Preview:

Michigan Supreme Court Lansing, Michigan

Opinion
BARBARA A. ROBINSON, Plaintiff-Appellant, v CITY OF LANSING, Defendant-Appellee.

Chief Justice:

Justices:

Marilyn Kelly

Michael F. Cavanagh Elizabeth A. Weaver Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman Diane M. Hathaway

FILED APRIL 8, 2010

No. 138669

BEFORE THE ENTIRE BENCH MARKMAN, J. At issue here is whether the two-inch rule of MCL 691.1402a(2), which provides that a discontinuity defect of less than two inches in a sidewalk creates a rebuttable inference that the municipality maintained the sidewalk in reasonable repair, applies to sidewalks adjacent to state highways, as with the sidewalk at issue here, or only to sidewalks adjacent to county highways. The trial court concluded that the rule only applies to sidewalks adjacent to county highways and, thus, granted plaintiff's motion to strike the rule as an affirmative defense and denied defendant's motion for summary disposition. However, the Court of

Appeals reversed, holding that the rule is not limited to sidewalks that are adjacent to county highways, and remanded for further proceedings. Because we agree

with the trial court that the rule only applies to sidewalks adjacent to county highways, we reverse the judgment of the Court of Appeals, reinstate the trial court's orders, and remand to the trial court for further proceedings. I. FACTS AND HISTORY On December 4, 2005, plaintiff, Barbara Robinson, was walking on the brick sidewalk that is adjacent to Michigan Avenue, a state highway in Lansing, in front of the Lansing Center. She stepped into a depressed area of the sidewalk, lost her balance, tripped on a raised and uneven area of bricks next to the depression, and fell forward. As a result, she fractured her wrist, necessitating two surgeries. It is undisputed that the raised portion of the sidewalk was less than two inches and that defendant, the city of Lansing, maintained this sidewalk. Plaintiff sued defendant under the highway exception to governmental immunity, alleging that defendant had breached its duty under MCL 691.1402(1) to maintain the sidewalk in reasonable repair. Defendant answered, raising as an affirmative defense the two-inch rule of MCL 691.1402a(2). Before the close of discovery, defendant moved for summary disposition under MCR 2.116(C)(7) (governmental immunity), claiming that it was entitled to judgment as a matter of law because plaintiff had not rebutted the inference created by the rule that defendant had maintained the sidewalk in reasonable repair. Plaintiff responded and moved to strike the rule as an affirmative defense by arguing that the rule applies only to sidewalks adjacent to county highways and, as a result, was

2

inapplicable. The trial court agreed with plaintiff and thus granted plaintiff's motion to strike and denied defendant's motion for summary disposition. Defendant appealed by right, arguing that nothing in MCL 691.1402a(2) limits its application to county highways. The Court of Appeals reversed and held that, in contrast to subsections (1) and (3), subsection (2) of MCL 691.1402a contains no language limiting its application to county highways. Robinson v City of Lansing, 282 Mich App 610, 616-618; 765 NW2d 25 (2009). It then remanded the case to the trial court to rule on the remaining issues and noted that defendant could refile its summary disposition motion. Plaintiff has sought leave to appeal, claiming that the Court of Appeals erred in its interpretation of MCL 691.1402a(2). This Court directed that oral argument be heard on the application for leave to appeal, 483 Mich 1134 (2009), and argument was heard on December 9, 2009. II. STANDARD OF REVIEW Whether the two-inch rule of MCL 691.1402a(2) applies to sidewalks adjacent to state highways or only to sidewalks adjacent to county highways is a question of law that this Court reviews de novo. Ostroth v Warren Regency, GP, LLC, 474 Mich 36, 40; 709 NW2d (2006). A trial court's decision to deny a motion for summary disposition is also reviewed de novo. Id.

3

III. ANALYSIS A. GOVERNMENTAL IMMUNITY AND HIGHWAY EXCEPTION In Michigan, governmental immunity was originally a common-law doctrine that protected all levels of government. However, in 1961, this Court abolished common-law governmental immunity with respect to municipalities. Williams v Detroit, 364 Mich 231; 111 NW2d 1 (1961); McDowell v State Hwy Comm'r, 365 Mich 268; 112 NW2d 491 (1961). In 1965, the Legislature reacted to Williams and McDowell by enacting the governmental tort liability act (GTLA), MCL 691.1401 et seq., restoring immunity for municipalities and preserving this protection for the state and its agencies. The GTLA provides: "Except as

otherwise provided in this act, a governmental agency[1] is immune from tort liability if the governmental agency is engaged in the exercise or discharge of a governmental function." MCL 691.1407(1). This grant of immunity is currently subject to six statutory exceptions.2

"Governmental agency" is defined as "the state or a political subdivision." MCL 691.1401(d). The "state" includes "the state of Michigan and its agencies, departments [and] commissions," MCL 691.1401(c), and a "political subdivision" includes "a municipal corporation, county, [and] county road commission," MCL 691.1401(b). Finally, a "municipal corporation" includes a "city, village, [and] township . . . ." MCL 691.1401(a). The six statutory exceptions are (1) the highway exception, MCL 691.1402; (2) the motor-vehicle exception, MCL 691.1405; (3) the public-building exception, MCL 691.1406; (4) the proprietary-function exception, MCL 691.1413; (5) the governmental-hospital exception, MCL 691.1407(4); and (6) the sewagedisposal-system exception, MCL 691.1417.
2

1

4

At issue in this case is the highway exception, MCL 691.1402(1), which provides, in relevant part: Except as otherwise provided in [MCL 691.1402a], each governmental agency having jurisdiction over a highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel.[3] A person who sustains bodily injury or damage to his or her property by reason of failure of a governmental agency to keep a highway under its jurisdiction in reasonable repair and in a condition reasonably safe and fit for travel may recover the damages suffered by him or her from the governmental agency. . . . The duty of the state and the county road commissions to repair and maintain highways, and the liability for that duty, extends only to the improved portion of the highway designed for vehicular travel and does not include sidewalks, trailways, crosswalks, or any other installation outside of the improved portion of the highway designed for vehicular travel. "Highway" is defined as "a public highway, road, or street that is open for public travel and includes bridges, sidewalks, trailways, crosswalks, and culverts on the highway." MCL 691.1401(e) (emphasis added). From these statutory provisions, we know that all governmental agencies, including the state, counties, and municipalities, have a duty to maintain highways under their jurisdiction in reasonable repair. However, we also know that the duty of state and county road commissions is limited to the "improved portion of the highway designed for vehicular travel," which specifically "does not include

Const 1963, art 7,

Download BARBARA A ROBINSON V CITY OF LANSING.pdf

Michigan Law