Buhl v. City of Oak Park

• Decision Date: 29 August 2019
• Docket Number: No. 340359,340359
• Citation: 329 Mich.App. 486,942 N.W.2d 667
• Parties: Jennifer BUHL, Plaintiff-Appellant, v. CITY OF OAK PARK, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

329 Mich.App. 486

942 N.W.2d 667

Jennifer BUHL, Plaintiff-Appellant,

v.CITY OF OAK PARK, Defendant-Appellee.

No. 340359

Court of Appeals of Michigan.

Submitted November 15, 2018, at Detroit.

Decided August 29, 2019, 9:00 a.m.

Miller Johnson (by Christopher J. Schneider, Grand Rapids) and Michigan Advocacy Center, PLLC (by Matthew E. Bedikian) for plaintiff.

Garan Lucow Miller, PC (by Megan K. Cavanagh, John J. Gillooly, and Caryn A. Ford, Detroit) for defendant.

Before: O'Brien, P.J., and Tukel and Letica, JJ.

Tukel, J.

This case involves the question whether a legislative act, 2016 PA 419, which makes the open and obvious danger doctrine applicable to suits against municipalities, applies retroactively—that is, whether it applies " ‘to events antedating its enactment....’ "

Frank W. Lynch & Co. v. Flex Technologies, Inc. , 463 Mich. 578, 585, 624 N.W.2d 180 (2001), quoting Landgraf v. USI Film Prod. , 511 U.S. 244, 283, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994). The retroactivity question turns on whether the act impaired a "vested right," and our Supreme Court has long noted that "[t]he question of determining what is a vested right has always been a source of much difficulty to all courts." Lahti v. Fosterling , 357 Mich. 578, 588, 99 N.W.2d 490 (1959). The trial court found that the statutory amendment applied retroactively and, applying the open and obvious danger doctrine, granted summary disposition to defendant. We hold that because no vested right of plaintiff was impaired by the Legislature's actions and because the Legislature's actions were remedial in nature, the resulting grant of summary disposition to defendant on the basis of the open and obvious danger doctrine was correct; we therefore affirm the trial court's judgment.

Plaintiff was injured on May 4, 2016, when she twisted her ankle on a sidewalk outside of a store called Trend Express in Oak Park, Michigan. The sidewalk was under defendant's exclusive jurisdiction. On the date of the injury, it was raining. Plaintiff's husband dropped her off in front of the building, and plaintiff walked toward the front door. Plaintiff noticed a crack in the sidewalk and attempted to step over it. However, plaintiff was looking at the store and failed to notice the uneven cement slabs on the far side of the crack from where she was walking. Plaintiff testified that she did not see the drop-off because she was not looking at the sidewalk but admitted that she would have seen it if she had been watching where she was walking instead of looking at the store.

Plaintiff filed suit under the defective-sidewalk exception to governmental immunity, MCL 691.1402a. Defendant moved for summary disposition under MCR 2.116(C)(10), arguing that the defect was open and obvious.¹ Plaintiff argued that it did not matter whether the defect was open and obvious because MCL 691.1402a(5), which permitted defendant to assert the open and obvious danger defense, was not enacted until after she was injured.² Plaintiff also argued that irrespective of the applicability of this statutory amendment, the condition was not open and obvious because the drop-off was not clearly visible from the direction that plaintiff had approached the store. The trial court held that the statutory amendment was retroactive because it affected only the availability of a possible defense, not plaintiff's ability to bring a claim. Further, the trial court held that the condition was open and obvious because plaintiff's photographs clearly showed that the corner of the concrete slab where plaintiff claimed to have tripped was raised.

I. RETROACTIVITY OF AMENDMENT TO MCL 691.1402a

On appeal, plaintiff first argues that the trial court erred when it determined that the amendment of MCL 691.1402a had retroactive effect. We disagree. This Court reviews de novo whether a statute applies retroactively. Johnson v. Pastoriza , 491 Mich. 417, 428-429, 818 N.W.2d 279 (2012).

A. STATUTORY BACKGROUND

The governmental tort liability act (GTLA), MCL 691.1401 et seq. , provides immunity from tort liability to governmental agencies when they are engaged in the exercise or discharge of a governmental function. MCL 691.1407(1) ; Moraccini v. Sterling Hts. , 296 Mich. App. 387, 391, 822 N.W.2d 799 (2012). The GTLA waives immunity and allows suit against a governmental agency only if the suit falls within one of the statutory exceptions. Moraccini , 296 Mich. App. at 392, 822 N.W.2d 799. MCL 691.1402a, which allows a plaintiff to sue a municipal corporation under some circumstances when the municipal corporation fails to maintain a sidewalk, provides:

(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.

(6) A municipal corporation's liability under subsection (1) is limited by section 81131 of the natural resources and environmental protection act, 1994 PA 451, MCL 324.81131.

This current version of the statute was enacted on January 3, 2017, with the passage of 2016 PA 419, becoming effective on January 4, 2017. The only changes brought about by 2016 PA 419 were to add Subsection (5), and, although not relevant for purposes of this case, to renumber the previous Subsection (5) to Subsection (6).

B. RETROACTIVITY DEFINED

The United States Supreme Court has noted that "courts have labored to reconcile two seemingly contradictory statements found in our decisions concerning the effect of intervening changes in the law. Each statement is framed as a generally applicable rule for interpreting statutes that do not specify their temporal reach." Landgraf , 511 U.S. at 263-264, 114 S.Ct. 1483.

The first is the rule that "a court is to apply the law in effect at the time it renders its decision[.]" The second is the axiom that "[r]etroactivity is not favored in the law," and its interpretive corollary that "congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result." [ Id. at 264, 114 S. Ct. 1483 (citations omitted).]

"A statute does not operate ‘retrospectively’ merely because it is applied in a case arising from conduct antedating the statute's enactment or upsets expectations based in prior law," id. at 269, 114 S. Ct. 1483 (citation omitted), nor is it " ‘made retroactive merely because it draws upon antecedent facts for its operation,’ " id. at 269 n. 24, 114 S. Ct. 1483 (citation omitted). "[C]ourts should apply the law in effect at the time that they decide a case unless that law would have an impermissible retroactive effect as that concept is defined by the Supreme Court." BellSouth Telecom., Inc. v. Southeast Tel., Inc. , 462 F.3d 650, 657 (C.A. 6, 2006).

"[T]he court must ask whether the new provision attaches new legal consequences to events completed before its enactment." Landgraf , 511 U.S. at 269-270, 114 S.Ct. 1483. "The conclusion that a particular rule operates ‘retroactively’ comes at the end of a process of judgment concerning the nature and extent of the change in the law and the degree of connection between the operation of the new rule and a relevant past event." Id. at 270, 114 S. Ct. 1483. "Any test of retroactivity will leave room for disagreement in hard cases, and is unlikely to classify the enormous variety of legal changes with perfect philosophical clarity. However, retroactivity is a matter on which judges tend to have ‘sound instincts,’ and familiar considerations of fair notice, reasonable reliance, and settled expectations offer sound guidance." Id. (citation, ellipsis, and brackets omitted).

There are four rules that a court must consider when determining whether a new statute applies retroactively. In re Certified Questions from U.S. Court of Appeals for the Sixth Circuit , 416 Mich. 558, 570, 331 N.W.2d 456 (1982) :

First, is there specific language in the new act which states that it should be given retrospective or prospective application. Second, a statute is not regarded as operating retrospectively solely because it relates to an antecedent event. Third, a retrospective law is one which takes away or impairs vested rights acquired under existing laws, or creates a new obligation and imposes a new duty, or attaches a new disability with respect to transactions or considerations already past. Fourth, a remedial or procedural act which does not destroy a vested right will be given effect where the injury or claim is antecedent to the enactment of the statute. [ Id. at 570-571, 331 N.W.2d 456 (quotation marks, citations, and brackets omitted).]

Under Rule 1, the intent of the Legislature governs the question whether a statute applies retroactively. Johnson , ...