Glancy v. City of Roseville

• Decision Date: 09 June 1998
• Docket Number: 109241,Nos. 1-2,Docket Nos. 106283,s. 1-2
• Citation: 457 Mich. 580,577 N.W.2d 897
• Parties: Fred J. GLANCY, Plaintiff-Appellee, v. CITY OF ROSEVILLE, a municipal corporation, Defendant-Appellant. Frances C. ASHTON and James ASHTON, Individually, Plaintiffs-Appellees, v. CITY OF HAZEL PARK, a municipal corporation, Defendant-Appellant. Calendar
• Court: Michigan Supreme Court

Page 897

577 N.W.2d 897

457 Mich. 580

Fred J. GLANCY, Plaintiff-Appellee, v. CITY OF ROSEVILLE, a municipal corporation, Defendant-Appellant.

Frances C. ASHTON and James ASHTON, Individually, Plaintiffs-Appellees, v. CITY OF HAZEL PARK, a municipal corporation, Defendant-Appellant.

Docket Nos. 106283, 109241.

Calendar Nos. 1-2.

Supreme Court of Michigan.

Argued March 3, 1998.

Decided June 9, 1998.

Bieber & Czechowski, P.C. by Walter J. Czechowski and William J. Brady, Center Line, for plaintiff-appellee Glancy.

Granzotto & Nicita, P.C. by Mark Granzotto, Detroit, and Law Office of Ronald A. Steinberg by Ronald A. Steinbergtern, Farmington Hills, for plaintiffs-appellees Francis C. Ashton and James Ashton.

Plunkett & Cooney, P.C. by Mary Massaron Ross, Detroit, for defendants-appellants.

Granzotto & Nicita, P.C. by Angela J. Nicita, Detroit, amici curiae, for Michigan Trial Lawyers Association.

Johnson, Rosati, Galica, Labarge, Aseltyne & Field, P.C. by Marcia L. Howe, Farmington Hills, amici curiae, for Michigan Municipal League.

OPINION

TAYLOR, Justice.

These cases present the issue whether the second sentence of M.C.L. § 691.1407(1); M.S.A. § 3.996(107)(1), which affirms governmental immunity as it existed before July 1, 1965, codified the "two-inch rule" ¹ regarding municipal liability for sidewalk defects despite this Court's abolition of the two-inch rule in Rule v. Bay City, 387 Mich. 281, 195 N.W.2d 849 (1972). Because the two-inch rule is a negligence rule rather than a principle of governmental immunity, we hold that subsection 7(1) could not reinstate the two-inch rule. Regarding defendants' alternative contention that this Court should adopt the two-inch rule as a threshold for lack of "reasonable repair" under M.C.L. § 691.1402(1); M.S.A. § 3.996(102)(1), we hold that such arguments are properly directed to the Legislature.

Facts and Proceedings

These two cases arise out of slip and fall accidents involving sidewalk defects of less than two inches. In Glancy, the portion of sidewalk at issue was between 1 1/4 and 1 1/2 inches higher than the surrounding sidewalk. In Ashton, the sidewalk portion at issue was between 1 and 1 1/2 inches higher than the surrounding sidewalk. Defendants in both cases moved for summary disposition under MCR 2.116(C)(7) and (10), contending that subsection 7(1) reinstated the two-inch rule. In each case, the trial court granted defendant's motion for summary disposition, concluding that subsection 7(1) codified the two-inch rule into Michigan law. In Glancy, the Court of Appeals reversed, concluding that subsection 7(1) only preserved pre-1965 immunity for the state, not other governmental entities, i.e., municipalities. Glancy v. Roseville, 216 Mich.App. 390, 549 N.W.2d 78 (1996). In Ashton, the Court of Appeals reversed on the basis of Glancy. Ashton v. Hazel Park, unpublished memorandum opinion of the Court of Appeals, issued April 4, 1997 (Docket No. 182876).

Standard of Review

Appellate review of a trial court ruling on a motion for summary disposition is de novo. Spiek v. Dep't of Transportation, 456 Mich. 331, 337, 572 N.W.2d 201 (1998). "MCR 2.116(C)(7) tests whether a claim is barred because of immunity granted by law, and requires consideration of all documentary evidence filed or submitted by the parties." Wade v. Dep't of Corrections, 439 Mich. 158, 162, 483 N.W.2d 26 (1992).

MCR 2.116(C)(10) tests the factual support of a plaintiff's claim. The court considers the affidavits, pleadings, depositions, admissions, and other documentary evidence submitted or filed in the action to determine whether a genuine issue of any material fact exists to warrant a trial. [Spiek, supra at 337, 572 N.W.2d 201.]

I. Municipality Liability for Sidewalk Defects

The governmental tort liability act, M.C.L. § 691.1401 et seq.; M.S.A. § 3.996(101) et seq., provides governmental immunity for governmental agencies, including municipalities like defendants here. "[T]he heart of the act, § 7, provides for broad immunity from tort liability for governmental agencies engaged in governmental functions." Wade, supra at 166, 483 N.W.2d 26. "[E]xceptions to governmental immunity are to be narrowly construed." Id. M.C.L. § 691.1402(1); M.S.A. § 3.996(102)(1) sets forth the "highway exception" to governmental immunity. Subsection 2(1) states in pertinent part:

Each governmental agency having jurisdiction over a highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. A person sustaining bodily injury or damage to his or her property by reason of failure of a governmental agency to keep a highway under its jurisdiction in reasonable repair, and in condition reasonably safe and fit for travel, may recover the damages suffered by him or her from the governmental agency.

Subsection 2(1) requires municipalities to maintain sidewalks in "reasonable repair." ² Under the two-inch rule, sidewalk defects of two inches or less did not constitute a lack of "reasonable repair" as a matter of law. See Weisse v. Detroit, 105 Mich. 482, 483, 487, 63 N.W. 423 (1895); Harris v. Detroit, 367 Mich. 526, 528, 117 N.W.2d 32 (1962). In 1972, Rule, supra, abolished the two-inch rule.

II. Affirmation of Pre-1965 Governmental Immunity

Subsection 7(1) of the governmental tort liability act, as amended in 1986, provides:

Except as otherwise provided in this act, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided in this act, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed before July 1, 1965, which immunity is affirmed.

The second sentence of subsection 7(1) "retains preexisting governmental immunity law except where provided otherwise in the act" and mandates an historical approach. Hadfield v. Oakland Co. Drain Comm'r, 430 Mich. 139, 147, 170, 422 N.W.2d 205 (1988).

By its terms, this provision of subsection 7(1) applies to "the state." M.C.L. § 691.1401; M.S.A. § 3.996(101) provides distinct definitions of "state" and "municipal corporation" and defines "governmental agency" to include both. In the context of the first sentence of subsection 7(1), which uses the term "governmental agencies," the use of the term "the state" in the second sentence might be read to indicate that this provision applies only to the state, not to governmental agencies generally.

However, in Li v. Feldt (After Remand), 434 Mich. 584, 592-593, n. 8, 456 N.W.2d 55 (1990), which involved tort liability of municipalities, this Court stated that § 7 should be read to put "all agencies of government on the same footing with regard to tort liability." This Court noted that the stated purpose of the governmental tort liability act is to "make uniform the liability of municipal corporations, political subdivisions, and the state ... when engaged in the exercise or discharge of a governmental function." Id. In Hadfield, supra at 168-169, 422 N.W.2d 205, which involved actions against a county and municipality as well as the state, this Court recognized a trespass-nuisance exception to governmental immunity on the basis of the historical approach mandated by § 7. These authorities indicate that the second sentence of subsection 7(1) applies to all governmental agencies, not just the state, despite the use of the term "the state" in this provision.

The present case does not require this Court to reconsider whether these authorities accord with the statutory language of subsection 7(1). Rather, this Court may assume, without deciding, that this provision of subsection 7(1) applies to municipalities because this provision would not affect the two-inch rule.

III. Whether the Two-inch rule is a Governmental Immunity

Principle That Subsection 7(1) Would Affirm

Here, defendants contend that the second sentence of subsection 7(1) mandates the continued application of the two-inch rule despite this Court's abolition of it in 1972. The basis of the two-inch rule is the concept of "reasonable repair." The highway exception, subsection 2(1) of the governmental tort liability act, subjects governmental agencies to liability when they fail to maintain highways in "reasonable repair." The two-inch rule was a bright-line rule stating that defects of two inches or less constituted "reasonable repair" as a matter of law.

The roots of the two-inch rule can be traced to Weisse, supra, which involved injuries allegedly arising out of a defective crosswalk. The Weisse Court noted that, in 1887, the Legislature amended the statute, imposing a duty on municipalities to maintain highways so that it required "reasonable repair" rather than "good repair" and imposed a duty that streets be "reasonably safe," not absolutely safe. 105 Mich. at 486-487, 63 N.W. 423. The Weisse Court concluded that the street at issue was reasonably safe despite the alleged defect of approximately two inches and held that the trial court should have given the defendant's request to charge that "as a matter of law that no such defect existed as authorized a recovery." Id. at 483, 63 N.W. 423.

In Rule, supra at 283, 195 N.W.2d 849, this Court abolished the two-inch rule:

[W]e will no longer hold as a matter of law that a depression or obstruction of two inches or less in a sidewalk may not be the basis for a municipality's liability for negligence.

In abolishing the two-inch rule, the Rule Court relied on Justice Adams' dissent in Harris, supra. Justice Adams stated that the two-inch rule "gradually hardened into a rule of law that where a defect in a walk was less than 2 inches in depth, the walk would be considered to be safe and the city free from negligence." 367 Mich. at 531, 117 N.W.2d 32 (emphasis added). He agreed with Colorado authority indicating that it is improper to determine ...