By Thomas Franz
BridgeTower Media Newswires
A Michigan Court of Appeals panel reversed a Wayne County Circuit Court ruling that denied a motion for summary disposition based on an exception to the governmental tort liability act.
In Estate of Michael Whyte v. Detroit Transportation Corporation, the appeals panel reversed the trial court’s decision in a case stemming from the decedent’s fatal fall between a pair of Detroit People Mover cars.
The unpublished opinion was issued by Judges Patrick M. Meter, Colleen A. O’Brien and Brock A. Swartzle.
On May 15, 2016, Michael Whyte fell between a pair of cars at the Detroit People Mover’s Times Square Station in downtown Detroit.
Plaintiff’s counsel said the decedent was intoxicated at the time and video evidence showed him on the platform for several minutes.
With the sun setting on a bright day, plaintiff’s counsel claimed that the glare caused the decedent to miss the doors of the train and fall in between the two cars. Counsel said the train started moving and dragged Whyte.
Whyte’s estate filed a lawsuit alleging several negligence claims against the Detroit Transportation Corporation (DTC) and several other defendants.
The DTC responded with a motion for summary disposition by arguing that it was entitled to governmental immunity and no exceptions applied.
The Wayne County Circuit Court ruled that the public-building exception to governmental immunity applied in the case and denied the motion, which sparked this appeal.
When the DTC filed its motion for summary disposition, the COA wrote that the plaintiff argued that two exceptions applied to the GTLA in this case, the proprietary-function exception and public-building exception.
The proprietary-function exception applied, according to the plaintiff, because the DTC has multiple income sources, including advertising revenue.
For the public-building exception, the plaintiff asserted the DTC failed to repair and maintain the platform by not installing barriers in between the cars, which they alleged violated the Americans with Disabilities Act.
The plaintiff also argued that the DTC installed surveillance cameras in less-than-ideal locations.
The DTC argued the proprietary-function exception couldn’t apply because providing low-cost public transportation to Detroit residents was not primarily for the purpose of producing a pecuniary profit.
On the public-building exception, the COA wrote that the DTC argued it didn’t apply because the allegations were design defects which are not covered under the exception.
The COA cited MCL 691.1406 to define the public-building exception and state that government agencies have an obligation to repair and maintain public buildings, and they are liable for injuries resulting from a dangerous condition of a building if they had actual or constructive knowledge of the defect and failed to remedy the condition.
In largely relying on a 2007 Michigan Supreme Court case, Renny v. Department of Transportation, the COA determined that for the public-building exception to apply, a plaintiff’s claims must allege that the governmental defendant needed but failed to fix something pertaining to the building, and in this case, the plaintiff’s claims do not do so.
On the issue of the surveillance cameras, the COA wrote that the plaintiffs alleged the cameras were defective and not properly maintained because they didn’t provide proper coverage of the area in question. The COA ruled that this argument relates to a design defect, which does not fall within the public-building exception.
“Plaintiff’s claims, to the extent they center on the lack of between-car barriers, focus on an inherent problem with the platform as conceived and constructed, rather than extrinsic circumstances, such as an already-installed between-car barrier that became loose or unstable,” the court wrote. “Plaintiff’s complaint is with the design of the platform, not with a condition of the platform that needed to be repaired.”
For the proprietary-function exception, the COA rejected the plaintiff’s argument in ruling that nothing in the record demonstrated the Detroit People Mover is used primarily for the purpose of producing a pecuniary profit.
Attorneys’ comments
Defense counsel A. Tony Taweel of Ottenwess, Taweel, & Schenk PLC in Detroit said the key turning point in the case was the COA’s reliance on the Renny decision.
“I think the COA looked at it and said if you’re saying you should’ve installed these barriers or you should’ve put more cameras in to see more areas, that goes to the original design of the station of the system. Because it goes to the original design, it’s not an exception to governmental immunity pursuant to Renny given to us by the Supreme Court,” Taweel said.
Taweel added that another key point to the case was that the plaintiff couldn’t show that the station platform was defective, dilapidated or maintained improperly.
“Because they couldn’t show that, it doesn’t equate to the public-building exception,” Taweel said. “The turning point was the course of recognition that what the plaintiff really was asking for was a redesign of the station platform, or they were complaining about the original design.”
Plaintiff co-counsel Stacey Heinonen of The Mike Morse Law Firm in Southfield said this case differed from the circumstances in Renny.
“What’s important is the Legislature deliberately chose two different words in the statute, repair and maintain,” Heinonen said. “Based on the circumstances here and in contrast with what the Supreme Court was presented with in Renny, this appears to be a circumstance where maintain is not as limited as what the COA concluded in its opinion.”
Plaintiff’s co-counsel Jake Yeater, also of the Morse firm, further argued that the lack of barriers was a violation of the ADA and that the decision in this case doesn’t take into account reasonable public safety.
“It doesn’t make sense as to why they wouldn’t allow maintain to include keeping a building safe in accordance with federal regulations,” Yeater said.
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