BARBARA A ROBINSON V CITY OF LANSING
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STATE OF MICHIGAN
COURT OF APPEALS
BARBARA A. ROBINSON,
FOR PUBLICATION
March 5, 2009
9:10 a.m.
Plaintiff-Appellee,
v
No. 282267
Ingham Circuit Court
LC No. 07-000576-NO
CITY OF LANSING,
Defendant-Appellant.
Advance Sheets Version
Before: Whitbeck, P.J., and O’Connell and Owens, JJ.
PER CURIAM.
Defendant, city of Lansing, appeals as of right from the trial court’s order denying its
motion for summary disposition pursuant to MCR 2.116(C)(7) (governmental immunity).1 We
decide this appeal without oral argument pursuant to MCR 7.214(E). We reverse and remand.
I. Basic Facts and Procedural History
Plaintiff, Barbara Robinson, tripped on a sidewalk adjacent to Michigan Avenue, a state
trunk line highway, in Lansing and filed suit. Robinson alleged that the city breached its duty
under MCL 691.1402(1) to maintain the sidewalk in reasonable repair and in a condition
reasonably safe for public travel.
The city answered and moved for summary disposition under MCR 2.116(C)(7) (the
defense of governmental immunity), arguing that Robinson had not shown that the sidewalk was
not in reasonable repair, and relying on the “two-inch” rule set forth in MCL 691.1402a(2).
MCL 691.1402a(2) provides a rebuttable inference of reasonable repair by a municipal
corporation where a discontinuity defect of a sidewalk is less than two inches. Robinson then
brought a motion to strike the city’s defense to the extent it relied on the two-inch rule, arguing
that MCL 691.1402a only applied to sidewalks next to county highways, not state trunk line
highways like Michigan Avenue. The city responded, arguing that legislative history and
1
An order denying summary disposition based on governmental immunity is a final order from
which a party may appeal as of right. MCR 7.202(6)(a)(v); Costa v Community Emergency Med
Services, Inc, 475 Mich 403, 413; 716 NW2d 236 (2006).
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subsequent caselaw supported its claim that the statute provided a rebuttable inference of
reasonable repair for a discontinuity defect of less than two inches in favor of all municipal
corporations for sidewalks adjacent to any public roadway, including state trunk line highways,
city streets, and county roads. The trial court granted the motion to strike.
Thereafter, the trial court heard the city’s motion for summary disposition. Although in
its brief in support of the motion the city argued that, regardless of the two-inch rule, Robinson
had not sufficiently pleaded that the sidewalk was not in reasonable repair and not reasonably
safe for public travel, the city at the motion hearing argued only that the two-inch rule should
apply. The trial court denied the motion “in view of the court’s granting [Robinson’s motion
regarding the two-inch rule].” The trial court made no other finding that the sidewalk was not in
reasonable repair and was unsafe for public travel.
II. The Two-Inch Rule
A. Standard of Review
On appeal, the city does not dispute that it has jurisdiction over the sidewalk adjacent to
Michigan Avenue. Instead, it argues that the trial court erred in relying entirely on Darity v Flat
Rock2 to deny its motion for summary disposition because the two-inch rule was not at issue in
that case and nothing in the plain language of MCL 691.1402a(2) limits its application to
sidewalks adjacent to county roads.
MCR 2.116(C)(7) provides that a motion for summary disposition may be raised on the
ground that a claim is barred because of immunity granted by law. To survive a C(7) motion
raised on this ground, the plaintiff must allege facts warranting the application of an exception to
Neither party is required to file supportive material; any
governmental immunity.3
documentation that is provided to the court, however, must be admissible evidence.4 The
plaintiff’s well-pleaded factual allegations, affidavits, or other admissible documentary evidence
must be accepted as true and construed in the plaintiff’s favor, unless the movant contradicts
such evidence with documentation.5 We review de novo a trial court’s denial of summary
disposition.6 Further, the proper interpretation of a statute and determination of the applicability
of the highway exception to governmental immunity are questions of law that we also review de
novo on appeal.7
2
Darity v Flat Rock, unpublished opinion per curiam of the Court of Appeals, issued February
21, 2006 (Docket No. 256481).
3
Smith v Kowalski, 223 Mich App 610, 616; 567 NW2d 463 (1997).
4
Maiden v Rozwood, 461 Mich 109, 119; 597 NW2d 817 (1999).
5
MCR 2.116(G)(5); Maiden, supra at 119; Smith, supra at 616.
6
Stevenson v Detroit, 264 Mich App 37, 40; 689 NW2d 239 (2004).
7
Putkamer v Transamerica Ins Corp of America, 454 Mich 626, 631; 563 NW2d 683 (1997);
Stevenson, supra at 40-41.
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B. Principles of Statutory Construction
When construing a statute, this Court must not read into a clear statute anything that is
not within the manifest intention of the Legislature as derived from the language of the statute
itself.8 If the plain and ordinary meaning of the language is clear, judicial construction is
normally neither necessary nor permitted.9
C. The Highway Exception
The governmental immunity act,10 provides “broad immunity from tort liability to
governmental agencies whenever they are engaged in the exercise or discharge of a
governmental function[.]”11 However, MCL 691.1402(1) provides that “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.” And MCL 691.1401(e) defines
“[h]ighway” as “a public highway, road, or street that is open for public travel and includes
bridges, sidewalks, trailways, crosswalks, and culverts on the highway.” (Emphasis added.)
Therefore, as an exception to governmental immunity, “[a] person who sustains bodily injury . . .
by reason of failure of a governmental agency to keep a highway [including a sidewalk] 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.”12
As stated, there is no dispute that the city has jurisdiction over the sidewalk adjacent to
Michigan Avenue and therefore must keep it “in reasonable repair so that it is reasonably safe
and convenient for public travel.”13 The salient question, however, is whether the city is entitled
to assert as a defense the two-inch rule set forth in MCL 691.1402a(2).
D. MCL 691.1402a
MCL 691.1402a provides:
8
Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 63; 642 NW2d 663 (2002); Bay Co Prosecutor
v Nugent, 276 Mich App 183, 189; 740 NW2d 678 (2007).
9
Nastal v Henderson & Assoc Investigations, Inc, 471 Mich 712, 720; 691 NW2d 1 (2005).
10
MCL 691.1401 et seq.
11
Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 595; 363 NW2d 641 (1984); see
MCL 691.1407(1).
12
MCL 691.1402(1).
13
MCL 691.1402(1); see also Listanski v Canton Twp, 452 Mich 678, 681-682; 551 NW2d 98
(1996) (holding that MCL 691.1402 imposes liability on townships for failure to maintain
sidewalks abutting county roads); Jones v City of Ypsilanti, 26 Mich App 574; 182 NW2d 795
(1970) (holding that MCL 691.1402 imposes liability on cities for failure to maintain sidewalks
abutting state roads).
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(1) Except as otherwise provided by this section, a municipal corporation
has no duty to repair or maintain, and is not liable for injuries arising from, a
portion of a county highway[14] outside of the improved portion of the highway
designed for vehicular travel, including a sidewalk, trailway, crosswalk, or other
installation. This subsection does not prevent or limit a municipal corporation’s
liability if both of the following are true:
(a) At least 30 days before the occurrence of the relevant injury, death, or
damage, the municipal corporation knew or, in the exercise of reasonable
diligence, should have known of the existence of a defect in a sidewalk, trailway,
crosswalk, or other installation outside of the improved portion of the highway
designed for vehicular travel.
(b) The defect described in subdivision (a) is a proximate cause of the
injury, death, or damage.
(2) A discontinuity defect of less than 2 inches creates a rebuttable
inference that the municipal corporation maintained the sidewalk, trailway,
crosswalk, or other installation outside of the improved portion of the highway
designed for vehicular travel[15] in reasonable repair.
(3) A municipal corporation’s liability under subsection (1) is limited by
section 81131[16] of the natural resources and environmental protection act, 1994
PA 451, MCL 324.81131.
E. Interpreting MCL 691.1402a
There can be no dispute that the plain language of MCL 691.1402a(1) applies to delineate
a municipal corporation’s liability with respect to sidewalks etc. abutting county highways. And
MCL 691.1402a(3) clearly refers back to subsection 1 to further delineate the municipal
corporation’s liability regarding a person’s use of an off-road vehicle (ORV). The present
dispute, however, centers on determining whether the two-inch rebuttal inference provision of
14
Emphasis added.
15
Emphasis added.
16
MCL 324.81131(11) provides that
a municipality is, immune from tort liability for injuries or damages sustained by
any person arising in any way out of the operation or use of an ORV on
maintained or unmaintained roads, streets, shoulders, and rights-of-way over
which . . . the municipality has jurisdiction. The immunity provided by this
subsection does not apply to actions that constitute gross negligence. As used in
this subsection, “gross negligence” means conduct so reckless as to demonstrate a
substantial lack of concern for whether an injury results.
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MCL 691.1402a(2), like the terms of subsection 1, is limited to county highways, or whether,
absent such an express limitation, subsection 2 extends to sidewalks abutting any public roadway
within a municipal corporation’s jurisdiction.
There is no binding caselaw on whether MCL 691.1402a(2) applies only when the road at
issue is a county highway. Caselaw, published and unpublished, has simply addressed or applied
the rule to sidewalks without describing the nature of the adjacent road.17 Thus, we cannot
discern any prevailing rule from these cases that would mandate a decision in this case one way
or the other. Regardless, there is no need to look beyond the statute to discern the intent of the
Legislature.
Although MCL 691.1402a(1) clearly refers and applies to county highways, subsection 2
does not contain that language; it refers to a sidewalk, trailway, crosswalk, or other installation
outside of the improved portion of “the highway designed for vehicular travel,” and there is no
further language of limitation in subsection 2 relating to such a highway. Subsection 3, which
refers to a statute that by its express terms encompasses all kinds of streets, roads, and highways,
expressly refers back to the liability imposed in subsection 1. Again, subsection 2 lacks any such
reference to subsection 1. We must therefore accept as intentional the Legislature’s omission in
subsection 2 of a reference to “county highways” or to “subsection (1).”18 And we may not read
any such references into the plain language of the statute.19
Accordingly, we conclude that MCL 691.1402a(2) is not limited in its application to
county highways. Rather it applies to any “sidewalk, trailway, crosswalk, or other installation
outside of the improved portion of the highway designed for vehicular travel,” with the term
17
Gadigian v City of Taylor, 282 Mich App 179; ___ NW2d ___ (2009); Noe v Detroit,
unpublished opinion per curiam of the Court of Appeals, issued August 19, 2008 (Docket No.
278727); Jurstik v Owosso, unpublished opinion per curiam of the Court of Appeals, issued May
22, 2008 (Docket No. 276701); Semon v Saint Clair Shores, unpublished opinion per curiam of
the Court of Appeals, issued October 30, 2007 (Docket No. 274777); Baine v Inkster,
unpublished opinion per curiam of the Court of Appeals, issued April 26, 2007 (Docket No.
274261); Gutierrez v City of Saginaw, unpublished opinion per curiam of the Court of Appeals,
issued March 29, 2007 (Docket No. 272619); Ledbetter v City of Warren, unpublished opinion
per curiam of the Court of Appeals, issued October 31, 2006 (Docket No. 269758); Griffin v City
of Pontiac, unpublished opinion per curiam of the Court of Appeals, issued October 26, 2006
(Docket No. 269988); Allgaier v City of Warren, unpublished opinion per curiam of the Court of
Appeals, issued August 22, 2006 (Docket No. 268102); Smith v City of Warren, unpublished
opinion per curiam of the Court of Appeals, issued February 23, 2006 (Docket No. 255004);
Jones v City of Flint, unpublished opinion per curiam of the Court of Appeals, issued
November 17, 2005 (Docket No. 263036); Bates v Village of Addison, unpublished opinion per
curiam of the Court of Appeals, issued October 4, 2005 (Docket No. 253374); Crites v Owosso,
unpublished opinion per curiam of the Court of Appeals, issued June 17, 2004 (Docket No.
245999).
18
Polkton Charter Twp v Pellegrom, 265 Mich App 88, 103; 693 NW2d 170 (2005).
19
Id.
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“highway” therein meaning any “public highway, road, or street that is open for public
travel . . . .”20 Thus, MCL 691.1402a(2) applies here and there is a rebuttable inference that the
city maintained the sidewalk on which Robinson tripped in reasonable repair
F. Darity
Nevertheless, in support of her argument that MCL 691.1402a(2) only applies to county
highways, Robinson relies on the unpublished opinion in Darity v Flat Rock. In Darity, the
plaintiff’s decedent was injured when he fell off his bicycle on a debris-covered sidewalk
adjacent to a state trunk line highway.21 In seeking to disclaim liability for the injury adjacent to
the state trunk line highway, the city of Flatrock argued that, under MCL 691.1402a, cities are
“liable only for sidewalks adjacent to county highways.”22 Interpreting the language of the
statute, the Darity panel said, “Because the sidewalk at issue was adjacent to a state trunkline and
not a county road, MCL 691.1402a does not govern this action.”23 The panel continued:
MCL 691.1402a “creates no liability for municipalities that would not
otherwise exist. . . . The obvious purpose of § 1402a is to limit the liability
municipalities would otherwise face to maintain sidewalks . . . .” Carr v City of
Lansing, 259 Mich App 376, 380; 674 NW2d 168 (2003). In enacting MCL
691.1402a, the Legislature implicitly recognized that by virtue of MCL 691.1402,
municipal corporations faced liability for portions of county highways that were
outside the improved portion designed for vehicular travel. MCL 691.1402 does
not provide a basis for concluding that municipal corporations have a lesser
degree of liability with respect to portions of state highways that are outside the
improved portion designed for vehicular travel. Yet in enacting MCL 691.1402a,
the Legislature decided to limit liability with respect to county roads only. The
Legislature’s failure to impose similar limits with respect to state roads does not
suggest that the Legislature was unaware of that liability or did not intend that
liability would exist. Rather, the absence of a provision concerning portions of
state highways outside the improved portion means that a municipal corporation’s
liability for those areas pursuant to MCL 691.1402 remains unreduced.[24]
We first note that, as an unpublished decision, Darity has no precedential value.25 And
although this Court may rely on unpublished cases to the extent that they present persuasive
reasoning on an issue,26 we find Darity inapplicable and unpersuasive in the present action.
20
MCL 691.1401(e).
21
Darity, supra at 1.
22
Id. at 4 (emphasis in original).
23
Id.
24
Id. at 5.
25
MCR 7.215(C)(1); Charles Reinhart Co v Winiemko, 444 Mich 579, 588 n 19; 513 NW2d 773
(continued…)
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Although the Darity panel mentioned MCL 691.1402a(2), it did not specifically address
the language of that provision. Indeed, the only part of MCL 691.1402a at issue in Darity was
subsection 1, which clearly and unambiguously deals only with sidewalks adjacent to county
highways. Therefore, any interpretation of subsection 2—the subsection that statutorily creates
the two-inch rule—that could arguably be discerned from Darity would be dictum. Moreover,
the Darity panel’s conclusion that MCL 691.1402a did not absolve the city of Flat Rock of
liability was limited to the facts of that action and any broader rule intended by the Darity panel,
if any, would be dictum.
In sum, we conclude that the trial court erred to the extent that it relied on Darity in
denying the city’s motion and that the trial court should have allowed the city to raise the twoinch rule as a defense.
Reversed and remanded for further proceedings so that the trial court may rule on the
remaining issues in this case. The city may refile its motion for summary disposition. We do not
retain jurisdiction.
/s/ William C. Whitbeck
/s/ Peter D. O’Connell
/s/ Donald S. Owens
(…continued)
(1994).
26
Dyball v Lennox, 260 Mich App 698, 705 n 1; 680 NW2d 522 (2004).
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