Michigan Supreme Court Lansing, Michigan 48909 _____________________________________________________________________________________________ C hief Justice Justices Maura D. Cor rigan Michael F. Cavanagh

Opinion Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. Stephen J. Markman ____________________________________________________________________________________________________________________________ FILED JULY 24, 2001

CONNIE FANE and CHARLES FANE,

Plaintiffs-Appellants,

v No. 116708

DETROIT LIBRARY COMMISSION,

Defendant-Appellee.

___________________________________ KAREN L. COX and NORMAN W. COX,

Plaintiffs-Appellants,

v No. 116711

BOARD OF REGENTS OF THE UNIVERSITY OF MICHIGAN,

Defendant-Appellee.

___________________________________ BEFORE THE ENTIRE BENCH

KELLY, J.

These consolidated cases question the scope of the public

building exception to governmental immunity1 in light of this

Court's ruling in Horace v City of Pontiac, 456 Mich 744; 575 NW2d 762 (1998). The parties in Fane dispute whether the

elevated terrace where plaintiff fell is part of Detroit's

main public library building. In Cox, this Court must

determine whether a portable ramp placed at a doorstep is part

of the Fairlane Estate building in Dearborn.

We conclude that the public building exception can apply

to parts of a building that extend beyond the walls. We hold

the public building exception applicable under the undisputed

facts in Fane v Detroit Library Commission, because the

terrace is part of the building. Hence, we reverse the

decision of the Court of Appeals.

In Cox v Board of Regents of the University of Michigan,

applying the undisputed facts, we find that the ramp is not

part of the building. Because the public building exception

does not apply, we affirm the Court of Appeals decision.

I. FACTS AND PROCEEDINGS

A. FANE v DETROIT LIBRARY COMMISSION

On October 21, 1995, Connie Fane was walking toward the

main entrance of the Detroit Public Library. She climbed

several stairs to a broad stone terrace that gives access to

MCL 691.1406.

the doors of the library. After she had taken several steps

on the terrace, the heel of her shoe caught on a raised

portion of the stonework. She fell as a result and was

injured. She and her husband, Charles, filed a complaint

against the Detroit Library Commission. They alleged that,

under the public building exception to governmental immunity,

the commission violated its statutory duty to repair and

maintain the terrace in a safe condition.

The commission sought summary disposition under MCR

2.116(C)(7) and (C)(10), arguing that governmental immunity

bars plaintiffs' claim. The parties disputed whether the

terrace was part of the building for the purpose of the public

building exception. They agreed that the fall did not occur

in the building itself but on the terrace approximately

thirty-five yards from the entrance. Plaintiffs contended

that the terrace is part of the permanent structure of the

library building; it is physically attached to the building,

and it provides the sole access to the main entrance.

When the trial court denied the commission's motion, the

commission filed an appeal. In lieu of granting leave, the

Court of Appeals, citing Horace, remanded for entry of an

order granting summary disposition for the commission.2 This

Unpublished order, entered May 8, 1998 (Docket No. 211232).

Court vacated the Court of Appeals decision and remanded the

case for consideration with Cox. 459 Mich 944 (1999).3

On remand, the Court of Appeals reversed the lower

court's denial of summary disposition, again relying on this

Court's decision in Horace.4 The Court concluded that the

trial court had erred as a matter of law in finding that the

terrace was part of the building. It noted that Connie Fane

was not alleged to have fallen in the building, and it

determined that the elevated terrace was "merely contiguous"

and not part of the building itself.

The appeals court remanded the case to the trial court

with instructions to enter an order of summary disposition in

favor of the commission. This Court granted leave to appeal,

ordering the case to be argued and submitted with Cox. 463

Mich 911 (2000).

B. COX v BOARD OF REGENTS OF THE UNIVERSITY OF MICHIGAN

On August 21, 1994, Karen Cox was visiting the Henry Ford

estate to attend her niece's wedding. As she walked from the

building to an outdoor porch, she stepped on a ramp that had

been positioned at the doorstep. The heel of her shoe caught

The order also consolidated Maskery v Univ of Mich Bd of Regents (Docket No. 109065). Maskery is not part of this appeal.

Unpublished opinion per curiam, issued March 24, 2000 (Docket No. 211232).

in a space between the door and the ramp, and the ramp

slipped, causing her to fall.

In a multicount complaint, Karen and her husband, Norman,

sued the Board of Regents of the University of Michigan, the

owners of the property. They alleged that the ramp was a

dangerous or defective condition and that the board breached

its duty under the public building exception to governmental

immunity by failing to secure it in a proper fashion.

The board moved for summary disposition, arguing that the

public building exception did not apply. The board contended

that, because it was not affixed to the building, the ramp was

not part of the building itself. Plaintiffs responded that a

reasonable trier of fact could conclude that the ramp was part

of the building, notwithstanding that it was portable and

unattached.

The trial court granted the board's motion for summary

disposition, citing MCR 2.116(C)(7). The Court of Appeals

denied plaintiffs' delayed application for leave to appeal.5

This Court remanded to the Court of Appeals for consideration

as on leave granted. 459 Mich 883 (1998).

On remand, the Court of Appeals affirmed the grant of

Unpublished order, entered July 2, 1998 (Docket No. 208644).

summary disposition in favor of the board.6 Relying on this

Court's decision in Horace and a fixtures analysis, the court

determined that the ramp was not a fixture or an integral part

of the building.

The Court concluded that the trial court had properly

found that the public building exception was not applicable.7

This Court granted leave to appeal, ordering the case to be

argued and submitted with Fane. 463 Mich 911 (2000).

II. LEGAL PRINCIPLES

A. STANDARDS OF REVIEW

In both cases, the Court of Appeals upheld summary

disposition under MCR 2.116(C)(7). We review decisions on

summary disposition motions de novo. Sewell v Southfield Pub

Schs, 456 Mich 670, 674; 576 NW2d 153 (1998). Under MCR

2.116(C)(7), summary disposition is proper when a claim is

barred by immunity granted by law. To survive such a motion,

the plaintiff must allege facts justifying the application of

an exception to governmental immunity. Wade v Dep't of

Corrections, 439 Mich 158, 164; 483 NW2d 26 (1992). We

consider all documentary evidence submitted by the parties,

Unpublished opinion per curiam, issued March 24, 2000 (Docket No. 215337).

The decision also addressed the issue of proprietary function, which is not presented in this appeal pursuant to this Court's order granting leave to appeal.

accepting as true the contents of the complaint unless

affidavits or other appropriate documents specifically

contradict them. Sewell, supra at 674; MCR 2.116(G)(5).

B. THE PUBLIC BUILDING EXCEPTION

Under MCL 691.1407(1), a government agency is generally

immune from suit for actions undertaken in the performance of

its governmental functions. However, this broad immunity is

limited by some narrowly drawn exceptions. Jackson v Detroit,

449 Mich 420, 427; 537 NW2d 151 (1995). The present appeal

involves the public building exception to governmental

immunity, 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. [MCL 691.1406.]

To determine whether the public building exception is

applicable, this Court has set forth a five-pronged test.

Under the test, a plaintiff is required to prove that

(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 failed to remedy the alleged

defective condition after a reasonable period of time or failed to take action reasonably necessary to protect the public against the condition after a reasonable period. [Kerbersky v Northern Mich Univ, 458 Mich 525, 529; 582 NW2d 828 (1998), citing Jackson, supra at 428.]

It is the third element of this test that is at issue in the

present appeal, whether a dangerous or defective condition of

the public building itself exists.

III. HORACE V CITY OF PONTIAC

The Court of Appeals determined that neither the terrace

nor the ramp is part of the buildings in question, relying on

this Court's decision in Horace. Horace was a consolidated

appeal involving two different sets of facts, both of which

involved injuries from defects in walkways.8 The first

concerned a hole or crack eighteen to twenty-eight feet from

the entrance doors of the Silverdome in Pontiac. The second

involved a hole in a walkway leading to the entrance of a

building at a rest area on I-75.

The issue in Horace was whether the public building

exception applies to dangerous or defective conditions of

areas outside and adjacent to entrances or exits of public

buildings. Horace, supra at 746. The Court concluded that

"the ground adjacent to a public building is [not] a public

'building,' statutorily speaking . . . ." Id. at 757. Thus,

The decision in Horace also resolved its companion case, Adams v Dep't of State Highways & Transportation.

the core holding of Horace is that mere sidewalks and walkways

are clearly outside the scope of the public building

exception.

However, the Court added in a footnote that the decision

is not an absolute bar to injuries occurring from defective or

dangerous conditions located outside the four walls of a

building. The footnote states:

The dissent suggests that our opinion may cut off liability for injuries resulting from the collapse of an outside overhang on a public building, stairs leading up to or down from an elevated building entrance, an underground tunnel leading into a building, an attached external ramp or railing. While it is not necessary for us to resolve these hypothetical situations in the case at bar, we note that an outside overhang is a danger presented by a physical condition of a building itself and that some stairs may also fit the test we adopt today if they are truly part of the building itself. [Id. at 756-757, n 9.]

We are now asked to further clarify the extent to which

something outside a building falls within the exception.

IV. ANALYSIS

As an initial matter, we conclude that the Court of

Appeals reading of Horace was overly broad. The appeals court

decision mistakenly portrays Horace as stating a bright-line

rule precluding liability for injuries occurring from

dangerous or defective conditions of building parts outside an

entrance or exit. By imposing an absolute bar on liability

for injuries arising from something outside the four walls of

a building, the opinion precludes the possibility that an

external part might be "truly part of the building itself."

While such an interpretation would be warranted by the

words "in a public building," the Legislature did not choose

that phrase. Rather, it referred to injuries resulting from

dangerous or defective conditions "of a public building,"

which implies that the conditions could pertain to parts of a

building outside its walls. We presume that "of" rather than

"in" was carefully chosen to reflect legislative intent. See

Reardon v Dep't of Mental Health, 430 Mich 398, 410; 424 NW2d 248 (1988).

It is consistent with Horace and its treatment of the

word "of" to consider the characteristics of the building and

the item in question.9 If it must be determined whether the

building possesses the item, surely the relative

characteristics of both must be evaluated.

In some cases, a fixtures analysis will be helpful in

determining whether an item outside the four walls of a

building is "of a public building." As recognized in Velmer

v Baraga Area Schs,10 a dangerous or defective fixture can

support a claim of liability under the public building

Horace indicated that "of" is "used to indicate possession." 456 Mich 756.

430 Mich 385, 394; 424 NW2d 770 (1988).

exception.

However, the fixtures analysis is limited to items of

personal property that have a possible existence apart from

realty. Wayne Co v Britton Trust observes that "[t]he term

'fixture' necessarily implies something having a possible

existence apart from realty, but which may, by annexation, be

assimilated into realty." Wayne Co v Britton Trust, 454 Mich 608, 614-615; 563 NW2d 674 (1997) (citation omitted). Where

the facts do not lend themselves to a fixtures analysis

because the item causing the injury has no existence apart

from realty, the courts must look beyond the fixtures analysis

to determine whether an item or area outside the four walls of

a building is "of a public building."

Under the fixtures analysis, an item is considered part

of the building if it is found to be a fixture. An item is a

fixture if (1) it is annexed to realty, (2) its adaptation or

application to the realty is appropriate, and (3) it was

intended as a permanent accession to the realty. Id. at 615.

When a fixtures analysis does not apply, in determining

whether an item or area outside the four walls of a building

is "of a public building," the courts should consider whether

the item or area where the injury occurred is physically

connected to and not intended to be removed from the

building.11

A. FANE v DETROIT LIBRARY COMMISSION

A fixtures analysis is not applicable to the elevated

library terrace in Fane because the terrace does not have an

existence apart from the library. Therefore, we must

determine whether it is physically connected to and not

intended to be removed from the building, making the terrace

part "of a public building."

The terrace is a large stone area that is physically

abutting and built into the library building. It is not

intended to be removed from the rest of the building in the

foreseeable future. Normally, to reach the main entrance, one

walks along a sidewalk, up stairs to the elevated terrace,

across the terrace, and up additional stairs. If the terrace

were removed, the doors to the library would be located

approximately four feet off the ground.

We conclude that the elevated terrace is physically

connected to and not intended to be removed from the library.

Accordingly, we are persuaded that the terrace is part of the

building within the meaning of the public building exception.

A temporary object or structure is normally not part of a building. Consider, for example, scaffolding attached to a building only for the period necessary to complete construction. Because it is clearly intended to be removed from the building, the scaffolding could not be considered part of the building.

The Court of Appeals erred in finding that the Fanes' claim

was precluded by the holding in Horace.

B. COX v BOARD OF REGENTS OF THE UNIVERSITY OF MICHIGAN

The characteristics of the portable ramp indicate that it

is personal property with a possible existence apart from the

doorstep of the Fairlane Estate building. As such, the

fixtures analysis is applicable.

There is no dispute that the portable ramp was not

physically attached to the building and could readily be

removed. Wayne Co states that annexation can be actual or

constructive. Constructive annexation occurs where the item

cannot be removed from the building without impairing the

value of both the item and the building. Wayne Co, supra at

615-616. However, there is no evidence that removal of the

ramp would impair the value of either the ramp or the

building. Therefore, the ramp was not actually or

constructively annexed to the building.

Although the ramp was adapted appropriately to the

entrance, there is no evidence that it was intended as a

permanent accession to the building. We conclude that the

ramp is not a fixture and, therefore, not part of the

building. Because it does not fall within the public building

exception, the appeals court correctly determined that summary

disposition was proper in Cox.

V. CONCLUSION

Horace acknowledges that injuries occurring from

dangerous or defective conditions of building parts outside

the walls of a building can fall within the public building

exception. In determining whether an item or area outside the

walls of a building is "of a public building," the courts must

consider the characteristics of the building and of the item

in question. A fixtures analysis should be used where the

item is personal property that could possibly have an

existence apart from the realty. However, where the facts

indicate that the fixtures analysis does not apply, the courts

should consider whether the item or area where the injury

occurred is physically connected to and not intended to be

removed from the building.

Applying this analysis to the undisputed facts in Fane,

we conclude that the elevated terrace is part of the library

building itself because the terrace is physically connected to

and not intended to be removed from the library. Hence, the

Fanes are not precluded from pursuing their claim. The Court

of Appeals order instructing the trial court to enter summary

disposition in favor of the commission is reversed.

However, we affirm in Cox. Applying the undisputed

facts, the ramp is personal property that could possibly have

an existence apart from the building. Therefore, the fixtures

analysis is applicable. However, the ramp is not a fixture

because it is not annexed to the building and was not intended

as a permanent accession to the building. Therefore, the ramp

is not part of the building.

Accordingly, we affirm the decision of the Court of

Appeals in Cox and reverse in Fane.

CORRIGAN , C.J., and CAVANAGH , WEAVER , TAYLOR , YOUNG , and

MARKMAN , JJ., concurred with KELLY , J.