Buhl v. City of Oak Park

Full title: Jennifer BUHL, Plaintiff-Appellant, v. CITY OF OAK PARK…

Court: Court of Appeals of Michigan.

Date published: Aug 29, 2019

329 Mich. App. 486 (Mich. Ct. App. 2019)

942 N.W.2d 667

Opinion

No. 340359

08-29-2019

Jennifer BUHL, Plaintiff-Appellant, v. CITY OF OAK PARK, Defendant-Appellee.

Miller Johnson (by Christopher J. Schneider, Grand Rapids) and Michigan Advocacy Center, PLLC (by Matthew E. Bedikian) for plaintiff. Garan Lucow Miller, PC (by Megan K. Cavanagh, John J. Gillooly, and Caryn A. Ford, Detroit) for defendant.

Tukel, J.

Miller Johnson (by Christopher J. Schneider, Grand Rapids) and Michigan Advocacy Center, PLLC (by Matthew E. Bedikian) for plaintiff.

Garan Lucow Miller, PC (by Megan K. Cavanagh, John J. Gillooly, and Caryn A. Ford, Detroit) for defendant.

Before: O'Brien, P.J., and Tukel and Letica, JJ.

Tukel, J. This case involves the question whether a legislative act, 2016 PA 419, which makes the open and obvious danger doctrine applicable to suits against municipalities, applies retroactively—that is, whether it applies " ‘to events antedating its enactment....’ " Frank W. Lynch & Co. v. Flex Technologies, Inc. , 463 Mich. 578, 585, 624 N.W.2d 180 (2001), quoting Landgraf v. USI Film Prod. , 511 U.S. 244, 283, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994). The retroactivity question turns on whether the act impaired a "vested right," and our Supreme Court has long noted that "[t]he question of determining what is a vested right has always been a source of much difficulty to all courts." Lahti v. Fosterling , 357 Mich. 578, 588, 99 N.W.2d 490 (1959). The trial court found that the statutory amendment applied retroactively and, applying the open and obvious danger doctrine, granted summary disposition to defendant. We hold that because no vested right of plaintiff was impaired by the Legislature's actions and because the Legislature's actions were remedial in nature, the resulting grant of summary disposition to defendant on the basis of the open and obvious danger doctrine was correct; we therefore affirm the trial court's judgment.

Plaintiff was injured on May 4, 2016, when she twisted her ankle on a sidewalk outside of a store called Trend Express in Oak Park, Michigan. The sidewalk was under defendant's exclusive jurisdiction. On the date of the injury, it was raining. Plaintiff's husband dropped her off in front of the building, and plaintiff walked toward the front door. Plaintiff noticed a crack in the sidewalk and attempted to step over it. However, plaintiff was looking at the store and failed to notice the uneven cement slabs on the far side of the crack from where she was walking. Plaintiff testified that she did not see the drop-off because she was not looking at the sidewalk but admitted that she would have seen it if she had been watching where she was walking instead of looking at the store.

Plaintiff filed suit under the defective-sidewalk exception to governmental immunity, MCL 691.1402a. Defendant moved for summary disposition under MCR 2.116(C)(10), arguing that the defect was open and obvious.¹ Plaintiff argued that it did not matter whether the defect was open and obvious because MCL 691.1402a(5), which permitted defendant to assert the open and obvious danger defense, was not enacted until after she was injured.² Plaintiff also argued that irrespective of the applicability of this statutory amendment, the condition was not open and obvious because the drop-off was not clearly visible from the direction that plaintiff had approached the store. The trial court held that the statutory amendment was retroactive because it affected only the availability of a possible defense, not plaintiff's ability to bring a claim. Further, the trial court held that the condition was open and obvious because plaintiff's photographs clearly showed that the corner of the concrete slab where plaintiff claimed to have tripped was raised.

1 Defendant also moved for summary disposition under MCR 2.116(C)(8), arguing that plaintiff's complaint did not identify the date of the accident. The trial court noted that even if it had agreed with defendant, it would have allowed plaintiff to amend her complaint to include the date. Because the trial court found that summary disposition was warranted under MCR 2.116(C)(10), it declined to rule on the basis of MCR 2.116(C)(8), and that aspect of the motion is not pertinent for our purposes on appeal.

2 The relevant time line of events is as follows:

• May 4, 2016: plaintiff's injury;

• January 3, 2017: enactment of amended statute;

• January 4, 2017: effective date of amended statute;

• January 31, 2017: plaintiff's complaint filed.

I. RETROACTIVITY OF AMENDMENT TO MCL 691.1402a

On appeal, plaintiff first argues that the trial court erred when it determined that the amendment of MCL 691.1402a had retroactive effect. We disagree. This Court reviews de novo whether a statute applies retroactively. Johnson v. Pastoriza , 491 Mich. 417, 428-429, 818 N.W.2d 279 (2012).

A. STATUTORY BACKGROUND

The governmental tort liability act (GTLA), MCL 691.1401 et seq. , provides immunity from tort liability to governmental agencies when they are engaged in the exercise or discharge of a governmental function. MCL 691.1407(1) ; Moraccini v. Sterling Hts. , 296 Mich. App. 387, 391, 822 N.W.2d 799 (2012). The GTLA waives immunity and allows suit against a governmental agency only if the suit falls within one of the statutory exceptions. Moraccini , 296 Mich. App. at 392, 822 N.W.2d 799. MCL 691.1402a, which allows a plaintiff to sue a municipal corporation under some circumstances when the municipal corporation fails to maintain a sidewalk, provides:

(1) A municipal corporation in which a sidewalk is installed adjacent to a municipal, county, or state highway shall maintain the sidewalk in reasonable repair.

(2) A municipal corporation is not liable for breach of a duty to maintain a sidewalk unless the plaintiff proves that 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 the defect in the sidewalk.

(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:

(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.

(5) 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.

(6) A municipal corporation's liability under subsection (1) is limited by section 81131 of the natural resources and environmental protection act, 1994 PA 451, MCL 324.81131.

This current version of the statute was enacted on January 3, 2017, with the passage of 2016 PA 419, becoming effective on January 4, 2017. The only changes brought about by 2016 PA 419 were to add Subsection (5), and, although not relevant for purposes of this case, to renumber the previous Subsection (5) to Subsection (6).

B. RETROACTIVITY DEFINED

The United States Supreme Court has noted that "courts have labored to reconcile two seemingly contradictory statements found in our decisions concerning the effect of intervening changes in the law. Each statement is framed as a generally applicable rule for interpreting statutes that do not specify their temporal reach." Landgraf , 511 U.S. at 263-264, 114 S.Ct. 1483.

The first is the rule that "a court is to apply the law in effect at the time it renders its decision[.]" The second is the axiom that "[r]etroactivity is not favored in the law," and its interpretive corollary that "congressional enactments and administrative rules will not be construed to

have retroactive effect unless their language requires this result." [ Id. at 264, 114 S. Ct. 1483 (citations omitted).]

"A statute does not operate ‘retrospectively’ merely because it is applied in a case arising from conduct antedating the statute's enactment or upsets expectations based in prior law," id. at 269, 114 S. Ct. 1483 (citation omitted), nor is it " ‘made retroactive merely because it draws upon antecedent facts for its operation,’ " id. at 269 n. 24, 114 S. Ct. 1483 (citation omitted). "[C]ourts should apply the law in effect at the time that they decide a case unless that law would have an impermissible retroactive effect as that concept is defined by the Supreme Court." BellSouth Telecom., Inc. v. Southeast Tel., Inc. , 462 F.3d 650, 657 (C.A. 6, 2006).

"[T]he court must ask whether the new provision attaches new legal consequences to events completed before its enactment." Landgraf , 511 U.S. at 269-270, 114 S.Ct. 1483. "The conclusion that a particular rule operates ‘retroactively’ comes at the end of a process of judgment concerning the nature and extent of the change in the law and the degree of connection between the operation of the new rule and a relevant past event." Id. at 270, 114 S. Ct. 1483. "Any test of retroactivity will leave room for disagreement in hard cases, and is unlikely to classify the enormous variety of legal changes with perfect philosophical clarity. However, retroactivity is a matter on which judges tend to have ‘sound instincts,’ and familiar considerations of fair notice, reasonable reliance, and settled expectations offer sound guidance." Id. (citation, ellipsis, and brackets omitted).

There are four rules that a court must consider when determining whether a new statute applies retroactively. In re Certified Questions from U.S. Court of Appeals for the Sixth Circuit , 416 Mich. 558, 570, 331 N.W.2d 456 (1982) :

First, is there specific language in the new act which states that it should be given retrospective or prospective application. Second, a statute is not regarded as operating retrospectively solely because it relates to an antecedent event. Third, a retrospective law is one which takes away or impairs vested rights acquired under existing laws, or creates a new obligation and imposes a new duty, or attaches a new disability with respect to transactions or considerations already

past. Fourth, a remedial or procedural act which does not destroy a vested right will be given effect where the injury or claim is antecedent to the enactment of the statute. [ Id. at 570-571, 331 N.W.2d 456 (quotation marks, citations, and brackets omitted).]

Under Rule 1, the intent of the Legislature governs the question whether a statute applies retroactively. Johnson , 491 Mich. at 429, 818 N.W.2d 279. Indeed, our Supreme Court has stated that " ‘[t]he primary and overriding rule is that legislative intent governs. All other rules of construction and operation are subservient to this principle.’ " Lynch , 463 Mich. at 583, 624 N.W.2d 180 (citation omitted). Absent such clear indication that the Legislature intended retroactive application, it is presumed that a statute applies only prospectively. Brewer v. A. D. Transp. Express, Inc. , 486 Mich. 50, 56, 782 N.W.2d 475 (2010).

"Second rule cases relate to measuring the amount of entitlement provided by a subsequent statute in part by services rendered pursuant to a prior statute," In re Certified Questions , 416 Mich. at 571, 331 N.W.2d 456, which is not applicable here. "The third rule and the cases thereunder define those retrospective situations that are not legally acceptable, whereas the fourth rule defines those that are acceptable." Id. at 572, 331 N.W.2d 456 (emphasis added). Because the retroactivity analysis is based, in part, on reasonable reliance, the proper analysis is whether a new statute "would impair rights a party possessed when he acted...." Landgraf , 511 U.S. at 280, 114 S.Ct. 1483. C. APPLYING THE RETROACTIVITY TEST

1. STATUTORY TEXT

The first factor to consider is whether the text of the statute at issue provides that it is to be given retroactive or prospective effect. In re Certified Questions , 416 Mich. at 570, 331 N.W.2d 456 ; see also Johnson , 491 Mich. at 429, 818 N.W.2d 279. Our Supreme Court "has recognized that ‘providing a specific, future effective date and omitting any reference to retroactivity supports a conclusion that a statute should be applied prospectively only.’ " Johnson , 491 Mich. at 432, 818 N.W.2d 279 (citation omitted). In the present case, the statute did not include a future effective date but rather was given immediate effect. "Use of the phrase ‘immediate effect’ does not at all suggest that a public act applies retroactively." Id. at 430, 818 N.W.2d 279. Rather, "immediate effect" means only "that the Legislature by a 2/3 vote expressed an intention that the amendatory act take effect on the date it was filed." Id. at 431 n. 30, 818 N.W.2d 279. The lack of any language here regarding retroactivity weighs in favor of prospective application only.

2. TAKING AWAY OR IMPAIRING VESTED RIGHTS

"A cause of action becomes a vested right when it accrues and all the facts become operative and known." Doe v. Dep't of Corrections , 249 Mich. App. 49, 61-62, 641 N.W.2d 269 (2001), citing In re Certified Questions , 416 Mich. at 572-573, 331 N.W.2d 456. If the retroactive application of a law would take away or impair vested rights, then its retroactive application is prohibited by Rule 3; Rule 4 provides the mirror image, providing that "a remedial or procedural act which does not destroy a vested right will be given effect where the injury or claim is antecedent to the enactment of the statute." In re Certified Questions , 416 Mich. at 571, 331 N.W.2d 456. As far as a plaintiff asserting a claim is concerned, retroactive application is prohibited if an "accrued cause of action would be totally barred or taken away by a new act." Id. at 577, 331 N.W.2d 456.

In this case, the statute at issue did not totally bar or take away a cause of action; rather it made available to municipal corporations common-law defenses, including the open and obvious danger doctrine. Importantly, even after the enactment of the amended statute, plaintiff could still assert the identical cause of action against defendant, and the full range of damages previously available to a prevailing plaintiff is unchanged by the statutory amendment. Cf. Johnson , 491 Mich. at 433-434, 818 N.W.2d 279 (holding that an amendment that created a new right of prevailing plaintiffs to receive damages for loss of consortium and other damages not previously available created a new legal burden on defendants, which could not be applied retroactively). By the plain language of In re Certified Questions , only the abolition of an existing or accrued cause of action takes away or impairs a plaintiff's vested rights. Moreover, In re Certified Questions , 416 Mich. at 577, 331 N.W.2d 456, specifically noted that only a "legal bar" would implicate the "totally barred or taken away by the new act" language. The question in that case was whether the adoption of a comparative-negligence statute would apply to a cause of action for products liability, and if so, whether the comparative-negligence statute would be applied retroactively. See id. at 561, 331 N.W.2d 456. In analyzing the issue, our Supreme Court stated:

While the total damages which plaintiff could have received were significantly reduced by [MCL 600.]2949, plaintiff's cause of action was not legally barred or taken away.

Section 2949 does not bar any claim, legal or equitable , but it states that "damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence

attributed to the plaintiff." Section 2949 is not a legal bar , but is a principle established by the Legislature which mitigates damages in products liability actions.

In short, we hold that the applicability of the products liability statute in the instant case did not offend Michigan's general rule against the retrospective application of a statute which "take[s] away vested rights." [ Id. at 577-578, 331 N.W.2d 456 (citations omitted; emphasis added).]

The Supreme Court's analysis was based on the plaintiff's cause of action not being "legally barred or taken away"; because the act at issue in that case was not "a legal bar," it did not deprive the plaintiff of a vested right.

Thus, under In re Certified Questions , a cause of action can be "totally barred or taken away by the new act" only if the act extinguishes it as a matter of law. For example, causes of action for alienation of affection that previously existed were totally barred by a new act when the Legislature repealed them because the legislative action rendered such causes of action extinct. See former MCL 551.301 to MCL 551.311, repealed by 1980 PA 180. The cause of action against a municipality for a defective sidewalk was not rendered extinct by the enactment of 2016 PA 419—the cause of action still exists.

The dissent seemingly understands this point when it cites the In re Certified Questions test that Rule 3 is implicated when an "accrued cause of action would be totally barred or taken away by a new act," but the dissent then goes on to argue for the misapplication of the test. The dissent argues that if the open and obvious danger doctrine is applied, plaintiff will lose her case; this, the dissent states, constitutes plaintiff's cause of action being " ‘totally barred or taken away by [the] new act. ’ " (Emphasis added.) The dissent asserts, contrary to In re Certified Questions , that "[w]hether the statutory amendment at issue abolishes Buhl's cause of action outright or its application results in dismissal of her lawsuit, albeit after a judicial finding on the question of whether the danger was open and obvious, makes no difference. Either way, Buhl's ‘accrued cause of action [is] totally barred or taken away by a new act.’ "

However, to the extent that plaintiff's case is subject to dismissal under the open and obvious danger doctrine, it is not "totally barred or taken away" "by a new act"; in this particular case, the hazard was readily apparent, and thus the facts preclude recovery. In other words, plaintiff's cause of action is barred not "by a new act" but rather by a new act plus the particular facts relating to her injury. A dismissal based on factual infirmities is not a "legal bar" but a "factual bar." Accordingly, Rule 3 is inapplicable because a cause of action being barred by application of a new act plus particular facts simply cannot be squared with the language used by our Supreme Court, or by its discussion of Rule 3, in In re Certified Questions .

Even setting aside the dissent's misreading of the "by a new act" language from In re Certified Questions , its position here is curious—it would decide a legal issue (the retroactive availability of the open and obvious danger doctrine to municipalities) on the basis of a purely factual determination (whether there is merit to a defense claim that a particular hazard was open and obvious). However, because it involves a legal doctrine, the question whether the statute is to be applied retroactively must apply equally in all cases; the statute either is retroactive or it is not. However, as a question of fact, the open and obvious danger doctrine surely will not apply in every case in which it is invoked. Some defendants will argue that a particular plaintiff is barred from recovery because a hazard was open and obvious, but a jury nevertheless will find factually that the hazard was not so readily apparent. Applying the dissent's position, then, courts would have to decide on a case-by-case basis whether a particular plaintiff's case would be defeated by application of the open and obvious danger doctrine; if the answer is that it would be, that would mean, according to the dissent, that the cause of action would be "totally barred or taken away by the new act" and thus the act could not be applied retroactively to such a case. This approach never would settle the question presented here but instead would require the legal determination of the retroactivity question to be made in each lawsuit, on a case-by-case basis. The dissent cites no authority for the proposition that the retroactivity decision must be decided anew in each case and that the decision will turn on the factual vagaries of a particular case.

The distinction between a cause of action failing for legal reasons as opposed to factual reasons is so common that the Michigan Court Rules distinguish between them. See MCR 2.116(C)(8) (governing motions for summary disposition based on a legal failure to state a claim upon which relief can be granted) and MCR 2.116(C)(10) (governing motions for summary disposition based on failure of proof). The In re Certified Questions analysis under Rule 3 applies the same distinction. Applying that analysis here, the cause of action for injuries sustained on a municipal sidewalk remains extant; no one would say, in light of the statutory amendment at issue, that plaintiff's complaint fails to state a claim upon which relief can be granted in that the cause of action no longer exists. Consequently, for purposes of applying the In re Certified Questions test, plaintiff's cause of action has not been "totally barred or taken away by a new act." And of course, as noted earlier, reading "totally barred or taken away by a new act" in this manner means that the retroactivity question will be decided by a single legal standard and will not vary from case to case based on the facts.

Moreover, as noted, a relevant consideration for determining whether a party had a vested right is whether the new statute "would impair rights a party possessed when he acted...." Landgraf , 511 U.S. at 280, 114 S.Ct. 1483. As one federal court of appeals has noted, a strong consideration in determining whether a plaintiff's rights have been impaired is whether the plaintiff relied on the state of the law prior to the statutory amendment. Southwest Ctr. for Biological Diversity v. U.S. Dep't of Agriculture , 314 F.3d 1060, 1062 (C.A. 9, 2002). However, as the Southwest Ctr. court noted, "Surely the [plaintiff's] expectation of success in its litigation is not the kind of settled expectation protected by Landgraf ’s presumption against retroactivity. As the [defendant] points out, if that expectation were sufficient then no statute would ever apply to a pending case unless Congress expressly made it so applicable. The Landgraf inquiry would become pointless." Id. at 1062 n. 1.³ The dissent here commits exactly that error when it states that "[t]he legal question before us is whether the Legislature clearly stated its intention to apply 2016 PA 419 retroactively." That would be true for a Rule 1 analysis; it is incorrect for the Rule 3 and Rule 4 analyses applicable here because it would override and therefore make pointless any analysis under those rules.⁴

3 Our courts have made the same point. See Gen. Motors Corp. v. Dep't of Treasury , 290 Mich. App. 355, 370-371, 803 N.W.2d 698 (2010) ("[A] vested right is something more than such a mere expectation as may be based upon an anticipated continuance of the present general laws; it must have become a title, legal or equitable, to the present or future enjoyment of property, or to the present or future enforcement of a demand, or a legal exemption from a demand made by another.") (quotation marks and citation omitted).

4 The dissent dismisses our reliance on Southwest Ctr. as based on a distinction between a right of action and a right of recovery and states that its position is based only on a right of action. However, no such distinction exists. Southwest Ctr. involved a Freedom of Information Act exemption that was enacted after the plaintiff had filed suit; if the exemption was applicable, it was undisputed that it would bar the suit completely. The court held: "The [plaintiff] contends that application of [the exemption] ‘impairs [a] right the [plaintiff] possessed when it acted,’ because the [plaintiff] had a right to the information when it filed its suit (or when it made its earlier request) and it loses that right by application of the new exemption. But the ‘action’ of the [plaintiff] was merely to request or sue for information; it was not to take a position in reliance upon existing law that would prejudice the [plaintiff] when that law was changed." Southwest Ctr. , 314 F.3d at 1062 (cleaned up). Southwest Ctr. thus flatly rejected the argument accepted by the dissent here that plaintiff "has a vested right to continue her cause of action under the substantive law in existence before the statutory amendment." Because plaintiff had no vested right in the preexisting substantive law, this case falls within Rule 4 rather than Rule 3.

In the present case, the only claimed reliance on plaintiff's part is to the nonapplicability of the open and obvious danger doctrine. In the words of the dissent, 2016 PA 419 is a "game-changer" because it so radically changed the " ‘expectation of success’ in [plaintiff's] ligitation." As Southwest Ctr. held, however, that is not the kind of settled expectation protected by Landgraf . To the contrary, the United States Supreme Court has noted that "[t]he largest category of cases in which we have applied the presumption against statutory retroactivity has involved new provisions affecting contractual or property rights, matters in which predictability and stability are of prime importance." Landgraf , 511 U.S. at 271, 114 S.Ct. 1483. This principle explains cases such as Brewer , which denied retroactive application. In Brewer , an amendment to the Workers’ Disability Compensation Act created "an entirely new jurisdictional standard , granting jurisdiction over out-of-state injuries of Michigan employees whose contracts of hire were not made in Michigan." Brewer , 486 Mich. at 57, 782 N.W.2d 475.⁵ Retroactive application thus would have upset expectations regarding employers' potential liability based on existing law by imposing "a new legal burden on out-of-state employers not previously subject to the jurisdiction of the Workers' Compensation Agency," id. at 58, 782 N.W.2d 475, and "also potentially enlarged existing rights for Michigan residents injured in other states under contracts of hire not made in Michigan," id .

5 Part I(C)(3) of this opinion discusses how the legislation at issue in Brewer created an entirely new jurisdictional standard, which is relevant to discussion of why the present case falls within Rule 4. For present purposes, it is sufficient to note that the legislation in Brewer upset reliance interests.

In this case, by contrast, the allegations were of negligence leading to a slip and fall. By definition, no one expects to slip and fall; thus, the "familiar considerations of fair notice, reasonable reliance, and settled expectations," Landgraf , 511 U.S. at 270, 114 S.Ct. 1483, have significantly less force. In other words, because the statute at issue relates to acts that necessarily are unplanned, it is not unreasonable, at least in the abstract, to expect that 2016 PA 419 would apply to antecedent events or transactions that would not have been changed even if the participants had been aware that a different legal regime might attach.

As our Supreme Court has stated in a different context, "[T]o have reliance[,] the knowledge must be of the sort that causes a person or entity to attempt to conform his conduct to a certain norm before the triggering event." Robinson v. Detroit , 462 Mich. 439, 467, 613 N.W.2d 307 (2000). However, as noted, a slip and fall is not something that is planned, and therefore there could not have been any reliance interest in avoiding a particular application of the law to such an occurrence. " ‘An act of the Legislature, though it have retrospective effect, is not necessarily invalid, and does not, for that reason, come into conflict with any constitutional provision, unless vested, not potential, rights are disturbed.’ " Lahti , 357 Mich. at 594, 99 N.W.2d 490 (citation omitted). Rights regarding a slip and fall that has not yet occurred are, of course, potential only. On the morning of May 4, 2016, the date of plaintiff's injury, it is inconceivable that she would have acted differently if she had known that eight months later the Legislature would make the open and obvious danger doctrine applicable to any slip and fall that might occur on that day; in other words, in no way could she have reasonably relied on the existing state of the law, i.e., the inapplicability of the open and obvious danger doctrine, in going about her business and conducting her affairs.

The dissent cites Vartelas v. Holder , 566 U.S. 257, 272, 132 S. Ct. 1479, 182 L. Ed. 2d 473 (2012), for the proposition that plaintiff "need not demonstrate reliance on the prior law in structuring her conduct. Landgraf contains no such requirement." The dissent misreads both Landgraf and our majority opinion.

While the presumption against retroactive application of statutes does not require a showing of detrimental reliance, reasonable reliance has been noted among the "familiar considerations" animating the presumption , see Landgraf , (presumption reflects "familiar considerations of fair notice, reasonable reliance, and settled expectations"). Although not a necessary predicate for invoking the antiretroactivity principle, the likelihood

of reliance on prior law strengthens the case for reading a newly enacted law prospectively. [ Vartelas , 566 U.S. at 273-274, 132 S.Ct. 1479 (citations omitted; emphasis added).]

For the reasons stated, plaintiff could not have reasonably relied on prior law, thereby failing to "strengthen[ ] the case for reading prospectively." Id. at 274, 132 S.Ct. 1479.

3. A REMEDIAL OR PROCEDURAL ACT THAT DOES NOT DESTROY A VESTED RIGHT; LEGISLATIVE OVERRULING OF PRIOR JUDICIAL DECISIONS

a. REINSTATING THE PREVIOUS STATE OF THE LAW

Finally, under Rule 4, a remedial or procedural act that does not destroy a vested right will be given retroactive effect even in instances in which the injury or claim is antecedent to the enactment of the statute. In re Certified Questions , 416 Mich. at 571, 331 N.W.2d 456. "A statute is remedial or procedural in character if it is designed to correct an existing oversight in the law or redress an existing grievance." Davis v. State Employees' Retirement Bd. , 272 Mich. App. 151, 158-159, 725 N.W.2d 56 (2006) (quotation marks, citation, and brackets omitted). On the other hand, if the legislation enacts a substantive change to the law, it is to be given prospective application. Johnson , 491 Mich. at 430, 818 N.W.2d 279. Under this analysis, "[a]n amendment may apply retroactively where the Legislature enacts an amendment to clarify an existing statute and to resolve a controversy regarding its meaning." Mtg. Electronic Registration Sys., Inc. v. Pickrell , 271 Mich. App. 119, 126, 721 N.W.2d 276 (2006). Thus, our Supreme Court recognizes that if the Legislature adopts an amendment directed at a particular judicial decision, and through that amendment not only overrules the judicial decision but also reinstates the state of the law as it existed prior to the judicial decision, then the amendment is considered remedial and will be applied retroactively. This is so because legislatively reversing an erroneous judicial decision and reinstating the status quo ante corrects "an existing oversight in the law" and "redress[es] an existing grievance," Davis , 272 Mich. App. at 159, 725 N.W.2d 56 (quotation marks and citation omitted), and also "clarif[ies] an existing statute" and "resolve[s] a controversy regarding its meaning," Mtg. Electronic Registration Sys. , 271 Mich. App. at 126, 721 N.W.2d 276.

Brewer provides an example of this principle. An earlier decision, Karaczewski v. Farbman Stein & Co. , 478 Mich. 28, 732 N.W.2d 56 (2007), overruled by Bezeau v. Palace Sports & Entertainment, Inc. , 487 Mich. 455 (2010), had held that the previous statute provided for application of workers' compensation coverage regarding out-of-state injuries only if the contract of hire had been made in Michigan. As previously noted, the amendment "created an entirely new jurisdictional standard , granting jurisdiction over out-of-state injuries of Michigan employees whose contracts of hire were not made in Michigan," Brewer , 486 Mich. at 57, 782 N.W.2d 475, and thus was plainly a substantive change in the law that could not be applied retroactively, id. at 56-57, 782 N.W.2d 475. Continuing its analysis, the Brewer Court noted:

Further undermining any notion of a legislative intent to apply the amendment of MCL 418.845 retroactively is the fact that, although the Legislature adopted the amendment after our decision in Karaczewski, it did not reinstate the pre- Karaczewski state of the law . On the contrary, the amendment enacted by 2008 PA 499 created an entirely new jurisdictional standard, granting jurisdiction over out-of-state injuries of Michigan employees whose contracts of hire were not made in Michigan. That is, this amendment did not restore the status quo before Karaczewski, which required a Michigan contract of hire for

jurisdiction, but instead created a new rule under which either a Michigan contract of hire or Michigan residency would suffice. [ Id. at 57, 782 N.W.2d 475 (emphasis added; emphasis in original omitted).]

The obvious teaching of this aspect of Brewer is that if the legislation that overruled Karaczewski also had restored the pre- Karaczewski status quo, then the new enactment would have applied retroactively.

The rationale of Brewer regarding reinstatement of a prior doctrine is clear. By overturning a particular judicial decision, the Legislature states that the decision was erroneous. However, that fact alone is insufficient for retroactive application because, as Brewer shows, even when a previous decision is repudiated, if the legislation rejecting it imposes new burdens not previously extant or enlarges existing rights, it unsettles legitimate expectations. See Bd. of Trustees of City of Pontiac Police v. City of Pontiac , 502 Mich. 868, 872, 912 N.W.2d 195 (2018) ( ZAHRA , J., dissenting) ("Retroactive application of legislation presents problems of unfairness ... because it can deprive citizens of legitimate expectations and upset settled transactions.") (quotation marks and citation omitted). But so long as no vested right is affected, as is the case here, retroactive application is warranted. This conclusion is reinforced by the fact that by limiting that aspect of Brewer to legislative changes that restore the prior state of the law, the rule vitiates the unfairness that could result from retroactive application because " ‘no right is destroyed when the law restores a remedy which had been lost.’ " Lahti , 357 Mich. at 589, 99 N.W.2d 490 (citation omitted). Accordingly, the Legislature's reinstatement of a prior doctrine that "had been lost" through judicial decision and that, according to the Legislature, should have applied all along, works no unfairness because it is "designed to correct an existing oversight in the law or redress an existing grievance." Davis , 272 Mich. App. at 159, 725 N.W.2d 56 (quotation marks, citation, and brackets omitted). It is also a permissible mechanism by which "the Legislature enacts an amendment to clarify an existing statute and to resolve a controversy regarding its meaning." Mtg. Electronic Registration Sys. , 271 Mich. App. at 126, 721 N.W.2d 276.

The Brewer restoration rule applies to 2016 PA 419. In this case, the statutory amendment overturned legal doctrine that had made the open and obvious danger doctrine inapplicable to claims against a municipality involving a statutory duty to maintain a sidewalk, and as explained in detail later in this opinion, the act also restored the status quo ante of the repudiated legal doctrine.

b. THE CHANGES BROUGHT ABOUT BY 2016 PA 419, INCLUDING REINSTATEMENT OF THE 1964 ACT

At common law, municipalities such as defendant were not subject to liability at all. Rather, they were cloaked with "governmental immunity." See Pohutski v. City of Allen Park , 465 Mich. 675, 682, 641 N.W.2d 219 (2002). In 1964, the Legislature enacted the GTLA. See 1964 PA 170. That act generally preserved governmental immunity involving sidewalks, providing that "[t]he 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." Id. at § 2.

In 1999 PA 205, the Legislature enacted the first version of § 2a, the provision at issue here. The 1999 act generally maintained immunity for municipal corporations for "injuries arising from[ ] a portion of a county highway outside of the improved portion of the highway designed for vehicular travel, including a sidewalk...." 1999 PA 205, § 2a(1). However, the 1999 act also provided that there would be liability if, "[a]t 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...." Id. at § 2a(1)(a). And the act provided that "[a] discontinuity defect of less than 2 inches creates a rebuttable inference that the municipal corporation maintained the sidewalk ... in reasonable repair." Id. at § 2a(2).

Importantly, § 12 of the GTLA provides that "[c]laims under this act are subject to all of the defenses available to claims sounding in tort brought against private persons." MCL 691.1412. In fact, that provision has never been modified or repealed and has remained in force as enacted since the GTLA's inception in 1964. We interpret statutory language regarding the Legislature's intent as of the time of enactment. Oole v. Oosting , 82 Mich. App. 291, 295, 266 N.W.2d 795 (1978). By using the word "available," the Legislature preserved defenses that, as of the date of passage of § 12, were legally recognized. As of 1964, when § 12 was enacted, it was well established that "claims sounding in tort brought against private persons" were subject to a common-law defense that the risk of a dangerous condition was open and obvious, and thus that a person who was injured under such circumstances was barred from recovering, see, e.g., Kaukola v. Oliver Iron Mining Co. , 159 Mich. 689, 124 N.W. 591 (1910). In Jones v. Enertel, Inc. , 467 Mich. 266, 650 N.W.2d 334 (2002), in light of the statutory enactments, our Supreme Court addressed the availability of the open and obvious danger doctrine to a municipality that allegedly failed to maintain a sidewalk in reasonable repair. "The basic duty owed to an invitee by a premises possessor is ‘to exercise reasonable care to protect the invitee from an unreasonable risk of harm caused by a dangerous condition on the land.’ " Id. at 269, 650 N.W.2d 334 (citation omitted). The Court noted that "this duty does not generally require a premises possessor to remove open and obvious conditions because, absent special aspects, such conditions are not unreasonably dangerous precisely because they are open and obvious." Id. The Court concluded:

However, such reasoning cannot be applied to the statutory duty of a municipality to maintain sidewalks on public highways because the statute requires the sidewalks to be kept in "reasonable repair." The statutory language does not allow a municipality to forego such repairs because the defective condition of a sidewalk is open and obvious. Accordingly, we conclude that the open and

obvious doctrine of common-law premises liability cannot bar a claim against a municipality under MCL 691.1402(1). [ Id. ]^{[ 6 ]}

6 This Court had reached the same result in other cases. See, e.g., Walker v. Flint , 213 Mich. App. 18, 23, 539 N.W.2d 535 (1995). For ease of reference, this opinion uses the term "the Jones doctrine" to refer to all such cases, whether decided by our Supreme Court or this Court.

The Court also held that municipal corporations could not rely on the statutory language of § 12 of 1964 PA 170, providing that "[c]laims under this act are subject to all of the defenses available to claims sounding in tort brought against private persons," to invoke the open and obvious danger doctrine. The Supreme Court explained that because the open and obvious defense has no application to the statutory duty of a municipality for the reasons already explained in its opinion and discussed earlier, that defense simply did not apply, regardless of the general rule in § 12. Jones , 467 Mich. at 270-271, 650 N.W.2d 334.

Accordingly, as a matter of law under the Jones doctrine, the open and obvious danger defense was not available to a municipality sued for injuries caused by a sidewalk that it had a statutory duty to maintain. And there things stood until the Legislature passed 2016 PA 419.

As noted, the language of 2016 PA 419, § 2a(5) 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." Given the development of the law culminating in the Jones doctrine, it is readily apparent that the Legislature intended to abrogate that doctrine. "[A] general rule of statutory construction is that the Legislature is presumed to know of and legislate in harmony with existing laws." O'Connell v. Dir. of Elections , 316 Mich. App. 91, 99, 891 N.W.2d 240 (2016) (quotation marks and citation omitted). The 1964 act provided that all defenses available to private parties were available under it; those defenses included the open and obvious danger doctrine. Nevertheless, and as a matter of law under the Jones doctrine, a hazard being open and obvious was inapplicable as a defense to claims involving a municipal corporation's statutory duty to maintain a sidewalk in reasonable repair. The Legislature then passed 2016 PA 419, providing that a municipal corporation "may assert ... any defense available under the common law," and even though "any defense" necessarily includes the open and obvious danger doctrine, to further ensure that there were no ambiguities, the Legislature added the words "including, but not limited to, a defense that the condition was open and obvious." 2016 PA 419, § 2a(5) (emphasis added).

c. THE BREWER RETROACTIVITY RULE APPLIED TO 2016 PA 419

The sequence of events recited earlier shows that the Legislature abrogated the Jones doctrine, the first part of the Brewer retroactivity test. It would be difficult to think of words that more precisely reject the rationale of the Jones doctrine than do the words of § 5 of 2016 PA 419. The 1964 act had afforded municipalities sued under the act "all of the defenses available to claims sounding in tort brought against private persons," 1964 PA 170, § 12 (emphasis added); in the aftermath of Jones , the 2016 act afforded those same municipalities "any defense available under the common law with respect to a premises liability claim," 2016 PA 419, § 2a(5) (emphasis added). There is no material distinction in meaning between "all" and "any"; our Supreme Court has noted that the word " ‘[a]ny’ is defined as ‘every; all.’ " South Haven v. Van Buren Co. Bd. of Comm'rs , 478 Mich. 518, 527, 734 N.W.2d 533 (2007) (citation omitted). Moreover, making "any" defenses applicable to claims against a municipality, expressly including the open and obvious danger doctrine, was the only substantive change the amendment wrought. Indeed, if 2016 PA 419 was not intended to overrule Jones , the Legislature had no discernable purpose in enacting it. "When construing a statute, the court should presume that every word has some meaning and should avoid any construction that would render the statute, or any part of it, surplusage or nugatory." Karpinski v. St. John Hosp.-Macomb Ctr. Corp. , 238 Mich. App. 539, 543, 606 N.W.2d 45 (2000). Based on the language employed by the Legislature as well as the rule of statutory construction against surplusage, we find that the 2016 act directly repudiated and overruled the Jones doctrine by making clear that the open and obvious danger doctrine was to be available to municipal corporations that had a statutory duty to maintain a sidewalk.⁷ For retroactivity to apply, the second prong of the exception to the Brewer test requires not only that a statutory amendment overrule a prior judicial decision but also that in overruling the decision the Legislature return the state of the law to the predecision status quo. For the same reasons, 2016 PA 419 did so by reinstating for municipal corporations all common-law defenses as had been provided in the 1964 act.

7 The dissent cites Adrian Sch. Dist. v. Mich. Pub. Sch. Employees Retirement Sys. , 458 Mich. 326, 337, 582 N.W.2d 767 (1998), for the proposition that the 2016 act cannot be construed to clarify the Legislature's intent because only "when a legislative amendment is enacted soon after a controversy arises regarding the meaning of an act" is it "logical to regard the amendment as a legislative interpretation of the original act ...." (Quotation marks and citation omitted; emphasis added.) The dissent states that the 14 years that passed between the Supreme Court's decision in Jones and the 2016 enactment is too lengthy a period of time to inform our analysis. However, Adrian Sch. Dist. involves a different point than did Brewer . In Adrian Sch. Dist. , the Legislature amended a statute "as a ratification of the position of the retirement board," id. at 337, 582 N.W.2d 767 ; see also id. at 338 n. 11, 582 N.W.2d 767 ("We do not give the 1996 amendment retroactive effect. Rather, we give effect to the retirement board's 1993 declaratory ruling."), which did not necessarily reflect the position originally set forth by the Legislature. In Brewer and here, by contrast, the Legislature acted to conclusively reaffirm the position it had previously taken. The dissent cites no authority, and we have found none, to indicate that there is a temporal limit on the Legislature's authority to overrule a precedent with which it disagrees and to thereby reinstate its previous exposition of the law; and 14 years is not a particularly lengthy period preceding a legislature's decision to statutorily reverse a court decision. See Eskridge, Jr., Overriding Supreme Court Statutory Interpretation Decisions , 101 Yale L.J. 331, 425, 427, 428 (1991), citing the following: PL 100-703, § 201; 102 Stat 4674, 4676 (1988), overruling United States v. Morton Salt Co. , 338 U.S. 632, 70 S. Ct. 357, 94 L. Ed. 401 (1950), after 38 years; PL 99-654, § 2; 100 Stat 3660, 3660-3663 (1986), overruling Williams v. United States , 327 U.S. 711, 66 S. Ct. 778, 90 L. Ed. 962 (1946), after 40 years; PL 99-628, § 5(b)(1); 100 Stat. 3510-3511 (1986), overruling Caminetti v. United States , 242 U.S. 470, 37 S. Ct. 192, 61 L. Ed. 442 (1917), and Cleveland v. United States , 329 U.S. 14, 67 S. Ct. 13, 91 L. Ed. 12 (1946), after 69 and 40 years respectively.

Thus, by enacting 2016 PA 419, the Legislature has stated that the Jones doctrine was not what it had intended the law to be; rather, the amendment shows that it was the Legislature's intent for defenses available to private parties—as provided in the 1964 act—to have applied all along. In essence, the amendment states, "The Jones doctrine is overruled," thereby satisfying the first prong of Brewer . In addition, the remainder of the statute essentially states, "And we never intended for the Jones doctrine to be the law, so we are reinstating the law as it had been set forth in the 1964 act," thereby satisfying the second prong of Brewer . By so acting, the Legislature clarified its intent regarding the previous law and settled the controversy created by the Jones doctrine regarding its meaning; 2016 PA 419 is to be applied retroactively.

It is this second aspect of the amendment, in which the Legislature clarified that it never had intended for the Jones doctrine to be the law, that the dissent rejects, stating that "applying 2016 PA 419 retroactively eliminates the city's duty" and thereby impairs plaintiff's vested rights. The dissent states that Brewer stands for the rule that "[e]ven if the Legislature acts to invalidate a prior decision of [the Supreme] Court, the amendment is limited to prospective application if it enacts a substantive change in the law." Brewer , 486 Mich. at 56, 782 N.W.2d 475, citing Hurd v. Ford Motor Co. , 423 Mich. 531, 533-534, 377 N.W.2d 300 (1985) (emphasis added). That is of course true but not relevant—the point of the reinstatement doctrine is that if the Legislature overrules a judicial decision by restoring the status quo ante , the Legislature demonstrates what it intended the law to be all along; under such circumstances, the new legislation does not enact a substantive change in the law.

This point demonstrates the fundamental disagreement between the majority and the dissent. The majority's view is that the Legislature, through the 1964 act and 2016 PA 419, clearly manifested what its intention was for the law to have been all along, i.e., the availability of the open and obvious danger doctrine to municipalities, and thus properly understood, the 2016 act did not effect a change in the law. The dissent's view is that the Jones doctrine was the law prior to the enactment of 2016 PA 419, notwithstanding that the Legislature has now clearly manifested its view that the Jones doctrine was erroneous all along. Thus, the dissent views retroactive application of 2016 PA 419 as improperly denying plaintiff a right because the act constituted a substantive change in the law; the majority's view is that allowing plaintiff to reap the benefits of a repudiated rule—a rule that the Legislature has conclusively stated was incorrect and never should have applied—would constitute an unwarranted windfall for plaintiff because 2016 PA 419 does not constitute a substantive change in the law and therefore does not impair a vested right.⁸ While it might be true in some sense that the amendment changed the city's duty, as the dissent argues, that change only came about because of the Legislature's determination that courts had been misapplying that duty all along. Therefore, this change did not affect a vested right because " ‘no right is destroyed when the law restores a remedy which had been lost.’ " Lahti , 357 Mich. at 589, 99 N.W.2d 490 (citation omitted). The Legislature's reinstatement of the prior legal standard, which "had been lost" through application of the Jones doctrine and which, according to the Legislature in 2016 PA 419, should have applied all along, works no unfairness and may be applied retroactively because it was "designed to correct an existing oversight in the law or redress an existing grievance." Davis , 272 Mich. App. at 159, 725 N.W.2d 56 (quotation marks, citation, and brackets omitted). Our analysis thus fully complies with the requirement that we look beyond the label of "remedial" to the substance of whether an amendment affects substantive rights:

8 The dissent also states that the discussion in Brewer of the reinstatement rule is dicta. "[S]tatements concerning a principle of law not essential to determination of the case are obiter dictum and lack the force of an adjudication." Griswold Props., LLC v. Lexington Ins. Co. , 276 Mich. App. 551, 557-558, 741 N.W.2d 549 (2007) (quotation marks and citation omitted). The discussion in Brewer is not dicta, given that it begins with the words "[f]urther undermining" and then continues the analysis, demonstrating that it was part of the Supreme Court's rationale. Brewer , 486 Mich. at 57, 782 N.W.2d 475. The dissent's citation of Hurd also is unavailing because Hurd did not discuss the four-part test of the In re Certified Questions line of cases but merely relied on a lack of expressed legislative intent for retroactive application. See Hurd , 423 Mich. at 535, 377 N.W.2d 300.

"[W]e have rejected the notion that a statute significantly affecting a party's substantive rights should be applied retroactively merely because it can also be characterized in a sense as ‘remedial.’ In that regard, we agree with Chief Justice RILEY ’s plurality opinion in White v. General Motors Corp. , [431 Mich. 387, 429 N.W.2d 576 (1988),] that the term ‘remedial’ in this context should only be employed to describe

legislation that does not affect substantive rights . Otherwise, the mere fact that a statute is characterized as remedial is of little value in statutory construction. Again, the question is one of legislative intent." [ Johnson , 491 Mich. at 433, 818 N.W.2d 279 (citation omitted).]

No one has a substantive right to litigate based on an erroneous legal rule; quite the contrary is true. The Legislature's action in repudiating and clarifying the correct interpretation of the Jones doctrine is therefore remedial and plainly cannot violate any substantive right of plaintiff.

Because the Legislature has told us that the Jones doctrine never should have applied, 2016 PA 419 did not enact a substantive change in the law. The dissent cannot explain how an abrogated doctrine, coupled with a legislative determination to instead impose the intended status quo ante and allow a defense that should have applied all along, can result in a duty and thus a vested right in plaintiff's favor, except by assuming that the Jones doctrine was the law all along. But by doing so, the dissent simply reiterates the rationale of Jones , implicitly rejecting the Legislature's authority to determine the propriety of Jones with regard to plaintiff under the circumstances applicable here.⁹ Moreover, to reach its conclusion, the dissent disputes that the open and obvious danger doctrine is a "defense" within the meaning of 2016 PA 419 by reading it in a technical manner as affecting the duty of a municipal corporation. However, "[a]ll words and phrases shall be construed and understood according to the common and approved usage of the language; but technical words and phrases, and such as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning." MCL 8.3a. While the term "affirmative defense" has a technical legal meaning, the term "defense" does not. "An affirmative defense is a defense that does not controvert the establishment of a prima facie case, but that otherwise denies relief to the plaintiff." Chmielewski v. Xermac, Inc. , 216 Mich. App. 707, 712, 550 N.W.2d 797 (1996), aff'd 457 Mich. 593, 580 N.W.2d 817 (1998). "An affirmative defense presumes liability by definition." Rasheed v. Chrysler Corp. , 445 Mich. 109, 132, 517 N.W.2d 19 (1994). A "defense," by contrast, is " ‘[t]hat which is offered and alleged by the party proceeded against in an action or suit ... to diminish plaintiff's cause of action or defeat recovery,’ " Roberson Builders, Inc. v. Larson , 482 Mich. 1138, 1143, 758 N.W.2d 284 (2008) ( MARKMAN , J., dissenting), quoting Black's Law Dictionary (6th ed.), or "that which is alleged by the party proceeded against in a suit as a reason why plaintiff should not recover or establish what he seeks," Gelman Sciences, Inc. v. Fireman's Fund Ins. Cos. , 183 Mich. App. 445, 448, 455 N.W.2d 328 (1990). A defense, therefore, is a nontechnical concept that can be either factual, legal, or a combination. And because it is a nontechnical concept, it is construed through "common and approved usage of the language[.]" MCL 8.3a. In this case, the Legislature created a statutory hybrid under which municipalities are obligated to maintain sidewalks but under which an injured party has no private right of recovery if a sidewalk nevertheless has an open and obvious defect because such an open and obvious defect is a "defense" to liability. 2016 PA 419, § 5. The Legislature is permitted to define terms and causes of action in such a manner, and by restoring the right to invoke as a "defense" the open and obvious danger doctrine, which had been lost through the Jones doctrine, the Legislature in no way impaired any substantive right of plaintiff. See Lahti , 357 Mich. at 589, 99 N.W.2d 490 (" ‘[N]o right is destroyed when the law restores a remedy which had been lost.’ ") (citation omitted).

9 The dissent relies heavily on this Court's unpublished opinion in Schilling v. Lincoln Park , unpublished per curiam opinion of the Court of Appeals, issued May 16, 2019 (Docket No. 342448), 2019 WL 2146298. Few rules are as clearly established as that "[a]n unpublished opinion is not precedentially binding under the rule of stare decisis." MCR 7.215(C)(1). Therefore, it is beyond dispute that Schilling is not controlling. However, unpublished opinions may be cited for their persuasive value. See Cox v. Hartman , 322 Mich. App. 292, 307, 911 N.W.2d 219 (2017). However, Schilling is not persuasive because it did not address the Legislature's overruling of the Jones doctrine, the reinstatement of the status quo ante , and the application of the Brewer rule, which are the major bases for the majority opinion here. Accordingly, it is not clear what value the dissent properly ascribes to Schilling .

Simply put, we find that the Legislature's enactment of 2016 PA 419, which did not legally bar plaintiff's cause of action, and through which the Legislature overruled the Jones doctrine and reinstated the pre- Jones state of the law, overcomes the presumption for prospective application and thus has retroactive effect to events that preceded its enactment, including plaintiff's injury. Therefore, defendant can avail itself of the open and obvious danger defense, and we next turn to an analysis of how the open and obvious danger doctrine applies to the facts of this case.

II. OPEN AND OBVIOUS

Because the amendment has retroactive effect, we must determine whether there is a genuine issue of material fact on the question whether the condition was open and obvious. Plaintiff argues that the trial court erred when it determined that the condition was open and obvious. We disagree. This Court reviews de novo a lower-court decision on a motion for summary disposition. Moraccini , 296 Mich. App. at 391, 822 N.W.2d 799. Summary disposition is appropriate under MCR 2.116(C)(10) when "there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law." In deciding a motion for summary disposition under this subrule, the moving party must "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). If the moving party meets the required burden, the burden then shifts to the party opposing the motion to provide "specific facts" that show that there is "a genuine issue of disputed fact." Quinto v. Cross & Peters Co. , 451 Mich. 358, 362, 547 N.W.2d 314 (1996). The court evaluates all evidence "in the light most favorable to the party opposing the motion." Id.

A condition is open and obvious when "an average person of ordinary intelligence [would] discover the danger and the risk it presented on casual inspection[.]" Price v. Kroger Co. of Mich. , 284 Mich. App. 496, 501, 773 N.W.2d 739 (2009). This is an objective test. Id. Because the test is objective, a court is to focus on "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 N.W.2d 287 (2008).

In Price , the plaintiff was injured when she fell after walking into a "one-inch-long broken wire or ‘barb’ protruding from [a] bin at ankle level" at a grocery store. Price , 284 Mich. App. at 498-499, 773 N.W.2d 739. This Court held that there was a genuine issue of material fact regarding whether "an ordinary user upon casual inspection" could have discovered the wire because "[a] jury could reasonably infer that a casual inspection of the premises in which plaintiff shopped would not have revealed the barb, in light of its small size, its location at close to floor level, the impediment to visibility posed by the bulk of the candy-filled bin, and [an employee's] failure to detect the anomaly...." Id. at 501-502, 773 N.W.2d 739.

In this case, plaintiff argues that the defect was not open and obvious because she saw only the crack in the sidewalk, not the height difference in the cement slabs after the crack. Defendant argues that the defect was open and obvious because plaintiff testified that she was not looking at the ground as she walked toward the store and because she admitted that she was able to see the defect.

While defendant supplied photographs of the area where plaintiff fell, these photographs were taken at some point after the area had changed because a tree that had been there at the time of plaintiff's injury was cut down by the time defendant's photo was taken. Plaintiff provided a screenshot from Google Maps that showed that there was still a tree in that location on September 2016, several months after her injury. Plaintiff also provided a photograph in which the shade from the tree shows that the tree was still intact at the time of the photograph. However, plaintiff does not claim that the tree obscured her view of the defect at the time of her fall.

While plaintiff had been to Trend Express in the past, she testified that she had never entered the store through the front entrance prior to the date of her injury. It was raining and "darker" on the day of her injury, which could have obscured the dip in the sidewalk. However, plaintiff's photographs clearly show that the sidewalk was sloping at an upward angle (which was a different angle than the surrounding slabs of sidewalk) where she testified that she tripped. Notably, plaintiff also testified that nothing was obscuring her view and that she did not discern the differing heights only because she was looking at the store rather than the ground, but not because the condition precluded her from being able to see the condition if she had looked. Indeed, plaintiff admitted that she would have seen the condition of the sidewalk if she had been looking. Thus, plaintiff would have "discover[ed] the danger and the risk it presented on casual inspection[.]" Id. at 501, 773 N.W.2d 739. Accordingly, the condition was open and obvious, and the trial court properly granted defendant's motion for summary disposition on this ground.

Affirmed. Defendant, as the prevailing party, may tax costs pursuant to MCR 7.219.

O'Brien, P.J., concurred with Tukel, J.

Letica, J. (dissenting).

I respectfully dissent. The sole question is whether the amendment allowing a municipality to employ an open and obvious danger defense to an action brought under the defective-sidewalk exception to governmental immunity, MCL 691.1402a, may be applied retroactively. In my opinion, the statutory language confirms that the Legislature intended prospective application. In addition, this portion of the statutory amendment must apply prospectively because it is a substantive change impairing Jennifer Buhl's vested rights, as plainly evidenced by the circuit court's dismissal.¹ I would reverse and remand for further proceedings. I. STANDARD OF REVIEW

1 Another panel of this Court earlier reached the same conclusion. Schilling v. Lincoln Park , unpublished per curiam opinion of the Court of Appeals, issued May 16, 2019 (Docket No. 342448), 2019 WL 2146298. See also Farley v. United States , unpublished opinion of the United States District Court for the Southern District of West Virginia, issued September 30, 2015 (Case No. 2:13-cv-17090), 2015 WL 5786765 (following the state supreme court's abrogation of the open and obvious danger defense, the federal district court declined to retroactively apply a West Virginia statute, W. Va. Code 55-7-28, reinstating the plaintiff's preexisting cause of action). Also, a separate panel of this Court held that an earlier 2012 amendment, 2012 PA 50, applied prospectively; the 2012 amendment added a statutory presumption describing circumstances under which a municipality would have satisfied its duty to keep a sidewalk in reasonable repair. Sufi v. Detroit , unpublished per curiam opinion of the Court of Appeals, issued February 17, 2015 (Docket No. 312053), 2015 WL 668887, p. 6 ("[T]he amended version of MCL 691.1402a is inapplicable to plaintiff's claims because it is prospective, not retroactive.").

The question whether the amendment of MCL 691.1402a, which added an open and obvious danger defense, applies retroactively is a question of law reviewed de novo. Frank W. Lynch & Co. v. Flex Technologies, Inc. , 463 Mich. 578, 583, 624 N.W.2d 180 (2001).

II. THE APPLICABLE LEGAL PRINCIPLES

"[T]he presumption against retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic." Landgraf v. USI Film Prod. , 511 U.S. 244, 265, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994). "Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted." Id. Applying legislation retroactively " ‘presents problems of unfairness ... because it can deprive citizens of legitimate expectations and upset settled transactions.’ " Downriver Plaza Group v. Southgate , 444 Mich. 656, 666, 513 N.W.2d 807 (1994), quoting Gen. Motors Corp. v. Romein , 503 U.S. 181, 191, 112 S. Ct. 1105, 117 L. Ed. 2d 328 (1992). For these reasons, our Supreme Court requires the Legislature to "make its intentions clear when it seeks to pass a law with retroactive effect." LaFontaine Saline, Inc. v. Chrysler Group, LLC , 496 Mich. 26, 38, 852 N.W.2d 78 (2014). Moreover, in determining whether a law has retroactive effect, our courts keep four principles in mind:

First, we consider whether there is specific language providing for retroactive application. Second, in some situations, a statute is not regarded as operating retroactively merely because it relates to an antecedent event.^{[ 2 ]} Third, in determining retroactivity, we must keep in mind that retroactive laws impair vested rights acquired under existing laws or create new obligations or duties with respect to transactions or considerations already past. Finally, a remedial or procedural act not affecting vested rights may be given retroactive effect where the injury or claim is antecedent to the enactment of the statute. [ Id. at 38-39, 852 N.W.2d 78 (citations omitted).]

2 I agree with the majority that the second principle "relate[s] to measuring the amount of entitlement provided by a subsequent statute in part by services rendered pursuant to a prior statute," In re Certified Questions from the U.S. Court of Appeals for the Sixth Circuit , 416 Mich. 558, 571, 331 N.W.2d 456 (1982), and is not at issue here.

III. THE STATUTORY LANGUAGE SUPPORTS PROSPECTIVE APPLICATION

The first principle that this Court must consider is whether the amendment's language indicates that it is to have retroactive effect. "In determining whether a statute should be applied retroactively or prospectively only, ‘[t]he primary and overriding rule is that legislative intent governs. All other rules of construction and operation are subservient to this principle.’ " Frank W. Lynch & Co. , 463 Mich. at 583, 624 N.W.2d 180, quoting Franks v. White Pine Copper Div. , 422 Mich. 636, 670, 375 N.W.2d 715 (1985) (alteration in original). "Statutes are presumed to apply prospectively only unless a contrary intent is clearly manifested." Brewer v. A.D. Transp. Express, Inc. , 486 Mich. 50, 56, 782 N.W.2d 475 (2010). Indeed, "the Legislature has shown on several occasions that it knows how to make clear its intention that a statute apply retroactively." Frank W. Lynch & Co. , 463 Mich. at 584, 624 N.W.2d 180.³ "Use of the phrase ‘immediate effect’ does not at all suggest that a public act applies retroactively." Johnson v. Pastoriza , 491 Mich. 417, 430, 818 N.W.2d 279 (2012). To the contrary, when the Legislature provides that a law will take immediate effect, this "only confirms its textual prospectivity." LaFontaine Saline, Inc. , 496 Mich. at 40, 852 N.W.2d 78. In this case, the Legislature directed the statutory amendment "to take immediate effect" and used no retroactive language. 2016 PA 419. This weighs against retroactive effect and, instead, confirms that the statutory amendment applies prospectively.

3 During the 2016 session alone, the Legislature passed several statutes explicitly providing for retroactive application. See, e.g., 2016 PA 7, enacting § 1, amending MCL 205.92 ("This amendatory act is retroactive and is effective December 15, 2013."); 2016 PA 15, enacting § 1, adding MCL 600.6094a ("This amendatory act applies retroactively to all judgments entered after May 6, 2015."); 2016 PA 283, enacting § 2, amending the Michigan Medical Marihuana Act, MCL 333.26421, et seq. ("This amendatory act is curative and applies retroactively as to the following: ...."); 2016 PA 372, enacting § 1, amending MCL 205.54w ("This amendatory act is retroactive and effective for taxes levied after December 31, 2012.").

IV. PROSPECTIVE APPLICATION IS ALSO REQUIRED BECAUSE THE AMENDMENT TAKES AWAY OR IMPAIRS PLAINTIFF'S PREEXISTING CAUSE OF ACTION

The third question to be answered in determining whether a statutory amendment may be applied retroactively is whether it "takes away or impairs vested rights acquired under existing laws, or creates a new obligation and imposes a new duty, or attaches a new disability with respect to transactions or considerations already past." In re Certified Questions from the U.S. Court of Appeals for the Sixth Circuit , 416 Mich. 558, 571, 331 N.W.2d 456 (1982), quoting Hughes v. Judges' Retirement Bd. , 407 Mich. 75, 85, 282 N.W.2d 160 (1979) (quotation marks omitted). Stated otherwise, "this rule is ... triggered when a plaintiff's accrued cause of action would be totally barred or taken away by a new act." In re Certified Questions , 416 Mich. at 577, 331 N.W.2d 456.

The circuit court ruled that Buhl had no vested right in not having an open and obvious danger defense raised. The court explained that Buhl was "not getting left out in the cold" because she "still has the very claim that she had on the day that she fell and was injured." The circuit court added that the city's ability to raise the open and obvious danger defense was simply "a procedural change and not a substantive change in [Buhl's] ability to bring her claim...." The majority accepts these conclusions, holding that the statutory amendment operates in a remedial or procedural manner and, therefore, may be applied retroactively.

However, the law is clear that "the term ‘remedial’ in this context should only be employed to describe legislation that does not affect substantive rights ." Frank W. Lynch & Co. , 463 Mich. at 585, 624 N.W.2d 180 (emphasis added). And the Michigan Supreme Court has held that when an amended statute is enacted to invalidate a prior decision of the Court, it "effect[ed] a substantive change in the law" and would apply prospectively. Hurd v. Ford Motor Co. , 423 Mich. 531, 534, 377 N.W.2d 300 (1985). A substantive right is one "that can be protected or enforced by law; a right of substance rather than form." Black's Law Dictionary (10th ed.), p. 1520. Michigan law is "clear that once a cause of action accrues,—i.e. , all the facts become operative and are known—it becomes a ‘vested right’." In re Certified Questions , 416 Mich. at 573, 331 N.W.2d 456. A vested right is "an interest that the government is compelled to recognize and protect of which the holder could not be deprived without injustice." Detroit v. Walker , 445 Mich. 682, 699, 520 N.W.2d 135 (1994). In this case, Buhl's cause of action accrued on May 4, 2016—the day she fell. This was well before the January 4, 2017 effective date of the statutory amendment.

The next question is not simply whether the statutory amendment destroyed Buhl's ability to sue, but also whether it impaired Buhl's vested right or her substantial rights. To answer this question it is helpful to understand how the open and obvious danger defense functions in a premises-liability action and how it previously functioned in a suit seeking recovery for an injury resulting from a municipal corporation's failure to maintain its sidewalk in reasonable repair.

In general, "whether a duty exists in a tort action is ... a question of law to be decided by the court, and when a court determines that a duty was not owed, no jury-submissible question exists." Hoffner v. Lanctoe , 492 Mich. 450, 476, 821 N.W.2d 88 (2012) (citation omitted). A possessor of land owes no duty to an invitee to protect from, or to warn the invitee of, dangers that are open and obvious "because such dangers, by their nature, apprise an invitee of the potential hazard, which the invitee may then take reasonable measures to avoid." Id. at 460-461, 821 N.W.2d 88. "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." Id. at 461, 821 N.W.2d 88. This is an objective standard that is not dependent on whether the plaintiff actually discovered the hazard. Id. The open and obvious danger doctrine is not an exception to the duty or duties owed by a landowner; instead, it is an integral part of the definition of that duty or duties. Lugo v. Ameritech Corp., Inc. , 464 Mich. 512, 516, 629 N.W.2d 384 (2001). Accordingly, "establishing whether a duty exists in light of the open and obvious nature of a hazard is an issue within the province of the court." Hoffner , 492 Mich. at 476, 821 N.W.2d 88.

Before the statutory amendment at issue in this case became effective, our appellate courts held that the open and obvious danger doctrine of common-law premises liability was "inapplicable to a claim that a municipality violated its statutory duty to maintain a sidewalk on a public highway in reasonable repair." Jones v. Enertel, Inc. , 467 Mich. 266, 267, 650 N.W.2d 334 (2002). See also Haas v. Ionia , 214 Mich. App. 361, 543 N.W.2d 21 (1996) ; Walker v. Flint , 213 Mich. App. 18, 539 N.W.2d 535 (1995). Unlike a typical landowner, who had no duty to make repairs to protect invitees, the statutory exception to governmental immunity imposed a duty on a municipality to keep its sidewalks in good repair so as to be reasonably safe for public travel. Jones , 467 Mich. at 268-269, 650 N.W.2d 334 ; Haas , 214 Mich. App. at 362, 543 N.W.2d 21 ; Walker , 213 Mich. App. at 22-23, 539 N.W.2d 535. As this Court explained, if the open and obvious danger doctrine applied, a municipality "could meet its statutory duty merely by allowing the ... sidewalks to deteriorate until their appearance made any danger apparent to the public." Haas , 214 Mich. App. at 363, 543 N.W.2d 21. "Thus, absolving the city of liability in this situation would be tantamount to allowing the open and obvious danger rule to swallow the statutory duty to maintain ... sidewalks[ ] in good repair." Id. ⁴ Finally, the Supreme Court had no difficulty rejecting the city's argument that, under MCL 691.1412,⁵ it must be allowed to advance "the open and obvious ‘defense’ ... available to private parties," holding:

4 Although "the openness and obviousness of the danger does not absolve a municipality of its statutory obligation to repair its sidewalks," it may establish comparative negligence on the plaintiff's part. Haas , 214 Mich. App. at 364, 543 N.W.2d 21.

5 MCL 691.1412 provides that claims brought under the governmental tort liability act, MCL 691.1401 et seq. , "are subject to all of the defenses available to claims sounding in tort brought against private persons."

We disagree. Assuming for purposes of discussion that MCL 691.1412 read in isolation would allow [the city] to use the open and obvious doctrine as a defense in the present case, we conclude that MCL 691.1412 would have to yield to the more specific statutory duty to maintain highways in reasonable repair under MCL 691.1402(1). "[W]here a statute contains a general provision and a specific provision, the specific provision controls." Gebhardt v. O'Rourke , 444 Mich. 535, 542-543, 510 N.W.2d 900 (1994).... MCL 691.1402(1) imposes a duty on municipalities specific to maintaining highways (including sidewalks on highways) in reasonable repair. In contrast, MCL 691.1412 applies generally to all claims under the [governmental tort liability act]. Thus, the specific provisions of MCL 691.1402(1) prevail over any arguable inconsistency with the more general rule of MCL 691.1412. [

Jones , 467 Mich. at 270-271, 650 N.W.2d 334 (second alteration in original).]

In this case, the statutory amendment vitiates the municipal corporation's duty through application of the open and obvious danger doctrine, resulting in the dismissal of Buhl's lawsuit. Buhl's substantial rights and vested right were negatively impacted. As the Schilling panel succinctly explained when confronted with the identical question of how the statutory amendment adding an open and obvious danger defense applied:

[P]laintiff had a vested right in her cause of action that accrued when her trip and fall accident occurred before the

effective date of the statutory amendment under 2016 PA 419. Under the applicable version of MCL 691.1402a, at the time her action accrued, the City was liable for a breach of its statutory duty to maintain its sidewalk in reasonable repair, so long as plaintiff could prove that the City had the requisite knowledge of the defect and could rebut the statutory presumption that the sidewalk was in reasonable repair. MCL 691.1402a(1) - (3). Before the amendment under 2016 PA 419, the municipality could not assert an open and obvious defense to claims brought pursuant to its statutory duty under MCL 691.1402a. Jones , 467 Mich. at 269-270 ; Walker , 213 Mich. App. at 22-23 .

The amendment, adding subsection (5) to permit a municipality to assert the open and obvious defense, in effect, now additionally absolves a municipality of liability stemming from a dangerous condition that is open and obvious, i.e., where "it is reasonable to expect that an average person with ordinary intelligence would have discovered [the condition] upon casual inspection." Hoffner v. Lanctoe , 492 Mich. 450, 460-461, 821 N.W.2d 88 (2012) ; Novotney v. Burger King Corp. (On Remand) , 198 Mich. App. 470, 474-475, 499 N.W.2d 379 (1993). Accordingly, the amended version of MCL 691.1402a not only shields a municipality from liability for injuries caused by a vertical discontinuity defect of less than two inches, MCL 691.1402a(3), but additionally shields a municipality from liability if the dangerous condition of the sidewalk was open and obvious. MCL 691.1402a(5). Thus, the amendment clearly further limits a municipality's liability for injuries arising from a defective sidewalk, and conversely, effectively precludes an injured party from bringing a claim, where he or she previously could, if the dangerous condition of the sidewalk was open and obvious. The amendment under 2016 PA 419, thus, would impair and effectively destroy any claim resulting from a condition of the sidewalk that is open and obvious and not unreasonably dangerous. Hoffner , 492 Mich. at 461-463 . [ Schilling , unpub. op. at 11 (emphasis added; second alteration in original).]

Just like the plaintiff in Schilling , Buhl may sue, but if the dangerous condition of the municipality's sidewalk is open and obvious, her suit is doomed to dismissal because she cannot establish that the municipality had a duty.⁶ See Benton v. Dart Props. Inc. , 270 Mich. App. 437, 440, 715 N.W.2d 335 (2006) (identifying a duty owed the plaintiff as an essential element of actions sounding in premises liability). Stated otherwise, Buhl's accrued cause of action is "totally barred or taken away by [the] new act." In re Certified Questions , 416 Mich. at 577, 331 N.W.2d 456. This statutory amendment is not remedial or procedural; it is a substantive game-changer and applies prospectively.

6 Other jurisdictions have recognized that a statute providing a defense that may operate to bar a plaintiff's cause of action applies prospectively. See, e.g., Anagnost v. Tomecek , 390 P.3d 707, 712, 2017 OK 7 (2017) (reversing the trial court's dismissal retroactively applying an amendment that "create[d] a new defense to causes of action involving first amendment rights [because it] effectively provide[d] immunity from suit and would act as a complete bar to the plaintiff's claim"); Pollock v. Highlands Ranch Community Ass'n Inc. , 140 P.3d 351, 354 (Colo. App., 2006) (reversing the trial court's grant of summary disposition after retroactively applying a release statute that "recognizes a substantive defense to negligence claims that often will operate as a complete bar to relief"); Cole v. Silverado Foods, Inc. , 78 P.3d 542, 548, 2003 OK 81 (2003) (reinstating the Workers' Compensation Court judge's refusal to retroactively apply an amendment that refashioned a statutory defense "into a different and more extensive liability-defeating mechanism" that "destroy[ed] the claimant's right to present her claim free from being subjected to new and more extensive instruments of destruction"); Irvine v. Salt Lake Co. , 785 P.2d 411 (Utah, 1989) (reversing the trial court's dismissal via retroactive application of a statute providing for a governmental-immunity defense for flood-control activities when the conduct giving rise to the cause of action occurred before the amendment went into effect); Brookins v. Sargent Indus., Inc. , 717 F.2d 1201, 1203 (C.A. 8, 1983) (reversing the trial court's application of a new defense because it "potentially cuts off a plaintiff's right to recover" and adding that "we have no difficulty in concluding that this is not a procedural change but is a substantive change in rights and obligations").

V. RESPONSE TO THE MAJORITY

The majority reframes Buhl's argument, suggesting that she has no vested right but simply an " ‘expectation of success’ " in her litigation. I recognize that there is a distinction between a right of action and a right of recovery. Accrual of a cause of action means the right to institute and maintain the action. On the other hand, recovery depends not only on successful litigation but also on the defendant's ability to pay. Buhl, however, does not argue that she has a vested right to recover damages from the municipality; instead, she contends that she has a vested right to continue her cause of action under the substantive law in existence before the statutory amendment. Again, the law recognizes that Buhl has a vested right in her cause of action. Id. at 573, 331 N.W.2d 456. Whether the statutory amendment at issue abolishes Buhl's cause of action outright or its application results in dismissal of her lawsuit, albeit after a judicial finding on the question whether the danger was open and obvious, makes no difference. Either way, Buhl's "accrued cause of action [is] totally barred or taken away by a new act." Id. at 577, 331 N.W.2d 456.

Moreover, the majority's discussion of the relevancy of reliance to determine the amendment's retroactivity is unpersuasive. Even if Buhl was not relying on the municipality's statutory duty when she fell, she need not demonstrate reliance on the prior law in structuring her conduct. Landgraf contains no such requirement. Vartelas v. Holder , 566 U.S. 257, 272, 132 S. Ct. 1479, 182 L. Ed. 2d 473 (2012). Rather, "[t]he essential inquiry ... is ‘whether the new provision attaches new legal consequences to events completed before its enactment.’ " Id. at 273, 132 S. Ct. 1479. That is precisely what happened here.

To buttress its conclusion that the Legislature's intent to overrule our Supreme Court's 2002 Jones decision renders the 2016 statutory amendment remedial and retroactive, the majority extracts from Brewer a rule that substantive changes may be applied retroactively in one circumstance: "if the Legislature adopts an amendment directed at a particular judicial decision, and through that amendment not only overrules the judicial decision but also reinstates the state of the law as it existed prior to the judicial decision, then the amendment is considered remedial and will be applied retroactively." But in Brewer , the Supreme Court explained that "[e]ven if the Legislature acts to invalidate a prior decision of [the Supreme] Court, the amendment is limited to prospective application if it enacts a substantive change in the law." Brewer , 486 Mich. at 56, 782 N.W.2d 475, citing Hurd , 423 Mich. at 533, 377 N.W.2d 300. See also Johnson , 491 Mich. at 430, 818 N.W.2d 279, quoting Brewer , 486 Mich. at 56, 782 N.W.2d 475. The Supreme Court did not incorporate the majority's rule. See also Frank W. Lynch & Co. , 463 Mich. at 585, 624 N.W.2d 180 ("[W]e have rejected the notion that a statute significantly affecting a party's substantive rights should be applied retroactively merely because it can also be characterized in a sense as ‘remedial.’ "). Thus, while the majority applies a rule it derives from Brewer , I discern only nonbinding obiter dictum.⁷ Perry v. Sied , 461 Mich. 680, 687 n. 9, 611 N.W.2d 516 (2000) ("[O]bservations by way of obiter dicta are not binding."). The majority further buttresses its conclusion by describing this amendment as a clarification that resolved a controversy about the statute's meaning. But "[a]n amendment that affects substantive rights generally will not fall within this rule." Gen. Motors Corp. v. Dep't of Treasury , 290 Mich. App. 355, 372, 803 N.W.2d 698 (2010). And our Supreme Court has explained that this clarification rule applies "when a legislative amendment is enacted soon after a controversy arises regarding the meaning of an act [because] it is logical to regard the amendment as a legislative interpretation of the original act...." Adrian Sch. Dist. v. Mich. Pub. Sch. Employees Retirement Sys. , 458 Mich. 326, 337, 582 N.W.2d 767 (1998) (quotation marks and citation omitted; emphasis added). Fourteen years is not "soon," and characterizing this amendment as clarifying ignores the Legislature's passage of the interim 2012 amendment before it added this "new defense." House Legislative Analysis, HB 4686 (December 9, 2015), p. 2.

7 After concluding that there was no language clearly manifesting a legislative intent to apply the new statute retroactively, the Supreme Court held that "the amendment applies only to injuries occurring on or after" its effective date. Brewer , 486 Mich. at 56, 782 N.W.2d 475. The Court also reviewed the effective-date language in 2008 PA 499 ("to take immediate effect") and held that it, too, supported the conclusion that the statute should be applied prospectively. Id. Only at that point did the Court mention that "[f]urther undermining any notion of a legislative intent to apply the amendment ... retroactively is the fact that, although the Legislature adopted the amendment after our decision in Karaczewski [v. Farbman Stein & Co. , 478 Mich. 28, 732 N.W.2d 56 (2007), overruled by Bezeau v. Palace Sports & Entertainment, Inc. , 487 Mich. 455 (2010) ], it did not reinstate the preKaraczewski state of the law" but instead opted for a new rule. Brewer , 486 Mich. at 57, 782 N.W.2d 475.

Finally, the majority repeatedly quotes Lahti v. Fosterling , 357 Mich. 578, 589, 99 N.W.2d 490 (1959), quoting Evans Prod. Co. v. State Bd. of Escheats , 307 Mich. 506, 545, 12 N.W.2d 448 (1943), for the proposition that " ‘no right is destroyed when the law restores a remedy which had been lost.’ " In Lahti , the Supreme Court retroactively applied an amendment to a workers' compensation statute that eliminated a two-year limitation on the payment of medical benefits for work-related injuries. Id. at 582-583, 99 N.W.2d 490. The Court explained that the workers' compensation law "was originally adopted to give employers protection against common-law actions and to place upon industry, where it properly belongs, ... the expense of the hospital and medical bills of the injured employee ...." Id. at 585, 99 N.W.2d 490. If the worker had been the plaintiff in a common-law tort action, he would have had the right to recover lifetime medical benefits, leading the Court to conclude that the amendment at issue simply "restored" this remedy. Id. at 589, 99 N.W.2d 490. The Court also determined that the amendment did not affect any vested rights because it "did not afford the employee a new cause of action, but merely expanded the remedies then in effect." Id. at 587, 99 N.W.2d 490. In other words, although the amendment reduced the statutory protections afforded to the employer, the employer was still in a better position than it would have been had it been subject to common-law tort liability. This is not true here—application of the open and obvious danger doctrine vitiates the municipality's duty, defeating Buhl's preexisting cause of action. Moreover, our Supreme Court later clarified that "[a]n amendment that affects substantive rights is not considered ‘remedial’ ...." Brewer , 486 Mich. at 57, 782 N.W.2d 475. See also Frank W. Lynch & Co. , 463 Mich. at 585, 624 N.W.2d 180 ("[W]e have rejected the notion that a statute significantly affecting a party's substantive rights should be applied retroactively merely because it can also be characterized in a sense as ‘remedial.’ ").

The question here is not whether the Legislature may alter the law. It surely may. The legal question before us is whether the Legislature clearly stated its intention to apply 2016 PA 419 retroactively. Like my colleagues in Schilling , I answer "no." Schilling , unpub. op. at 10. A follow-up question before us is whether retroactive application of this statutory amendment would take away or impair a vested right. Again, like my colleagues in Schilling , I answer "yes." Id. at 10-11. So, like my colleagues in Schilling , I conclude that 2016 PA 419 applies prospectively. Id. at 12-13.

VI. THE CITY'S REMAINING ARGUMENT

The city also relies on Rookledge v. Garwood , 340 Mich. 444, 65 N.W.2d 785 (1954), for the proposition that a statutory defense is not a vested right. In that case, the plaintiff was injured in an automobile accident while walking to lunch. Id. at 449, 65 N.W.2d 785. On the date of the accident, the workers' compensation law provided the plaintiff two mutually exclusive options: he could either sue the responsible tortfeasor, or he could seek recovery from his employer and leave his employer to pursue the tortfeasor. Id. at 448, 65 N.W.2d 785. The plaintiff opted to recover from his employer under the workers' compensation law. Id. at 449, 65 N.W.2d 785. Thereafter, the law was amended to allow the plaintiff to recover from the tortfeasor notwithstanding his choice to seek compensation under the workers' compensation law. Id. at 450, 65 N.W.2d 785. The plaintiff then sued the tortfeasor. Id. at 449, 65 N.W.2d 785. The tortfeasor argued that the earlier statute had given him " ‘a substantive right, and that the statute [was] not retroactive,’ " while the plaintiff maintained that the amended statute was remedial and afforded him both rights. Id. at 452, 65 N.W.2d 785.

The Supreme Court agreed with the plaintiff, discussing the remedial nature of the statute and noting that it had previously addressed the injustice of requiring this particular election, characterizing it "as working a hardship solely to the advantage of the third party tortfeasor." Id. at 453-454, 65 N.W.2d 785. Importantly, the Court noted that in amending the statute to eliminate the election requirement, the Legislature had rejected a proposal to limit its application to those employees who had not previously made an election. Id. at 454, 65 N.W.2d 785. The Court also explained that the amendment did not create "a new cause of action against the defendant, thereby affecting a vested or substantive right, nor [did] it impose a new liability upon the defendant where none existed before." Id. at 456, 65 N.W.2d 785. The Court further discussed the difficulty of determining what constituted a vested right but agreed that it was "a right of which the individual could not be deprived without injustice" or one "of which the individual could not be deprived arbitrarily without injustice." Id. (quotation marks and citations omitted). Applying these definitions, the tortfeasor defendant "did not have a vested right in the statutory defense accorded him under the prior provision of the Workmen's Compensation Act. His right then ... ‘sprang from the kindness and grace of the legislature. And it is the general rule that that which the legislature gives, it may take away.’ " Id. at 457, 65 N.W.2d 785, quoting Wylie v. City Comm. of Grand Rapids , 293 Mich. 571, 588, 292 N.W. 668 (1940). The Court added that "[a] statutory defense, though a valuable right, is not a vested right and the holder thereof may be deprived of it after the cause of action to which it may be interposed has arisen." Rookledge , 340 Mich. at 457, 65 N.W.2d 785.

Rookledge is easily distinguished. There, the statute removed a defense that was dependent on a choice made by the plaintiff in a situation in which the tortfeasor defendant did not have a right to avoid liability even before the amendment. In this case, the amendment added a new defense that abrogated the duty the city owed and resulted in dismissal of Buhl's suit.

VII. CONCLUSION

I have no doubt that the Legislature intended to extend the same protection and cost savings land possessors enjoy by employing the open and obvious danger defense to a municipal corporation's duty to maintain its sidewalks in reasonable repair.⁸ But applying 2016 PA 419 retroactively eliminates the city's duty and impairs Buhl's substantive rights, namely, her ability to pursue her preexisting cause of action. In my opinion, the law and the Legislature's chosen language require us to apply this amendment prospectively.

8 The following argument was made in support of the bill:

[It] extends cost savings already enjoyed by the private sector, to taxpayers in the public sector. How so? Proponents note that courts have permitted private enterprise to employ an ‘open and obvious’ defense for years, such that today it is routinely considered their first line of protection in such cases. So, while the private sector has a common law duty to make its premises reasonably safe, it is protected from liability if a visitor suffers an injury due to a dangerous condition that is an ‘open and obvious’ one. The same policy should apply in the public sector. [House Legislative Analysis, HB 4686 (December 9, 2015), p. 2.]