By Thomas Franz
BridgeTower Media Newswires
DETROIT-A Michigan Court of Appeals panel has affirmed the denial of a motion for summary disposition by Traverse City Area Public Schools after a woman broke her thumb while entering an athletic facility doorway.
In Glezman v. Traverse City Area Public Schools, the COA ruled that the installation of a new door without necessary safety hardware was not a design flaw, which would have granted the district immunity.
Judges Patrick M. Meter, Kathleen Jansen and Michael J. Kelly unanimously affirmed the Grand Traverse Circuit Court ruling.
Background
Plaintiff Sherri Glezman attempted to enter Traverse City West High School on Jan. 28, 2016, to attend a basketball game.
She entered the athletic entrance through the center door. At the same time she began to open the door, a young man exited the building through the door to her right.
The door to her right opened with enough force to carry the door into the path of the plaintiff's doorway and struck the handle she was holding to open the door.
The impact caused her thumb to be crushed between the two metal doors.
According to the COA's unpublished opinion, surveillance footage showed that one hour before this incident, the right door's control arm had failed and the door was swinging freely.
To provide more context into the accident, the COA provided background of the entryway.
The athletic facility opened in 2009 and the three entrance doors were made of lightweight aluminum. The two doors involved in this incident were both designed to open from left to right if an individual was facing the building.
The district's director of building operations and security, Christopher Wise, testified that until 2015, strong winds would catch the right door and either break the control arm or pull screws loose between three and six times each year. The COA noted that wind-related failures damaged it so much that the door would no longer latch.
In the fall of 2015, district officials worked to redesign the entryway.
Under the redesign, the arc of the right door was reversed to open from right to left, which meant it would intersect with the middle door, which still opened left to right.
Wise testified that the district ordered a heavier right door with a restraining chain and non-conflicting handles for the right and center doors.
Wise testified that the restraining chain was a backup safety measure in case the right door's control arm failed, and the non-conflicting handles were to be installed so that if both safety measures failed, the door handles could not come into direct conflict and injure someone.
The new door arrived before the safety equipment. Wise said the district planned to delay the door's installation until the safety equipment arrived, but decided to move up the installation because the old right door was so damaged the defendant had to screw the door to the frame to keep it closed.
The new door was installed in January 2016 without the non-conflicting handle and restraining chain.
Legal action
Plaintiff filed a complaint by alleging the district negligently maintained the doorway by failing to install safety devices and failing to repair the broken door after the control arm failed.
The plaintiff asserted the district was statutorily liable under the public-building exception to governmental immunity.
The defendant filed a motion for summary disposition and argued the public-building exception did not apply and it had no notice of the door defect before the incident.
The district asserted a governmental entity is immune from design defects and the plaintiff's injury resulted from a redesign and renovation of the entrance combined with a sudden fracture of the control arm.
The plaintiff conceded that the decision to reverse the arc of the right door was an immune design decision. However, the plaintiff argued the failure to install the safety devices was not a design failure. The plaintiff also argued that an hour-long failure of the control arm before a basketball game was long enough to put the district on constructive notice of the hazard.
The trial court found that the installation of the door without the safety devices was not a design decision. It also found that regarding notice, the relevant time period was not just the time between the control arm failure and plaintiff's injury, but the time the district knew about the missing safety hardware.
Analysis
The COA opened its analysis by citing MCL 691.1406, which states "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."
The court also cited Renny v. Department of Transportation (2007) to state the design and repair are separate concepts, and the Legislature did not intend to include design defect claims within the scope of the public-building exception.
The COA agreed with the trial court that the absence of safety hardware was not a design defect, but rather a failure to maintain the newly designed door.
The court also concluded that a question of fact exists as to whether the defendant had constructive notice of the broken control arm in the hours preceding a basketball game because the district had actual notice of the defect for at least a week before the accident.
Attorney's comments
Plaintiff's attorney George R. Thompson of Thompson O'Neil PC in Traverse City said his strategy centered on the defendant intending to put the safety hardware on the door but failing to do so.
"According to the supplier who was available, it appears they just forgot to do it and then they wanted to call it a design issue," Thompson said.
Thompson said the Renny case and other case law weren't perfect matches, but established enough grounding for his argument.
"The language of the cases was very clear that you couldn't avoid responsibility if you had a flaw that was not inherent in your design. This was not inherent in their design. They intended to reinstall that thing," Thompson said.
Defense attorney Mark T. Ostrowski of Kluczynski, Girtz & Vogelzang in Grand Rapids declined to comment for this article.
Published: Wed, Jul 31, 2019
