Buhl v. City of Oak Park

CourtSupreme Court of Michigan
Citation968 N.W.2d 348,507 Mich. 236
Docket NumberDocket No. 160355,Calendar No. 3
Parties Jennifer BUHL, Plaintiff-Appellant, v. CITY OF OAK PARK, Defendant-Appellee.
Decision Date09 June 2021

507 Mich. 236
968 N.W.2d 348

Jennifer BUHL, Plaintiff-Appellant,
CITY OF OAK PARK, Defendant-Appellee.

Docket No. 160355
Calendar No. 3

Supreme Court of Michigan.

Argued January 6, 2021
Decided June 9, 2021

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

Garan Lucow Miller, PC, Detroit (by Christian C. Huffman and John J. Gillooly ) for defendant.

BEFORE THE ENTIRE BENCH (except Cavanagh, J.)

Bernstein, J.

968 N.W.2d 351
507 Mich. 240

This case concerns a negligence claim governed by the governmental tort liability act (GTLA), MCL 691.1401 et seq. The specific question before us is whether a GTLA amendment that went into effect after plaintiff's claim accrued but before plaintiff filed her complaint can be retroactively applied. We hold that the amended provision does not apply retroactively. Accordingly, we reverse the judgment of the Court of Appeals and remand this case to the circuit court for reinstatement of plaintiff's claim of negligence against defendant.


On May 4, 2016, plaintiff and her husband went to a party store in Oak Park, Michigan. As she was walking, plaintiff saw a raised crack in the sidewalk outside the store and tried to step over it. Because plaintiff did not notice that the sidewalk was uneven on the other side of the crack, she fell and fractured her left ankle.

On January 31, 2017, plaintiff sued defendant, the city of Oak Park, under the "sidewalk exception" to governmental immunity, MCL 691.1402a. Plaintiff alleged that MCL 691.1402a imposes a duty on municipalities to maintain sidewalks in reasonable repair and that defendant breached its duty by failing to inspect or repair the sidewalk and maintain it in a reasonably safe condition. Plaintiff argued that the injuries she sustained in the fall were a direct result of defendant's negligence.

After plaintiff was injured but before she filed her complaint, the Legislature passed 2016 PA 419, which went into effect January 4, 2017. 2016 PA 419

507 Mich. 241

amended MCL 691.1402a to add a new subsection, MCL 691.1402a(5). This new subsection allows a municipality to assert "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." MCL 691.1402a(5). Defendant subsequently moved for summary disposition under MCR 2.116(C)(10), arguing that MCL 691.1402a(5) applied retroactively and that the defect in the sidewalk where plaintiff fell was open and obvious. The trial court agreed that MCL 691.1402a(5) should be applied retroactively and held that defendant could raise the open and obvious danger doctrine as a defense. The trial court also held that the defect in the sidewalk was open and obvious as a matter of law and granted defendant's motion for summary disposition.

Plaintiff appealed the trial court's ruling, and the Court of Appeals affirmed in a split published decision. Buhl v. Oak Park , 329 Mich. App. 486, 942 N.W.2d 667 (2019). The majority held that MCL 691.1402a(5) applied retroactively and that plaintiff's claim was therefore barred by the open and obvious danger doctrine. Id. at 519-522, 942 N.W.2d 667. Conversely, the dissent concluded that retroactive application was inappropriate because the Legislature never manifested an intent for MCL 691.1402a(5) to apply retroactively and because doing so would impair plaintiff's vested rights. Id. at 524-525, 537-538, 942 N.W.2d 667 ( LETICA , J., dissenting).

Plaintiff timely sought leave to appeal in this Court. On April 17, 2020, this Court

968 N.W.2d 352

granted leave to appeal. Buhl v. Oak Park , 505 Mich. 1023, 941 N.W.2d 58 (2020).

507 Mich. 242


The trial court granted defendant's motion for summary disposition under MCR 2.116(C)(10). We review de novo a trial court's decision on a motion for summary disposition under MCR 2.116(C)(10). Honigman Miller Schwartz & Cohn, LLP v. Detroit , 505 Mich. 284, 294, 952 N.W.2d 358 (2020). When reviewing a motion brought under MCR 2.116(C)(10), "a trial court considers affidavits, pleadings, depositions, admissions, and documentary evidence filed in the action or submitted by the parties in the light most favorable to the party opposing the motion." Mich. Ass'n of Home Builders v. Troy , 504 Mich. 204, 211-212, 934 N.W.2d 713 (2019) (quotation marks and citations omitted). Summary disposition is appropriate when no genuine issues of material fact exist. El-Khalil v. Oakwood Healthcare, Inc. , 504 Mich. 152, 160, 934 N.W.2d 665 (2019). "A genuine issue of material fact exists when the record leaves open an issue upon which reasonable minds might differ." Id. (quotation marks and citation omitted).

This case also concerns the statutory interpretation and retroactive application of amended statutes. We review both these matters de novo. LaFontaine Saline, Inc. v. Chrysler Group, LLC , 496 Mich. 26, 34, 852 N.W.2d 78 (2014).


The GTLA protects municipalities from tort liability when they are engaged in governmental functions, unless a statutory exception applies to limit this immunity. Yono v. Dep't of Transp. , 499 Mich. 636, 645-646, 885 N.W.2d 445 (2016). A governmental function is an "activity that is expressly or impliedly mandated or

507 Mich. 243

authorized by constitution, statute, local charter or ordinance, or other law." MCL 691.1401(b). One such governmental function is the maintenance of sidewalks. MCL 691.1402a(1).

As noted earlier, MCL 691.1402a has been amended to add a provision that grants municipalities the right to raise the open and obvious danger doctrine as a defense in premises-liability cases. Compare MCL 691.1402a, as amended by 2012 PA 50, to MCL 691.1402a, as amended by 2016 PA 419. The current version of MCL 691.1402a states, in pertinent part:

(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.

* * *

(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.

Because MCL 691.1402a(5) was not enacted until after the incident in this case took place, the outcome here turns on whether this provision applies retroactively. We hold that it does not and that MCL 691.1402a(5) may only be applied to causes of action that accrued after the effective date of the amendment. In this case, because plaintiff's cause of action accrued before the effective date of MCL 691.1402a(5), the amendment may not be applied retroactively to bar her claim against defendant.

When determining whether a statute should be applied retroactively or prospectively, " ‘the primary and overriding

968 N.W.2d 353

rule is that legislative intent governs.

507 Mich. 244

All other rules of construction and operation are subservient to this principle.’ " Frank W. Lynch & Co. v. Flex Technologies, Inc. , 463 Mich. 578, 583, 624 N.W.2d 180 (2001) (citation and brackets omitted). In conducting this inquiry into the Legislature's intent, we follow the framework set forth in LaFontaine , which states:

First, we consider whether there is specific language providing for retroactive application. Second, in some situations, a statute is not regarded as operating retroactively merely because it relates to an antecedent event. Third, in determining retroactivity, we must keep in mind that retroactive laws impair vested rights acquired under existing laws or create new obligations or duties with respect to transactions or considerations already past. Finally, a remedial or procedural act not affecting vested rights may be given retroactive effect where the injury or claim is antecedent to the enactment of the statute. [ LaFontaine , 496 Mich. at 38-39, 852 N.W.2d 78 (citations omitted).]

These factors are colloquially known as the LaFontaine factors. As an initial matter, we note that the second factor does not apply to this issue because MCL 691.1402a(5) does not pertain to a specific antecedent event. In re Certified Questions from U.S. Court of Appeals for the Sixth Circuit , 416 Mich. 558, 571, 331 N.W.2d 456 (1982). Therefore, our examination of MCL 691.1402a(5) is confined to a review of the first, third, and fourth LaFontaine factors.


The first LaFontaine factor addresses whether there is specific language in the statute that indicates whether it should be applied retroactively. Id. at 570-571, 331 N.W.2d 456...

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