                                                                        Michigan Supreme Court
                                                                        Lansing, Michigan 48909
_____________________________________________________________________________________________
                                                                C hief Justice                   Justices
                                                                Maura D. Cor rigan	              Michael F. Cavanagh




Opinion
                                                                                                 Elizabeth A. Weaver
                                                                                                 Marilyn Kelly
                                                                                                 Clifford W. Taylor
                                                                                                 Robert P. Young, Jr.
                                                                                                 Stephen J. Markman

____________________________________________________________________________________________________________________________

                                                                                      FILED JULY 24, 2001





                CONNIE FANE and CHARLES FANE,


                        Plaintiffs-Appellants,


                v	                                                                               No. 116708


                DETROIT LIBRARY COMMISSION,


                     Defendant-Appellee.

                ___________________________________

                KAREN L. COX and NORMAN W. COX,


                        Plaintiffs-Appellants,


                v	                                                                               No. 116711


                BOARD OF REGENTS OF THE 

                UNIVERSITY OF MICHIGAN,


                     Defendant-Appellee.

                ___________________________________

                BEFORE THE ENTIRE BENCH


                KELLY, J.

       These consolidated cases question the scope of the public


building exception to governmental immunity1 in light of this


Court's ruling in Horace v City of Pontiac, 456 Mich 744; 575


NW2d 762 (1998).         The parties in Fane dispute whether the


elevated terrace where plaintiff fell is part of Detroit's


main       public   library   building.   In   Cox,    this   Court   must


determine whether a portable ramp placed at a doorstep is part


of the Fairlane Estate building in Dearborn. 


       We conclude that the public building exception can apply


to parts of a building that extend beyond the walls.              We hold


the public building exception applicable under the undisputed


facts in Fane v Detroit Library Commission, because the


terrace is part of the building.               Hence, we reverse the


decision of the Court of Appeals. 


       In Cox v Board of Regents of the University of Michigan,


applying the undisputed facts, we find that the ramp is not


part of the building.          Because the public building exception


does not apply, we affirm the Court of Appeals decision.


                        I.    FACTS AND PROCEEDINGS


                A.    FANE v DETROIT LIBRARY COMMISSION


       On October 21, 1995, Connie Fane was walking toward the


main entrance of the Detroit Public Library.                  She climbed


several stairs to a broad stone terrace that gives access to



       1
           MCL 691.1406.


                                     2

the doors of the library.    After she had taken several steps


on the terrace, the heel of her shoe caught on a raised


portion of the stonework.        She fell as a result and was


injured.   She and her husband, Charles, filed a complaint


against the Detroit Library Commission.        They alleged that,


under the public building exception to governmental immunity,


the commission violated its statutory duty to repair and


maintain the terrace in a safe condition. 


     The   commission   sought   summary   disposition   under   MCR


2.116(C)(7) and (C)(10), arguing that governmental immunity


bars plaintiffs' claim.      The parties disputed whether the


terrace was part of the building for the purpose of the public


building exception.     They agreed that the fall did not occur


in the building itself but on the terrace approximately


thirty-five yards from the entrance.         Plaintiffs contended


that the terrace is part of the permanent structure of the


library building; it is physically attached to the building,


and it provides the sole access to the main entrance. 


     When the trial court denied the commission's motion, the


commission filed an appeal.      In lieu of granting leave, the


Court of Appeals, citing Horace, remanded for entry of an


order granting summary disposition for the commission.2          This




     2
      Unpublished order, entered May 8, 1998 (Docket No.

211232).


                                 3

Court vacated the Court of Appeals decision and remanded the


case for consideration with Cox.       459 Mich 944 (1999).3


       On remand, the Court of Appeals reversed the lower


court's denial of summary disposition, again relying on this


Court's decision in Horace.4       The Court concluded that the


trial court had erred as a matter of law in finding that the


terrace was part of the building.       It noted that Connie Fane


was not alleged to have fallen in the building, and it


determined that the elevated terrace was "merely contiguous"


and not part of the building itself. 


       The appeals court remanded the case to the trial court


with instructions to enter an order of summary disposition in


favor of the commission.      This Court granted leave to appeal,


ordering the case to be argued and submitted with Cox.          463


Mich 911 (2000).


  B.       COX v BOARD OF REGENTS OF THE UNIVERSITY OF MICHIGAN


       On August 21, 1994, Karen Cox was visiting the Henry Ford


estate to attend her niece's wedding.      As she walked from the


building to an outdoor porch, she stepped on a ramp that had


been positioned at the doorstep.       The heel of her shoe caught




       3
      The order also consolidated Maskery v Univ of Mich Bd of

Regents (Docket No. 109065).    Maskery is not part of this

appeal.

       4
      Unpublished opinion per curiam, issued March 24, 2000

(Docket No. 211232).


                                  4

in a space between the door and the ramp, and the ramp


slipped, causing her to fall. 


     In a multicount complaint, Karen and her husband, Norman,


sued the Board of Regents of the University of Michigan, the


owners of the property.    They alleged that the ramp was a


dangerous or defective condition and that the board breached


its duty under the public building exception to governmental


immunity by failing to secure it in a proper fashion.


     The board moved for summary disposition, arguing that the


public building exception did not apply.   The board contended


that, because it was not affixed to the building, the ramp was


not part of the building itself.   Plaintiffs responded that a


reasonable trier of fact could conclude that the ramp was part


of the building, notwithstanding that it was portable and


unattached. 


     The trial court granted the board's motion for summary


disposition, citing MCR 2.116(C)(7).     The Court of Appeals


denied plaintiffs' delayed application for leave to appeal.5


This Court remanded to the Court of Appeals for consideration


as on leave granted.   459 Mich 883 (1998).


     On remand, the Court of Appeals affirmed the grant of





     5
      Unpublished order, entered July 2, 1998 (Docket No.

208644).


                              5

summary disposition in favor of the board.6        Relying on this


Court's decision in Horace and a fixtures analysis, the court


determined that the ramp was not a fixture or an integral part


of the building.


     The Court concluded that the trial court had properly


found that the public building exception was not applicable.7


This Court granted leave to appeal, ordering the case to be


argued and submitted with Fane.       463 Mich 911 (2000).


                     II.     LEGAL PRINCIPLES


                    A.     STANDARDS OF REVIEW


     In both cases, the Court of Appeals upheld summary


disposition under MCR 2.116(C)(7).        We review decisions on


summary disposition motions de novo.      Sewell v Southfield Pub


Schs, 456 Mich 670, 674; 576 NW2d 153 (1998).           Under MCR


2.116(C)(7), summary disposition is proper when a claim is


barred by immunity granted by law.      To survive such a motion,


the plaintiff must allege facts justifying the application of


an exception to governmental immunity.            Wade v Dep't of


Corrections, 439 Mich 158, 164; 483 NW2d 26 (1992).             We


consider all documentary evidence submitted by the parties,




     6
      Unpublished opinion per curiam, issued March 24, 2000

(Docket No. 215337).

     7
      The decision also addressed the issue of proprietary

function, which is not presented in this appeal pursuant to

this Court's order granting leave to appeal.


                                 6

accepting    as     true   the    contents     of    the    complaint   unless


affidavits     or       other    appropriate        documents     specifically


contradict them.         Sewell, supra at 674; MCR 2.116(G)(5). 


                   B.    THE PUBLIC BUILDING EXCEPTION


     Under MCL 691.1407(1), a government agency is generally


immune from suit for actions undertaken in the performance of


its governmental functions.           However, this broad immunity is


limited by some narrowly drawn exceptions. Jackson v Detroit,


449 Mich 420, 427; 537 NW2d 151 (1995).                    The present appeal


involves     the    public      building     exception       to   governmental


immunity, which provides in pertinent part:


          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.      [MCL

     691.1406.]


     To determine whether the public building exception is


applicable, this Court has set forth a five-pronged test.


Under the test, a plaintiff is required to prove that


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

     public building in question is open for use by

     members of the public, (3) a dangerous or defective

     condition of the public building itself exists, (4)

     the governmental agency had actual or constructive

     knowledge of the alleged defect, and (5) the

     governmental agency failed to remedy the alleged


                                      7

     defective condition after a reasonable period of

     time or failed to take action reasonably necessary

     to protect the public against the condition after a

     reasonable period.     [Kerbersky v Northern Mich

     Univ, 458 Mich 525, 529; 582 NW2d 828 (1998),

     citing Jackson, supra at 428.]


It is the third element of this test that is at issue in the


present appeal, whether a dangerous or defective condition of


the public building itself exists.


                III.    HORACE V CITY OF PONTIAC


     The Court of Appeals determined that neither the terrace


nor the ramp is part of the buildings in question, relying on


this Court's decision in Horace.        Horace was a consolidated


appeal involving two different sets of facts, both of which


involved   injuries    from   defects   in   walkways.8   The   first


concerned a hole or crack eighteen to twenty-eight feet from


the entrance doors of the Silverdome in Pontiac.          The second


involved a hole in a walkway leading to the entrance of a


building at a rest area on I-75. 


     The issue in Horace was whether the public building


exception applies to dangerous or defective conditions of


areas outside and adjacent to entrances or exits of public


buildings.   Horace, supra at 746.       The Court concluded that


"the ground adjacent to a public building is [not] a public


'building,' statutorily speaking . . . ."         Id. at 757.   Thus,



     8
      The decision in Horace also resolved its companion case,

Adams v Dep't of State Highways & Transportation.


                                  8

the core holding of Horace is that mere sidewalks and walkways


are    clearly   outside   the   scope   of   the   public   building


exception.


       However, the Court added in a footnote that the decision


is not an absolute bar to injuries occurring from defective or


dangerous conditions located outside the four walls of a


building.     The footnote states:


            The dissent suggests that our opinion may cut

       off liability for injuries resulting from the

       collapse of an outside overhang on a public

       building, stairs leading up to or down from an

       elevated building entrance, an underground tunnel

       leading into a building, an attached external ramp

       or railing. While it is not necessary for us to

       resolve these hypothetical situations in the case

       at bar, we note that an outside overhang is a

       danger presented by a physical condition of a

       building itself and that some stairs may also fit

       the test we adopt today if they are truly part of

       the building itself. [Id. at 756-757, n 9.]


We are now asked to further clarify the extent to which


something outside a building falls within the exception.


                           IV.   ANALYSIS


       As an initial matter, we conclude that the Court of


Appeals reading of Horace was overly broad. The appeals court


decision mistakenly portrays Horace as stating a bright-line


rule    precluding   liability    for    injuries   occurring    from


dangerous or defective conditions of building parts outside an


entrance or exit.     By imposing an absolute bar on liability


for injuries arising from something outside the four walls of



                                  9

a building, the opinion precludes the possibility that an


external part might be "truly part of the building itself."


     While such an interpretation would be warranted by the


words "in a public building," the Legislature did not choose


that phrase.      Rather, it referred to injuries resulting from


dangerous or defective conditions "of a public building,"


which implies that the conditions could pertain to parts of a


building outside its walls.        We presume that "of" rather than


"in" was carefully chosen to reflect legislative intent.              See


Reardon v Dep't of Mental Health, 430 Mich 398, 410; 424 NW2d


248 (1988).


     It is consistent with Horace and its treatment of the


word "of" to consider the characteristics of the building and


the item in question.9        If it must be determined whether the


building        possesses    the   item,     surely        the   relative


characteristics of both must be evaluated.


     In some cases, a fixtures analysis will be helpful in


determining whether an item outside the four walls of a


building is "of a public building."          As recognized in Velmer


v Baraga Area Schs,10 a dangerous or defective fixture can


support     a   claim   of   liability   under    the   public   building




     9
      Horace      indicated that     "of"    is    "used    to   indicate

possession."      456 Mich 756.

     10
          430 Mich 385, 394; 424 NW2d 770 (1988).


                                   10

exception. 


     However, the fixtures analysis is limited to items of


personal property that have a possible existence apart from


realty.     Wayne Co v Britton Trust observes that "[t]he term


'fixture' necessarily implies something having a possible


existence apart from realty, but which may, by annexation, be


assimilated into realty."      Wayne Co v Britton Trust, 454 Mich


608, 614-615; 563 NW2d 674 (1997) (citation omitted).           Where


the facts do not lend themselves to a fixtures analysis


because the item causing the injury has no existence apart


from realty, the courts must look beyond the fixtures analysis


to determine whether an item or area outside the four walls of


a building is "of a public building." 


     Under the fixtures analysis, an item is considered part


of the building if it is found to be a fixture.         An item is a


fixture if (1) it is annexed to realty, (2) its adaptation or


application to the realty is appropriate, and (3) it was


intended as a permanent accession to the realty.         Id. at 615.


     When a fixtures analysis does not apply, in determining


whether an item or area outside the four walls of a building


is "of a public building," the courts should consider whether


the item or area where the injury occurred is physically


connected    to   and   not   intended   to   be   removed   from   the





                                  11

building.11


               A.   FANE v DETROIT LIBRARY COMMISSION


     A fixtures analysis is not applicable to the elevated


library terrace in Fane because the terrace does not have an


existence      apart   from   the   library.   Therefore,   we   must


determine whether it is physically connected to and not


intended to be removed from the building, making the terrace


part "of a public building." 


     The terrace is a large stone area that is physically


abutting and built into the library building.            It is not


intended to be removed from the rest of the building in the


foreseeable future. Normally, to reach the main entrance, one


walks along a sidewalk, up stairs to the elevated terrace,


across the terrace, and up additional stairs.       If the terrace


were removed, the doors to the library would be located


approximately four feet off the ground.


     We conclude that the elevated terrace is physically


connected to and not intended to be removed from the library.


Accordingly, we are persuaded that the terrace is part of the


building within the meaning of the public building exception.




     11
      A temporary object or structure is normally not part of

a building. Consider, for example, scaffolding attached to a

building only for the period necessary to complete

construction. Because it is clearly intended to be removed

from the building, the scaffolding could not be considered

part of the building.


                                    12

The Court of Appeals erred in finding that the Fanes' claim


was precluded by the holding in Horace.


  B.    COX v BOARD OF REGENTS OF THE UNIVERSITY OF MICHIGAN


       The characteristics of the portable ramp indicate that it


is personal property with a possible existence apart from the


doorstep of the Fairlane Estate building.                      As such, the


fixtures analysis is applicable.


       There is no dispute that the portable ramp was not


physically attached to the building and could readily be


removed.    Wayne Co states that annexation can be actual or


constructive.      Constructive annexation occurs where the item


cannot be removed from the building without impairing the


value of both the item and the building.                 Wayne Co, supra at


615-616.    However, there is no evidence that removal of the


ramp   would   impair    the    value    of     either   the   ramp   or   the


building.         Therefore,    the      ramp     was    not   actually    or


constructively annexed to the building.


       Although    the   ramp   was     adapted    appropriately      to   the


entrance, there is no evidence that it was intended as a


permanent accession to the building.                We conclude that the


ramp   is   not   a   fixture   and,     therefore,      not   part   of   the


building. Because it does not fall within the public building


exception, the appeals court correctly determined that summary


disposition was proper in Cox.



                                      13

                          V.   CONCLUSION


       Horace   acknowledges      that    injuries     occurring    from


dangerous or defective conditions of building parts outside


the walls of a building can fall within the public building


exception. In determining whether an item or area outside the


walls of a building is "of a public building," the courts must


consider the characteristics of the building and of the item


in question.     A fixtures analysis should be used where the


item   is   personal   property    that    could     possibly    have   an


existence apart from the realty.           However, where the facts


indicate that the fixtures analysis does not apply, the courts


should consider whether the item or area where the injury


occurred is physically connected to and not intended to be


removed from the building. 


       Applying this analysis to the undisputed facts in Fane,


we conclude that the elevated terrace is part of the library


building itself because the terrace is physically connected to


and not intended to be removed from the library.            Hence, the


Fanes are not precluded from pursuing their claim.              The Court


of Appeals order instructing the trial court to enter summary


disposition in favor of the commission is reversed. 


       However, we affirm in Cox.          Applying the undisputed


facts, the ramp is personal property that could possibly have


an existence apart from the building. Therefore, the fixtures



                                   14

analysis is applicable.         However, the ramp is not a fixture


because it is not annexed to the building and was not intended


as a permanent accession to the building. Therefore, the ramp


is not part of the building. 


     Accordingly, we affirm the decision of the Court of


Appeals in Cox and reverse in Fane.


     CORRIGAN ,   C.J.,   and   CAVANAGH , WEAVER , TAYLOR , YOUNG ,   and


MARKMAN , JJ., concurred with KELLY , J.





                                   15

