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Michigan Supreme Court Lansing, Michigan 48909 ____________________________________________________________________________________________
C hief Justice Justices

Maura D. Cor rigan

Opinion
CHESTER E. BROWN, JR.,
Plaintiff-Appellee,
v GENESEE COUNTY BOARD OF
COMMISSIONERS,
Defendant-Appellant.
____________________________________ BEFORE THE ENTIRE BENCH (except TAYLOR, J.).
CORRIGAN, C.J.


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

____________________________________________________________________________________________________________________________

FILED JULY 3, 2001


No.

113915


We granted leave to consider whether an inmate, who
claims that a dangerous or defective condition in a jail
caused injuries, may avoid governmental immunity for tort
liability under the statutory exception for public buildings,
MCL 691.1406. The trial court granted summary disposition to


defendant-county, but the Court of Appeals reversed and held
that a jail falls within the exception.


We would reverse the Court of Appeals decision and
reinstate the trial court's grant of summary disposition to
defendant. public," Although a jail is "open for use by members of the
inmate is not a member of the "public" as


an

contemplated by the Legislature when it enacted the public
building exception to governmental immunity.
I. UNDERLYING
FACTS AND PROCEDURAL HISTORY


Plaintiff, an inmate in the Genesee County jail, injured
himself when he slipped on water near a shower stall. He sued


the county under the public building exception, MCL 691.1406.
He alleged that improper drainage and the absence of a shower
curtain had caused water to accumulate on the floor.1
The trial court granted summary disposition to defendant
under MCR 2.116(C)(7) on the ground that the public building
exception did not apply. affirmed. The Court of Appeals initially
It observed


222 Mich App 363; 564 NW2d 125 (1997).

that the shower area of the jail was not open to members of
the public. This Court then remanded the case to the Court of


Appeals for reconsideration in light of Kerbersky v Northern
Mich Univ, 458 Mich 525; 582 NW2d 828 (1998). (1998).
On remand, the Court of Appeals reversed. 233 Mich App
459 Mich 881


Our resolution of this case does not require us to
consider whether a structural defect, as opposed to a
transitory condition, caused the accident. Cf. Wade v Dep't
of Corrections, 439 Mich 158; 483 NW2d 26 (1992).
2


1

325; 590 NW2d 603 (1998).

It noted that Kerbersky mandates


analysis of the public's access to the building itself, not
the specific accident site within the building. The Court of


Appeals assumed that a jail is open for use by members of the
public. Defendant now appeals.
II. STANDARD
OF REVIEW


We review the grant or denial of a motion for summary
disposition de novo. Maiden v Rozwood, 461 Mich 109, 118; 597
NW2d 817 (1999). MCR 2.116(C)(7) permits summary disposition
Courts must
the parties.


where immunity granted by law bars a claim. consider documentary evidence submitted by

Glancy v Roseville , 457 Mich 580, 583; 577 NW2d 897 (1998).
We review de novo questions of statutory interpretation.
Donajkowski v Alpena Power Co, 460 Mich 243, 248; 596 NW2d 574
(1999).
III. ANALYSIS
A. GOVERNMENTAL
IMMUNITY


Absent a statutory exception, a governmental agency is
immune from tort liability when it exercises or discharges a
governmental function. MCL 691.1407(1). A governmental


function is "an activity which is expressly or impliedly
mandated or authorized by constitution, statute, local charter
or ordinance, or other law." MCL 691.1401(f).


MCL 45.16 expressly mandates operation of jails: "each
organized county shall, at its own cost and expense, provide
3


at the county seat thereof . . . a suitable and sufficient
jail . . . and keep the same in good repair." Defendant thus


enjoys general immunity from tort liability in its maintenance
and operation of the county jail. See Jackson v Saginaw Co,


458 Mich 141, 148; 580 NW2d 870 (1998).
B. PUBLIC
BUILDING EXCEPTION


Several statutory exceptions to immunity exist.2 case implicates the public building exception:


This


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 take action reasonably necessary to
protect the public against the condition. [MCL
691.1406.]
For this exception to apply, a plaintiff must


demonstrate:
(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


They include: the highway exception, MCL 691.1402; the
motor vehicle exception, MCL 691.1405; the public building
exception, MCL 691.1406; the proprietary function exception,
MCL 691.1413; and the governmental hospital exception, MCL
691.1407(4).
4


2

protect the public against the condition after a
reasonable period. [Kerbersky, supra at 529.]
Today we would hold that the plain statutory language also
requires that the party seeking relief be a member of the
"public."
1. WAS
THE JAIL OPEN FOR USE BY MEMBERS OF THE PUBLIC ?


Mere public ownership of a structure does not satisfy the
express language of the public building exception. A building
must also be open for use by members of the public.


Kerbersky, supra at 533.3

When determining the public's


access, we analyze the building itself, not the specific
accident site within the building. Id. at 527.


Plaintiff claims to have injured himself near a shower
stall in defendant's jail. Under Kerbersky, we examine the
Id.


public's access to the jail rather than the shower area.

Green v Dep't of Corrections, 386 Mich 459; 192 NW2d 491
(1971), held that a jail falls within the scope of the
statutory exception.4 In other decisions, this Court has


Examples of publicly owned buildings that are not open
for use by members of the public include: a city-owned
apartment used as a private residence, Griffin v Detroit, 178
Mich App 302; 443 NW2d 406 (1989); a publicly owned building
that is closed for renovations, Dudek v Michigan, 152 Mich App
81; 393 NW2d 572 (1986); and a locked building that was not
designed for public access, Taylor v Detroit, 182 Mich App
583; 452 NW2d 826 (1989).
While we agree with Green that a jail is subject to the
public building exception, we do not approve the reasoning in
that decision. This Court in Green failed to analyze whether
a jail is open for use by members of the public. Moreover,
5

4

3

implicitly assumed as much.

See, e.g., Wade v Dep't of


Corrections, 439 Mich 158; 483 NW2d 26 (1992).
We would reaffirm that a jail is open for use by members
of the public. visit inmates. Family, friends, and attorneys may generally
Members of the public may also enter a jail


for other reasons, e.g., to apply for a job or make a
delivery.
The fact that public access to a jail is limited does not
alter our conclusion. Schools fall within the exception even


though members of the public may not enter whenever and
wherever they please. See Sewell v Southfield Public Schools,
456 Mich 670; 576 NW2d 153 (1998); Bush v Oscoda Area Schools,
405 Mich 716; 275 NW2d 268 (1979). The public building


exception applies to buildings with limited access, including
schools and prisons. Kerbersky, supra at 534; Steele v Dep't


of Corrections, 215 Mich App 710, 715; 546 NW2d 725 (1996).
2. IS
A JAIL INMATE A MEMBER OF THE PUBLIC ?


We next consider whether an inmate is a member of the
"public" who may avoid immunity under the public building
exception. text.
To answer this question, we examine the statutory


for reasons discussed below, we would overrule Green to the
extent that it treats inmates as members of the "public" for
purposes of the statutory exception.
6


a. RELEVANT

PRINCIPLES OF STATUTORY INTERPRETATION


Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d
119 (1999), articulated the proper mode of interpretation:
The rules of statutory construction are well
established. The foremost rule, and our primary
task in construing a statute, is to discern and
give effect to the intent of the Legislature.
Murphy v Michigan Bell Telephone Co, 447 Mich 93,
98; 523 NW2d 310 (1994). See also Nation v W D E
Electric Co, 454 Mich 489, 494; 563 NW2d 233
(1997). This task begins by examining the language
of the statute itself. The words of a statute
provide "the most reliable evidence of its intent
. . . ." United States v Turkette, 452 US 576,
593; 101 S Ct 2524; 69 L Ed 2d 246 (1981). If the
language of the statute is unambiguous, the
Legislature must have intended the meaning clearly
expressed, and the statute must be enforced as
written. No further judicial construction is
required or permitted. Tryc v Michigan Veterans'
Facility, 451 Mich 129, 135; 545 NW2d 642 (1996).
"Contextual understanding of statutes is generally


grounded in the doctrine of noscitur a sociis: `[i]t is known
from its associates,' see Black's Law Dictionary (6th ed), p
1060. This doctrine stands for the principle that a word or
Tyler v


phrase is given meaning by its context or setting."

Livonia Schools, 459 Mich 382, 390-391; 590 NW2d 560 (1999).
Also, when construing a statute, we presume that every
word has meaning; our interpretation should not render any
part of the statute nugatory. People v Borchard-Ruhland, 460


Mich 278, 285; 597 NW2d 1 (1999).
b. INTERPRETATION
The first sentence of the public building exception


7


articulates the governmental agency's duty ("to repair and to
maintain public buildings") and a limitation of that duty
("when [the buildings are] open for use by members of the
public"). As discussed above, the limiting phrase explicitly


restricts the types of buildings to which the duty extends.
Unless a building is open for use by members of the public, it
does not fall within the exception. But this phrase also
It


limits implicitly the class of persons who may sue.

excludes persons who are not members of the public, i.e.,
those persons who are not present in the building as potential
invitees.
The Legislature simply could have ended the first


sentence of the statute after it articulated the duty owed by
governmental agencies. the duty. It instead set forth a limitation of


The Legislature would not have limited the duty to


buildings that are open to members of the public if it had
intended to protect persons who are not members of the public.
By including the public within the protected class, the
Legislature implicitly excluded persons who are not members of
the public. See Hoste v Shanty Creek Management, Inc, 459


Mich 561, 572, n 8; 592 NW2d 360 (1999) (the express mention
of one thing in a statute impliedly excludes other similar
things). Thus, allowing anyone to sue would effectively


nullify the limiting phrase.


8


Read in context, therefore, the duty created in the
statute protects members of the public from dangerous and
defective conditions in public buildings. We decline to read


the statutory language out of context or to "stretch" the
common, ordinary meaning of the words to include a class of
persons whom the Legislature expressed no intent to protect.5
Jail inmates are not members of the public for purposes
of the public building exception.6 Unlike a person who enters


a jail, e.g., to meet with an inmate, make a delivery, or
apply for a job, an inmate does not visit a jail as a
potential invitee. be there. Instead, inmates are legally compelled to


Inmates thus are not within the class of persons


the Legislature intended to protect from defects in public
buildings.7


Our concurring colleague believes that a person who is
not a member of the public may sue for injuries that occur in
an area of a public building that is open to the public. The
statutory text, however, plainly refers to buildings that are
open to members of the public; it does not refer to areas of
public buildings that are open to persons who are not members
of the public. Moreover, Kerbersky, supra, held that the
situs of an injury in a public building is not relevant.
Our concurring colleague agrees that an inmate is not a
member of the public, but relies on different language in the
statute to reach that conclusion.
Our proposed holding today is limited to jail inmates;
we offer no view regarding other classes of persons. It is
worth observing, however, that unlike jail inmates, students
attending a public school are not legally compelled to be
there. They have other choices, including charter schools,
private schools, and home schooling.
9

7 6

5

It is undisputed that plaintiff was an inmate when he
injured himself near a shower stall in defendant's jail. He


therefore was not a member of the public for purposes of the
public building exception.8
IV. CONCLUSION
A jail is open for use by members of the public.


However, jail inmates are not members of the public and thus
cannot avoid governmental immunity under the public building
exception. Accordingly, we would reverse the Court of Appeals
decision and reinstate the trial court's grant of summary
disposition for defendant.
WEAVER and YOUNG , JJ., concurred with CORRIGAN , C.J.


The dissent offers no analysis of the text of the public
building exception to support its view that inmates are
"members of the public." Instead, the dissent relies on the
"logic" in Green, supra, and dicta from other cases.
Our duty to honor the intent of the Legislature, as
expressed in unambiguous statutory text, is paramount. This
Court in Green offered no analysis to support its assertion
that an inmate "is a member of the public community." Id. at
464. As we have explained, treating inmates as "members of
the public" would nullify the limiting phrase in the public
building exception. We decline to elevate an isolated,
conclusory assertion in Green above the plain language of the
public building exception.
10


8

S T A T E

O F

M I C H I G A N


SUPREME COURT


CHESTER E. BROWN, JR.,
Plaintiff-Appellee,
v GENESEE COUNTY BOARD OF
COMMISSIONERS,
Defendant-Appellant.
No. 113915


MARKMAN J. (concurring).
I concur in the result reached in the plurality opinion
because I agree that the public building exception to


governmental immunity is not applicable in this case, although
I reach this conclusion on the basis of a different analysis
than that of the plurality opinion's. Accordingly, I concur


in the plurality opinion's reversal of the decision of the
Court of Appeals and the reinstatement of the trial court's
grant of summary disposition in favor of defendant.
First, I agree with the plurality opinion's conclusion


that a jail is "open for use by members of the public," as
well as in its analysis in reaching this conclusion. Second,


I agree that an inmate is not a member of the public within
the meaning of the public building exception. However, I


respectfully disagree with the analysis by which the plurality
opinion reaches this conclusion. It reaches such a conclusion
on the basis of duty the to statutory repairing language and that limits the


government's

maintaining

public


buildings that are "open for use by members of the public."
In contrast, I reach this same conclusion on the basis of the
statutory language that limits the government's liability to
injuries caused by failing to "take action reasonably
We


necessary to protect the public against the condition."

both conclude that a jail inmate is not a member of the public
for purposes of the public building exception in order to
avoid rendering the language of the statute meaningless by
encompassing everyone. within the definition of public virtually


The difference in our analyses is that I come to


this conclusion in order to avoid rendering the term "public"
as contained in the last sentence of the statute meaningless,
whereas the plurality opinion comes to the same conclusion in
order to avoid rendering the term "public" as contained in the
first sentence of the statute meaningless.


2


Finally,

I

disagree

with

the

plurality

opinion's


conclusion that a party seeking relief under the public
building exception must be a member of the public. The


essential difference between my interpretation of the statute
and that of the plurality is that I view the statute as a
"where" statute while it views the statute as a "who" statute.
In other words, I believe to that the statute limits the


government's

liability

certain

places,

i.e.,

public


buildings that are "open for use by members of the public."
In contrast, the plurality opinion asserts that the statute
limits the government's liability to certain people, i.e.,
members of the public.


I. ANALYSIS
I agree with the plurality opinion's conclusion that an
inmate is not a member of the public within the meaning of the
public building exception. However, I come to this conclusion
for reasons different from the plurality opinion's. The


plurality reaches this conclusion on the basis that the
limitation of the government's duty to only public buildings
that are "open for use by members of the public" also


implicitly limits the government's duty to only members of the
public. Slip op at 8. In my view, the language "open for use


by members of the public" limits only which buildings are


3


public

buildings

for

purposes

of

the

public

building


exception.

Accordingly, a jail is a public building within


the meaning of the public building exception because it is
"open for use by members of the public."
In my judgment, the important issue in this case is not
merely whether defendant was a member of the public, but
rather whether action by the defendant "was reasonably


necessary to protect the public against the [alleged dangerous
or defective] condition" of the public building. building exception statute provides:
Governmental agencies are liable for bodily
injury and property damages resulting from a
dangerous or defective condition of a public
building if the governmental agency . . . failed to
. . . take action reasonably necessary to protect
the public against the condition. [MCL 691.1406
(emphasis added).]
It is clear from the language of the statute, i.e., "necessary
to protect the public," that the Legislature intended to limit
the government's liability, in that the government only is
liable for failing to "take action reasonably necessary to
protect the public." Thus, the relevant question is whether
Because the
The public


action was "necessary to protect the public."

government is only liable for injuries caused by failing to
"take action reasonably necessary to protect the public," if
a member of the public is injured in a "public building," the


4


government may be liable.1
However, because this liability is limited to failing to
"take action reasonably necessary to protect the public," if
a person who is not a member of the public is injured in a
"public building," the government may only be liable if the
plaintiff was injured in an area of the building open to the
public. This is true because, in order to protect members of


the public, the government must keep areas of public buildings
that are open to members of the public free from dangerous or
defective conditions.2 However, because this liability is


limited to failing to "take action reasonably necessary to
protect the public," the government is not liable for failing
to repair and maintain areas of public buildings not open to
the public, unless a member of the public is actually injured
therein. See Kerbersky v Northern Mich Univ; 458 Mich 525,


Plaintiff would still have to prove that the injury was
caused by a dangerous or defective condition of the building
and that the governmental agency had knowledge of the
condition and failed to remedy the condition after a
reasonable period.
Because the government is liable for failing to "take
action reasonably necessary to protect the public," the
government may be serendipitously liable for failing to
protect a person who is not a member of the public, if that
person is injured in an area of the building open to the
public. This liability does not arise because of some duty
owed to the person who is not a member of the public; rather,
it arises from the duty owed to protect members of the public.
The person who is not a member of the public is merely an
incidental beneficiary of this duty owed to the public.
5

2

1

527; 582 NW2d 828 (1998).3

Therefore, in order for the public


building exception to apply, plaintiff must establish that (1)
he was a member of the public, or (2) he was injured in an
area of the building open to the public.
The plurality opinion concludes that a party seeking
relief under the public building exception must be a member of
the public. Slip op at 5. It asserts that the limitation of


the government's duty to public buildings that are "open for
use by members of the public" also implicitly limits the
government's duty to only members of the public. 8. I respectfully disagree. Slip op at


The statutory language clearly


expresses the Legislature's intent for the government's duty
to only apply to certain buildings, but it says nothing about
limiting the government's duty to certain people.


Kerbersky held that the government is liable to members
of the public for injuries caused by dangerous or defective
conditions of public buildings, regardless of whether the
accident site was open to members of the public. However,
Kerbersky did not distinguish between members of the public
and persons who are not members of the public. Thus,
consistent with Kerbersky, I would continue to hold that the
government may be liable to members of the public, regardless
of whether the specific accident site was open to members of
the public. However, I would now make the distinction
mandated, in my judgement, by the statute, between members of
the public and persons who are not members of the public. I
would conclude that, even though the government may be liable
to members of the public injured in an area of the building
not open to members of the public, the government is not
liable to persons who are not members of the public who are
injured in an area of the building not open to members of the
public.
6


3

The plurality opinion contends that "[t]he Legislature
would not have limited the duty to buildings that are open to
members of the public if it had intended to protect persons
who are not members of the public." original). Id. at 8 (emphasis in the


Although I do not know with any certainty what


motivated the Legislature in this regard, I suspect that it
included this language to ensure that the public building
exception would apply to buildings that are open, to some
degree, to the public, such as jails and office buildings, but
not to buildings that are altogether closed to the public,
such as electrical substations and data facilities. Had it


merely limited the government's duty to members of the public,
without limiting the government's duty to public buildings
that are "open for use by members of the public," the statute
may well have imposed what the Legislature perceived as an
unreasonable burden upon the government to maintain and repair
such "public buildings" as substations and data facilities at
an unnecessarily high level. The corollary to the plurality


opinion's argument, of course, is that if the Legislature had
intended to protect only members of the public, it could have
just as easily stated that proposition, as well.


A. IS

A

JAIL INMATE

A MEMBER OF THE PUBLIC WITHIN PUBLIC BUILDING EXCEPTION ?


THE

MEANING

OF THE


In determining whether the government is liable for


7


injuries sustained by a plaintiff under the public building
exception, the first inquiry is whether the plaintiff is a
member of the public. "The primary goal of judicial


interpretation is to ascertain and give effect to the intent
of the Legislature." McJunkin v Cellasto Plastic Corp, 461
This Court's obligation


Mich 590, 598; 608 NW2d 57 (2000).

is to determine the Legislature's intent "as gathered from
the act itself." Id. MCL 691.1406 provides that a


governmental agency is liable for failing to do what is
"reasonably necessary to protect the public" against
The


dangerous or defective conditions in public buildings.

logical reading of this statute is that the Legislature
intended to limit the government's liability to injuries
caused by the government's failure to protect members of the
public. It is clear from the plain words of the statute,


i.e., "necessary to protect the public," that the Legislature
did not intend under the public building exception for


governmental agencies to be liable for injuries caused by the
government's failure to do what is necessary to protect
persons who are not members of the public, such as jail
inmates.
A jail inmate is not in the class of persons the
Legislature intended to protect when it enacted the public


8


building

exception

to

governmental

immunity.4

This

is


evidenced by the statutory language limiting a governmental
agency's liability to injuries caused by the government's


failure to take action to protect members of the public.
People who enter jails to visit inmates are members of the
public whom the Legislature intended to protect. However, in
my judgement, an inmate who is legally compelled to be at the
jail is not a member of the public for purposes of the public
building exception.
This Court's interpretation of a statute must avoid
denying effect to portions of that statute. Piper v


Pettibone Corp, 450 Mich 565, 571-572; 542 NW2d 269 (1995).
If we were to interpret "public" to include inmates, we would
be denying effect to a portion of the public building


statute.

The Legislature intended governmental agencies to


only be liable for failing to protect members of the public.
However, if we interpret "public" to include inmates,


governmental agencies would effectively be liable to everyone
because, if an inmate is a member of the public, it is
difficult to conceive of who would not be considered to be
part of such a class. The inmate is segregated from the


The government may still be liable to persons who are
not members of the public, such as jail inmates, if they are
injured in an area of a public building open to the public, as
discussed above.
9


4

public, he is severely limited in his ability to intermingle
with the public, and under typical circumstances is confined
to an area in which the public has no right to be. I would


conclude that the statute does not impose liability upon
governmental agencies for failing to do what is necessary to
protect inmates of a jail for purposes of the public building
exception. Accordingly, I agree with the plurality opinion's
conclusion that a jail inmate is not a member of the public
within the meaning of the public building exception, and thus
I concur with the plurality opinion's overruling of that part
of Green v Dep't of Corrections, 386 Mich 459; 192 NW2d 491
(1971), which held that inmates are members of the public
community whether in or out of jail.5


The dissent criticizes the plurality opinion's
overruling of Green. Post at 3. The dissent asserts that,
"despite the plurality's misguided belief that we can ignore
precedent whenever this Court's reading of a statute would
lead to a different result than that of a prior Court, I
continue to find value in respecting precedent." Id. In my
judgment, the plurality opinion did not ignore precedent;
rather, it accurately explained why it was necessary to
overrule Green in order to enforce the plain meaning of the
statutory language. Although I, like the dissent, find
considerable value in respecting precedent, I also find value
in enforcing the plain meaning of statutory language. See
Nawrocki v Macomb Co Rd Comm, 463 Mich 143, 151; 615 NW2d 702
(2000) (holding that "we are duty-bound to overrule past
decisions that depart from . . . the plain language of the
statutory clause . . ."). I agree with the plurality opinion
that this Court should not "elevate an isolated, conclusory
assertion in Green above the plain language of the public
building exception." Slip op at 10, n 8. Further, to place
the Green decision in context, I note that Green was decided
(continued...)
10


5

B. WAS PLAINTIFF INJURED

IN AN

AREA OF PUBLIC ?


THE

BUILDING OPEN

TO THE


In determining whether the government is liable for
injuries sustained by plaintiff under the public building
exception, the second inquiry is whether the plaintiff was
injured in an area of the building open to the public. In


order to protect the public, governmental agencies must
ensure that all areas of public buildings, to which the
public has access, It contain be no dangerous to or hold defective
that a


conditions.

would

illogical

governmental agency must keep all areas of a public building
free from dangerous or defective conditions, because the
statute expressly provides that a governmental agency only is
liable for failing to protect the "public" from those


conditions.

Thus, governmental agencies are not liable for


(...continued)
during a period in which this Court gave the term
"governmental function" a narrow reading, while giving broad
readings of the statutory exceptions to governmental immunity.
In contrast with that prior era, we now interpret the term
"governmental function" broadly and construe the exceptions
narrowly. Ross v Consumers Power Co(On Rehearing), 420 Mich
567; 363 NW2d 641 (1984). Moreover, in Green, the Court
focused its analysis on whether the building was a pubic
building, i.e., "open for use by members of the public." The
Court never discussed whether action was "necessary to protect
the public." Green held, in the context of whether a jail is
a public building, that an inmate is a member of the public,
whereas I would now hold in the context of whether action is
"necessary to protect the public" from a defective or
dangerous condition of a public building, that an inmate is
not a member of the public.
11


5

failing to keep areas of public buildings to which the public
does not have access free from dangerous or defective


conditions, unless that condition, in fact, causes a member
of the public injury. See Kerbersky, supra at 527.


Kerbersky, supra at 527, held that "a member of the
public injured as the result of a defect[ive] or dangerous
condition of a building that is open to members of the public
may invoke the public building exception to governmental
immunity, even if the person is injured in an area of the
building not open for use by members of the general public."
I would reaffirm that holding. What I would hold today is


that a person who is not a member of the public cannot invoke
the public building exception to governmental immunity if
that person is injured in an area of the building not open to
the public. However, a person who is not a member of the


public may invoke the public building exception if that
person was injured in a part of the building that is open to
the public. In sum, a member of the public can invoke the


public building exception, regardless of whether the specific
accident site was open to members of the public, but a person
who is not a member of the public cannot invoke the public
building exception unless the accident site was open to
members of the public. I reach this conclusion, not because


it necessarily conforms with my own views about the proper


12


contours of governmental immunity, but because I believe that
it most closely conforms with the language of the public
building exception.
The Court, in Kerbersky, concluded that, when


determining whether a building is a public building for
purposes of the public building exception, the situs of the
injury is irrelevant. However, Kerbersky did not conclude


that the situs of the injury is irrelevant for all purposes.
I would concur with Kerbersky, in that, when determining
whether a building is a public building, the proper inquiry
is into the public nature of the building itself, not merely
the specific accident site. Thus, in deciding that a jail is


a public building, I examined the jail itself, not merely the
shower area in which plaintiff was injured. However, the


situs of an injury is relevant when determining whether the
government is liable for failing to "take action reasonably
necessary to protect the public." In Kerbersky, the Court


concluded that the government is liable to a member of the
public who is injured as the result of a dangerous or
defective condition of a public building, regardless of
whether that person was injured in an area of the building
open to the public. Therefore, the situs of an injury is


irrelevant when determining the government's liability to a
member of the public. However, Kerbersky did not make the


13


distinction between members of the public and persons who are
not members of the public. I now make this distinction,
The


which is, in my judgment, mandated by the statute.

government is liable for injuries to members of the public,
regardless of where they are injured in the building, because
the government is liable for injuries caused by failing to
take remedial action "reasonably necessary to protect the
public." But, the government is liable to persons who are


not members of the public only if they are injured in an area
of the building open to the public because the government is
only liable for injuries caused by failing to take remedial
action when such action was "reasonably necessary to protect
the public." Therefore, I would conclude that, even though


a jail is a public building, the public building exception
does not apply to an inmate injured in an area of that jail
not open to the public.6


The plurality opinion asserts that the statute does not
support my position that the public building exception is
applicable to people who are not members of the public who are
injured in an area of a "public building" that is open to the
public. Slip op at 9, n 5. I respectfully disagree. The
statute provides that governmental agencies are liable for
injuries caused by its failure to "take action reasonably
necessary to protect the public against the condition."
Clearly, this means that governmental agencies are liable for
injuries caused by its failure to repair and maintain areas of
"public buildings" that are open to the public because, in
that case, action would be "reasonably necessary to protect
the public." What the statute does not support, in my
judgment, is the plurality's holding that governmental
(continued...)
14


6

In the present case, members of the public did not have
access to the shower area, which is where plaintiff was
injured. Because plaintiff was not a member of the public


and was injured in an area of the jail that was not open to
the public, defendant should not be held liable under the
public building exception for failing to keep the shower area
free of defective or dangerous conditions.
II. CONCLUSION
The government is generally immune from tort liability.
However, there are several statutory exceptions that apply to
this broad grant of immunity, one being the public building
exception. I agree with the plurality opinion that a jail is


a public building "open for use by members of the public."
I also agree that plaintiff is not a member of the public.
However, in my judgment, that is not the end of the inquiry.
The plurality views this statute as a "who" statute, meaning


(...continued)
agencies are never liable for injuries sustained by people who
are not members of the public.
The plurality opinion also asserts that "Kerbersky,
supra, held that the situs of an injury in a pubic building is
not relevant." Slip op at 9, n 6. However, as I have already
noted, Kerbersky only held that the situs of an injury in a
public building is irrelevant when determining a governmental
agency's liability to a member of the public. It did not hold
that the situs of an injury is irrelevant when determining a
governmental agency's liability to a person who is not a
member of the public. This is the distinction I now make,
which, in my judgment, is mandated by the statute.
15


6

that it limits the government's liability to certain people,
i.e., members of the public. Therefore, the plurality


concludes that because plaintiff is not a member of the
public, he cannot recover under the public building


exception.

In my judgment, however, it is more consonant


with the statutory language to view this statute as a "where"
statute, meaning that it limits the government's liability to
certain places, i.e., public buildings that are "open for use
by members of the public." Additionally, the government is


only liable for injuries caused by failing to take remedial
action "reasonably necessary to protect the public."


Therefore, because plaintiff is not a member of the public,
it is necessary to determine whether plaintiff was injured in
an area of the building that was open to members of the
public. Because plaintiff is not a member of the public, and


because he was injured in an area of the building that was
not open to members of the public, defendant should not be
held liable under the public building exception for failing
to protect plaintiff from the alleged dangerous or defective
condition. reversal Accordingly, I concur in the plurality opinion's
of the of Court the of Appeals court's decision grant of and the


reinstatement

circuit

summary


disposition in favor of defendant.


16


S T A T E

O F

M I C H I G A N


SUPREME COURT


CHESTER E. BROWN, JR.,
Plaintiff-Appellee,
v N o .
113915


GENESEE COUNTY BOARD OF
COMMISSIONERS,
Defendant-Appellant.
________________________________ CAVANAGH, J. (dissenting).
I believe that leave was improvidently granted in this
case. Further, I believe that the lead opinion unwisely


departs from precedent and reaches out to discuss issues that
have already been adequately addressed by the courts of this
state. I agree with the lead opinion to the extent that it


recognizes that jails are public buildings "open for use by
members of the public" for the purposes of the public


building exception to governmental immunity, MCL 691.1406.
However, I dissent from the plurality's decision to examine
the question whether inmates are members of the public, and


its decision to overrule a prior decision of this Court in
favor of its own interpretation.
The issue argued by the parties in this case was whether
the Genesee County jail is a public building open for use by
members of the public within the meaning of MCL 691.1406.
The lead opinion correctly concludes that it is. 1. Slip op at


However, rather than resolving the case solely on the


merits of the question before it, the plurality chooses to
address the question whether an inmate is a member of the
public. Moreover, the plurality dedicates a solitary


sentence in a footnote to the fact that the question it deems
of utmost importance in this case has already been addressed
by this Court, Green v Dep't of Corrections, 386 Mich 459;
192 NW2d 491 (1971).
I cannot join the plurality's unsupportable decision to
"overrule Green to the extent that it treats inmates as
members of the public for purposes of the statutory
Rather,


exception."

Corrigan, C.J. slip op at 6, n 4.

assuming that the question should even be addressed in the
context of this case, I would apply Green.
In Green, the plaintiff was an inmate in the Detroit
House of Corrections, a municipal facility operated by the
Department of Corrections. He injured himself while


operating machinery in a prison shop area.

This Court


2


explicitly rejected the argument that the Detroit House of
Corrections was nonpublic simply because it was not open to
the public at large. The Court held that the facility was a
The Court also


"public building" for immunity purposes.

stated that, "plaintiff is a member of the community whether
in or out of jail." Id. at 464.


The basis for the present suit is the same as it was in
Green. Both cases were granted to examine the same statutory


language, "[g]overnmental agencies have the obligation to
repair and maintain public buildings under their control when
open for use by members of the public." also Green at 464. MCL 691.1406; see


Other than to effectuate a policy change,


I see no reason for this Court to depart from the logic Green
used thirty years ago and that this Court has implicitly
followed since. The plurality offers nothing substantial in


support of its observation that "[j]ail inmates are not
members of the public for purposes of the public building
exception." Slip op at 9. Given Green's finding to the


contrary, I believe that the conclusion is erroneous.
Further, despite the plurality's misguided belief that
we can ignore precedent whenever this Court's reading of a


statute would lead to a different result than that of a prior
Court, I continue to find value in respecting precedent. The


plurality proclaims that Green is contrary to legislative


3


intent, and believes that Green made an isolated observation
about whether prisoners are members of the public. Given the


plurality's distaste for precedent that would support a
different view than its own, I question whether it gives any
credence to the fact that the Green Court defined the


"controlling" issue in that case as "whether the state,
through the Department of Corrections, may be held to respond
in damages for tortious injury sustained by a state-sentenced
convict while he is incarcerated in the Detroit House of
Correction." Green at 462.


I would also note that the plurality completely ignores
the fact that this Court has historically permitted suits
arising out of prisoner injuries to be brought under the
public building exception. See Johnson v Detroit, 457 Mich


695; 579 NW2d 895 (1998)(a prisoner hanged himself in a jail
cell); Hickey v Zezulka, 439 Mich 408; 487 NW2d 106 (1992)(a
prisoner committed suicide in a jail cell); Wade v Dep't of
Corrections, 439 Mich 158; 483 NW2d 26 (1992)(an inmate
brought slip and fall action). Thus, the plurality's plain


observation not only contravenes Green, but would eliminate
causes of actions that have been repeatedly recognized by
this Court as being available.1


The plurality finds these decisions to be of no import
since they did not squarely address whether prisoners are
(continued...)
4


1

For these reasons, I believe not only that leave was
improvidently granted, but that the plurality improvidently
uses this case as a vehicle for restricting the public
building exception to governmental immunity. dissent.
KELLY , J., concurred with CAVANAGH , J.
TAYLOR , J., took no part in the decision of this case.
Therefore, I


(...continued)
members of the public. However, they did not need to address
the issue since it had already been decided in Green. Quite
simply, the plurality today would change an established
principle of Michigan law.
5




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