            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



SHERRI GLEZMAN and TERRY GLEZMAN,                                  UNPUBLISHED
                                                                   June 11, 2019
               Plaintiffs-Appellees,

v                                                                  No. 344477
                                                                   Grand Traverse Circuit Court
TRAVERSE CITY AREA PUBLIC SCHOOLS,                                 LC No. 2017-032341-NO

               Defendant-Appellant.


Before: METER, P.J., and JANSEN and M. J. KELLY, JJ.

PER CURIAM.

       In this negligence action, defendant appeals as of right from the trial court’s order
denying its motion for summary disposition, concluding that defendant was not entitled to assert
governmental immunity. We affirm.

                                       I. BACKGROUND

        Defendant is a school district operating several schools in Grand Traverse County,
including Traverse City West High School (TCWHS). Plaintiff, Sherri Glezman, was injured at
the athletic facility at TCWHS when her thumb was caught between two entrance doors. The
athletic facility first opened in 2009 and features three entrance doors, which, in their original
design, were each made of lightweight aluminum. Facing the facility, as originally designed, the
left door opened from right to left and the middle and right doors opened from left to right.
Christopher Wise, defendant’s Director of Building Operations and Security, testified that
between 2008 and 2015 strong winds blowing at the athletic facility’s entrance would catch the
right door and “either break the control arm[1] or pull the screws loose from the retraining
mechanism” between three and six times each year. According to Wise, the wind-related failures
eventually damaged the right door to the point where it “would no longer latch.” Wise also


1
 Wise testified that a control arm “connects a door’s opening and closing mechanism to the
door.”



                                               -1-
opined that “the athletic-wing entrance was a poor initial design because it made it difficult for
guests to use [the] barrier-free access button and key-card reader” on the right side of the right
door.

        In the fall of 2015, Wise worked with Paul Thwing, defendant’s Director of Capital
Protects and Planning, to redesign the entrance to the athletic facility. Under the redesign, the
arc of the right door was reversed, meaning that it opened from right to left. Therefore, the arc of
the right door intersected with the arc of the middle door, which still opened from left to right.
Wise testified that defendant ordered a new, heavier right door, a restraining chain for the right
door, and “non-conflicting” handles for the right and center doors. Wise explained that the
“restraining chain served as a backup safety measure in case the control arm failed” and that the
non-conflicting handles meant “that in the event that the [right door’s] control arm and
restraining mechanism failed, and the door handles from the center and [right door] came
together, they could not come into direct conflict and injure someone.”

       The new door arrived before the safety hardware. According to Wise, defendant intended
to delay the installation of the new door until the safety hardware arrived, but decided to move
up the installation because the old right door had become so damaged that defendant had to
screw the door to the frame to keep it closed. The new door was installed sometime in January
20162 without the non-conflicting handle and restraining chain (collectively, the safety
hardware).3

        On January 28, 2016, TCWHS hosted a basketball game at the athletic facility. Plaintiff
entered the athletic facility through the center entrance door. Plaintiff alleged that, when she
“grasped the [center] door and began to open it, the [right] door was thrust open by a young man
exiting the building” and that “either the force of the wind or the force of the exiting student’s
thrust” caused the right door to open “with sufficient force to carry the door into conflict with the
arc of the doorway [plaintiff] had attempted to open.” According to plaintiff, the right “door
handle struck the door handle which [she] was utilizing to open the entryway door, striking [her]
thumb and causing it to be crushed between the two metal entryway doors.” Surveillance
footage revealed that, approximately one hour before the incident, the right door’s control arm
had failed and the door was swinging freely. The office of TCWHS’s Athletic Director, Jason
Carmien, was approximately 100 feet from the facility’s entrance. Carmien, however, testified
that he did not observe the door swinging freely before the accident.




2
  The parties disagree on when the new door was installed. Defendant claims the door was
installed one week before plaintiff’s accident; plaintiff avers that the door was installed one
month before her accident. Nonetheless, for the purposes of this opinion, the exact install date is
immaterial.
3
 In all respects material to this opinion, Thwing’s deposition testimony was consistent with
Wise’s deposition testimony and affidavit. To the extent that Thwing’s testimony conflicted
with Wise’s testimony, the conflict would present a question of fact for the jury.


                                                -2-
        To recover for her injuries, plaintiff brought a complaint against defendant, alleging that
defendant negligently maintained the entryway by failing to install the safety devices and failing
to monitor, disable, and repair the right door after the control arm failed. Plaintiff recognized
that, as a governmental agency, defendant was generally immune from tort liability, but averred
that defendant was statutorily liable under the public-building exception, MCL 691.1406.4

        Defendant moved for summary disposition under MCR 2.116(C)(7) and (10), arguing
that the public-building exception did not apply and that it had no notice of the defect before the
accident. Defendant recognized that a governmental entity is immune from suit for design
defects and averred that plaintiff’s injury was “caused by a redesign and renovation of the
entrance coupled with a sudden fracture of a metallic control arm which would have prevented
the accident had it not broken.” Defendant argued that, but for the redesign and the reversal of
the right door’s arc, the accident would not have occurred because it would have been impossible
for plaintiff’s thumb to be caught between the two handles. According to defendant, the decision
to proceed with the installation without the safety hardware was also a design decision rather
than an act of maintenance because defendant “was not attempting to restore the doors to their
prior state or condition.” Alternatively, defendant argued that it could not be liable because no
employee actually knew of the broken control arm and it “would be unreasonable to conclude
that [defendant] was not duly diligent in locating the control arm failure in an hour or less.”

        Plaintiff agreed that the decision to reverse the arc of the right door was a design decision
immune from tort liability. Plaintiff, however, argued that the failure to install safety devices
that were part of both the original design and the redesign could not constitute a “design failure.”
Regarding notice, plaintiff averred that an hour-long failure of the control arm immediately
preceding a scheduled basketball game was long enough to put defendant on constructive notice
of the hazard, especially given the history of control-arm failures with the right door.

        The trial court concluded that the installation of the door without the safety devices was
not a design decision because the safety features were included in the redesign plans. Regarding
notice, the trial court reasoned that the relevant time period was not the time separating
plaintiff’s injury and the control-arm failure, but the time defendant knew about the missing
safety hardware. Because there was no question that defendant knew about the missing
hardware for at least a week before the accident, the trial court concluded that defendant had
ample notice of the hazard. Therefore, the trial court denied defendant’s motion. This appeal
followed.

                                          II. ANALYSIS

        We review de novo the trial court’s grant or denial of summary disposition. Estate of
Voutsaras v Bender, ___ Mich App ___, ___; ___ NW2d ___ (2019) (Docket No. 340714), slip
op at 3. Summary disposition is appropriate under MCR 2.116(C)(7) when the plaintiff’s claim



4
  Plaintiff’s husband, Terri Glezman, brought a claim for loss of consortium, which is not at issue
in this appeal.


                                                -3-
fails because of immunity granted by law. Id. “To survive a (C)(7) motion based on
governmental immunity, a plaintiff must allege facts justifying an exception to governmental
immunity.” Tellin v Forsyth Twp, 291 Mich App 692, 698; 806 NW2d 359 (2011) (internal
citation and quotation marks omitted). “In reviewing a (C)(7) motion, a court must accept all
well-pleaded allegations as true and construe them in favor of the nonmoving party.” Id. “A
motion for summary disposition under MCR 2.116(C)(10) tests the factual sufficiency of a
claim, and is appropriately granted when, except as to the amount of damages, there is no
genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of
law.” Tomra of North America, Inc v Dep’t of Treasury, 325 Mich App 289, 294; ___ NW2d
___ (2018).

       “The operation of a public school is a governmental function.” Stringwell v Ann Arbor
Public School Dist, 262 Mich App 709, 712; 686 NW2d 825 (2004). “Absent a statutory
exception, a governmental agency is immune from tort liability when it exercises or discharges a
governmental function.” Maskery v Board of Regents of University of Michigan, 468 Mich 609;
613; 664 NW2d 165 (2003), citing MCL 691.1407(1). Our Legislature has provided few
exceptions to governmental immunity, which we must construe narrowly. Stringwell, 262 Mich
App at 712. At issue in this case is the public-building exception, 5 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[6] 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 bring suit under this exception, a plaintiff must prove:

       (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



5
  The remaining exceptions are the highway exception, MCL 691.1402; the sidewalk exception,
MCL 691.1402a; the government-vehicle exception, MCL 691.1405; the proprietary-function
exception, MCL 691.1413; the government-hospital exception, MCL 691.1407(4); and the
sewage exception, MCL 691.1417.
6
 Knowledge is “conclusively presumed when such defect existed so as to readily apparent to an
ordinary observant person for a period of 90 days or longer before the injury took place.” MCL
691.1406.


                                                -4-
          failed to remedy the alleged defective condition after a reasonable amount of
          time. [Tellin, 291 Mich App at 699.]

       The parties do not dispute that defendant is a governmental agency or that TCWHS is a
public building open for use by members of the public. Rather, as below, the parties dispute
whether the broken right door without the safety hardware constituted a failure to maintain the
door under the public-building exception and, if so, whether defendant had knowledge of the
hazardous condition with sufficient time to remedy it before the accident. We address each
argument in turn.

        “The public-building exception excludes claims of design defects.[7] Therefore, to avoid
governmental immunity, a plaintiff must assert a claim that the defective condition was the result
of a failure to repair or maintain.” Id. at 700. As recognized by the parties, our Supreme Court
explained the distinction between design defects and a failure to repair and maintain in Renny v
Dep’t of Transportation, 478 Mich 490, 500-501; 734 NW2d 518 (2007), as follows:

          The first sentence of MCL 691.1406 states 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.” This sentence unequivocally establishes the
          duty of a governmental agency to “repair and maintain” public buildings. Neither
          the term “repair” nor the term “maintain,” which we construe according to their
          common usage, encompasses a duty to design or redesign the public building in a
          particular manner. “Design” is defined as “to conceive; invent; contrive.” By
          contrast, “repair” means “to restore to sound condition after damage or injury.”
          Similarly, “maintain” means “to keep up” or “to preserve.” Central to the
          definitions of “repair” and “maintain” is the notion of restoring or returning
          something, in this case a public building, to a prior state or condition. “Design”
          refers to the initial conception of the building, rather than its restoration.
          “Design” and “repair and maintain,” then, are unmistakably disparate concepts,
          and the Legislature's sole use of “repair and maintain” unambiguously indicates
          that it did not intend to include design defect claims within the scope of the public
          building exception. [(Internal citations omitted).]

The parties tend to make their arguments by negative implication. Defendant focuses on our
Supreme Court’s definitions of “repair” and “maintain,” arguing that, because it was installing a
new door, it was not returning the old door “to a prior state or condition.” Plaintiff’s argument
tends to focus on our Supreme Court’s definition of design, pointing out that defendant did not
invent or conceive of a door design that omitted the safety hardware; rather, defendant designed
the safety hardware into the reconfigured right door but failed to properly maintain that door by
installing the safety hardware. Accordingly, we must determine whether defendant’s decision to



7
    This exclusion applies equally to original designs and “redesigns.” Id. at 703-704.




                                                  -5-
forego the hardware installation included in the redesign constitutes a design defect or a failure
to properly repair or maintain the door.

        In Tellin, 291 Mich App 692, this Court applied our Supreme Court’s definitions to the
redesign of a public learning center. Applying Renny’s analysis, the Tellin panel reasoned that a
“design defect would appear to consist of a dangerous condition inherent in the design itself,
such as its characteristics, functioning, and purpose.” Id. at 705. The Tellin panel noted that an
“action could initially be a design decision, but subsequent improper installation, malfunction,
deterioration, or instability could later transform this decision into a failure to repair or
maintain.” Id. at 706.

        Here, the design for the new door included the safety hardware, but the safety hardware
was not installed with the door. Thus, accepting as true plaintiff’s well-pleaded allegation that
the absence of the safety hardware caused her injury, plaintiff’s injury was not caused by “a
dangerous condition inherent in the design itself.” Id. at 705. In other words, had the door been
installed according to its design, plaintiff would not have been injured. Accordingly, we agree
with the trial court that the absence of the safety hardware was not a design defect; it was a
failure to maintain the newly designed door and is actionable under the public-building
exception. 8

        Relatedly, defendant argues that it was entitled to summary disposition because it could
not have had notice of the control-arm failure in the hour between the failure and plaintiff’s
injury. As already noted, the notice requirement may be proven by either actual notice or
constructive notice, i.e., a showing that the defendant should have discovered the dangerous
condition in the exercise of reasonable diligence. Ali v City of Detroit, 218 Mich App 581, 586-
587; 554 NW2d 384 (1996). Preliminarily, we believe that a question of fact exists whether
defendant had constructive notice of the broken control arm; the control-arm failure occurred in
the hours preceding a public basketball game, causing the door to swing freely within the view of
the athletic director’s office. More importantly, however, we agree with the trial court that the
relevant notice period was not the time separating plaintiff’s injury and the control-arm failure.
Rather, the relevant period is the time defendant knew about the missing safety hardware.
According to Wise, defendant decided to install the door knowing that the safety hardware was
missing. Therefore, defendant had actual notice of the defect for at least a week before the
accident.

       Accordingly, viewing the record in a light most favorable to plaintiff and accepting her
well-pleaded allegations as true, plaintiff’s claim falls squarely within the public-building




8
  In its brief on appeal, defendant argues that it did not include the safety devices in its design for
the new door. We do not believe that the current record supports this assertion—particularly
given Wise’s affidavit and testimony. Nonetheless, to the extent that defendant can present
evidence that its design did not include the safety devices, defendant creates a question of fact
which, as the term suggests, must be resolved through the fact-finding mechanisms of trial.


                                                 -6-
exception to governmental immunity. 9 The trial court did not err by denying defendant’s motion
for summary disposition.

       Affirmed.



                                                             /s/ Patrick M. Meter
                                                             /s/ Kathleen Jansen
                                                             /s/ Michael J. Kelly




9
  In its briefing before the trial court, defendant argued that the safety devices, particularly the
safety chain, would not have prevented the accident. While the record shows that wind gusts
would regularly rip the safety chain out of the old door, defendant offered no evidence showing
that a similar failure would befall the new, heavier door. Similarly, defendant offered no
evidence that the intended non-conflicting handles would have been insufficient to prevent
plaintiff’s injury. Therefore, a question of fact remains whether the failure to install the safety
hardware caused plaintiff’s injury.


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