Bernardoni v. City of Saginaw
| Decision Date | 05 July 2016 |
| Docket Number | Docket No. 152097. |
| Citation | 886 N.W.2d 109,499 Mich. 470 |
| Parties | BERNARDONI v. CITY OF SAGINAW. |
| Court | Michigan Supreme Court |
Brett Meyer and Gregory W. Mair for the city of Saginaw.
At issue is whether for purposes of the “highway exception” to governmental immunity from tort claims, MCL 691.1402, plaintiff's photographs of a sidewalk defect taken about 30 days after plaintiff's accident are sufficient evidence to establish a genuine issue of material fact regarding whether the defect existed at least 30 days before the accident. We conclude that such evidence alone is not probative of a sidewalk's past condition and is thus insufficient, without more, to forestall summary disposition. Consequently we reverse the Court of Appeals judgment and reinstate the trial court's dismissal of plaintiff's action.
Plaintiff was walking on a sidewalk in defendant city when she was injured after tripping on a 2.5–inch vertical discontinuity between adjacent sidewalk slabs. She sued defendant, alleging inter alia that the sidewalk's hazardous condition had existed for more than 30 days before her fall. However, in her deposition, she stated that she did not know for how long the discontinuity had existed. The only relevant evidence she submitted was three photographs of the defect taken by plaintiff's husband about 30 days after the accident. The photographs depict a raised portion of a sidewalk, each taken from a different perspective and seemingly from a different distance. In two of the photographs, a ruler is used to indicate the size of the discontinuity in the sidewalk.
In the trial court, defendant moved for summary disposition pursuant to MCR 2.116(C)(7), (C)(8), and (C)(10). The trial court found plaintiff's photographs insufficient to establish the defect's origin and durationand granted summary disposition without specifying under which rule it had granted the motion. On appeal, the Court of Appeals noted that the trial court had reviewed material outside of the pleadings and therefore concluded that the trial court could not have granted summary disposition under MCR 2.116(C)(8). Bernardoni v. Saginaw, unpublished opinion per curiam of the Court of Appeals, issued June 23, 2015 (Docket No. 320601), at 1, 2015 WL 3883846, citing Spiek v. Dep't. of Transp., 456 Mich. 331, 338, 572 N.W.2d 201 (1998). The Court of Appeals found summary disposition improper under both MCR 2.116(C)(7) and (C)(10). Bernardoni, unpub. op. at 2. Specifically with respect to MCR 2.116(C)(10), the Court of Appeals reasoned that “in consideration of the high unlikeliness that sidewalk[ ] slabs could shift, wear, and accumulate debris with great rapidity, reasonable minds could differ as to whether the condition would have been present and readily apparent for at least 30 days before the injury.” Id. For the reasons stated below, we conclude that defendant is entitled to summary disposition under MCR 2.116(C)(10). Accordingly, we reverse the Court of Appeals on this ground and reinstate the trial court's dismissal.1
We review de novo a trial court's decision regarding a motion for summary disposition to determine if the moving party is entitled to judgment as a matter of law. Maiden v. Rozwood, 461 Mich. 109, 118, 597 N.W.2d 817 (1999). A motion for summary disposition made under MCR 2.116(C)(10) tests the factual sufficiency of the complaint. Id. at 120, 597 N.W.2d 817. The Court considers all affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties in the light most favorable to the party opposing the motion. Id. MCR 2.116(G)(4) states:
A motion under subrule (C)(10) must specifically identify the issues as to which the moving party believes there is no genuine issue as to any material fact. When a motion under subrule (C)(10) is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his or her pleading, but must, by affidavits or as otherwise provided in this rule, set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, judgment, if appropriate, shall be entered against him or her.
This rule requires the adverse party to set forth specific facts at the time of the motion showing a genuine issue for trial. Maiden, 461 Mich. at 121, 597 N.W.2d 817. A reviewing court should consider the substantively admissible evidence actually proffered by the opposing party. Id. When the proffered evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law. Id. at 120, 597 N.W.2d 817.
Under the governmental tort liability act, MCL 691.1401 et seq., “a governmental agency is immune from tort liability if the governmental agency is engaged in the exercise or discharge of a governmental function.” MCL 691.1407(1). An exception to this immunity is found in MCL 691.1402, the highway exception, that allows individuals to “recover the damages suffered by him or her” resulting from a municipality's failure to keep highways—including sidewalks, MCL 691.1401(c) —“in reasonable repair and in a condition reasonably safe and fit for travel....” MCL 691.1402(1) ; see also Robinson v. City of Lansing, 486 Mich. 1, 7, 782 N.W.2d 171 (2010). When the liability allegedly arises from a sidewalk defect, a plaintiff must meet additional requirements:
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. [MCL 691.1402a(2).]
A defendant is “conclusively presumed” to have knowledge of the defect “when the defect existed so as to be readily apparent to an ordinarily observant person for a period of 30 days or longer before the injury took place.” MCL 691.1403. Thus, to invoke the highway exception as it pertains to sidewalks, a plaintiff must show that the defect existed at least 30 days before the accident. Robinson, 486 Mich. at 19, 782 N.W.2d 171 (). “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.’ ” Cruz v. Saginaw, 370 Mich. 476, 481, 122 N.W.2d 670 (1963), quoting Hendershott v. Grand Rapids, 142 Mich. 140, 143, 105...
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