowly tailored. Maskery v
Univ of Mich Bd of Regents, 468 Mich 609, 614; 664 NW2d 165 (2003). The GTLA exception
applicable to this case is the public-building exception, MCL 691.1406, which provides as
follows:

               Governmental agencies have the obligation to repair and maintain public
       buildings under their control when open for use by members of the public.
       Governmental agencies are liable for bodily injury and property damage resulting
       from a dangerous or defective condition of a public building if the governmental
       agency had actual or constructive knowledge of the defect and, for a reasonable
       time after acquiring knowledge, failed to remedy the condition or to take action
       reasonably necessary to protect the public against the condition. Knowledge of
       the dangerous and defective condition of the public building and time to repair the
       same shall be conclusively presumed when such defect existed so as to be readily
       apparent to an ordinary observant person for a period of 90 days or longer before
       the injury took place. As a condition to any recovery for injuries sustained by
       reason of any dangerous or defective public building, the injured person, within
       120 days from the time the injury occurred, shall serve a notice on the responsible
       governmental agency of the occurrence of the injury and the defect. The notice
       shall specify the exact location and nature of the defect, the injury sustained and
       the names of the witnesses known at the time by the claimant.

To come within this exception, a plaintiff must prove the following five elements:

       (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 protect the public against the condition
       after a reasonable period. [Maskery, 468 Mich at 614-615 (citation omitted).]

The first two elements are not in dispute.

        Whether a building or condition “is dangerous or defective is to be determined in light of
the uses or activities for which it is specifically assigned.” Pierce v City of Lansing, 265 Mich
App 174, 179; 694 NW2d 65 (2005) (internal quotation marks and citation omitted). A court
considering the question must examine “not only whether the physical condition caused the
injury incurred, but also whether the physical condition was dangerous or defective under the
circumstances presented.” Hickey v Zezulka (On Resubmission), 439 Mich 408, 422; 487 NW2d
106 (1992) (opinion by BRICKLEY, J.), amended 440 Mich 1203 (1992).

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        Plaintiff has failed to establish a genuine issue of material fact whether a defect existed in
the door that struck her. There was evidence from work orders and deposition testimony that
maintenance staff had repaired the door in February or March 2012 because of a defective
hydraulic unit. The two work orders in evidence indicate that the door was slamming and had
nearly hit two people over the course of three days. One work order indicates that the door was
fixed on March 19, 2012, and a member of the “door closers” department did not contradict the
accuracy of the work order. There was no evidence that the door remained defective at least a
month later in April when plaintiff sustained her injury. Although Farmer testified that she
detected a strong adhesive odor when passing through the door, there is no testimony or evidence
that the odor emanated from the door or its operating components, or that such an odor is
indicative of failure in the hydraulic unit or other operative component of automatic or low
power doors. Further, there is no testimony or evidence establishing that the door closed
abnormally fast. In fact, the police officer who arrived on the scene shortly after the accident
observed the operation of the door and tested the door pressure. He indicated that it was not out
of the ordinary and he did not report any problem.

         Additionally, neither plaintiff nor Farmer, the only witnesses to the accident, testified to
any defect in the door. Farmer stated there was “a quick jolt; like it starts to swing and then it
catches,” but she did not state that the door closed too quickly thereafter. Indeed, neither witness
testified that the door closed too early and neither knew how long it was open. The evidence
only established that the door simply closed before plaintiff cleared it.

       Plaintiff’s res ipsa loquitur argument is unpersuasive. Res ipsa loquitur, meaning “the
thing speaks for itself,” allows a plaintiff to draw “a permissible inference of negligence from
circumstantial evidence.” Woodard v Custer, 473 Mich 1, 6-7; 702 NW2d 522 (2005). Four
conditions must be met to invoke the doctrine:

              (1) the event must be of a kind which ordinarily does not occur in the
       absence of someone’s negligence;

               (2) it must be caused by an agency or instrumentality within the exclusive
       control of the defendant;

               (3) it must not have been due to any voluntary action or contribution on
       the part of the plaintiff; and

               (4) [e]vidence of the true explanation of the event must be more readily
       accessible to the defendant than to the plaintiff. [Id. at 7 (alteration in original;
       internal quotation marks and citations omitted).]

        It is undisputed that when a door operates on a time delay, it will close regardless of
objects in its path. Therefore, the closing of the door here is not an event that “ordinarily does
not occur in the absence of someone’s negligence.” Id. Further, the true explanation of events is
not more accessible to defendant. Although defendant held the maintenance log information,
only plaintiff and her daughter are able to explain how plaintiff walked through the door and the
operation of the door when it struck her.



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        Further, even if we assume that the evidence established a genuine issue of material fact
as to whether the door was defective, plaintiff has failed to show defendant was aware of any
defect or that defendant failed to repair it. Maskery, 468 Mich at 614-615. Farmer testified to
detecting an adhesive odor, but there is no evidence that the odor was known to defendant or that
it was indicative of a problem with the door’s operation. Farmer heard a “click” and observed a
“jump” in the door, but there is no evidence showing that these observations evidence a defect in
the door or that defendant was on notice of these indicators. Further, the work orders indicate
that the last documented problem with the door was resolved in March, a month before plaintiff’s
incident.

      In light of our conclusion on this threshold issue, we need not address defendant’s other
arguments.

       Reversed and remanded for entry of judgment in favor of defendant pursuant to MCR
2.116(C)(7). We do not retain jurisdiction.



                                                           /s/ Henry William Saad
                                                           /s/ Peter D. O'Connell
                                                           /s/ Christopher M. Murray




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