                         STATE OF MICHIGAN

                          COURT OF APPEALS



ALEXANDRA PEW,                                                   FOR PUBLICATION
                                                                 October 21, 2014
              Plaintiff-Appellant,                               9:25 a.m.

v                                                                No. 317727
                                                                 Court of Claims
MICHIGAN STATE UNIVERSITY,                                       LC No. 12-000157-MZ

              Defendant-Appellee.


Before: METER, P.J., and WHITBECK and RIORDAN, JJ.

PER CURIAM.

        Plaintiff, Alexandra Pew, appeals as of right the trial court’s order granting summary
disposition on governmental immunity grounds in favor of defendant, Michigan State University
(the University), under MCR 2.116(C)(7). Pew fell through a sixth-story window at Case Hall
on the University’s campus. The trial court held that the public building exception to
governmental immunity did not apply because Case Hall was not a public building when Pew
was injured. We affirm.

                                          I. FACTS

                                 A. BACKGROUND FACTS

       At around 3:00 a.m. on March 25, 2012, Pew, who was then a high school student, and
her friends Kevin Watroba and Kasey Gardiner visited their friend Jason Matney at the
University. In a written statement, Watroba indicated that Gardiner drove the group to the
University, where they met Matney at a fraternity house. From the fraternity house, the group
went to Matney’s residence at Case Hall.



        Watroba indicated that Pew and Gardiner were “goofing around” and “acting silly.” In
her statement, Gardiner indicated that she and Pew were hiding behind a pillar. Gardiner was
between the pillar and the wall, and Pew was between the pillar and the window. Gardiner saw
the glass shatter, and Pew fall through the window. Watroba indicated that Pew had been sitting
on “the ledge thing,” got up, and had her back against the window. Watroba indicated that Pew
“suddenly . . . just fell backwards out the window.”


                                              -1-
        In an affidavit, Sharon Potter, the assistance facilities manager for Case Hall, indicated
that students and guests could only access the residential areas of the hall by swiping a key card.
At her deposition, Potter testified that the lower three floors of Case Hall contain administrative
offices, a cafeteria, and classrooms, and are open until 12:00 .a.m. According to Potter, Case
Hall is closed from 12:00 a.m. to 6:00 a.m. and students must use their key card to enter the
building.

        Sean Addley, the night receptionist coordinator, testified that Case Hall has two sets of
doors and there is a short distance between Case Hall’s outer doors and inner doors. According
to Addley, between 12:00 a.m. and 6:00 a.m., a night receptionist sits behind the inner doors. A
student resident must pass his or her key card to the receptionist through a slot. The receptionist
verifies that the student is a resident before opening the inner door. If the student resident has a
guest, the resident must fill out a visitor verification card and give it to the receptionist. The
receptionist then takes the guest’s identification and places it in a box. The receptionist will
allow up to three guests to enter with the student resident. Matney testified at his deposition that
the night receptionist followed this procedure on the night that Pew was injured.

                                 B. PROCEDURAL HISTORY

         On December 19, 2012, Pew filed a complaint against the University, alleging that it had
violated its duty to repair and maintain the building. Pew contended that the public building
exception to governmental immunity applied and, therefore, the University was not entitled to
governmental immunity. On February 5, 2013, the University moved for summary disposition
on the basis that the public building exception did not apply because Case Hall was not open to
the public. In response, Pew contended that portions of Case Hall are open to the public without
restriction and, therefore, Case Hall is a public building. Pew also contended that the vestibule
was open all night, also rendering Case Hall a public building.

        At the July 10, 2013 hearing on the motion, the University contended that the vestibule in
this case was similar to the courtesy phone area in Maskery v Univ of Mich Bd of Regents,1 in
which the Michigan Supreme Court held that a dormitory building was not a public building
because it was not open to the public. The University contended that Case Hall was closed when
Pew was injured. Pew contended that Maskery did not apply because Case Hall was not entirely
closed to the public. Pew contended that this Court’s decision in Tellin v Forsyth Twp2 provided
that if any portion of a building is open to the public, the entire building is open to the public.
On that basis, Pew contended that she was injured in a public building because Case Hall’s
vestibule was open to the public when she was injured.

        The trial court reasoned that Tellin was distinguishable and concluded that Maskery
applied because the public did not have access to Case Hall at the time that Pew was injured.
The trial court therefore granted the University’s motion for summary disposition.


1
    Maskery v Univ of Michigan Bd of Regents, 468 Mich 609; 664 NW2d 165 (2003).
2
    Tellin v Forsyth Twp, 291 Mich App 692; 806 NW2d 359 (2011).


                                                -2-
           II. PUBLIC BUILDING EXCEPTION TO GOVERNMENTAL IMMUNITY

                                  A. STANDARD OF REVIEW

        This Court reviews de novo the trial court’s decision on a motion for summary
disposition.3 A defendant is entitled to summary disposition under MCR 2.116(C)(7) if the
plaintiff’s claims are barred because of immunity granted by law.4 The moving party may
support its motion with affidavits, depositions, admissions, or other documentary evidence that
would be admissible at trial.5 We must consider this evidence and determine whether it indicates
that the defendants are entitled to immunity.6 We consider the contents of the plaintiff’s
complaint to be true, unless contradicted by the documentary evidence.7 If reasonable minds
could not differ on the legal effects of the facts, whether governmental immunity bars a
plaintiff’s claim is a question of law.8

                                     B. LEGAL STANDARDS

        Generally, the governmental immunity act provides broad immunity from tort liability to
governmental agencies, officials, or employees who exercise or discharge a governmental
function.9 However, MCL 691.1406 provides that “[g]overnmental agencies have the obligation
to repair and maintain public buildings under their control when open for use by members of the
public.” The public building exception to governmental immunity applies if the plaintiff shows
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.[10]




3
    Odom v Wayne Co, 482 Mich 459, 466; 760 NW2d 217 (2008).
4
    Odom, 482 Mich at 466.
5
    Id.; MCR 2.116(G)(5), (6).

7
    Odom, 482 Mich at 466.
8
    Snead, 294 Mich App at 354.
9
 MCL 691.1401 et seq.; Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 595; 363
NW2d 641 (1984); Jones v Bitner, 300 Mich App 65, 74-75; 832 NW2d 426 (2013).
10
     Kerbersky v Northern Mich Univ, 458 Mich 525, 529; 582 NW2d 828 (1998).


                                                 -3-
“When determining the public’s access, we analyze the building itself, not the specific accident
site within the building.”11

                                 C. APPLYING THE STANDARDS

        The parties dispute only the second element of the public building exception: whether
Case Hall was “open for use by members of the public.” Relying on Tellin, Pew contends that
the building was open for use by members of the public because (1) the time of the day the
accident occurred was irrelevant, or (2) even if the time of day were to be relevant, Case Hall’s
vestibule was open for use by members of the public when Pew was injured. We disagree with
both of Pew’s arguments.

                                   1. TIMING OF THE INJURY

       Pew asserts that the time of day was irrelevant for the purposes of determining whether
Case Hall was a public building. Pew contends that the Maskery Court’s statement that courts
should consider the timing of a plaintiff’s injury to determine whether a building was open to the
public was dictum. We conclude that principles of stare decisis require us to consider the timing
of Pew’s injury.

        Principles of stare decisis require us to reach the same result in a case that presents the
same or substantially similar issues as in a case that another panel of this Court has decided.12
However, dictum does not constitute binding authority.13 Dictum is a judicial comment that is
not necessary to the decision in the case.14 But if a court intentionally addresses and decides an
issue that is germane to the controversy in the case, the statement is not dictum even if the issue
was not decisive.15

       MCL 691.1406 provides that governmental agencies owe a duty to repair and maintain
public buildings “when open for use by members of the public.”16 The Michigan Supreme Court
in Maskery noted that buildings that are open during some periods of the day, such as
courthouses and athletic facilities, may be closed to the public during other periods of the day.17
The Maskery Court opined that an accident occurring when a building that is periodically open to


11
   Brown v Genessee Co Bd of Comm (After Remand), 464 Mich 430, 435; 628 NW2d 471
(2001).
12
  MCR 7.215(C)(2); WA Foote Hosp v City of Jackson, 262 Mich App 333, 341; 686 NW2d 9
(2004).
13
     Cheron, Inc v Don Jones, Inc, 244 Mich App 212, 216; 625 NW2d 93 (2000).
14
     Carr v City of Lansing, 259 Mich App 376, 383-384; 674 NW2d 168 (2003).
15
     Griswold Props, LLC v Lexington Ins Co, 276 Mich App 551, 563; 741 NW2d 549 (2007).
16
     Emphasis added.
17
     Maskery, 468 Mich at 619.


                                                -4-
the public was closed would fall outside the public building exception.18 The Michigan Supreme
Court’s statement was not necessary to the decision in that case because the residence hall at
issue in Maskery was always closed to the public.19 In Tellin, this Court recognized that the
Maskery court addressed this point “arguably in dictum[.]”20 However, the Tellin court then
adopted the Michigan Supreme Court’s statement and applied it in that case.21

        We conclude that, regardless of whether the Michigan Supreme Court’s statement in
Maskery was dictum, principles of stare decisis require us to follow this Court’s decision in
Tellin. In Tellin, this Court considered the time that the plaintiff was injured in order to
determine whether the building was open to the public. This Court’s discussion of the timing of
the incident was certainly germane to the issue in Tellin, even if it was not decisive of whether
the building was a public building. Accordingly, we conclude that we must consider whether
Case Hall was open to the public at the time that Pew was injured.

           2. CASE HALL WAS NOT A PUBLIC BUILDING WHEN PEW WAS INJURED

       Pew contends that even if this Court considers the timing of Pew’s injury, the trial court
erred because Case Hall’s vestibule was open to the public when Pew was injured and, therefore,
Case Hall was a public building because a portion of it was open to the public. We conclude that
Case Hall was not open to the public, despite the fact that persons could enter the vestibule.

       In Maskery, the Michigan Supreme Court held that a residence hall at the University of
Michigan was not subject to the public building exception because it was continuously locked
and not “open for use by members of the public.”22 The plaintiff slipped and fell while traveling
away from a courtesy phone after requesting that her daughter, a college student, let her into the
Betsy Barbour Residence Hall on the University of Michigan’s Ann Arbor campus.23 Visitors
could access the residence “only by using the courtesy phone to contact a resident, who then
could unlock the door to allow entry.”24

        The Court reasoned that, “[t]o determine whether a building is open for use by members
of the public, the nature of the building and its use must be evaluated.”25 The Court held that a
building is not open to the public if the government “has restricted entry to the building to those


18
     Id.
19
     See id. at 620.
20
     Tellin, 291 Mich App at 709.
21
  See id. at 710 (“At any time of the day the public was freely permitted to access the area under
the roof overhang where the I-beam configuration was located to use the drop box.”)
22
     Maskery, 468 Mich at 610-611.
23
     Id. at 611.
24
     Id. at 611-612.
25
     Id. at 618.


                                                -5-
persons who are qualified on the basis of some individualized, limiting criteria of the
government’s’ creation[.]”26

        In Tellin, this Court held that Forsyth Township was not entitled to governmental
immunity when an I-beam dislodged from the K.I. Sawyer Learning Center and fell on the
plaintiffs.27 The Learning Center included a library and had a one-unit living area and a single
main entrance.28 The Learning Center had a 24-hour drop box for library books located under
the roof overhang near the main entrance.29 At around 8:00 p.m., the 13-year-old plaintiff went
to the Learning Center to stand under the roof overhang near the entrance to wait for her mother
to pick her up.30 The plaintiffs’ friend swung around an I-beam, which dislodged and fell on the
plaintiffs, injuring them.31

        We concluded that the public building exception to governmental immunity applied
because “the exterior area where the incident occurred was open to the public, even though the
interior of the Learning Center itself was closed when the incident occurred.”32 We reasoned
that the test provided in Maskery focused on the intended use of the building, not the building’s
hours of operation.33 We concluded that the Learning Center was intended as an area for the
public to access to drop off books 24 hours a day.34

        Here, Pew contends that, under Tellin, Case Hall was open to the public because
members of the public could access the vestibule 24 hours a day. However, the relevant question
under Maskery is whether the University restricted access to the building to persons qualified to
enter: or, in other words, whether there was a “general right of entry” into the building.35 Simply
because the public may access the building for some limited purpose—such as to deliver mail
and food or to seek entry deeper into the building—does not render a building open to the
public.36




26
     Id.
27
     Tellin, 291 Mich App at 693-694.
28
     Id. at 694
29
     Id. at 696.
30
     Id.
31
     Id.
32
     Id. at 709.
33
     Id. at 710.
34
     Id.
35
     See Maskery, 468 Mich at 618 n 9.
36
     See id. at 620 n 10.


                                                -6-
        We conclude that this case is distinguishable from Tellin. In Tellin, this Court opined
that the hours that the building was open were not determinative to whether the building was
open to the public. Rather, this Court applied the test in Maskery and concluded that the
Learning Center was open to members of the public because the Learning Center invited
members of the public to drop their books off in the building’s entrance location 24 hours a day.
Accordingly, the public had an unlimited, and in fact an invited, general right of entry to the
building 24 hours a day.

        Here, though people may enter the vestibule—the small space between Case Hall’s inner
and outer doors—24 hours a day, the sole purpose of the vestibule between the hours of 12:00
a.m. and 6:00 a.m. is to restrict access to the remainder of the building. That the public could
enter the area between Case Hall’s outer and inner doors between the hours of midnight and 6:00
a.m. did not give the public a general right of entry to Case Hall. To the contrary, the evidence
in this case indicates that public access to Case Hall was available only to residents and guests
between those hours.

        In other words, the University restricted entrance into Case Hall “to those persons who
were qualified on the basis of individualized, limiting criteria—in this case, permission from a
tenant.”37 Case Hall was no more a public building between the hours of 12:00 a.m. and 6:00
a.m. than was the residence hall in Maserky. Here, the residents’ guests entered the vestibule to
gain access to the building; in Maserky, the residents’ guests entered the area of the courtesy
phone to gain access to the building. In both cases, the building was restricted to those persons
who had a qualified right to enter, despite the fact that people could enter the vestibule to seek
entrance into the building.

        We conclude that Case Hall was not a public building for the purposes of the public
building exception to governmental immunity. At the time that Pew entered the building,
entrance into the building was restricted to residents and their guests. The public did not have a
general right of entry to Case Hall when Pew was injured. Because the public building exception
applies to public buildings “when open for use by members of the public,” we conclude that the
trial court properly granted summary disposition in this case.

                                      III. CONCLUSION

       We conclude that Case Hall was not a public building for the purposes of the public
building exception to governmental immunity because, at the time Pew was injured, Case Hall
was not open to the public.

          We affirm.

                                                            /s/ Patrick M. Meter
                                                            /s/ William C. Whitbeck
                                                            /s/ Michael J. Riordan


37
     See id. at 620.


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