Opinion
ORDER
On order of the Court, the application for leave to appeal is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.
MALLETT, J., would grant leave to appeal.
LEVIN, J., states as follows:
I would grant leave to appeal.
Mark L. Meyers, O.D., hanged himself in his room at the Lafayette Clinic while he was a patient. His wife, as personal representative of his estate, commenced this wrongful death action in the Court of Claims alleging that the building was defective within in the meaning of the public building exception to governmental immunity in that a bar in the clothes closet should have been a breakaway bar in which event Dr. Meyers would not have been able to hang himself therefrom.
M.C.L. § 691.1406; M.S.A. § 3.996(106).
Before Dr. Meyers voluntarily admitted himself to the Lafayette Clinic, he suffered from serious depression and had on eight separate occasions attempted to commit suicide. He was suffering from auditory and tactile hallucinations. At the time of his admission, he was placed under "active suicide precaution," which meant that someone was supposed to be with him all the time. He remained under active suicide precaution for twelve days. For the next eight days, he was under "general suicide precaution," and, when he committed suicide, he was in the third and lowest level of supervision, "moderate risk."
Lafayette Clinic's motion for summary disposition does not comply with the court rules. It is not until page thirty-three of the brief in support of the motion that one finds the first hint of the argument adopted by the Court of Appeals: "negligent supervision do[es] not constitute building defects even though the building is involved in the injury." The brief elaborates on page thirty-five:
A motion under subrule (C)(10) must specifically identify the issues as to which the moving party believes there is no genuine issue as to any material fact. [MCR 2.116(G)(4) (emphasis added).]
As noted above, Dr. Josef testified at her deposition that initially Mr. Meyers was on one-to-one suicide watch for twelve (12) days and thereafter, the suicide precautions were reduced from one-to-one to general suicide precautions for an additional eight (8) days, after which all suicide precautions were discontinued because of the clinical decision that they were no longer necessary for Mr. Meyers. An additional eighteen (18) days went by before Mr. Meyers committed suicide. Nevertheless, Dr. Josef testified unequivocally at her deposition that had it been felt clinically appropriate one-to-one active suicide precaution could have been employed in Mr. Meyers' case and had it been in effect on October 2.1988, he would not have been able to commit suicide. [Emphasis added.]
The argument, thus, is that even if the building is defective, the defect is not actionable if injury would or might have been avoided had there been adequate supervision. Because failure to provide adequate supervision is not within an exception to governmental immunity, and the decision whether to provide supervision or the adequacy of supervision is not itself within the public building exception, an injury that resulted from a defect in the building is not actionable. This circular process of reasoning was adopted by the Court of Appeals, in affirming the circuit court decision granting summary disposition, by entry of the following peremptory order:
Because decedent was not thought to be actively suicidal at the time of his death, the room he occupied at the Lafayette Clinic did not have to be "suicide proof," and was not defective because of a physical feature, "otherwise benign, that can conceivably become a part of a plan of one who is desperately driven to self destruction" without "cross[ing] the outer limits of any reasonable reading of the intent of [the governmental immunity] statute when considered in the context of its history, purpose, and wording." Hickey v Zezulka (On Resubmission), 439 Mich. 408, 426 [487 N.W.2d 106] (1992). At the time of decedent's death, he was assigned to a room which met the requirements for the specific use to which it was assigned, i.e., housing a patient not believed to be actively suicidal. Bush v Oscoda Area Schools, 405 Mich. 716 [275 N.W.2d 268] (1979). [Issued February 8, 1995 (Docket No. 159165).]
The defendant's expert witness, Randall Atlas, acknowledged that the room in which the defendant was housed when he committed suicide was defective for a person who was suicidal:
Q. Then at least we see eye to eye on one thing and that is, and correct me if I'm wrong, that as to people who are actively suicidal you agree that the bar is a dangerous condition and should not be there?
A. That's correct.
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Q. In your opinion, if you were told that this room that you are constructing, Randall Atlas, is going to house people who have had eight suicide attempts in the previous year, and they are going to be in that room, would you put that bar in that closet?
A. No.
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Q. Had you been consulted on this issue in 1986, would you have recommended removal of those rods in favor of breakaway rods? A. Most likely yes if they were putting in a mixed classification.
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Q. Would you agree with me then that during the time that he was on active suicide watch that that room and that bar did not meet the appropriate standards for environmental safety?
A. If he was left alone, yes.
Dr. Meyers was housed in the room in which he committed suicide from the time he was first admitted to the Lafayette Clinic. It appears that there are no rooms in the clinic that are designed for housing persons who are suicidal. This case does not concern the transfer of a person from a room designed for persons with suicidal tendencies to a room not so safeguarded following the exercise of diagnostic discretion.
It appears that there are rooms designed for persons who are actively self-abusive, or have psychiatric problems other than being suicidal.
The plaintiff seeks to recover under the public building exception, not for negligent supervision. The Court of Appeals erred in treating the plaintiff's action as if she had sought to recover for negligent supervision. The state cannot properly be exonerated from responsibility for a building, highway, or automobile driving deficiency by claiming that had there been adequate supervision by the police or other supervisors of persons entering or using the building or driving on the highway, or of a governmental employee driving negligently, there would have been no injury.
Dr. Meyers' death was the result of both the state's failure to provide housing in the Lafayette Clinic for persons with suicidal tendencies in rooms that do not have bars from which they can hang themselves and the state's diagnostic decision that he was a "moderate risk." On the same principle that " '[t]here may be more than one proximate cause for the same injury, and the mere fact that some other cause co-operates with the negligence of the defendant to produce the injury for which suit is brought does not relieve him from liability.' " Camp v. Wilson, 258 Mich. 38, 42, 241 N.W. 844 (1932), quoted approvingly in Dedes v. Asch, 446 Mich. 99, 116, 521 N.W.2d 488 (1994) (the state is not relieved of its statutory liability for a building defect by its diagnostic decision for which it may not be subject to statutory liability).
The reasoning process adopted by the Court of Appeals can be employed to exonerate the state from its statutory responsibility endlessly, and I expect will be so employed until the fatuousness of this new rationale for relieving the state of its statutory responsibility becomes even more clearly apparent.