Glancy v. City of Roseville
Glancy v. City of Roseville
Opinion of the Court
These cases present the issue whether the second sentence of MCL 691.1407(1); MSA 3.996(107)(1), which affirms governmental immunity as it existed before July 1, 1965, codified the “two-inch rule”
These two cases arise out of slip and fall accidents involving sidewalk defects of less than two inches. In Glancy, the portion of sidewalk at issue was between IV4 and IV2 inches higher than the surrounding sidewalk. In Ashton, the sidewalk portion at issue was between 1 and IV2 inches higher than the surrounding sidewalk. Defendants in both cases moved for summary disposition under MCR 2.116(C)(7) and (10), contending that subsection 7(1) reinstated the two-inch rule. In each case, the trial court granted defendant’s motion for summary disposition, concluding that subsection 7(1) codified the two-inch rule into Michigan law. In Glancy, the Court of Appeals reversed, concluding that subsection 7(1) only preserved pre1965 immunity for the state, not other governmental entities, i.e., municipalities. 216 Mich App 390; 549 NW2d 78 (1996). In Ashton, the Court of Appeals reversed on the basis of Glancy. Ashton v Hazel Park, unpublished memorandum opinion of the Court of Appeals, issued April 4, 1997 (Docket No. 182876).
STANDARD OF REVIEW
Appellate review of a trial court ruling on a motion for summary disposition is de novo. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). “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.” Wade v Dep’t of Corrections, 439 Mich 158, 162; 483 NW2d 26 (1992).
MCR 2.116(C)(10) tests the factual support of a plaintiff’s claim. The court considers the affidavits, pleadings, depositions, admissions, and other documentary evidence submit*584 ted or filed in the action to determine whether a genuine issue of any material fact exists to warrant a trial. [Spiek, supra at 337.]
I. MUNICIPALITY LIABILITY FOR SIDEWALK DEFECTS
The governmental tort liability act, MCL 691.1401 et seq.) MSA 3.996(101) et seq., provides governmental immunity for governmental agencies, including municipalities like defendants here. “[T]he heart of the act, § 7, provides for broad immunity from tort liability for governmental agencies engaged in governmental functions.” Wade, supra at 166. “[Exceptions to governmental immunity are to be narrowly construed.” Id. MCL 691.1402(1); MSA 3.996(102)(1) sets forth the “highway exception” to governmental immunity. Subsection 2(1) states in pertinent 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 sustaining 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 condition reasonably safe and fit for travel, may recover the damages suffered by him or her from the governmental agency.
Subsection 2(1) requires municipalities to maintain sidewalks in “reasonable repair.”
H. AFFIRMATION OF PRE-1965 GOVERNMENTAL IMMUNITY
Subsection 7(1) of the governmental tort liability act, as amended in 1986, provides:
Except as otherwise provided in this act, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided in this act, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed before July 1, 1965, which immunity is affirmed.
The second sentence of subsection 7(1) “retains preexisting governmental immunity law except where provided otherwise in the act” and mandates an historical approach. Hadfield v Oakland Co Drain Comm’r, 430 Mich 139, 147, 170; 422 NW2d 205 (1988).
By its terms, this provision of subsection 7(1) applies to “the state.” MCL 691.1401; MSA 3.996(101) provides distinct definitions of “state” and “municipal corporation” and defines “governmental agency” to include both. In the context of the first sentence of subsection 7(1), which uses the term “governmental agencies,” the use of the term “the state” in the second sentence might be read to indicate that this provision applies only to the state, not to governmental agencies generally.
However, in Li v Feldt (After Remand), 434 Mich 584, 592-593, n 8; 456 NW2d 55 (1990), which involved tort liability of municipalities, this Court stated that
The present case does not require this Court to reconsider whether these authorities accord with the statutory language of subsection 7(1). Rather, this Court may assume, without deciding, that this provision of subsection 7(1) applies to municipalities because this provision would not affect the two-inch rule.
ID. WHETHER THE TWO-INCH RULE IS A GOVERNMENTAL IMMUNITY PRINCIPLE THAT SUBSECTION 7(1) WOULD AFFIRM
Here, defendants contend that the second sentence of subsection 7(1) mandates the continued application of the two-inch rule despite this Court’s abolition of it in 1972. The basis of the two-inch rule is the concept of “reasonable repair.” The highway exception, subsection 2(1) of the governmental tort liability act, subjects governmental agencies to liability when they fail to maintain highways in “reasonable repair.” The two-inch rule was a bright-line rule stating that
The roots of the two-inch rule can be traced to Weisse, supra, which involved injuries allegedly arising out of a defective crosswalk. The Weisse Court noted that, in 1887, the Legislature amended the statute, imposing a duty on municipalities to maintain highways so that it required “reasonable repair” rather than “good repair” and imposed a duty that streets be “reasonably safe,” not absolutely safe. 105 Mich 486-487. The Weisse Court concluded that the street at issue was reasonably safe despite the alleged defect of approximately two inches and held that the trial court should have given the defendant’s request to charge that “as a matter of law that no such defect existed as authorized a recovery.” Id. at 483.
In Rule, supra at 283, this Court abolished the two-inch rule:
[W]e will no longer hold as a matter of law that a depression or obstruction of two inches or less in a sidewalk may not be the basis for a municipality’s liability for negligence.
In abolishing the two-inch rule, the Rule Court relied on Justice Adams’ dissent in Harris, supra. Justice Adams stated that the two-inch rule “gradually hardened into a rule of law that where a defect in a walk was less than 2 inches in depth, the walk would be considered to be safe and the city free from negligence.” 367 Mich 531 (emphasis added). He agreed with Colorado authority indicating that it is improper to determine “actionable negligence” by an arbitrary measurement and concluded that the facts and circumstances of each case must be considered to deter
As this Court has previously noted, tort actions against governmental agencies generally raise two separate issues: 1) whether the plaintiff has pleaded a cause of action in avoidance of governmental immunity, and 2) whether the plaintiff can establish the elements of a negligence action.
The two-inch rule’s relationship to the statutory highway exception distinguishes it from common-law
Moreover, even with respect to immunity principles, subsection 7(1) does not preserve governmental immunity law in a time capsule as of July 1, 1965. Subsection 7(1) states that the act “shall not be construed as modifying or restricting” immunity as it existed before July 1, 1965. But this provision does not prohibit this Court from reconsidering and amending or abolishing pre-1965 precedent regarding governmental immunity. In Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 609; 363 NW2d 641 (1984), this Court reiterated that “ ‘to read the second sentence of [subsection 7(1)] as “preserving for all time state governmental immunity heretofore recognized by case-law” would be to “assume that the Legislature failed to recognize that the evolution of case law precedent is exclusively committed to the judicial branch of government.” ’ ”
IV. WHETHER TO ADOPT THE TWO-INCH RULE UNDER SUBSECTION 2(1)
Alternatively, defendants argue that even if subsec
CONCLUSION
For these reasons, we affirm the Court of Appeals decisions in both Glancy and Ashton. While we agree with the result in both cases, we analyze the issues differently than did the Court of Appeals. The two-inch rule is a rule of negligence, not a common-law principle of governmental immunity that the second sentence of subsection 7(1) would codify. Policy arguments in favor of adopting the two-inch rule as a bright-line threshold for lack of “reasonable repair” under subsection 2(1) should be addressed to the Legislature.
This Court articulated the two-inch rule as “a depression in a walk which does not exceed 2 inches in depth will not render a municipality liable for damages incident to an accident caused by such depression.” Harris v Detroit, 367 Mich 526, 528; 117 NW2d 32 (1962).
Subsection 2(1) specifically states that the duty of the state and counties to maintain highways does not include “sidewalks, crosswalks, or any other installation outside of the improved portion of the highway designed for vehicular travel.”
See, e.g., Canon v Thumudo, 430 Mich 326, 335; 422 NW2d 688 (1988) (“Courts should take care not to confuse their separate inquiries into immunity and negligence”).
In further support of the proposition that the two-inch rule bears on negligence rather than governmental immunity, the Ashton plaintiff notes that this Court has at least considered the two-inch rule in the context of actions against nongovernmental defendants. See Crowe v Michigan Central R Co, 142 Mich 692; 106 NW 395 (1906); Sherman v Consumers Power Co, 199 Mich 543; 165 NW 844 (1917). The Ashton plaintiff also notes that Williams v Detroit, 364 Mich 231; 111 NW2d 1 (1961), abolished common-law governmental immunity for municipalities. That it was still necessary for this Court to abolish the two-inch rule in Rule in 1972, after Williams, indicates that the two-inch rule is a rule of negligence, not a principle of immunity.
The version of subsection 7(1) applied in Ross affirmed immunity “as it existed heretofore”; in 1986 this portion of the statute was amended to “as it existed before July 1, 1965.”
An example of the adoption of a bright-line rule by statutory presumption is MCL 257.625a(9); MSA 9.2325(1)(9).
Concurring in Part
(concurring in part and dissenting in part). I concur with the result reached by the majority, and with much of its reasoning. However, I cannot join part iv of today’s opinion.
Defendants argue that, if we find that the two-inch rule was not revived by statute, we should revive the two-inch rule ourselves. I agree with the majority’s
I dissent because the majority, in an alternate position, rejects defendants’ argument that the Court should adopt the two-inch rule because it would be unconstitutional to do so. I agree that, in areas properly within the province of the Legislature, the Court may not formulate its own public policy and, on that basis, change a statute. However, nothing in the opinion convinces me that reviving the two-inch rule would violate that limitation, and therefore, I cannot join the portion of the opinion that implies as much. I hesitate to construe limitations placed on this Court by our constitution where it is not necessary to do so.
Reference
- Full Case Name
- Glancy v. City of Roseville; Ashton v. City of Hazel Park
- Cited By
- 54 cases
- Status
- Published