EST OF CHANTELL BUCKNER V CITY OF LANSING
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STATE OF MICHIGAN
COURT OF APPEALS
ESTATE OF CHANTELL BUCKNER, by its
Personal Representative, RICHARD RASHID, and
LAQUATA WRIGHT, by her Conservator,
MICHAEL J. PANEK,
FOR PUBLICATION
March 15, 2007
9:05 a.m.
Plaintiffs-Appellees,
v
No. 270455
Ingham Circuit Court
LC No. 05-001467-NI
CITY OF LANSING,
Defendant-Appellant,
and
ESTATE OF LUTHER WAMPLER, by its
Personal Representative, PAMELA WAMPLER,
Defendant/Cross-Plaintiff/Appellee,
and
MARTHA WAMPLER,
Defendant/Cross-Plaintiff,
and
MORLEY S. OATES POST 701 VETERANS OF
FOREIGN WARS OF THE UNITED STATES,
Defendant/Cross-Defendant/Appellee.
ESTATE OF CHANTELL BUCKNER, by its
Personal Representative, RICHARD RASHID, and
LAQUATA WRIGHT, by her Conservator,
MICHAEL J. PANEK,
Plaintiffs-Appellees,
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v
No. 271670
Ingham Circuit Court
LC No. 06-000448-NI
CITY OF LANSING,
Defendant-Appellant.
Official Reported Version
Before: Whitbeck, C.J., and Bandstra and Schuette, JJ.
BANDSTRA, J.
These consolidated cases arise out of an accident that occurred on Saginaw Street in
Lansing. Defendant, the city of Lansing, appeals from orders of the trial court denying its
motions for summary disposition. In Docket No. 270455, we conclude that the trial court
properly denied summary disposition because the city could be found liable for creating an
unnatural accumulation of snow that caused the accident, notwithstanding the provisions of the
governmental tort liability act (GTLA), MCL 691.1401 et seq. In Docket No. 271670, we
conclude that the trial court erred in denying summary disposition because plaintiffs came
forward with insufficient evidence to establish a genuine issue of fact regarding whether the
alleged defect in the city's sidewalk proximately caused the accident at issue. We affirm in part,
reverse in part, and remand for further proceedings.
BACKGROUND FACTS
As plaintiffs allege in their complaints, Chantell Buckner and LaQuata Wright were
walking westbound along Saginaw Street in the city of Lansing. The girls had attempted to walk
on the city's sidewalk on the north side of Saginaw Street, but their way was obstructed and
made impassable because of an accumulation of snow and ice that resulted from the city's
snowplowing on the closely adjoining street.1 Not being able to use the sidewalk, Buckner and
Wright walked on the roadway next to the curb and against the traffic flow. They were struck by
an eastbound car; Buckner died as a result of the accident and Wright suffered substantial
injuries.
Some years before the accident, the city had undertaken a construction project and, as a
result, had interrupted the existing sidewalk on the north side of Saginaw Street. The city had
not repaired or restored the sidewalk before the accident occurred.
1
Although Saginaw Street is a state trunk line, the city maintained it under the terms of a
contract with the Michigan Department of Transportation (MDOT). Although the city argues
that, nonetheless, jurisdiction over Saginaw Street remained with the MDOT, that argument
misses the point. Plaintiffs' allegations do not concern the street but, rather, the sidewalk over
which the city clearly maintained jurisdiction and onto which the city plowed snow and ice.
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STANDARD OF REVIEW
A trial court's ruling on a motion for summary disposition is reviewed de novo. Spiek v
Dep't of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). This case involves the
applicability of the governmental immunity statute, a question of law that is also reviewed de
novo. Baker v Waste Mgt of Michigan, Inc, 208 Mich App 602, 605; 528 NW2d 835 (1995).
ANALYSIS
Docket No. 270455
The GTLA, MCL 691.1401 et seq., "provides broad immunity from tort liability to
governmental agencies whenever they are engaged in the exercise or discharge of a
governmental function[.]" Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 595;
363 NW2d 641 (1984); see MCL 691.1407(1). Plaintiffs do not contest that the city's activities
that they allege gave rise to the accident (i.e., snow removal and sidewalk maintenance)
constitute governmental functions. To survive a summary disposition motion raised by a
governmental defendant under the GTLA, a plaintiff must allege facts warranting the application
of an exception to governmental immunity. Smith v Kowalski, 223 Mich App 610, 616; 567
NW2d 463 (1997). The city is immune from tort liability unless its actions fall within one of the
statutory exceptions to that immunity. See MCL 691.1401(f) (defining "governmental
function").
Plaintiffs allege that the "highway exception" to governmental immunity applies in this
case. In pertinent part, the first two sentences2 of MCL 691.1402(1) provide:
[E]ach 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. 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.
Pursuant to this subsection, the duty to maintain public sidewalks3 falls on local governments,
including cities. Haliw v Sterling Hts, 464 Mich 297, 303; 627 NW2d 581 (2001).
2
The third sentence of MCL 691.1402(1) addresses the duty and resulting liability of county
road commission defendants and is, thus, not at issue here. Nawrocki v Macomb Co Rd Comm,
463 Mich 143, 161; 615 NW2d 702 (2000). As will be discussed later, the fourth and final
sentence of the section applies only to state and county road commission defendants and is
similarly not apposite here. Id.
3
The statutory definition of "highway" specifically includes "sidewalks." MCL 691.1401(e).
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When a plaintiff alleges a cause of action based on the highway exception to
governmental immunity, the court must engage in a two-step analysis. Haliw, supra at 304,
quoting Suttles v Dep't of Transportation, 457 Mich 635, 651 n 10; 578 NW2d 295 (1998). First,
we must determine whether "the alleged injury occurred in a location encompassed by MCL
691.1402(1)." Id. Plaintiffs' allegations suffice to meet this first requirement; they state that the
accident occurred because of the city's failure to properly maintain a sidewalk within its
jurisdiction.
Having satisfied the first step of the analysis, plaintiffs must further "prove, consistent
with traditional negligence principles, the remaining elements of breach, causation, and damages
contained within the statute." Id. By its clear terms, the statute imposes a duty on the city to
"maintain" its sidewalk "in reasonable repair so that it is reasonably safe and convenient for
public travel." Id.; MCL 691.1402(1). In addition, under the facts of this case, the applicability
of the "natural accumulation" doctrine is pertinent to this second step of the analysis. Haliw,
supra at 305.
The "natural accumulation" doctrine has been long recognized in Michigan. See, e.g.,
Johnson v City of Marquette, 154 Mich 50, 53-54; 117 NW 658 (1908). "'[A] governmental
agency's failure to remove the natural accumulations of ice and snow on a public highway does
not signal negligence of that public authority.'" Haliw, supra at 305, quoting Stord v Dep't of
Transportation, 186 Mich App 693, 694; 465 NW2d 54 (1991). Conversely, however, when an
accumulation of ice and snow is the result of unnatural causes, the municipality may be liable for
injuries that are proximately caused by the accumulation. Hampton v Master Products, Inc, 84
Mich App 767, 770; 270 NW2d 514 (1978).
If, on the other hand, ice or snow on a roadway constitutes an unnatural
accumulation rather than a natural accumulation, the governmental agency may
be liable. In order to render a municipality liable, the interference with travel
must be unusual or exceptional, that is, different in character from conditions
ordinarily and generally brought about by winter weather in a given locality.
Some courts have stated the test as whether the defendant's actions increased the
hazard to the plaintiff. To be liable under the increased hazard theory, the
defendant's act of removing ice and snow must have introduced a new element of
danger not previously present, or created an obstacle to travel, such as a snow
bank, that exceeds the inconvenience posed by a natural accumulation. [Skogman
v Chippewa Rd Comm, 221 Mich App 351, 354; 561 NW2d 503 (1997) (internal
quotations and citations omitted).]
Plaintiffs here allege that the city created an unnatural accumulation of ice and snow on
the sidewalk that prevented Buckner and Wright from using the sidewalk and forced them into
the street where the accident occurred. The city does not contest that the accumulation of ice and
snow on the sidewalk was unnatural, i.e., it does not argue that the accumulation occurred as the
result of natural forces. Certainly, the accumulation resulted at least in part from the activities of
the city in plowing snow on Saginaw Street.
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The city does argue that, even though the accumulation of ice and snow on the sidewalk
was "unnatural," it should not be held liable because the accumulation was only temporary and
was part of its reasonable effort to clear the Saginaw Street area following heavy and repeated
snowfalls. We recognize that such facts may absolve the city of any liability, as they have in
previous cases. See, e.g., Skogman, supra at 355-357 (affirming summary disposition granted to
a road commission that caused an accumulation of snow temporarily, during the reasonable
process of plowing a roadway); Davis v Morton, 143 Mich App 236, 241; 372 NW2d 517 (1984)
(the increased hazard theory did not apply to a situation where a plaintiff fell on previously fallen
snow and ice allegedly made more slippery by ongoing snow removal and salting efforts).
However, the record before us is insufficiently developed to determine whether, under the facts
of this case, the city is entitled to summary disposition on this basis; a further motion in this
regard may be appropriate following additional discovery.
In sum, § 1402(1) of the GTLA imposes liability on the city, in avoidance of
governmental immunity, if it failed to "maintain" a sidewalk "in reasonable repair so that it is
reasonably safe and convenient for public travel." Haliw, supra at 304. Similarly, applying the
"natural accumulation" doctrine as directed by Haliw, supra at 305, the city may be liable for
creating a new element of danger and an obstacle to travel on the sidewalk as a result of its
snowplowing activity on the adjoining Saginaw Street. In other words, while the "natural
accumulation" doctrine might absolve the city of liability for breach of a duty otherwise imposed
by MCL 691.1402(1) in avoidance of immunity, it does not do so on the existing record.
NAWROCKI AND HALIW
The city contends that, notwithstanding the foregoing analysis, it is entitled to summary
disposition under the Supreme Court precedents in Nawrocki, supra, and Haliw, supra. We
disagree.
Nawrocki involved consolidated cases against two defendant county road commissions.
In the first case, the plaintiff alleged that she stepped on cracked and broken pavement on the
surface of a roadway within the jurisdiction of the Macomb County Road Commission.
Nawrocki, supra at 152. In the second, the plaintiff alleged that the Shiawassee County Road
Commission had negligently failed to install adequate stop signs and traffic signals at an
intersection where he was involved in an accident. Id. at 154. The Court id., at 158, analyzed §
1402(1) of the GTLA sentence by sentence and based its analysis on the fourth and final
sentence of that section, which provides:
The duty of the state and the county road commissions to repair and
maintain highways, and the liability therefor, shall extend only to the improved
portion of the highway designed for vehicular travel and shall not include
sidewalks, crosswalks, or any other installation outside of the improved portion of
the highway designed for vehicular travel. [MCL 691.1402(1).]
The Court concluded that this fourth sentence, which is "specifically applicable to the state and
county road commissions, proceeds to narrowly limit the general duty to repair and maintain [a
highway] . . . 'only to the improved portion of the highway designed for vehicular travel.'" Id. at
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161. Accordingly, the Court reasoned that "the plain language of this sentence definitively limits
the state and county road commissions' duty with respect to the location of the alleged dangerous
or defective condition; if the condition is not located in the actual roadbed designed for vehicular
travel, the narrowly drawn highway exception is inapplicable and liability does not attach." Id.
at 161-162. The Court therefore determined that the exception to government immunity applied
with respect to the case involving allegedly cracked and broken pavement on a roadway, but that
it did not apply to the case involving allegedly insufficient traffic signs and signals. Id. at 162163, 174.
The city argues that, under Nawrocki, the highway exception to governmental immunity
cannot apply unless plaintiff alleges an actual defect in the sidewalk, meaning that allegations of
an accumulation of snow and ice on the surface of the sidewalk cannot suffice. We disagree. As
discussed earlier, the Nawrocki Court limited the exception to "actual roadbed" defects on the
basis of the fourth sentence of MCL 691.1402(1). That sentence is specifically applicable only
to state and county road commission defendants. With respect to those defendants only, the
fourth sentence "narrowly limit[s] the general duty to repair and maintain" otherwise imposed by
§ 1402(1). That limitation is inapplicable in the case before us, where defendant is a
municipality. Here, only the first two sentences of the subsection, quoted above, apply; they
impose a duty to "maintain" sidewalks "in reasonable repair so that [they are] reasonably safe"
for public travel. See Haliw, supra at 303 (applying only the first and second sentence of
subsection 1402[1] to a case involving a municipal defendant).4
We also find the city's reliance on Haliw to be misplaced even though Haliw involved a
municipal defendant. In contrast to the present case, the snow and ice on the sidewalk where the
plaintiff in Haliw slipped and fell had accumulated naturally. Relying primarily on Hopson v
Detroit, 235 Mich 248; 209 NW 161 (1926), the Court held that "a plaintiff cannot recover in a
claim against a governmental agency where the sole proximate cause of the slip and fall is the
natural accumulation of ice or snow. . . . Rather, there must exist the combination of the ice or
snow and the defect that, in tandem, proximately causes the slip and fall." Haliw, supra at 311.
The Supreme Court noted that the rule it was adopting was specific to "the context of the natural
accumulation doctrine and the highway exception to governmental immunity." Id. at 311-312 n
11. Thus, while a defect in the sidewalk itself would be required to avoid governmental
4
The city further relies on Johnson-McIntosh v Detroit, 266 Mich App 318; 701 NW2d 179
(2005), a case involving a municipal defendant. However, contrary to plaintiff 's implicit
argument, Johnson-McIntosh did not conclude that the highway exception only allows
municipalities to be found liable where there is a defect in the actual surface of a highway.
Instead, Johnson-McIntosh merely concluded that the allegedly defective traffic signals at issue
there did not fit within the statutory definition of "highway," MCL 691.1401(e). JohnsonMcIntosh, supra at 326, citing Nawrocki, supra at 182 n 37, and Weaver v Detroit, 252 Mich
App 239, 240; 651 NW2d 482 (2002). In contrast, as noted earlier, the statutory definition of
"highway" specifically includes the sidewalk at issue here. MCL 691.1401(e).
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immunity if this was a natural accumulation case, Haliw does not establish that rule for this case
involving unnatural accumulation.5
In sum, we conclude that neither Nawrocki nor Haliw provides a basis to conclude that
the highway exception to government immunity is inapplicable to this case. If the fact-finder
determines that, by creating the accumulation of snow and ice on the sidewalk, the city breached
its duty under § 1402(1) and the "natural accumulation" precedents, proximately causing
damages to plaintiffs, liability may be imposed. Accordingly, the trial court properly
determined, in Docket No. 270455, that summary disposition for the city should be denied.
DOCKET NO. 271670
In this case, plaintiffs alleged that, because of an earlier street project, the sidewalk had
been disrupted and the city had failed to repair it before the accident. Assuming that the city
thereby breached a duty, however, plaintiffs must also allege facts showing that the sidewalk
defect proximately caused the accident. Haliw, supra at 304.
There is nothing in the record here that would support that claim. Clearly, the gravamen
of plaintiffs' complaint against the city in these cases is the unnatural accumulation of snow and
ice that prevented Buckner and Wright from using the sidewalk. Plaintiffs make no allegation
that the girls' decision to avoid the sidewalk had anything to do with a defect within it, apart from
the accumulation of snow and ice. Even if we were to speculate that the city failed to remove the
snow and ice because the sidewalk beneath it was defective, the causative element would be the
city's decision in this regard, not the defect. Further, the record indicates that, at the point where
the accident occurred, the girls had moved well beyond where the sidewalk was defective, and
the only thing preventing them from returning to the sidewalk was the accumulation of snow and
ice.
Accordingly, plaintiffs could not establish that any defect in the sidewalk proximately
caused the accident at issue here, and the trial court improperly denied the city summary
disposition in Docket No. 271670.
5
We recognize that our Supreme Court has applied Haliw in a summary disposition order that
granted a municipality the protection of governmental immunity in what the city argues was,
factually, an "unnatural accumulation" case. MacLachan v Capital Area Transportation Auth,
474 Mich 1059 (2006). However, summary disposition orders of the Court constitute binding
precedent only when they "contain[] a concise statement of the applicable facts and the reason
for the decision." People v Crall, 444 Mich 463, 464 n 8; 510 NW2d 182 (1993). The
MacLachan order did not specify that the case involved an unnatural accumulation of snow and
certainly did not consider whether such an accumulation was important to its reasoning. In light
of the fact that, as discussed earlier, Haliw quite specifically limited its holding to "natural
accumulation" situations, we do not conclude that MacLachan may properly be considered a sub
silentio extension of the Haliw rule to unnatural accumulation cases.
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CONCLUSION
We affirm the decision denying summary disposition to the city in Docket No. 270455,
but reverse the decision denying the city summary disposition in Docket No. 271670. We
remand for further proceedings consistent with this opinion. We do not retain jurisdiction.
/s/ Richard A. Bandstra
/s/ William C. Whitbeck
/s/ Bill Schuette
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