Municipal; Governmental Immunity; Premises Liability

Court/Case No: Macomb County Circuit Court, 16-2335-NO

Tried/Argued Before: Judge

Demand:  In excess of $25,000.00

Verdict: Summary Disposition

Name of Judge(s): Honorable Carl J. Marlinga

Keys to the Case:

Plaintiff asserted a claim against the City of Warren after he slipped and fell at the City’s indoor waterpark facility. Plaintiff claimed the City failed to remedy water splashing out of the park’s 300 gallon water bucket dump, out of the pool, and into the foreseeable pathway used by public participants. Thus, pursuant to the public building exception to governmental immunity (MCL 691.1406), Plaintiff alleged the City knew or should have known of the hazardous condition and failed to maintain the premises or alternatively failed to take action to reasonably protect the public from the hazardous condition.

Defendant filed a Motion for Summary Disposition pursuant to MCR 2.116(C)(7) arguing the application of governmental immunity barred Plaintiff’s claim as a matter of law. In its Motion, Defendant argued that Plaintiff’s allegations regarding the manner in which the water bucket dumped water was an alleged design defect of the building itself, a claim that is barred under governmental immunity. Further, Defendant argued Plaintiff failed to establish the existence of a dangerous/defective condition. Defendant argued that the splashing of water was a non-actionable transitory condition. Finally, Defendant argued that even if a hazardous condition existed at the moment Plaintiff fell, based upon Plaintiff’s own testimony, Defendant had no actual or constructive notice of the condition, thus, Plaintiff’s claim failed as a matter of law.

In granting Defendant’s Motion, the Court concluded Plaintiff failed to establish the existence of a defective condition of the building. The Court noted the transitory nature of the reported pooling of water was not actionable as a defective condition of the building.

Further, Plaintiff’s own testimony established the lack of a defective condition. Plaintiff testified the drain where the water splashed out of the pool appeared to be working and that the floor tiles were not chipped or cracked. In granting Defendant’s Motion pursuant to MCR 2.116(C)(7) the Court concluded Plaintiff failed to establish a defective condition of the public building.

Further, the Court held that even if Plaintiff was able to establish the existence of a building defect, Plaintiff failed to establish the City was on notice of the condition. Finally, the Court noted Plaintiff’s claim also failed pursuant to MCR 2.116(C)(10) given Plaintiff’s sworn testimony that the only evidence he had to support his allegations against the City was ‘common sense.’

Defense SW attorney(s) Involved in Case: