Moraccini v. City of Sterling Heights

• Decision Date: 01 May 2012
• Docket Number: Docket No. 301678.
• Citation: 296 Mich.App. 387,822 N.W.2d 799
• Parties: MORACCINI v. CITY OF STERLING HEIGHTS.
• Court: Court of Appeal of Michigan — District of US

296 Mich.App. 387

822 N.W.2d 799

MORACCINI

v.CITY OF STERLING HEIGHTS.

Docket No. 301678.

Court of Appeals of Michigan.

Submitted March 7, 2012, at Detroit.

Decided May 1, 2012, at 9:00 a.m.

Ishbia & Gagleard, P.C. (by Michael A. Gagleard, Birmingham, and Michelle S. Toma), for Antonio Moraccini.

O'Reilly Rancilio P.C. (by Lauren DuVal Donofrio), for the city of Sterling Heights.

Before: MURPHY, C.J., and HOEKSTRA and MURRAY, JJ.

MURPHY, C.J.

Defendant, the city of Sterling Heights, appeals as of right an order denying its motion for summary disposition in this tort liability action concerning an injury sustained by Antonio Moraccini that was allegedly caused by defects in a city sidewalk. The city, asserted governmental immunity as an affirmative defense and argued that the alleged defects pertained to a highway curb, not a sidewalk, which therefore fell within the jurisdiction of the county and not the city for purposes of the highway exception to governmental immunity, MCL 691.1402. We affirm, holding as a matter of law that, under MCL 691.1402a(1),¹ the site of the alleged defects constituted a portion of a county highway, i.e., part of an abutting sidewalk or other installation, existing outside the improved portion of the county highway designed for vehicular travel. Accordingly, the city is potentially liable under MCL 691.1402a, and the summary disposition motion was properly denied.

Plaintiff, Antonio Moraccini, alleged that he was operating his three-wheeled motorized scooter when the wheels of the scooter struck concrete defects and irregularities, catapulting him from the scooter to the ground and causing severe injuries. Moraccini described the concrete where the scooter's wheels became jammed as being uneven, damaged, and unstable, with deep cracks and crevices. Moraccini had been traveling down a sidewalk on the scooter and was about to cross a road, which indisputably fell within the jurisdiction of the county, when the accident occurred. The sidewalk was constructed by the city in 1977, and the contractor who built the sidewalk chipped or cut out the raised portion of the existing curb to bring the road flush with the sidewalk as required by MCL 125.1361.² The alleged defects were located at the base of the area comprising the curb cutout.

Moraccini filed suit, alleging negligence and asserting that the city had failed to keep the sidewalk in reasonable repair so as to make it reasonably safe and convenient for public travel. The city answered, alleging, in part, that it was shielded by governmental immunity. The city subsequently filed a motion for summary disposition pursuant to MCR 2.116(C)(7) (claim barred by immunity) and (10) (no genuine issue of material fact). The city conceded that it had jurisdiction over the sidewalk and was required to keep the sidewalk in reasonable repair. The city contended, however, that discovery had shown that Moraccini “fell as a result of an alleged defective condition in the curb and gutter portion of Macomb County's roadway....” The city argued that the county had jurisdiction over the road and the area of the curb cutout and that the sidewalk did not include the curb cutout. Therefore, according to the city, the defective-highway exception to governmental immunity, MCL 691.1402, did not apply. Moraccini countered that the curb cutout was part of the sidewalk, thereby making it the city's responsibility under MCL 691.1402. The trial court agreed with Moraccini and denied the city's motion for summary disposition, ruling that it was “persuaded that the area in question served as an extension of the sidewalk, particularly since there [was] no evidence that it was used for vehicular traffic.”

This Court reviews de novo a trial court's decision on a motion for summary disposition. Spiek v. Dep't of Transp., 456 Mich. 331, 337, 572 N.W.2d 201 (1998). The applicability of governmental immunity and the statutory exceptions to immunity are also reviewed de novo on appeal. Snead v. John Carlo, Inc., 294 Mich.App. 343, 354, 813 N.W.2d 294 (2011). MCR 2.116(C)(7) provides for summary disposition when a claim is “barred because of ... immunity granted by law....” The moving party may submit affidavits, depositions, admissions, or other documentary evidence in support of the motion if substantively admissible. Odom v. Wayne Co., 482 Mich. 459, 466, 760 N.W.2d 217 (2008). The contents of the complaint must be accepted as true unless contradicted by the documentary evidence. Id. We must consider the documentary evidence in a light most favorable to the nonmoving party for purposes of MCR 2.116(C)(7). RDM Holdings, Ltd. v. Continental Plastics Co., 281 Mich.App. 678, 687, 762 N.W.2d 529 (2008). “If there is no factual dispute, whether a plaintiff's claim is barred under a principle set forth in MCR 2.116(C)(7) is a question of law for the court to decide.” Id. But when a relevant factual dispute does exist, summary disposition is not appropriate. Id.

Except as otherwise provided, the governmental tort liability act (GTLA), MCL 691.1401 et seq., broadly shields and grants to governmental agencies immunity from tort liability when an agency is engaged in the exercise or discharge of a governmental function. MCL 691.1407(1); Duffy v. Dep't of Natural Resources, 490 Mich. 198, 204, 805 N.W.2d 399 (2011); Grimes v. Dep't of Transp., 475 Mich. 72, 76–77, 715 N.W.2d 275 (2006). “The existence and scope of governmental immunity was solely a creation of the courts until the Legislature enacted the GTLA in 1964, which codified several exceptions to governmental immunity that permit a plaintiff to pursue a claim against a governmental agency.” Duffy, 490 Mich. at 204, 805 N.W.2d 399. A governmental agency can be held liable under the GTLA only if a case falls into one of the enumerated statutory exceptions. Grimes, 475 Mich. at 77, 715 N.W.2d 275;Stanton v. Battle Creek, 466 Mich. 611, 614–615, 647 N.W.2d 508 (2002). An activity that is expressly or impliedly authorized or mandated by constitution, statute, local charter, ordinance, or other law constitutes a governmental function. Maskery v. Univ. of Mich. Bd. of Regents, 468 Mich. 609, 613–614, 664 N.W.2d 165 (2003). This Court gives the term “governmental function” a broad interpretation, but the statutory exceptions must be narrowly construed. Id. at 614, 664 N.W.2d 165. “A plaintiff filing suit against a governmental agency must initially plead his claims in avoidance of governmental immunity.” Odom, 482 Mich. at 478–479, 760 N.W.2d 217.

At the relevant time, the highway exception to governmental immunity provided in pertinent part:

Except as otherwise provided in [MCL 691.1402a ], 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. The liability, procedure, and remedy as to county roads under the jurisdiction of a county road commission shall be as provided in section 21 of chapter IV of 1909 PA 283, MCL 224.21. The duty of the state and the county road commissions to repair and maintain highways, and the liability for that duty, extends only to the improved portion of the highway designed for vehicular travel and does not include sidewalks, trailways, crosswalks, or any other installation outside of the improved portion of the highway designed for vehicular travel. [MCL 691.1402, as amended by 1999 PA 205 (emphasis added).] ³

At the time of the incident, “highway” was statutorily defined as “a public highway, road, or street that is open for public travel and includes bridges, sidewalks, trailways, crosswalks, and culverts on the highway [and it] ... does not include alleys, trees, and utility poles.” MCL 691.1401(e), as amended by 2001 PA 131 (emphasis added).⁴MCL 691.1402(1) imposed a general duty on municipalities to keep sidewalks under their jurisdiction in reasonable repair. Jones v. Enertel, Inc., 467 Mich. 266, 268, 650 N.W.2d 334 (2002). “[W]hile MCL 691.1402(1) exempts state and county road commissions from liability for injuries resulting from defective sidewalks, municipalities are not exempt; municipalities do have a duty to maintain sidewalks in reasonable repair.” Robinson v. City of Lansing, 486 Mich. 1, 7, 782 N.W.2d 171 (2010). “[W]hen MCL 691.1402(1) and MCL 691.1401(e) [definition of highway] are read together, it is clear that all governmental agencies except the state and county road commissions have a duty to maintain sidewalks in reasonable repair.” Id. at 8, 782 N.W.2d 171.

As indicated in the prefatory language of MCL 691.1402(1), the statute applied except as otherwise provided in MCL 691.1402a. In relevant part, MCL 691.1402a(1) previously provided:

Except as otherwise provided by this section, a municipal corporation has no duty to repair or maintain, and is not liable for injuries arising from, a portion of a county highway outside of the improved portion of the highway designed for vehicular travel, including a sidewalk, trailway, crosswalk, or other installation. This subsection does not prevent or limit a municipal corporation's liability if both of the following are true:

(a) 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 a defect in a sidewalk, trailway, crosswalk, or other installation outside of the improved portion of the highway designed for vehicular travel.

(b) The defect described in subdivision (a) is a proximate cause of the injury, death, or damage.⁵

We hold that MCL 691.1402a, in conjunction...