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A Better Partnership
October 23, 2014

COA holds that the time of day is relevant when considering whether a building is open to the public for purposes of Michigan’s governmental tort immunity exception

In Pew v. Michigan State University, No. 317727, the Court of Appeals held that a government building is not subject to the governmental immunity exception if public access is restricted at the time of the alleged tort.  
In this case, Alexandra Pew was visiting a friend who attended school at Michigan State University (MSU). Pew’s friend resided in Case Hall, a dorm that contains residential areas, administrative offices, a cafeteria, and classrooms. Case Hall is closed from 12:00 a.m. to 6:00 a.m. and residents and their guests may only access the inside of the building during those times by waiting in a vestibule and swiping a key card. Around 3:00 a.m., Pew fell through the Hall’s sixth-story window, injuring herself. Pew subsequently filed an action against MSU for violating its duty to repair and maintain the building.
Michigan law provides broad tort immunity to governmental agencies that exercise or discharge a governmental function, such as public universities. However, MCL 691.1406 provides that governmental agencies “have the obligation to repair and maintain buildings under their control when open for use by members of the public.” Pew asserted that the time of injury is irrelevant when determining whether a building is open for public use and, even if relevant, Case Hall has a 24-hour vestibule where the public could seek entrance to the building. MSU contended that Case Hall was not open to the public at the time of the accident because it restricted access to residents only.
The Court of Appeals first concluded that a court must consider whether a governmental building is open to the public at the time of injury. The Court then held that Case Hall was not open for use by members of the public at the time of Pew’s accident because the building was open only to residents and guests, despite the fact that people could enter the small space between Case Hall’s inner and outer doors. The Court explained that the vestibule’s sole purpose was not for public access, but to keep the public from using the remainder of the building. Therefore, MSU was immune from liability and the Court of Appeals affirmed the trial court’s order granting MSU summary disposition.

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