Haliw v. City of Sterling Heights

• Decision Date: 12 June 2001
• Docket Number: Docket No. 115686, Calendar No. 10.
• Citation: Haliw v. City of Sterling Heights, 627 N.W.2d 581, 464 Mich. 297 (Mich. 2001)
• Parties: Valeria HALIW and Ilko Haliw, Plaintiffs-Appellees, v. The CITY OF STERLING HEIGHTS, Defendant-Appellant.
• Court: Michigan Supreme Court

627 N.W.2d 581

464 Mich. 297

Valeria HALIW and Ilko Haliw, Plaintiffs-Appellees, v.The CITY OF STERLING HEIGHTS, Defendant-Appellant.

Docket No. 115686, Calendar No. 10.

Supreme Court of Michigan.

Argued November 16, 2001.

Decided June 12, 2001.

Haliw, Siciliano & Mychalowych, P.L.C.(by Raymond L. Feul), Farmington Hills, for the plaintiffs-appellees.

O'Reilly, Rancilio, Nitz, Andrews, Turnbull & Scott, P.C.(by Bert T. Ross), Sterling Heights, for the defendant-appellant.

Amicus Curiae: Johnson, Rosati, Labarge, Aseltyne & Field, P.C.(by Marcia L. Howe), Farmington Hills, for Michigan Municipal Risk Management Authority.

Plunkett & Cooney, P.C.(by Christine D. Oldani and Mary Massaron Ross), Detroit, for Michigan Municipal League Liability and Property Pool.

Opinion

MARKMAN, J.

We granted defendantcity of Sterling Heights' application for leave to appeal in this case to decide the proper application of the "natural accumulation" doctrine to municipal liability.Because we conclude that the natural accumulation of ice or snow on the sidewalk at issue does not give rise to an actionable breach of defendant's duty, and the claimed depression in the sidewalk was not an independent defect, plaintiff cannot prove the elements required to establish a negligence claim against a governmental agency.¹Accordingly, we reverse the judgment of the Court of Appeals, and remand to the Macomb Circuit Court for entry of an order granting summary disposition in favor of defendant.

I.FACTS AND PROCEEDINGS

On January 29, 1996, plaintiff was walking on a snow-covered sidewalk located in her neighborhood.Plaintiff claims that she slipped and fell on a patch of ice that had formed on the sidewalk.²Apparently, the ice had formed in a depressed portion where two sections of the sidewalk met.According to plaintiff, it had snowed before the incident, and the sidewalk had not yet been shoveled.

Anna Marson, plaintiff's neighbor and the homeowner nearest the portion of sidewalk at issue here, stated that, although the depression at the joint of the two cement slabs allowed water to settle, there was no raised edge or gap between the two slabs, and neither slab was actually broken.According to Marson, even in the winter, when "it just snows it would melt and there would be nothing [i.e., no ice] there.But this [time], it happened to rain [before plaintiff's slip and fall] and there was ice...."Marson, who provided aid to plaintiff just after her fall, stated that plaintiff told her that she had slipped on the ice that had formed on the sidewalk.

Plaintiff retained an engineering expert, Theodore Dziurman, who performed an inspection of the portion of sidewalk upon which plaintiff claimed ice had formed.³According to Dziurman, there was a "depression" where two slabs of the concrete sidewalk met, although he stated that there was no separation between the two slabs, and that "it [was] not any different than [a] normal joint, not unusual."It was Dziurman's opinion that, because of the presence of the depression, water was allowed to "pond" at that point resulting in the formation of ice under the proper weather conditions.When Dziurman was asked if the depression presented a dangerous or defective condition in the sidewalk in the absence of ice, the following colloquy ensued:

Q.When there is no rain and no freezing, is there anything particularly defective or dangerous about that condition in and of itself?

A.It could be dangerous to someone that wasn't expecting a depression there that could throw them off stride when they are walking causing them to stumble or fall.Someone riding on a bicycle if they are going real fast, they could hit the bottom of that thing and cause the bike to go out of control.There are possibilities of other accident potential because of that sunken condition.

Q.Do you have any information any of those things ever happened to that sidewalk slab?

A.No, I don't.

Q.Your statements about what could happen are theoretical; correct?

A.I think you asked me that.

As a result of her fall, plaintiff suffered a broken ankle that required surgical intervention and thereafter initiated a lawsuit against defendant.In response, defendant filed a motion for summary disposition, brought pursuant to MCR 2.116(C)(7) and (10).The trial court denied defendant's motion, and the Court of Appeals, in an unpublished opinion, affirmed, stating that

[i]n addition to the presence of snow and ice, plaintiffs allege there was a defect in the sidewalk itself, and therefore their claim is not barred by the natural accumulation doctrine....Here, plaintiffs presented evidence creating a genuine issue of material fact regarding whether the sidewalk where [plaintiff] fell was reasonably safe for public travel.[Issued October 5, 1999(Docket No. 206886), slip op at 1-2.]

II.STANDARD OF REVIEW

We review the grant or denial of summary disposition de novo.Maiden v. Rozwood,461 Mich. 109, 118, 597 N.W.2d 817(1999)."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."Glancy v. Roseville,457 Mich. 580, 583, 577 N.W.2d 897(1998).

In reviewing a motion for summary disposition brought under MCR 2.116(C)(10), we must consider the 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.Quinto v. Cross & Peters Co.,451 Mich. 358, 362, 547 N.W.2d 314(1996).Summary disposition may be granted if the evidence demonstrates that there is no genuine issue with respect to any material fact, and the moving party is entitled to judgment as a matter of law.Id.As with motions for summary disposition, we also review questions of statutory construction de novo as questions of law.Donajkowski v. Alpena Power Co.,460 Mich. 243, 248, 596 N.W.2d 574(1999).

III.GOVERNMENTAL IMMUNITY

The governmental tort liability act, M.C.L. § 691.1401 et seq., provides immunity for governmental agencies, including municipalities like defendant.It is well settled in this state that governmental agencies are immune from tort liability while engaging in a governmental function unless an exception applies.⁴MCL 691.1407;Nawrocki v. Macomb Co. Rd. Comm.,463 Mich. 143, 156, 615 N.W.2d 702(2000);Suttles v. Dep't of Transportation,457 Mich. 635, 641, 578 N.W.2d 295(1998);Ross v. Consumers Power Co. (On Rehearing),420 Mich. 567, 591, 363 N.W.2d 641(1984).The immunity conferred on governmental agencies is broad, and the exceptions narrowly drawn.⁵Nawrocki, supra at 149, 615 N.W.2d 702;Ross, supra at 618, 363 N.W.2d 641.

The only exception implicated in the present case is the so-called "highway exception" to governmental immunity, which is set forth in M.C.L. § 691.1402, and provides in 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 who sustains 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 a condition reasonably safe and fit for travel may recover the damages suffered by him or her from the governmental agency.⁶

Pursuant to subsection 1402(1), the duty to maintain public sidewalks in "reasonable repair" falls on local governments, including cities, villages, and townships.SeeChaney v. Dep't of Transportation,447 Mich. 145, 172, n. 2, 523 N.W.2d 762(1994);Mason v. Wayne Co. Bd. of Comm'rs,447 Mich. 130, 136, n. 6, 523 N.W.2d 791(1994).Accordingly, a municipality's maintenance and repair of its sidewalks is the performance of a governmental function.MCL 691.1401(f).⁷

However, as we noted in Suttles, simply asserting that an action falls within the "highway exception" to governmental immunity is not the end of the analysis:

In every instance where a plaintiff alleges a cause of action based on the highway exception to governmental immunity, M.C.L. § 691.1402(1);MSA 3.996(102)(1), the court must engage in a two-step analysis.[Id. at 651, n. 10, 578 N.W.2d 295.]

First, it must be determined whether the plaintiff has pleaded a cause of action in avoidance of governmental immunity.Second, where a plaintiff successfully pleads in avoidance of governmental immunity, i.e., that the alleged injury occurred in a location encompassed by M.C.L. § 691.1402(1), the plaintiff must still prove, consistent with traditional negligence principles, the remaining elements of breach, causation, and damages contained within the statute.Id.,see alsoNawrocki, supra at 172, n. 29, 615 N.W.2d 702.The statute at issue contains the duty element of these principles; namely, the duty of a municipality to "maintain" the sidewalk "in reasonable repair so that it is reasonably safe and convenient for public travel."MCL 691.1402(1).⁸SeeJohnson v. Pontiac,276 Mich. 103, 105, 267 N.W. 795(1936), explaining that "[t]he liability of cities for this class of cases is statutory ... and it is the duty of defendant to keep its sidewalk in repair."Concepts such as the "natural accumulation" doctrine, see below, are pertinent to this second step of the analysis.SeeJohnson, supra, stating that a plaintiff cannot recover if an injury is due "solely to the presence of ice or snow"(emphasis added).

IV.THE NATURAL ACCUMULATION DOCTRINE

"It has long been the law in this state ... that a governmental agency's failure to remove the natural accumulations of ice and snow on a public highway does not signal negligence of that public authority."Stord v. Transportation Dep't,186 Mich.App. 693, 694, 465 N.W.2d 54(1991).The following cases present an overview of the "natural accumulation" doctrine as it relates to public sidewalks, and municipal defendan...