Opinion
No. 350953
01-14-2021
KRISTINE SCIARROTTA-HAMEL, Plaintiff-Appellee, v. CITY OF DEARBORN, Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Wayne Circuit Court
LC No. 18-005572-NO Before: LETICA, P.J., and GLEICHER and O'BRIEN, JJ. PER CURIAM.
Defendant, the City of Dearborn, appeals as of right the trial court's denial of its motion for summary disposition under MCR 2.116(C)(7) (governmental immunity) and (C)(10) (no genuine issue of material fact) regarding a lawsuit filed by plaintiff, Kristine Sciarrotta-Hamel, after she tripped and fell on the municipality's sidewalk. We affirm.
I. BACKGROUND
On May 17, 2017, plaintiff and her boyfriend, Craig Carpenter, took a post-dinner stroll in plaintiff's neighborhood, located in defendant city. Plaintiff and Carpenter walked for about an hour, during which time daylight had turned to dusk. Plaintiff was walking on the side of the street closest to the homes on Olmstead Street, while Carpenter walked next to her, on the side closest to the street. The couple had walked this route previously, but not frequently. Both of them were walking straight ahead and plaintiff was not looking down at her feet. Between 8:30 and 9:00 p.m., as the couple passed the duplex on 22238/40 Olmstead Street heading towards 22252 Olmstead Street, plaintiff's toe caught the tip of a jagged, uneven, and elevated sidewalk panel, causing her to fall. Plaintiff landed in the middle of a driveway connected to the public sidewalk of 22252 Olmstead Street. As a result of her fall, plaintiff suffered severe injuries.
According to both plaintiff and Carpenter, no artificial or ambient street lighting illuminated the street at the time of the incident, concealing the discontinuity from detection. Carpenter attested that he personally measured the vertical discontinuity in the sidewalk with a tape measure, prior to its replacement, and found it to be over two inches from the top of the adjoining panel. Neither plaintiff nor Carpenter had ever noticed the elevated sidewalk previously.
Defendant argued below, and continues to argue on appeal, that the lighting conditions were not as dark as plaintiff described. Specifically, defendant provided data from the U.S. Naval Observatory, which demonstrates that sunset was at 8:50 p.m. and twilight lasted until 9:22 p.m. on May 17, 2017. Defendant also asserted that residential areas in the city had street lights. However, we are obligated to review the evidence in the light most favorable to plaintiff.
The day after plaintiff's fall, a neighbor contacted defendant to report that a tree in front of 22238 Olmstead had lifted a sidewalk, resulting in a three-inch difference in the sidewalk and a neighbor's fall. The following day, defendant's employee, Douglas Derr, whose job functions included inspecting sidewalks, visited the location. Derr concluded that the situation was a trip hazard and required cold patching of two sidewalk panels. The request was made and by June 2nd, the cold patch was in place.
Derr further testified that he lived in the area and would drive his truck around looking for obvious defects that were normally "two inches maybe," including areas that were cold patched; however, he had never noticed the elevated sidewalk at issue.
On June 6, 2017, plaintiff sent a timely notice to defendant, explaining that she had tripped and fallen over an "uneven sidewalk" on May 17, 2017, which was located "in front of the home with a common address of 22252 Olmstead, Dearborn, Michigan." Plaintiff provided color photographs of both the uneven sidewalk and measurement of the vertical discontinuity. Plaintiff sent a second notice on August 23, and a third notice in early September, 2017, each containing the same address location and color photographs.
After receiving plaintiff's second notice, defendant's legal department asked Derr to investigate. Derr did so and provided an update, noting that plaintiff's photograph was "a good example."
The next day, the legal department asked Derr to obtain "a clear photo of the sidewalk with a ruler . . . ." In the event that doing so required removal of the cold patch and replacing it, Derr should proceed. Armed with plaintiff's written notice and the photographs, Derr returned and chiseled away the cold patch as best as he could. Using the same angle as plaintiff and selecting the highest spot, Derr photographed the vertical discontinuity between the sidewalk panels, estimating that it was approximately one inch.
Plaintiff's sidewalk safety liability expert, Steven Ziemba, reviewed the record evidence and opined that the raised sidewalk exhibited a height differential estimated at greater than two inches, was in unreasonable repair, and was a hazard. Ziemba also opined that the dangerous condition of the sidewalk, namely, the exposed, jagged face of the raised panel with its sharp edges, "would not be seen by plaintiff or her friend as they walked in the near dark evening hours." Ziemba opined that the rising panel was in existence for more than 30 days as it was caused by tree-root growth, a common problem that defendant needed to address.
In June 2018, defendant fully demolished and replaced the defective sidewalk panel, and an adjoining one, with concrete. On July 11, 2019, defendant conducted a land survey; it revealed that the defective panel responsible for plaintiff's fall was actually located in front of 22238/40 Olmstead, and not the adjacent property at 22252 Olmstead.
In May 2018, plaintiff filed suit, seeking damages for injuries the incident caused. After discovery, defendant filed for summary disposition based on governmental immunity. Defendant argued plaintiff's suit was barred by: (1) the "two-inch rule" under MCL 691.1402a(3)(a), as plaintiff presented no evidence to show that the sidewalk's vertical discontinuity was two inches or more, and, therefore, plaintiff failed to overcome the statutory rebuttal presumption that defendant had fulfilled its duty to reasonably maintain its sidewalk; (2) the alleged defect was open and obvious under MCL 691.1402a(5), as plaintiff's photographs demonstrated that a person of ordinary intelligence would have discovered the defect upon casual inspection; and (3) plaintiff's pre-suit notice was deficient under MCL 691.1404(1) because she provided the wrong address of 22252 Olmstead Street rather than 22238/40 Olmstead Street, where the defect was actually located. After a hearing, the trial court rejected defendant's arguments and denied its motion.
This appeal as of right followed.
II. STANDARD OF REVIEW
We review de novo the trial court's decision on a motion for summary disposition as well as the applicability of immunity. See Moraccini v City of Sterling Heights, 296 Mich App 387, 391; 822 NW2d 799 (2012). Defendant moved for summary disposition under MCR 2.116(C)(7) and (C)(10). Summary disposition under MCR 2.116(C)(7) is proper when a claim is barred because of immunity granted under the law. Id. We consider all documentary evidence in a light most favorable to the nonmoving party under MCR 2.116(C)(7). Id. "If there is no factual dispute, whether a plaintiff's claim is barred under a principle set forth in MCR 2.116(C)(7) is a question of law for the court to decide." Id. (quotation marks omitted). "But when a relevant factual dispute does exist, summary disposition is not appropriate." Id.
"Under MCR 2.116(C)(10), summary disposition is appropriate if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law." Piccione v Gillette, 327 Mich App 16, 19; 932 NW2d 197 (2019) (quotation marks omitted). We "must review the pleadings, admissions, and other evidence submitted by the parties in the light most favorable to the nonmoving party." Id. (quotation marks omitted). "A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ." Id. (quotation marks omitted). A court may not "make findings of fact; if the evidence before it is conflicting, summary disposition is improper." Id. (quotation marks and emphasis omitted).
The Governmental Tort Liability Act (GTLA), MCL 691.1401 et seq., generally immunizes governmental agencies from tort liability, subject to certain enumerated exceptions, when they are "engaged in the exercise or discharge of a governmental function." MCL 691.1407(1). The scope of governmental immunity is construed broadly, while the exceptions are narrowly interpreted. Milot v Dep't of Transp, 318 Mich App 272, 276; 897 NW2d 248 (2016).
One such exception is the "highway exception," which permits claims arising from defective highways. Nawrocki v Macomb Co Rd Comm, 463 Mich 143, 158; 615 NW2d 702 (2000). "This includes sidewalks." Thurman v City of Pontiac, 295 Mich App 381, 385; 819 NW2d 90 (2012); see also MCL 691.1401(c). More specifically, "[a] municipal corporation in which a sidewalk is installed adjacent to a municipal, county, or state highway shall maintain the sidewalk in reasonable repair." MCL 691.1402a(1).
III. TWO-INCH RULE
Defendant first argues that the trial court erred when it determined as a matter of law that plaintiff rebutted the statutory presumption that defendant had maintained its sidewalk in reasonable repair because plaintiff failed to produce evidence that the vertical discontinuity of the sidewalk panels leading to her fall was at least two inches. We disagree.
The GTLA provides:
(3) In a civil action, a municipal corporation that has a duty to maintain a sidewalk under subsection (1) is presumed to have maintained the sidewalk in reasonable repair. This presumption may only be rebutted by evidence of facts showing that a proximate cause of the injury was 1 or both of the following:In short, MCL 691.1402a(3) "provides that a discontinuity defect of less than 2 inches creates a rebuttable inference that the municipality maintained the sidewalk in reasonable repair, as is required by MCL 691.1402(1); this is the statutory two-inch rule." Moraccini, 296 Mich App at 396.
(a) A vertical discontinuity defect of 2 inches or more in the sidewalk.
(b) A dangerous condition in the sidewalk itself of a particular character other than solely a vertical discontinuity.
(4) Whether a presumption under subsection (3) has been rebutted is a question of law for the court. [MCL 691.1402a(3) and (4).]
Here, the trial court properly determined that plaintiff presented evidence in order to overcome the two-inch rule statutory presumption as a matter of law. Viewing the evidence in the light most favorable to plaintiff, the photographs plaintiff provided and Carpenter's affidavit demonstrated that the vertical discontinuity was at least two inches in height. Carpenter's affidavit and plaintiff's photographs were also properly considered over Derr's competing photographs. Aside from the trial court's obligation to view the evidence in the light most favorable to the nonmoving party, Derr's photographs did not depict the vertical discontinuity that plaintiff tripped over. While it was the correct area of the sidewalk, Derr's testimony and photographs established that the cold patch had to be chiseled away in order to measure the discontinuity. The trial court correctly observed that Derr's measuring tape clearly rested atop the cold-patch debris. Therefore, plaintiff's photographs and Carpenter's affidavit provided the only accurate measurements of the sidewalk defect that caused plaintiff's fall. Based on this evidence, summary disposition was inappropriate because plaintiff was able to overcome the statutory presumption.
Defendant argues that Carpenter's affidavit should be disregarded because Carpenter did not provide accompanying photographs of his measurement. However, Carpenter would have been permitted to testify about his personal knowledge without photographic proof of his measurement. See MRE 602.
Defendant, however, challenges plaintiff's method of measurement, asserting that plaintiff's photographs show an individual pushing a ruler, instead of a tape measure, into the seam between the sidewalk panels. Resultantly, defendant contends that the images captured depict the distance between the bottom of the seam and the elevated panel rather than the vertical discontinuity difference between the panel. But, assuming for the sake of argument that plaintiff's photographs did not measure the vertical discontinuity accurately, there was still ample record evidence establishing that plaintiff overcame the two-inch presumption. Carpenter's affidavit regarding his measurement of the panel with a tape measure, Ziemba's affidavit regarding the estimated height differential, and the inadequacy of Derr's photographs of the sidewalk defect were sufficient for plaintiff to establish that the vertical discontinuity was at least two inches. Thus, we find no error in the trial court's determination.
IV. OPEN AND OBVIOUS
Defendant next argues that the trial court erred when it found there was a question of material fact as to whether the sidewalk defect was open and obvious. We disagree.
The GTLA provides:
In a civil action, a municipal corporation that has a duty to maintain a sidewalk under subsection (1) may assert, in addition to any other defense available to it, any defense available under the common law with respect to a premises liability claim, including, but not limited to, a defense that the condition was open and obvious. [MCL 691.1402a(5).]"Whether a danger is open and obvious depends on whether it is reasonable to expect that an average person with ordinary intelligence would have discovered it upon casual inspection." Hoffner v Lanctoe, 492 Mich 450, 461; 821 NW2d 88 (2012). This is an objective test. Id. Therefore, "the inquiry is whether a reasonable person in the plaintiff's position would have foreseen the danger, not whether the particular plaintiff knew or should have known that the condition was hazardous." Slaughter v Blarney Castle Oil Co, 281 Mich App 474, 479; 760 NW2d 287 (2008).
Here, there was a genuine issue of material fact as to whether the sidewalk defect was open and obvious. First, Derr, whose position with defendant required him to identify obvious sidewalk defects, never discovered the defect while driving through the neighborhood. Moreover, during yearly pavement inspections, defendant's inspectors looked for obvious sidewalk defects while driving. Based on this testimony, it is reasonable to presume that, had the sidewalk defect been open and obvious, either the inspectors or Derr would have discovered it. And, while Derr did not believe that the sidewalk defect was two inches or more, his testimony regarding his job duties and his failure to spot the defect prior to plaintiff's fall was, at minimum, enough to create a genuine issue of material fact.
Second, Ziemba's affidavit also created a genuine issue of material fact regarding whether the defect was open and obvious. Ziemba, plaintiff's expert, testified that plaintiff and Carpenter would not have been able to identify the defect walking in near darkness. This was also sufficient to create a genuine issue of material fact as to whether the defect was objectively open and obvious, as there was no indication that Carpenter or plaintiff were not of ordinary intelligence. Slaughter, 281 Mich App at 479; Lanctoe, 492 Mich at 461.
Defendant, however, asserts that the darkness of the evening was not a unique circumstance that would refute the open and obvious nature of the sidewalk defect, citing to Singerman v Municipal Serv Bureau, Inc, 455 Mich 135; 565 NW2d 383 (1997). In Singerman, the plaintiff was a business invitee playing hockey at an arena owned by the defendant Id. at 136-137, 139. The plaintiff saw another player shoot the hockey puck towards him, but, due to poor lighting, was unable to react as he normally would to avoid being struck. Id. at 138. Relevantly, our Supreme Court stated that the lack of proper lighting was itself "an open and obvious danger which the invitee might reasonably be expected to discover." Id. at 141.
Singerman is a plurality opinion in which three justices dissented as to whether the open and obvious nature of the condition foreclosed all liability for defendant. Singerman, 455 Mich at 146-148 (MALLETT, C.J., concurring in part and dissenting in part). However, there was no dispute that the darkness was an open and obvious danger. See id.
We have recently examined the effect of darkness in addressing the question of whether a danger was open and obvious. In Blackwell v Franchi, 318 Mich App 573; 899 NW2d 415 (2017), remanded on other grounds 502 Mich 918; 914 NW2d 900 (2018), the plaintiff fell down an eight-inch drop off when entering the defendants' mud room. Id. at 574-575. The area was unlighted and the plaintiff presented eyewitness evidence that the drop-off was concealed by the darkness. Id. at 577-578. The record also contained photographs demonstrating that the drop-off was difficult to see with sufficient lighting. Id. at 578. We concluded that the testimony and the photographs "clearly demonstrated a question of fact about whether an average user acting under the conditions existing when plaintiff approached the mud room would have been able to discover the drop-off upon casual inspection." Id.
This case is closer to the situation in Blackwell than it is to Singerman. In this case, plaintiff's expert attested that the hazardous condition, the defective sidewalk panel, was concealed by the lack of natural lighting or streetlights. This is different than Singerman, where the open and obvious hazardous condition was the darkness itself. Plaintiff here presented evidence from her expert that the condition would have been concealed with darkness, and Derr's testimony also indicated that it was possible that the defect would have been concealed during the daylight. This is similar to Blackwell, where the plaintiff presented evidence that the drop-off was concealed by the darkness and would have been difficult to see even with sufficient lighting. Given this evidence, and that we have previously recognized that darkness may impair a plaintiff's visibility to the extent that an otherwise observable danger no longer qualifies as open and obvious, Abke v Vandenberg, 239 Mich App 359, 363-364; 608 NW2d 73 (2000), we cannot conclude that the trial court erred when it determined plaintiff had presented evidence creating a genuine issue of material fact as to whether the defect was open and obvious.
Defendant further argues that the trial court should not have found that there was an issue of fact regarding its immunity under MCR 2.116(C)(7), and, instead, should have held an evidentiary hearing to resolve the factual dispute regarding its open and obvious defense. Defendant relies on our determination that, under MCR 2.116(C)(7), in contrast to MCR 2.116(C)(10), the trial court should "hold an evidentiary hearing for the purpose of obtaining such factual development as is necessary to determine" whether a government agency's action was subject to an exception to governmental immunity. Dextrom v Wexford Cty, 287 Mich App 406, 432; 789 NW2d 211 (2010). In Dextrom, there was a question of fact as to whether the defendants' operation of a landfill was subject to the proprietary function exception to governmental immunity. Id. This is once again distinguishable from the issue here. There was no dispute that the sidewalk exception to governmental immunity applied to plaintiff's suit and that defendant was entitled to raise the open and obvious defense. See MCL 691.1402a(5). No further factual development was required over these legal principles. Because the law permits defendant to raise an open-and-obvious defense, whether defendant will be able to successfully establish this defense remains a fact question for the jury.
This differs from the issue of whether plaintiff could overcome the two-inch rule, which the trial court properly determined was a matter of law. The statute specifies that the two-inch rule is a rebuttal presumption the plaintiff must overcome. MCL 691.1402a(4). In contrast, the open and obvious question is a factual one. See Buhl v City of Oak Park, 329 Mich App 486, 520-522; 942 NW2d 667 (2019), lv gtd ___ Mich ___; 941 NW2d 58 (2020) (examining whether there was a genuine issue of material fact as to whether a defect was open or obvious).
Accordingly, the trial court did not err in determining that there was a genuine dispute of material fact under MCR 2.116(C)(10), regarding whether the sidewalk's defect was open and obvious. See Gillette, 327 Mich App at 19.
V. NOTICE
Lastly, defendant argues that plaintiff's pre-suit notice was fatally flawed because it provided the wrong address as it indicated that the sidewalk defect was at 22252 Olmstead Street rather than its actual location of 22238/40 Olmstead Street. We disagree.
The GTLA requires that:
[a]s a condition to any recovery for injuries sustained by reason of any defective highway, the injured person, within 120 days from the time the injury occurred, . . . shall serve a notice on the governmental agency of the occurrence of the injury and the defect. The notice shall specify the exact location and nature of
the defect, the injury sustained and the names of the witnesses known at the time by the claimant. [MCL 691.1404(1) (emphasis added).]
"It is well established that statutory notice requirements must be interpreted and enforced as plainly written and that no judicially created saving construction is permitted to avoid a clear statutory mandate." Atkins v Suburban Mobility Auth for Regional Transp, 492 Mich 707, 714-715; 822 NW2d 522 (2012). Thus, a plaintiff's "[f]ailure to provide adequate notice under this statute is fatal to [the] plaintiff's claim against a government agency." Russell v City of Detroit, 321 Mich App 628, 633; 909 NW2d 597 (2017) (quotation marks and citation omitted).
Notably, "[t]he statute does not delineate the form of the notice . . . except that it must . . . contain the identified information." Burise v City of Pontiac, 282 Mich App 646, 654; 766 NW2d 311 (2009). Moreover, "[t]he sufficiency of the notice is judged on the entire notice and all the facts stated therein." Russell, 321 Mich App at 633. "Some degree of ambiguity in an aspect of a particular notice may be remedied by the clarity of other aspects." Id. (quotation marks and citation omitted). Finally,
when notice is required of an average citizen for the benefit of a governmental entity, it need only be understandable and sufficient to bring the important facts to the governmental entity's attention. Thus, a liberal construction of the notice requirements is favored to avoid penalizing an inexpert layman for some technical defect. The principal purposes to be served by requiring notice are simply (1) to provide the governmental agency with an opportunity to investigate the claim while it is still fresh and (2) to remedy the defect before other persons are injured. [Plunkett v Dep't of Transp, 286 Mich App 168, 176-177; 779 NW2d 263 (2009).]
Defendant contends that plaintiff's notice was fatally defective because plaintiff provided an incorrect address as demonstrated by the land survey it undertook two years after plaintiff's fall. Defendant relies on this Court's opinion in Thurman and our Supreme Court's order in Jakupovic v City of Hamtramck, 489 Mich 939; 798 NW2d 12 (2011), rec den 490 Mich 895; 804 NW2d 732 (2011). Defendant's reliance is misplaced.
In Thurman, this Court determined that the plaintiff failed to give adequate notice when he described the defective sidewalk at "35 Huron, Pontiac, Michigan," without specifying whether it was at 35 West Huron or 35 East Huron, or whether it was on the north or south side of Huron street. Id. at 386. This Court also determined that the plaintiff's photographs were insufficient to cure his defective notice because they were untimely submitted. Id.
In this case, in direct contrast to Thurman, plaintiff's timely notice stated that she "tripped and fell over an uneven sidewalk" "located in front of the home with a common address of 22252 Olmstead, Dearborn, Michigan." Plaintiff further stated that she was "enclosing photographs of the defective sidewalk." Defendant does not dispute that it received plaintiff's notice, including two photographs. Cf. Russell, 321 Mich App at 635 n 1 (declining to consider photographs that the defendant alleged it had never received). Even before receiving plaintiff's notice, defendant had been informed about the defective sidewalk in front of 22238 Olmstead. Armed with plaintiff's notice, including the photographs, Derr, defendant's sidewalk technician, located the defective sidewalk panel, testifying: "That seemed like that was the only raised area at that location." Another of defendant's employees also confirmed that plaintiff's notice was sufficient for defendant to identify and repair the defect. And, the following year, defendant removed and replaced the defective sidewalk panel. Thus, plaintiff's notice satisfied the principal purposes underlying the statute. See Plunkett, 286 Mich App at 176-177.
This was the language in plaintiff's first two notices. Plaintiff's third notice read that she
tripped and fell over a vertical discontinuity and dangerous condition in the sidewalk, . . . as reflected in the attached photographs . . . . The uneven sidewalk over which [she] fell is located in front of the home with a common address of 22252 Olmstead, Dearborn, Michigan.
Defendant is correct that its subsequent land survey revealed the defective sidewalk was actually located on the property of 22238/40 Olmstead, not 22252 Olmstead. Thus, plaintiff's notice did not provide the precise address of the defect. But the plain statutory language requires a plaintiff to specify "the exact location . . . of the defect," not an exact address of the defect. Although providing an address is one route to pinpointing an exact location, it is not the only one. To the extent plaintiff's listing the adjacent address created an ambiguity regarding the defect's exact location, plaintiff remedied it through the photographs depicting landmarks and identifying features, which served to identify the defective sidewalk's exact location. Russell, 321 Mich App at 633-635.
Jakupovic is likewise inapposite. There, the Supreme Court overturned this Court's unpublished decision, holding:
The Court of Appeals recognized that the plaintiff had stated the wrong address in giving notice to the defendant of an alleged defect in a sidewalk. The Court of Appeals erred by excusing this error, rather than enforcing the notice requirement found at MCL 692.1404(1) as written. The statute requires notice of "the exact location" of the defect, and in this case, the plaintiff failed to specify the correct address where the defect was allegedly located. [Id. (citation omitted).]This Court's Jakupovic opinion described the plaintiff's notice as stating:
the defect was "adjacent to aforesaid address of 9477 Mitchell Street, Hamtramck, Michigan." Her January complaint again stated the defect was "adjacent to aforesaid address of 9477 Mitchell Street, Hamtramck, County of Wayne, State of Michigan." It also stated "in front of aforesaid address of 9477 Mitchell." In fact, the alleged defect was in front of 9465 Mitchell Street, which was immediately next to 9477 Mitchell. [Jakupovic v City of Hamtramck, unpublished per curiam opinion
of the Court of Appeals, issued December 7, 2010 (Docket No. 293715), p 6., rev'd 489 Mich at 939.]
Because plaintiff's notice in this case was later shown to provide an incorrect address as the location of the sidewalk defect, defendant suggests Jakupovic controls the outcome here. It does not. The Jakupovic plaintiff stated that the defect was adjacent to the incorrect address, suggesting that the correct address was ascertainable and could have been provided. In this case, however, absent a land survey, no one knew the exact address of the defective sidewalk panel. And, more to the point, despite defendant's focus on the incorrect address, the statute requires plaintiff to provide defendant a notice specifying "the exact location" of the defect. MCL 691.1404(1). Again, viewing the entire notice, plaintiff included the address of the home that shared the sidewalk panel along with photographs containing unique landmarks and identifying features. Russell, 321 Mich App at 633. And to the extent that including an incorrect adjacent address to mark the location of the actual defect created an ambiguity, plaintiff's photographs with their landmarks and identifying features sufficed because, as Derr testified, it "seemed like that was the only raised area at that location." Id. at 633-634. Accordingly, plaintiff's notice specified the exact location of the defect, and, therefore, plaintiff complied with MCL 691.1404(1). Russell, 321 Mich App at 633.
Affirmed.
/s/ Anica Letica
/s/ Elizabeth L. Gleicher