
    DE SANCHEZ v DEPARTMENT OF MENTAL HEALTH
    Docket No. 117298.
    Decided September 11, 2002.
    On application by the defendant for leave to appeal, the Supreme Court, in lieu of granting leave, reversed the judgment of the Court of Appeals and reinstated the judgment of the Court of Claims.
    Francine Cullari de Sanchez and Steven Jason, as copersonal representatives of the estate of Thomas A. Baltus, deceased, brought a wrongful death action in the Court of Claims against the Department of Mental Health after the decedent, while an involuntary patient in a state psychiatric hospital, committed suicide by hanging himself in a hospital restroom. The decedent had hanged himself from an overhead bar that supported a partition between toilet stalls. The plaintiffs alleged that the bar was a dangerous or defective condition of a public building. The court, Robert Holmes Bell, J., summarily dismissed the case on the basis of governmental immunity. The'Court of Appeals, D. E. Holbrook, Jr., J., (Burns, P.J., and Payant, J. concurring) affirmed in part, reversed in part, and remanded the case to the Court of Claims. 161 Mich App 245 (1987) (Docket No. 80539). The Supreme Court remanded the case to the Court of Appeals. 430 Mich 894 (1988). On remand, the Court of Appeals, D. E. Holbrook, Jr., P.J., and Wahls and Hood, JJ., again affirmed in part, reversed in part, and remanded the case to the Court of Claims. 179 Mich App 661 (1989) (Docket No. 110071). On remand, the trial court, Melinda Morris, J., granted summary disposition for the defendants. After remand, the Court of Appeals, Reilly, P.J., and Burns and Horn, JJ., affirmed in an unpublished opinion per curiam, concluding that because proper supervision would have offset any shortcomings in the configuration of the restroom, summary disposition was properly granted on the building design defect claim (Docket No. 158052). The Supreme Court reversed, holding that the proper supervision defense did not negate the allegation of a true building defect so as to permit the conclusion that there is no question of material fact regarding the existence of a defect, and remanded the case to the trial court. 455 Mich 83 (1997). On remand, the trial court, Melinda Morris, J., again granted summary disposition for the defendants. The Court of Appeals, Fitzgerald, P.J., and Neff, J. (Smolensk!, J., dissenting), reversed in an unpublished opinion per curiam (Docket No. 214318). The defendant seeks leave to appeal.
    In an opinion per curiam, signed by Chief Justice Corrigan, and Justices Weaver, Taylor, Young, and Markman, the Supreme Court held-.
    
    A conclusion that a self-destructive act transformed an otherwise benign stall partition support bar into a defective condition is precluded.
    The purpose of the public building exception to governmental immunity is to promote the maintenance of safe public buildings, not safety in public buildings. MCL 691.1407 confers broad immunity, and the building exception created by MCL 691.1406 is narrowly drawn. Whether the physical condition of a room is defective depends on the uses for which the room was specifically assigned. In this case, there is no evidence that the support bar at issue defectively supported the toilet stall partitions or that it posed any danger to psychiatric patients generally. One person’s self-destructive use of an otherwise benign stall-partition support bar does not transform that bar into a defective condition.
    Justice Cavanagh concurred in the result only.
    Reversed.
    Justice Kelly, dissenting, stated that the use to which a public building area is put controls the determination whether a part of the building constitutes a dangerous and defective condition. The plaintiff created a genuine issue of material fact regarding whether the placement of a solid, accessible overhead bar in an area housing suicidal mentally ill patients constituted a dangerous and defective condition within MCL 691.1406.
    Given the use of the building area exclusively for the care and treatment of persons with mental diseases, including those with suicidal tendencies, and decedent’s involuntary commitment, the overhead bar had every potential for being a dangerous and defective condition of that building.
    
      Lopatin, Miller, Freedman, Bluestone, Herskovic & Domol (by Richard E. Shaw) for the plaintiffsappellees.
    
      Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, and Mark S. Meadows, Assistant Attorney General, for the defendant-appellant.
   Per Curiam.

The plaintiffs’ decedent, an involuntary patient in a state psychiatric hospital, committed suicide in a hospital restroom. Plaintiffs, the personal representatives of decedent’s estate, filed a wrongful death suit, alleging that the overhead bar from which decedent hanged himself was a “dangerous or defective condition of a public building.” If proved, that allegation would bring the plaintiffs’ claim within the public building exception to the defendant’s governmental immunity. MCL 691.1406 and 691.1407(1).

The plaintiffs filed this Court of Claims lawsuit in 1984. On two previous occasions, the Court of Claims granted summary disposition to defendant, but those judgments were reversed or vacated on appeal.

In 1998, the Court of Claims once again granted summary disposition to defendant on the bases of governmental immunity and MCR 2.116(C)(10). The judge ruled that plaintiffs failed to establish a genuine issue of material fact about any “dangerous or defective condition.”

The Court of Appeals again reversed the grant of summary disposition. Defendant’s appeal was held in abeyance for Brown v Genesee Co Bd of Comm’rs (After Remand), 464 Mich 430; 628 NW2d 471 (2001). We now reverse the judgment of the Court of Appeals and reinstate the Court of Claims judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 1983, Thomas Baltus attempted suicide by trying to drown himself. After that failed attempt was discovered, Baltus was involuntarily committed to the Ypsilanti Regional Psychiatric Hospital. Hospital personnel observed Baltus continuously for more than five days. His behavior during that time persuaded them that continuous monitoring was no longer necessary and that periodic monitoring would be an adequate suicide precaution. The next day, allowed to use the restroom unattended, Baltus hanged himself. He used a cloth belt, which he attached to an overhead bar that supported a partition between toilet stalls.

The plaintiffs’ wrongful death complaint alleged that the support bar from which Baltus hanged himself constituted a “dangerous or defective condition of a public building,” thus bringing the claim within the public building exception to governmental immunity. Defendant moved for summary disposition pursuant to MCR 2.116(C)(10), contending that no genuine issue of material fact existed regarding whether the stall partition support bar was a “defective condition.” The trial court agreed and granted summary disposition.

The Court of Appeals reversed, holding that “plaintiffs presented evidence to create a genuine issue of material fact regarding whether the placement of a solid bar in the bathroom of the facility constituted a dangerous and defective condition ... in light of the use for which the bathroom was specifically assigned, that is, for the use of potentially suicidal mentally ill patients.” Slip op at 4.

n. STANDARD OF REVIEW

We review de novo a trial court’s decision on a motion for summary disposition. A motion for summary disposition brought under MCR 2.116(C)(10) tests the factual support of a claim. After reviewing the evidence in a light most favorable to the nonmoving party, a trial court may grant summary disposition under MCR 2.116(C)(10) if there is no genuine issue concerning any material fact and the moving party is entitled to judgment as a matter of law. Smith v Globe Life Ins Co, 460 Mich 446; 597 NW2d 28 (1999); Hazle v Ford Motor Co, 464 Mich 456; 628 NW2d 515 (2001).

m. ANALYSIS

Resolution of the issue presented is controlled by Jackson v Detroit, 449 Mich 420; 537 NW2d 151 (1995). In Jackson, an inmate attempted to hang himself from the overhead bars of a police station holding cell. Jackson set forth what a plaintiff must prove in order to bring a case within the public building exception to governmental immunity:

This Court [has] held that a five-part test determines whether the public building exception governs a particular case. To fall within the narrow confines of the exception, a plaintiff must 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. [Id. at 428, citing Hickey v Zezulka (On Resubmission), 439 Mich 408, 421; 487 NW2d 106 (1992) (emphasis added).]

The present appeal involves only the third part of that test: whether the stall partition support bar was a dangerous or defective condition of the hospital building. The plaintiffs argue that a defect existed because the restroom was intended for use by psychiatric patients, including suicidal patients, and the support bar could be put to fatal use by a suicidal patient. However, the issue before us is not whether a suicide was foreseeable, but whether the restroom had a “dangerous or defective condition” as that term is used in MCL 691.1406.

In Jackson, the plaintiff presented evidence that Detroit Police Department detainees had made more than one hundred similar suicide attempts during the previous five years, and that the officers responsible for the Jackson detainee knew that he had attempted to hang himself in the same precinct station just one day earlier. Jackson, supra at 423-425, 429, n 12. Thus, the dangers to confined persons generally and to the individual plaintiff were far more obvious in Jackson than in the present case. Nevertheless, Jackson held that the cell’s overhead bars were not a “defective condition.”

Evidence of foreseeability is not necessarily evidence of a defect. As we said in our earlier decision in this very case, MCL 691.1407 confers broad immunity, and the building exception created by MCL 691.1406 is narrowly drawn, de Sanchez v Dep’t of Mental Health, 455 Mich 83, 90; 565 NW2d 358 (1997). Whether the physical condition of a room is defective depends on the uses for which the room was specifically assigned. Id. at 91. The present case involves a restroom used by mentally ill hospital patients, including patients who were suicidal. There is no evidence that the support bar at issue defectively supported the toilet stall partition or that it posed any danger to psychiatric patients generally. To paraphrase an observation made in Jackson, there was nothing wrong with the bathroom. “There was, however, something tragically wrong with the decedent.” Jackson, supra at 428.

One person’s self-destructive use of an otherwise benign stall partition support bar does not transform that bar into a “defective condition.” In Jackson, we observed that the purpose of the public building exception is to promote the maintenance of safe public buildings, not safety in public buildings. “Thus, where proper supervision would have ‘offset any shortcomings in the configuration of the room,’ the public building exception does not apply.” Id. at 428, quoting Hickey, supra at 422. We noted that plaintiff’s claim “is more closely related to safety in public buildings than it is to a defect in a public building.” Jackson, supra at 429 (emphasis added). To illustrate that distinction, Jackson quoted again from Hickey.

To suggest that any physical feature of a jail cell, otherwise benign, that can conceivably become part of a plan of one who is desperately driven to self destruction can become a “dangerous or defective condition” under the public building exception statute, simply crosses the outer limits of any reasonable reading of the intent of that statute when considered in the context of its history, purpose, and wording. [Jackson, supra at 429; Hickey, supra at 426.]

Perhaps the present defendant could have designed the restroom without partition support bars. It is also arguable that the defendant’s employees were too quick to decide that the plaintiffs’ decedent no longer required continuous individual observation. But those “might haves” prove, at most, only negligence. Jackson, which is on point both legally and factually, precludes finding that a self-destructive act transformed the otherwise benign stall partition support bar into a “defective condition.”

For the reasons stated, we reverse the judgment of the Court of Appeals and reinstate the judgment of the Court of Claims. MCR 7.302(F)(1).

Corrigan, C.J., and Weaver, Taylor, Young, and Markman, JJ., concurred.

Cavanagh, J., concurred in the result only.

Kelly, J.

I disagree with the majority’s conclusion that this case is controlled by the holding in Jackson v Detroit, 449 Mich 420; 537 NW2d 151 (1995). Although both involve overhead bars from which a person hanged himself, a key difference is that the building areas where the bars were installed were designated for significantly different uses. In Jackson the overhead bar was in a prisoner holding cell designated for the general jail population. In this case, the room was designated exclusively for the care and treatment of persons with mental diseases, including those with suicidal tendencies. It is the use to which the building area is put here that controls the determination whether a part of the building, such as an overhead bar, constitutes a dangerous and defective condition. See Bush v Oscoda Area Schools, 405 Mich 716, 730; 275 NW2d 268 (1979).

In the Jackson case, despite the fact that jail officials had notice of the potential for suicide in their holding cell, the vast majority of prisoners held there were not suicidal. See Jackson, supra at 424. The situation is quite different in a mental hospital. The majority states that “the dangers to confined persons generally and to the individual plaintiff were far more obvious in Jackson than in the present case.” Ante at 237.1 believe a much more accurate statement is that the dangers were obvious in both cases, but far more likely to result in death in this case than in Jackson. And, in fact, that was the difference.

The majority errs, also, in reasoning that the current case involves a question of safety in a public building and not an unsafe building, itself. Plaintiffs’ decedent had been involuntarily committed to the defendant’s facility following an attempt to commit suicide. The bathroom in which he later did commit suicide was used by patients who were like him, mentally ill. In light of the use made of the room where it was installed, the overhead bar that plaintiff’s decedent used to support the noose cannot be characterized as a “benign physical feature.” Rather, given the use, that rigid exposed overhead bar accessed for suicide had every potential for being a dangerous and defective condition of the building.

The majority has neglected to consider adequately the purposes for which the building area was specifically used. It has ignored precedent holding that an overhead metal bar might present a “safety in a building” question in one place, but be a “dangerous and defective condition” in another.

I would affirm the Court of Appeals decision reversing summary disposition in favor of defendant. Plaintiffs created a genuine issue of material fact regarding whether the placement of a solid, accessible overhead bar in an area housing suicidal mentally ill patients constituted a dangerous and defective condition within MCL 691.1406. 
      
       Sub nom de Sanchez v Genoves-Andrews, 161 Mich App 245; 410 NW2d 803 (1987), rem’d 430 Mich 894 (1988), (On Remand) 179 Mich App 661 (1989), and de Sanchez v Dep’t of Mental Health, 455 Mich 83; 565 NW2d 358 (1997).
     
      
      
        de Sanchez v Dep’t of Mental Health, unpublished opinion per curiam, issued June 30, 2000 (Docket No. 214318).
     
      
       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. [MCL 691.1406 (emphasis added).]
     
      
       Except as otherwise provided in this act, a governmental agency is immune from tort liability if the governmental agency is engaged in the exercise or discharge of a governmental function. [MCL 691.1407.]
     
      
       We held an earlier appeal in the present case in abeyance for Jackson. That abeyance was resolved by our decision in de Sanchez v Dep’t of Mental Health (After Remand), n 1 supra, in which we concluded that the defective condition issue was not then properly before us. Id. at 88.
     
      
       The dissent maintains that Jackson is distinguishable from the present case because “the building areas where the bars were installed were designated for significantly different uses.” Post at 239. However, scrutiny of the facts in this case reveals more similarities than differences. In Jackson, the holding cell at issue was designed for the general prisoner population, some of whom were suicidal. In this case, the bathroom was designed and used by mentally ill patients, some of whom were suicidal. There is no evidence in the record suggesting that the bathroom was specifically designed for suicidal patients. Rather, similarly to Jackson, the restroom was designed for use by the general psychiatric population.
     
      
       This case was held in abeyance for Brown v Genessee Co Bd of Comm’rs (After Remand), 464 Mich 430; 628 NW2d 471 (2001). However, because we conclude that the stall partition support bar here did not constitute a “defective condition” within a public building, it is unnecessary to decide the applicability of Brown to the facts of this case.
     