                          STATE OF MICHIGAN

                            COURT OF APPEALS



AUDREY RUFF, as Next Friend of ANTHONY                               UNPUBLISHED
CHARLES HUBBERT, a Minor,                                            November 4, 2014

               Plaintiff-Appellee,

v                                                                    No. 317017
                                                                     Wayne Circuit Court
SUBURBAN MOBILITY AUTHORITY FOR                                      LC No. 12-000571-NO
REGIONAL TRANSPORTATION, a/k/a
SMART,

               Defendant-Appellant.


Before: CAVANAGH, P.J., and JANSEN and RONAYNE KRAUSE, JJ.

PER CURIAM.

       Defendant (“defendant” or “SMART”) appeals by right the circuit court’s order denying
its motion for summary disposition brought on the basis of governmental immunity.1 For the
reasons set forth in this opinion, we reverse and remand for entry of judgment in favor of
defendant pursuant to MCR 2.116(C)(7).

                                                 I

        Plaintiff and her son, Anthony Charles Hubbert (“Hubbert”), entered a SMART bus-stop
shelter on September 12, 2011. Plaintiff and Hubbert were not waiting for a bus. Instead, it
appears that they stopped at the shelter to rest. One of the large panes of safety glass was
missing from the side of the shelter. Hubbert stepped backward through the opening where the
pane of safety glass had been. He tripped and sustained injuries to his left arm.

        Plaintiff, as her son’s next friend, filed this negligence action in the Wayne Circuit Court
alleging that Hubbert would not have tripped and sustained injuries if the pane of safety glass
had not been missing.


1
  The circuit court’s denial of a motion for summary disposition brought on the basis of
governmental immunity is appealable by right. MCR 7.203(A)(1); MCR 7.202(6)(a)(v);
Thurman v Pontiac, 295 Mich App 381, 383 n 1; 819 NW2d 90 (2012).


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       Defendant timely answered plaintiff’s complaint and set forth its affirmative defenses.
Among other things, defendant asserted that it was immune from liability for Hubbert’s injuries
pursuant to the governmental tort liability act (“GTLA”), MCL 691.1401 et seq. Specifically,
defendant alleged that the public-building exception was inapplicable on the facts of this case
because Hubbert’s injuries had not “result[ed] from a dangerous or defective condition of a
public building.”

       On April 18, 2013, defendant moved for summary disposition pursuant to MCR
2.116(C)(7), (8), and (10). Of particular relevance to this appeal, defendant argued that it was a
governmental agency within the meaning of the GTLA and that the only exception to
governmental immunity that could possibly provide liability in this case was the public-building
exception of MCL 691.1406. Defendant contended that the missing pane of safety glass was not
“a dangerous or defective condition of a public building” within the meaning of MCL 691.1406.

       In response, plaintiff cited Ali v Detroit, 218 Mich App 581, 585; 554 NW2d 384 (1996),
for the proposition that a SMART bus-stop shelter constitutes a “public building” within the
meaning of MCL 691.1406. Plaintiff argued that the missing pane of safety glass was a
“dangerous or defective condition,” which had caused Hubbert’s injuries.

        The circuit court heard oral argument on June 7, 2013. Defense counsel took issue with
this Court’s holding in Ali, 218 Mich App at 585, arguing that a bus-stop shelter should not be
considered a “public building” for purposes of the GTLA. Plaintiff’s counsel responded by
arguing that Ali was binding precedent and that there remained a genuine issue of material fact
concerning whether the missing pane of safety glass constituted “a dangerous or defective
condition of a public building” within the meaning of MCL 691.1406. Defense counsel pointed
out that Hubbert’s injuries were not caused by broken or jagged glass. Instead, Hubbert’s
injuries were simply caused by his backward fall through an opening on one side of the shelter.
Defense counsel maintained that this opening was not a “dangerous or defective condition.”

        The circuit court ruled that defendant was a governmental agency for purposes of the
GTLA and that the bus-stop shelter was a “public building” within the meaning of MCL
691.1406. See Ali, 218 Mich App at 585. However, the court determined that there remained a
genuine issue of material fact with regard to whether the missing pane of safety glass constituted
“a dangerous or defective condition” within the meaning of the public-building exception. The
court also determined that there remained fact questions concerning whether defendant knew of
the missing pane of glass and whether defendant had made attempts to replace the missing glass
within a reasonable time. On June 13, 2013, the circuit court entered an order denying
defendant’s motion for summary disposition.

                                                 II

        “Summary disposition under MCR 2.116(C)(7) is appropriate when a claim is barred by
immunity granted by law.” Seldon v SMART, 297 Mich App 427, 432; 824 NW2d 318 (2012).
We review de novo the circuit court’s grant or denial of a motion for summary disposition.
Thurman v Pontiac, 295 Mich App 381, 384; 819 NW2d 90 (2012). “If there are no material
facts in dispute or if reasonable minds could not differ regarding the legal effect of the facts, the


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issue of governmental immunity is resolved as an issue of law.” Norris v Lincoln Park Police
Officers, 292 Mich App 574, 578; 808 NW2d 578 (2011).

                                               III

        We reverse the circuit court’s denial of defendant’s motion for summary disposition
because it was beyond genuine factual dispute that the missing pane of safety glass did not
constitute “a dangerous or defective condition of a public building” within the meaning of MCL
691.1406.

       As a preliminary matter, we note that plaintiff did not address or even mention the public-
building exception to governmental immunity in her complaint. It was defendant that first raised
the issue, specifically identifying the public-building exception of MCL 691.1406 and then
proceeding to explain why it did not believe the exception applied. “[A] party suing a unit of
government must plead in avoidance of governmental immunity.” Mack v Detroit, 467 Mich
186, 203; 649 NW2d 47 (2002). Plaintiff did not do so. She did not even acknowledge the
existence of governmental immunity, much less the statutory exception under which she was
suing defendant.

       “A governmental agency is immune from tort liability when performing a governmental
function unless a statutory exception applies.” Norris, 292 Mich App at 578; see also MCL
691.1407(1). The circuit court correctly determined that SMART is a governmental agency for
purposes of the GTLA, and neither party disputes that the ownership and maintenance of a bus-
stop shelter is a governmental function. See Seldon, 297 Mich App at 440; Ali, 218 Mich App at
584-585; see also MCL 691.1401(b).

       As defendant aptly observed below, the only exception to governmental immunity that
could possibly create liability in this case is the public-building exception of MCL 691.1406,
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. 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.


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        This Court has previously held that a SMART bus-stop shelter constitutes a “public
building” within the meaning of MCL 691.1406. Ali, 218 Mich App at 585. The holding of Ali
is binding upon this Court, MCR 7.215(C)(2); MCR 7.215(J)(1), and we decline defendant’s
invitation to revisit the reasoning of Ali or declare a conflict. Instead, the critical question in this
case is whether the missing pane of safety glass constituted “a dangerous or defective condition”
of the bus-stop shelter. We conclude that it did not.

       In order for the public-building exception to apply, the plaintiff must have been injured
by “a defect or dangerous condition of the public building itself. . . .” Abrams v Schoolcraft
Community College, 178 Mich App 668, 670; 444 NW2d 533 (1989). “[W]hether a part of a
building . . . is dangerous or defective is to be determined in light of the ‘uses or activities’ for
which it is ‘specifically assigned[.]’ ” Bush v Oscoda Area Schools, 405 Mich 716, 731; 275
NW2d 268 (1979) (opinion by LEVIN, J.). “In determining whether a place is safe, one must
consider the use or purpose it serves.” Id. at 732.

        The parties agree that bus-stop shelters are typically enclosed by panes of safety glass on
three sides, but left open on the fourth side in order to allow people to enter and exit. The
documentary evidence submitted in this case establishes that while one of the panes of safety
glass was entirely missing from the shelter at issue, most or all of the other panes remained in
place. This Court has stated that the fundamental purpose of a SMART bus-stop shelter is “to
protect people from inclement weather.” Ali, 218 Mich App at 585. In light of this purpose, it
simply cannot be said that one missing pane of safety glass rendered the structure “dangerous or
defective” within the meaning of MCL 691.1406. Even with one pane of safety glass missing,
the structure remained safe and continued to serve its fundamental purpose. See Bush, 405 Mich
at 731-732. Indeed, plaintiff does not even attempt to explain how the missing pane of safety
glass undermined the core purpose for which the shelter was designed. No reasonable person
could conclude that the missing pane of glass rendered the shelter “dangerous or defective”
within the meaning of MCL 691.1406. See Norris, 292 Mich App at 578. We conclude that
plaintiff failed to plead in avoidance of governmental immunity and that the public-building
exception did not apply in this case.

                                                  IV

        Reasonable minds could not differ regarding the legal effect of the facts in this case.
Defendant was entitled to governmental immunity. We reverse the order denying defendant’s
motion for summary disposition and remand to the circuit court for entry of judgment in favor of
defendant on the basis of governmental immunity. MCR 2.116(C)(7). Given our resolution of
the issues, we need not address the alternative arguments raised by defendant on appeal.

        Reversed and remanded for entry of judgment in favor of defendant. We do not retain
jurisdiction. As the prevailing party, defendant may tax its costs pursuant to MCR 7.219.

                                                               /s/ Mark J. Cavanagh
                                                               /s/ Kathleen Jansen




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