Opinion
358286
10-20-2022
MATTHEW EMANUELSEN, Plaintiff-Appellee, v. CITY OF WOODHAVEN, Defendant-Appellant, and GORNO BROS. INC., d/b/a GORNO FORD and d/b/a QUICK LANE OIL CHANGE, Defendant.
UNPUBLISHED
Wayne Circuit Court LC No. 20-007706-NO
Before: GLEICHER, C.J., and MARKEY and PATEL, JJ.
PER CURIAM.
Matthew Emanuelsen tripped and fell on a sidewalk in the City of Woodhaven. Emanuelsen filed an action against the City alleging that he was injured as a result of the City's failure to maintain the sidewalk pursuant to MCL 691.1402a. The City argues that it is entitled to governmental immunity pursuant to the two-inch rule under MCL 691.1402a(3). And the City asserts that the defect was open and obvious.
Emanuelsen presented evidence that there was a vertical discontinuity of at least 2 inches, which rebuts the statutory presumption that the City maintained the sidewalk in reasonable repair. Because the defect was concealed by a piece of paper at the time of the fall, there is a question of fact as to whether the defect was open and obvious. Accordingly, we affirm the trial court's denial of the City's motion for summary disposition under MCR 2.116(C)(7) and (10).
I. BACKGROUND
On March 6, 2020, Emanuelsen took his car for service at a dealership in Woodhaven. While his car was being serviced, Emanuelsen left the building to walk to an appointment nearby. Emanuelsen stepped in a hole in the sidewalk, tripped on the abutting slab, and fell. He testified that the vertical discontinuity between the two slabs was approximately 2 1/2 to 3 inches pursuant to the measurements and photographs that he took a few weeks after his fall:
(Image Omitted)
Emanuelsen maintains that he did not see the defect before he fell because it was obscured by grass, dead debris, and an off-white, weathered, eight-by-ten-inch piece of paper that appeared to be an advertising circular. Although he noticed the piece of paper before he fell, the surface of the sidewalk beneath the paper appeared to be level and safe to walk on. He testified that there was nothing about the appearance of the sidewalk surrounding the piece of paper that alerted him that there was a divot or substantial change in continuity underneath the piece of paper. Emanuelsen acknowledged that he would have been able to see the hole and the height differential if it was not covered by the piece of paper. He testified that he would have avoided the hole if he had seen it. There were no obstructions to the left of the hole that would have prevented him from walking around it.
The dealership's service manager estimated that the hole was approximately 3 inches wide. He measured and photographed the hole's depth, which he testified was 2 inches:
(Image Omitted)
Emanuelsen's sidewalk safety liability expert, Anthony Fenton, reviewed the record evidence and opined that the raised sidewalk exhibited a height differential between 2 1/2 to 3 inches at its deepest point. He testified that the slab was in unreasonable repair. He averred that it was not reasonably safe for pedestrians because the location, configuration, and depth of the depression and the vertical edge of the adjoining slab created a trip hazard. Fenton opined that there were no characteristics about the sidewalk that would have alerted a pedestrian to the hole and height differential if it was concealed by a piece of paper. Fenton further opined that the depression in the sidewalk existed for more than three years before Emanuelsen fell based on Google street view images of the area from 2016 and 2018.
As a result of the fall, Emanuelsen fractured his shoulder, which required surgery. He filed suit, seeking damages for the injuries that he sustained as a result of the fall. After discovery, the City moved for summary disposition based on governmental immunity. The City argued that the suit was barred by the two-inch rule under MCL 691.1402a(3) because Emanuelsen failed to present evidence that the sidewalk's vertical discontinuity was 2 inches or more to rebut the statutory presumption that the City had fulfilled its duty to reasonably maintain its sidewalk. The City also argued that the alleged defect was open and obvious. The trial court rejected the City's arguments and denied its motion. This appeal followed.
But the City conceded in its motion that the service manager's "[p]hotographs show that the disparity between the two slabs is, at best, two inches."
II. STANDARD OF REVIEW
"We review de novo a trial court's decision on a motion for summary disposition." El-Khalil v Oakwood Healthcare, Inc, 504 Mich. 152, 159; 934 N.W.2d 665 (2019). Summary disposition under MCR 2.116(C)(7) is proper when a claim is barred because of immunity granted under the law. Moraccini v City of Sterling Heights, 296 Mich.App. 387, 391; 822 N.W.2d 799 (2012). We consider all documentary evidence in a light most favorable to the nonmoving party under MCR 2.116(C)(7). Id. "If there is no factual dispute, whether a plaintiff's claim is barred under a principle set forth in MCR 2.116(C)(7) is a question of law for the court to decide." Id. (quotation marks omitted). "But when a relevant factual dispute does exist, summary disposition is not appropriate." Id.
A motion for summary disposition pursuant to MCR 2.116(C)(10) tests the factual sufficiency of the complaint. Woodring v Phoenix Ins Co, 325 Mich.App. 108, 113; 923 N.W.2d 607 (2018). We consider all evidence in the light most favorable to the non-moving party. El-Khalil, 504 Mich. at 160. Summary disposition under MCR 2.116(C)(10) is only appropriate when there is no genuine issue of material fact. Id. "A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ." Zaher v Miotke, 300 Mich.App. 132, 139-140; 832 N.W.2d 266 (2013).
III. TWO-INCH RULE
The City argues that Emanuelsen's claim is barred by the two-inch rule because he failed to produce evidence of a vertical discontinuity of 2 inches or more and/or a dangerous condition in the sidewalk. We disagree.
The governmental tort liability act, (GTLA), MCL 691.1401 et seq., grants a governmental agency immunity from tort liability if the agency was engaged in the exercise or discharge of a governmental function, subject to certain enumerated exceptions. MCL 691.1407(1); Bernardoni v City of Saginaw, 499 Mich. 470, 473; 886 N.W.2d 109 (2016). One such exception is the "highway exception" under MCL 691.1402, which allows an individual "to recover the damages . . . resulting from a municipality's failure to keep highways-including sidewalks . . . in reasonable repair and in a condition reasonably safe and fit for travel...." Bernardoni, 499 Mich. at 473 (quotation marks and citation omitted). A municipality has a statutory duty to "maintain [a] sidewalk in reasonable repair." 691.1402a(1). And it can be held liable for breaching that duty if the injured party "proves that at least 30 days before the occurrence . . . the municipal corporation knew or, in the exercise of reasonable diligence, should have known of the existence of the defect in the sidewalk." MCL 691.1402a(2).
For purposes of this appeal, the City does not dispute that the alleged defect in the slabs was present for more than 30 days.
A municipality is "presumed to have maintained the sidewalk in reasonable repair." MCL 691.1402a(3). But that statutory presumption may be rebutted in a civil action with evidence 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. [MCL 691.1402a(3).]
In this case, it is undisputed that the City had a duty under MCL 691.1402a(3)(a) to maintain its sidewalks in such a condition that a "vertical discontinuity defect of 2 inches or more" or a "dangerous condition" did not exist. But the City maintains that Emanuelsen has not overcome the presumption of reasonable repair afforded to municipalities. We disagree. Viewing the evidence in the light most favorable to Emanuelsen, the photographs, testimony, and Fenton's affidavit demonstrate that the vertical discontinuity was two inches or more. The City challenges Emanuelsen's method of measurement in his photograph. But the City acknowledges that the service manager also measured and photographed the vertical discontinuity, which he testified was two inches. There was ample record evidence establishing that Emanuelsen overcame the two-inch presumption. Thus, we find no error in the trial court's denial of summary disposition on this issue.
IV. OPEN AND OBVIOUS
The City further argues that the trial court erred when it found that there was a genuine issue of material fact whether the sidewalk defect was open and obvious. We disagree.
The GTLA provides:
In a civil action, a municipal corporation that has a duty to maintain a sidewalk under subsection (1) may assert, in addition to any other defense available to it, any defense available under the common law with respect to a premises liability claim, including, but not limited to, a defense that the condition was open and obvious. [MCL 691.1402a(5).]
"Whether a danger is open and obvious depends on whether it is reasonable to expect that an average person with ordinary intelligence would have discovered it upon casual inspection." Hoffner v Lanctoe, 492 Mich. 450, 461; 821 N.W.2d 88 (2012). This test is an objective one that requires an inquiry of "the objective nature of the condition of the premises at issue." Id. "The open and obvious danger doctrine focuses on the condition of the premises and the hazard as they existed at the time the plaintiff encountered them." Blackwell v Franchi, 318 Mich.App. 573, 579; 899 N.W.2d 415 (2017). A plaintiff must "come forth with sufficient evidence to create a genuine issue of material fact that an ordinary user upon casual inspection could not have discovered the existence of the [hazard]." Novotney v Burger King Corp (On Remand), 198 Mich.App. 470, 475; 499 N.W.2d 379 (1993).
In this case, Emanuelsen testified that a piece of paper was lying flat over the defect, which concealed the defect. And there was nothing about the condition of the sidewalk surrounding the paper that would have allowed him to identify the defect as he approached it. Emanuelsen testified that he would have avoided the defect if he had seen it. Fenton opined that "there was no characteristic of the subject sidewalk or warning that would have alerted a pedestrian to the concealed depression . . ." if it was covered by a piece of paper. And the service manager testified that the area appeared reasonably safe, with the exception of the divot.
Because Emanuelsen conceded that he could see the defect when it was not covered by paper, the City argues that the defect was open and obvious as a matter of law. But the relevant inquiry is "whether, in light of the evidence presented, there is a genuine factual dispute regarding whether an average user of ordinary intelligence acting under the conditions as they existed at the time [the] plaintiff encountered the [hazard] would have been able to discover it on casual inspection." Blackwell, 318 Mich.App. at 577. We conclude that there is a genuine issue of material fact whether an average person of ordinary intelligence would have discovered the sidewalk defect upon casual inspection if there was an eight-by-ten-inch piece of paper lying flat over the defect and there was nothing unusual about the condition of the sidewalk surrounding the paper.
The City relies on a number of unpublished decisions of this Court. But none are persuasive. Although unpublished opinions are not binding, they may be considered for their instructive or persuasive value. MCR 7.215(C)(1); Cox v Hartman, 322 Mich.App. 292, 307; 911 N.W.2d 219 (2017).
Accordingly, the trial court did not err in denying the City's motion for summary disposition on the open and obvious defense.
V. CONCLUSION
There was ample record evidence establishing that Emanuelsen overcame the two-inch presumption. And there is a genuine issue of material fact whether an average person with ordinary intelligence would have discovered the sidewalk defect upon casual inspection if there was an eight-by-ten-inch piece of paper lying flat over the defect. Accordingly, the trial court did not err in denying the City's motion for summary disposition.
Affirmed.
MARKEY, J. (dissenting).
I would reverse the trial court's order denying the motion for summary disposition pursued by defendant City of Woodhaven (the city) under MCR 2.116(C)(7) and remand for entry of an order summarily dismissing plaintiff's complaint. Accordingly, I respectfully dissent.
MCL 691.1402a provides, in pertinent part:
(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.
We review de novo a trial court's ruling on a motion for summary disposition, the applicability of governmental immunity and statutory exceptions to immunity, and matters of statutory construction. Snead v John Carlo, Inc, 294 Mich.App. 343, 353-354; 813 N.W.2d 294 (2011). Under MCR 2.116(C)(7), an order granting a motion for summary disposition is proper when a plaintiff's action is "barred because of . . . immunity granted by law[.]" See Odom v Wayne Co, 482 Mich. 459, 466; 760 N.W.2d 217 (2008). "The moving party may submit affidavits, depositions, admissions, or other documentary evidence in support of the motion if substantively admissible." Snead, 294 Mich.App. at 354. A complaint's contents must be accepted as true unless contradicted by documentary evidence. Id. We must consider any documentary evidence that is submitted in a light most favorable to the nonmoving party. Id. "If there is no relevant factual dispute, whether a plaintiff's claim is barred under a principle set forth in MCR 2.116(C)(7) is a question of law for the court to decide." Id. (citation omitted). But when a relevant factual dispute exists, summary disposition is not appropriate. Id. The primary goal of statutory interpretation is to give effect to the intent of the Legislature. Id. at 355. This Court begins by reviewing the statutory language, and, if the language is clear and unambiguous, we presume that the Legislature intended the meaning expressed in the statute. Id. We must avoid a construction that would render any part of a statute surplusage or nugatory, and this Court may read nothing into an unambiguous statute that is not within the manifest intent of the Legislature as derived from the words of the statute itself. Id.
In this case, I agree with the majority that plaintiff rebutted the presumption that the city maintained the sidewalk in reasonable repair by presenting evidence of a vertical discontinuity defect of at least 2 inches. But I emphatically disagree with the majority's conclusion that "[b]ecause the defect was concealed by a piece of paper at the time of the fall, there is a question of fact as to whether the defect was open and obvious."
"The possessor of land owes no duty to protect or warn 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." Hoffner v Lanctoe, 492 Mich. 450, 460461; 821 N.W.2d 88 (2012) (quotation marks and citations omitted). "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.
In my view, the alleged sidewalk defect in this case, absent contemplation of the errant piece of paper, was open and obvious as a matter of law because an average person with ordinary intelligence would have discovered the defect on casual inspection. It appears that the majority accepts that proposition, as it finds it necessary to rely on a piece of paper, possibly an advertising circular, that by happenstance supposedly ended up covering the vertical discontinuity defect in the sidewalk. And because of this piece of paper tumbling in the wind, the city, according to the majority, is potentially liable for failure to comply with its duty to repair the defect that was otherwise open and obvious. Under the majority's reasoning, the city's liability would fluctuate depending on whether random debris temporarily covers a purported defect at any given point in time because it affects the open-and-obvious analysis. Liability cannot be dependent on such unpredictable fleeting circumstances. Although not binding, I note this Court's observation in Cioroiu v City of Troy, unpublished per curiam opinion of the Court of Appeals, issued February 25, 2021 (Docket No. 351117); unpub op at 3, that "a temporary shadow, due to the natural position of the sun, over the defect does not transform an open and obvious defect into a hidden one ...."
And the chance of the sidewalk defect being temporarily hidden by a piece of paper would certainly be more unexpected than shadowing.
As indicated above, MCL 691.1402a(2) provides that "[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." This provision makes abundantly clear that the Legislature did not want municipalities to be held liable for sidewalk defects unless they had actual or constructive notice of a defect and an opportunity to repair the defect. The majority opinion undermines this legislative intent. I conclude that to honor the Legislature's intent for purposes of MCL 691.1402a(2), the alleged sidewalk defect in this case must be viewed as it existed at the time of the fall, which, as claimed by plaintiff, included being concealed by the piece of paper. And there is no evidence that such a described defect existed at least 30 days before the injury, let alone that the city knew or should have known of the existence of a veiled sidewalk vertical discontinuity defect.
In sum, I would reverse the trial court's order denying the motion for summary disposition pursued by the city under MCR 2.116(C)(7) and remand for entry of an order summarily dismissing plaintiff's complaint. Accordingly, I respectfully dissent.
GLEICHER, C.J. (concurring).
I concur with the majority's analysis and write separately to respectfully respond to the dissent.
The dissent contends that the sidewalk's vertical discontinuity defect was "open and obvious as a matter of law because an average person with ordinary intelligence would have discovered the defect on casual inspection," even though the defect was covered by a piece of paper. But a concealed defect is not "open and obvious" on casual inspection, and Michigan law does not support the dissent's analysis.
The test for determining whether a particular condition is open and obvious is "whether the danger, as presented, is open and obvious. The question is: Would an average user with ordinary intelligence have been able to discover the danger and the risk presented upon casual inspection?" Novotney v Burger King Corp, 198 Mich.App. 470, 474-475; 499 N.W.2d 379 (1993) (emphasis added). The dissent asserts that the sidewalk defect was open and obvious "absent contemplation of the errant piece of paper." But Novotny instructs that the question is whether the danger "as presented" to the plaintiff was open and obvious. Assessing the risk presented inherently involves taking stock of what a reasonable person would have casually observed, and the evidence supports that a reasonable person would have seen an otherwise normal sidewalk with a piece of paper on it, nothing more.
True, the paper covering the large defect was, in the dissent's parlance, an "unpredictable fleeting circumstance." But it is foreseeable that pieces of paper will land on sidewalks. And although the piece of paper was open and obvious, pieces of paper on the ground don't present open and obvious dangers. Sidewalk discontinuities are potentially dangerous, which is why the Legislature placed on municipalities a duty to maintain sidewalks in "reasonable repair." MCL 691.1402a(1). There was nothing obvious or open about the sidewalk defect when Matthew Emanuelsen encountered it, which relieved him of any duty to "take reasonable measures to avoid" the danger. See Hoffner v Lanctoe, 492 Mich. 450, 461; 821 N.W.2d 88 (2012). The dissent would award the city a complete defense for its failure to properly maintain the sidewalk despite that the defect did not "present" itself to Emanuelsen, who had no reason to suspect it was there.
In one sense, the dissent's approach is understandable given the state of our common law. Although Michigan replaced contributory negligence with comparative fault 45 years ago in Kirby v Larson, 400 Mich. 585, 620-622; 256 N.W.2d 400 (1977), Michigan's open-and-obvious danger doctrine reinvigorates contributory negligence. It focuses only on the plaintiff's failure to conform to an objective standard of care and bars recovery even when the defendant could and should have eliminated a hazard. Our common law transforms even unreasonable dangers created or tolerated by a landowner into risks that must be born only by the plaintiff. The plaintiff's failure to exercise reasonable care entirely negates the defendant's duty of care.
But even under a contributory negligence approach, whether Emanuelsen should have comprehended the danger beneath the paper is a fact question for the jury. The Pennsylvania Supreme Court confronted precisely the same issue in the era of contributory negligence, reaching the same result as the majority does here. "In what may be termed the obscuration cases, i.e., where the dangerous condition is hidden by some substance such as water, snow, paper or confusing lights, the obscuration is never the legal cause of the harm, but operates in certain cases to relieve the injured party from the contributory negligence of failing to observe the danger." De Clerico v Gimbel Bros, Inc, 160 Pa Super 197, 199; 50 A.2d 716 (1947). In that case, as here, the "obscuration" was not the danger or the cause of the plaintiff's injury. Rather, the question in that case and this one is whether despite to the "obscuration," the danger should have been perceived.
No evidence supports that Emanuelsen should have perceived that a danger lurked under the piece of paper, or walked around the paper to protect himself against any "danger" it presented. Encountering a piece of paper on a sidewalk simply does not alert an average person to a potential hazard. Accordingly, the majority correctly holds that the trial court correctly denied the city's motion for summary disposition premised on the open-and-obvious doctrine.