Opinion
No. 338863
06-19-2018
SONIA SARGEANT, Plaintiff-Appellant, v. CITY OF PONTIAC, Defendant-Appellee.
UNPUBLISHED Oakland Circuit Court
LC No. 2016-154592-NO Before: MURPHY, P.J., and JANSEN and RONAYNE KRAUSE, JJ. PER CURIAM.
In this governmental immunity action, plaintiff appeals as of right an order granting defendant's motion for summary disposition. We affirm.
This matter arises out of injuries that plaintiff sustained while walking in her neighborhood. While walking, plaintiff stumbled over a piece of uneven sidewalk and fell to the ground. Plaintiff sustained scrapes on her hands and face, a fractured finger on her left hand, and a swollen left knee. Vincente Jimenez ("Jimenez"), a city of Pontiac Department of Public Works employee, photographed the sidewalk after plaintiff fell. Jimenez observed that the sidewalk did not appear to be well maintained, and saw that an area of concrete had shifted over time, causing what is described as a "vertical discontinuity," or an area where one section of concrete is raised higher than the rest of the sidewalk. The portion of raised concrete that plaintiff tripped over was approximately 1½ inches higher than the rest of the sidewalk.
Defendant moved for summary disposition pursuant to MCR 2.116(C)(7) and (10). This Court reviews a trial court's decision on a motion for summary disposition de novo. Wigfall v City of Detroit, ___ Mich App ___, ___; ___ NW2d ___ (2017) (Docket No. 333448); slip op at 2. Summary disposition may be granted under MCR 2.116(C)(7) " 'because of release, payment, prior judgment, [or] immunity granted by law.' " Clay v Doe, 311 Mich App 359, 362; 876 NW2d 248 (2015), quoting MCR 2.116(C)(7). When granting a motion under MCR 2.116(C)(7), the trial court "should examine all documentary evidence submitted by the parties, accept all well-pleaded allegations as true, and construe all evidence and pleadings in the light most favorable to the nonmoving party." Id. (quotation marks and citation omitted). "A motion under MCR 2.116(C)(7) is properly granted when a claim is barred by governmental immunity and the nonmoving party has failed to allege facts that justify an exception to that immunity." Transou v City of Pontiac, 283 Mich App 71, 73; 769 NW2d 281 (2009).
Similarly, "[a] motion for summary disposition brought pursuant to MCR 2.116(C)(10) tests the factual support for a claim." Innovative Adult Foster Care, Inc v Ragin, 285 Mich App 466, 474-475; 776 NW2d 398 (2009). This Court considers the "pleadings, admissions, and other evidence submitted by the parties in the light most favorable to the nonmoving party." Latham v Barton Malow Co, 480 Mich 105, 111; 746 NW2d 868 (2008). Summary disposition "is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." 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." West v General Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). When considering a motion for summary disposition, the trial court may not make findings of fact, "weigh the evidence[,] or make determinations of credibility when deciding a motion for summary disposition." Innovative Adult Foster Care, 285 Mich App at 480.
Plaintiff argues that the trial court erred in relying on a photograph offered as evidence by defendant, which she contends does not accurately depict the area where she fell. Plaintiff further argues that a vertical discontinuity of 2 or more inches existed at the time of her fall, and therefore, the highway exception imposed liability on defendant. We disagree.
Pursuant to the governmental tort liability act ("GTLA"), " 'a governmental agency is immune from tort liability if the governmental agency is engaged in the exercise or discharge of a governmental function.' " Bernardoni v City of Saginaw, 499 Mich 470, 473; 886 NW2d 109 (2016), quoting MCL 691.1407(1). However, plaintiff contends that the highway exception, which is codified under MCL 691.1402, provides an exception to governmental immunity herein. The highway exception 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 . . . ." Id. (quotation marks and citation omitted).
Plaintiff also raises governmental immunity as a separate issue in its statement of questions presented, but plaintiff did not include an actual analysis of this second issue in its brief on appeal. Plaintiff's analysis of governmental immunity is thus limited to what is available to this Court in its first issue on appeal. It is unclear whether plaintiff intended to delete the second issue in its entirety or whether the analysis is simply missing. Regardless, because plaintiff failed to support her second issue with an analysis of the facts and applicable law as required by MCR 7.212(C)(7), the issue is abandoned on appeal. MCR 7.212(C)(7); See Yono v Dep't of Transp, 299 Mich App 102, 114 n 4; 829 NW2d 249 (2012).
In order to rebut the presumption that the sidewalk was maintained, plaintiff must show that a number of conditions were present. MCL 691.1402a states:
(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) [A] municipal corporation . . . 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] discontinuity of less than two inches creates a rebuttable inference that the municipality maintained the sidewalk in reasonable repair . . . ." Moraccini v City of Sterling Heights, 296 Mich App 387, 396; 822 NW2d 799 (2012).(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.]
Neither party disputes that the condition of the sidewalk existed at least 30 days prior to plaintiff's injury. --------
Plaintiff argues that the trial court erred by relying on a photograph taken by Jimenez, as well as his deposition testimony. On the photograph, Jimenez circled the approximate area that he measured in red ink. On a series of additional photographs, plaintiff circled the approximate area where she fell in black ink. Plaintiff argues that Jimenez did not measure the correct area where she fell. However, upon review of the photographs, this Court concludes that the portion of the sidewalk Jimenez measured appears to be well within the area that plaintiff circled to indicate the site of her fall. Based on these photographs, it appears that plaintiff's argument does not support the overall contention that the trial court erred by relying on Jimenez's photograph of the area that he measured.
Furthermore, plaintiff never specifically testified that a vertical discontinuity of 2 inches or more existed in the sidewalk at the time of her injury. Jimenez testified that the vertical discontinuity appeared to be approximately 1½ inches. Plaintiff's main source of proof for her claim comes from two photographs that she took of the sidewalk the day after she fell. Pertinent to her claim herein is the second photograph, which shows that a measuring tape was inserted into the gap between the two adjacent pieces of concrete, ostensibly to prove that the depth of the vertical discontinuity is two inches or more. However, as noted in defendant's brief on appeal, the bottom of the measuring tape is not clearly visible because it has been inserted into the gap between the two sections of the sidewalk. Although it appears that the depth of the gap is close to two inches, the measuring tape does not appear to be inserted straight into the gap, or flush to the concrete. Further, plaintiff's photographs of the depth of the gap hold little merit. The question herein is whether there was a vertical discontinuity in the sidewalk of 2 inches or more, not whether there was a gap in the sidewalk that was 2 inches deep. Plaintiff offers no further photographic evidence showing that a 2 inch vertical discontinuity existed in the sidewalk when she fell. Without further evidence that a vertical discontinuity of 2 or more inches existed at the time of her fall, plaintiff cannot rebut the presumption that defendant maintained the sidewalk in reasonable repair.
Plaintiff also argues that she can rebut the presumption that the sidewalk was in reasonable repair by showing that "[a] dangerous condition . . . other than solely a vertical discontinuity" existed in accordance with MCL 691.1402a(3)(b). Plaintiff alleges that loose gravel and missing concrete compounded with the vertical discontinuity of the sidewalk caused her fall. Jimenez testified that he believed the sidewalk was not well-maintained. However, Jimenez did not testify that he believed the sidewalk was not kept in reasonable repair, that it was missing concrete, or that it was covered in loose gravel. Moreover, although plaintiff testified that the sidewalk appeared to be missing concrete, she did not allege in her complaint that the lack of concrete caused her to fall; rather, her complaint stated that she tripped over the vertical discontinuity in the sidewalk. Plaintiff never testified that loose gravel caused her to fall. In addition, the photographs submitted by the parties do not show that there was loose gravel on the sidewalk. Indeed, no further evidence supports the contention that any loose gravel covered the sidewalk. Ultimately, the evidence presented to the trial court is insufficient to conclusively rebut the presumption that the sidewalk was maintained in reasonable repair. Accordingly, plaintiff's claim must fail.
Affirmed.
/s/ William B. Murphy
/s/ Kathleen Jansen
/s/ Amy Ronayne Krause