Opinion
No. 348910
02-20-2020
BETTY WILLIAMS, Plaintiff-Appellee, v. CITY OF SAGINAW, Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Saginaw Circuit Court
LC No. 18-036643-NO Before: FORT HOOD, P.J., and BECKERING and BOONSTRA, JJ. PER CURIAM.
Defendant, the City of Saginaw, appeals by right the trial court's order denying its motion for summary disposition under MCR 2.116(C)(7) (governmental immunity) and (C)(10) (no genuine issue of material fact. We affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
Plaintiff, Betty Williams, was injured after she tripped and fell over an uneven portion of sidewalk on North Michigan Avenue in Saginaw on December 7, 2017. The following day, plaintiff and her adult granddaughter, Jimanesha Moore, returned to the area to take pictures of the sidewalk defect that caused plaintiff's fall. In an affidavit filed in the case, Moore recounted that she used a ruler to measure the vertical discontinuity between the adjacent slabs of concrete in the area where plaintiff fell According to Moore, one slab appeared to be about three inches higher than the slab next to it. Moore took several photographs of the defect, showing the approximately three-inch vertical discontinuity. Plaintiff's most notable photograph of the defect is depicted below:
The facts in this opinion are gleaned from the evidence produced in relation to defendant's motion for summary disposition.
Our dissenting colleague has included all of the parties' photographs in his dissenting opinion, so we will not repeat that effort by producing them in the majority opinion. Rather, we have chosen to include in response to the dissent the most notable photograph, which plaintiff's evidence indicates is the location where she fell. We find it befuddling why the ragged raised edge, as depicted in plaintiff's photograph, is not discernable in photographs taken by one of defendant's employees after learning of the fall.
Image materials not available for display. After taking the photographs, Moore observed a large tree next to the sidewalk and surmised that tree roots likely pushed the slab up to a dangerous height over a period of time. Moore further reported that, because the two slabs were similar in color, it was difficult to see the height difference between them unless you were "staring down at your feet as you walk."
In June 2018, plaintiff filed a complaint for premises liability against defendant, alleging that she had tripped over a defect in the sidewalk that defendant knew or should have known required repair.
Defendant moved for summary disposition, arguing that plaintiff had failed to overcome the statutory presumptions found in MCL 691.1402a because she had not presented evidence that the sidewalk defect was a vertical discontinuity of more than 2 inches or that it had existed for at least 30 days prior to the accident; therefore, defendant was entitled to governmental immunity. Defendant also argued that the defect was open and obvious. Defendant supported its motion with an inspection report prepared by a city employee, which stated that "[o]ne section of sidewalk is offset ½ . . . ," and related photographs. In an opposition brief, plaintiff filed evidence in support of her case, appending the photographs taken by Moore and Moore's affidavit, and arguing that the photographs showed a vertical discontinuity of approximately 3 inches.
We remain unclear as to the height of the other sections of the sidewalk, and whether the city employee was measuring, and capturing in photos, the area where plaintiff fell.
Following a hearing, the trial court denied defendant's motion. In a thoroughly detailed and well-reasoned 7-page written opinion and order, the trial court determined that plaintiff had provided evidence that a vertical discontinuity of at least two inches had existed at the time of her fall. The trial court also referred to Moore's affidavit in determining that plaintiff had offered evidence to support the conclusion that the defect had existed for more than 30 days; specifically, Moore's affidavit contained a factual, eyewitness observation shortly after plaintiff's fall "to show that the defect was likely caused by the roots of a large tree that was growing next to the sidewalk." The trial court also determined that a question of fact existed as to whether the defect was open and obvious, noting that Moore's affidavit opined, by way of her personal observation, that the defect was difficult to see on casual inspection because the cement in that area was all the same color.
II. ANALYSIS
Defendant argues that the trial court erred by determining that it was not entitled to governmental immunity, because plaintiff had failed to satisfy the conditions set forth in MCL 691.1402a. We disagree.
This Court reviews de novo a trial court's ruling on a motion for summary disposition. Anzaldua v Neogen Corp, 292 Mich App 626, 629; 808 NW2d 804 (2011). The applicability of governmental immunity is a question of law, which we also review de novo. Co Rd Ass'n of Mich v Governor, 287 Mich App 95, 117-118; 782 NW2d 784 (2010).
Defendant moved for summary disposition under MCR 2.116(C)(7) and (C)(10). "To survive a (C)(7) motion based on governmental immunity, a plaintiff must allege facts justifying the application of an exception to governmental immunity. In reviewing a (C)(7) motion, a court must accept all well-pleaded allegations as true and construe them in favor of the nonmoving party." Tellin v Forsyth Twp, 291 Mich App 692, 698; 806 NW2d 359 (2011) (quotation marks and footnotes omitted). Summary disposition under (C)(10) is proper if the documentary evidence filed by the parties and viewed in the light most favorable to the nonmoving party fails to show a genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996).
The governmental tort liability act (GTLA) grants a governmental agency immunity from tort liability if the governmental agency is engaged in the exercise or discharge of a governmental function, unless a specific exception applies. Bernardoni v City of Saginaw, 499 Mich 470, 473; 886 NW2d 109 (2016), citing MCL 691.1407(1) et seq. One such exception, the "highway exception," is found in MCL 691.1402, and allows a plaintiff to recover 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).
MCL 691.1402a sets forth a number of conditions that a plaintiff must satisfy in order to recover damages for an injury related to a defective sidewalk:
(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.
Here, plaintiff did not allege a dangerous condition "other than solely a vertical discontinuity" in the sidewalk that caused her fall; therefore, plaintiff was required to rebut the presumption of reasonable repair under MCL 691.1402a(3)(a) with evidence that a vertical discontinuity of 2 inches or more existed. See Moraccini v City of Sterling Heights, 296 Mich App. 387, 396; 822 N.2d 799 (2012). Further, plaintiff was required to show that defendant knew or should have known of the defect at least 30 days before her fall; in other words that the defect had existed for at least 30 days. MCL 691.1402a(2).
We agree with the trial court's conclusion that plaintiff presented sufficient evidence to rebut the presumption of reasonable repair by presenting evidence to show that a vertical discontinuity, in the sidewalk itself, of at least two inches existed. Although defendant's employee submitted a report stating that one section of the sidewalk was offset one-half inch in front of the business where plaintiff said she fell, plaintiff's photographs and Moore's affidavit, which stated that plaintiff pointed out the next day the location where she fell, indicated that the vertical discontinuity was more than two inches. Defendant correctly notes that, in one of plaintiff's photographs, Moore's ruler appears to be inserted into the gap between the two slabs, and that this Court has held in an unpublished opinion that measuring the depth of the gap is insufficient to prove a vertical discontinuity in the sidewalk of more than two inches. See Sargeant v City of Pontiac, unpublished per curiam opinion of the Court of Appeals, issued June 19, 2018 (Docket No. 338863). However, as the trial court observed and the record confirms, "in the other photograph, the bottom of the ruler seems to be nearly level with the lower sidewalk slab. In that photograph, the height differential between the two adjacent slabs of concrete appears to be greater than two inches." Thus, we agree with the trial court that, "[b]ecause Plaintiff has offered evidence to show that a vertical discontinuity of at least two inches existed at the time of her fall, she has rebutted the statutory presumption that Defendant maintained the sidewalk in reasonable repair."
In her deposition, plaintiff verified that she was with Moore when Moore photographed the location where she fell.
The plaintiff in Sargeant relied on two photographs she took of the sidewalk in order to rebut the statutory presumption; the plaintiff herself did not testify to her own observation about the size of the sidewalk's vertical discontinuity. Sargeant, unpub op p 3. One of the photos depicted a measuring tape placed into the gap between two adjacent pieces of concrete, with the bottom of the measuring tape not being visible. Id. This Court noted that "[a]lthough it appears that the depth of the gap is close to two inches . . . [t]he 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." Id. at 2-3. This Court affirmed the trial court's order granting summary disposition to defendant because the plaintiff had no other evidence showing that a 2-inch vertical discontinuity existed, whereas the defendant had produced evidence showing that the gap was only 1 ½ inches. Id. at 3-4.
In Moore's affidavit, she expressly stated that she did not push the ruler into the gap between the sidewalk slabs, she "simply measured the difference in height between the two cement slabs." Unlike Sergeant, through the photo depicted above, Moore's affidavit, and plaintiff's deposition testimony, viewed in the light most favorable to plaintiff, plaintiff has clearly created a question of fact on this issue.
In addition to presenting sufficient evidence to show a vertical discontinuity of more than 2 inches, plaintiff also had to show that, at least 30 days prior to her accident, defendant "knew or, in the exercise of reasonable diligence, should have known of the existence of the defect in the sidewalk." MCL 691.1402a(2). "Generally, the question of whether a street defect, otherwise actionable against the municipality, 'has existed a sufficient length of time and under such circumstances that the municipality is deemed to have notice is a question of fact, and not a question of law.' " Bernardoni, 499 Mich at 474. Moore stated in her affidavit that she observed a large tree next to the part of the sidewalk where plaintiff fell, and opined that the tree roots likely pushed the sidewalk slab up to a dangerous height over a period of time. The implication is that, since significant time is required for tree roots to grow, the defect had existed long enough that defendant should have known of its existence. Defendant argues on appeal that Moore's opinion is insufficient to create a genuine issue of material fact about the cause of the defect, and thus to establish that it existed for more than 30 days, because Moore is not an arborist. We first note that defendant has cited no caselaw that requires a plaintiff to hire an arborist to testify that tree roots caused a sidewalk defect; furthermore, tree roots can be observable to the average layman if sufficiently growing out of or near a sidewalk. Nor did defendant provide any authority requiring that a plaintiff must excavate a sidewalk in order to concretely determine the state of affairs underneath the slab. Circumstantial evidence has always been deemed acceptable in Michigan when it comes to causation. See Skinner v Square D Co, 445 Mich 153, 163; 516 NW2d 475 (1994). While Moore's testimony alone may not be enough to ultimately prevail, viewing the evidence in the light most favorable to plaintiff, it does create a genuine issue of material fact from which a reasonable jury could conclude that the defect was present for more than 30 days. As this Court has duly noted, in a motion for summary disposition filed pursuant to MCR 2.116(C)(7), it "must accept all well-pleaded factual allegations as true and construe them in favor of the plaintiff, unless other evidence contradicts them." Dextrom v Wexford County, 287 Mich App 406, 429; 789 NW2d 211 (2010). "If no facts are in dispute, and if reasonable minds could not differ regarding the legal effect of those facts, the question whether the claim is barred is an issue of law for the court." Id. "However, if a question of fact exists to the extent that factual development could provide a basis for recovery, dismissal is inappropriate." Id. The latter is true here. Accordingly, we affirm the trial court's ruling that defendant was not entitled to summary disposition pursuant to (C)(7).
In Bernardoni, our Supreme Court reversed this Court and reinstituted the trial court's grant of summary disposition to defendant because the plaintiff's husband had taken photographs of the alleged sidewalk defect around 30 days after plaintiff's fall and plaintiff provided no evidence, other than the photographs themselves, to establish whether the defect pre-existed her fall by more than 30 days, or in other words, 60 days before the photographs were taken. Bernardoni, 499 Mich at 475. As the Court noted, "[t]he necessary inference that would connect the photographs to the sidewalk's condition 60 days earlier becomes tenable only with additional evidence. Absent such evidence, once can imagine any number of scenarios in which the defect formed within 60 days of when the photographs were taken." Id. The Court observed by way of example that the plaintiff had neither obtained lay witness affidavits that might have assisted in identifying the timing of the defect nor expert testimony that could through professional extrapolation identify the nature of the defect or date its duration. Id. at 476.
Here, as noted by the trial court, plaintiff has offered evidence to show that the defect was likely caused by tree roots of a large tree that was growing next to the sidewalk, and quoting Wright v City of Saginaw, unpublished per curiam opinion of the Court of Appeals, issued May 24, 2018 (Docket No. 339402), at p 3, it noted that "[b]ecause it is commonly understood that tree roots require significant time to grow, a jury could reasonably conclude that the defect was present for more than 30 days before plaintiff's fall." Contrary to defendant's contention on appeal, to overcome summary disposition, Moore's affidavit provided sufficient proof that a large tree was proximate to the sidewalk; plaintiff was not required to also produce an actual photograph of the tree.
Defendant also argues that even if plaintiff has provided enough evidence to satisfy the conditions required of her in MCL 691.1402a to avoid governmental immunity, it is nevertheless entitled to summary disposition because the sidewalk defect was open and obvious. Again, we disagree.
MCL 691.1402a(5) expressly authorizes a municipal corporation in a civil action to assert the common law defense that the complained of condition was open and obvious. Generally, there is no duty to protect a plaintiff from dangerous conditions that are open and obvious. Hoffner v Lanctoe, 492 Mich 450, 460-461; 821 NW2d 88 (2012). "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 NW2d 739 (2009). The test to determine whether a danger is open and obvious is an objective one, focusing 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, 478-479; 760 NW2d 287 (2008).
Defendant contends that if the vertical discontinuity between the two slabs was 3 inches, as plaintiff claims, "there can be no disputing that the condition was open and obvious and readily apparent to the Plaintiff had she performed a clear and reasonable inspection of the area." However, this point is disputed. Moore, who observed the defect, stated in her affidavit that because the slabs were of similar color, the defect was "difficult to discern unless you are staring down at your feet as you walk." The trial court noted that the photographs are not dispositive on the issue, as they are taken at close range. The trial court concluded that the evidence, viewed in the light most favorable to plaintiff, indicated that reasonable minds could differ on whether or not the defect was open and obvious. We agree.
As noted above, we are not certain whether the photographs taken by defendant's employee depict the site of plaintiff's fall, as those photographs show a smooth edge on the raised, vertical portion of the sidewalk slabs, whereas plaintiff's photograph, as reproduced above, shows a rough edge. One might conclude from defendant's photographs that the condition is open and obvious, at least from the angle in which the photograph is taken. But such a finding is not discernable from plaintiff's photographs, where the fall is said to have occurred. We agree with the trial court that plaintiff has produced enough evidence to defeat defendant's motion on this issue, and there are definitely questions of material fact for the jury to resolve.
We affirm the trial court's order and remand the matter for further proceedings. We do not retain jurisdiction.
/s/ Karen M. Fort Hood
/s/ Jane M. Beckering