The opinion
STATE OF MICHIGAN
COURT OF APPEALS
HELEN LEVENSON, UNPUBLISHED
December 26, 2017
Plaintiff-Appellee,
v No. 336231
Washtenaw Circuit Court
CITY OF ANN ARBOR, LC No. 15-001284-NO
Defendant-Appellant.
Before: MURPHY, P.J., and M. J. KELLY and SWARTZLE, JJ.
PER CURIAM.
Defendant, City of Ann Arbor (the city), appeals as of right the trial court’s order denying
the city’s motion for summary disposition under MCR 2.116(C)(7) in this action involving
allegations by plaintiff that she tripped on a defect in a city sidewalk, causing her to fall and
sustain injuries. The city asserts that it is protected by governmental immunity and that
plaintiff’s reliance on the sidewalk exception to immunity under MCL 691.1402a fails as a
matter of law. The city contends that, for purposes of MCL 691.1402a, plaintiff did not submit
adequate admissible evidence to show the pre-accident existence of the alleged defect for 30
days, actual or constructive knowledge of the defect by the city, a vertical discontinuity defect of
two or more inches, and a dangerous sidewalk condition of a character unrelated to a vertical
discontinuity. The focal point of the city’s argument is that the opinions expressed by plaintiff’s
expert that would otherwise support application of the sidewalk exception are not admissible
under MRE 702. We affirm.
I. BACKGROUND
A. THE COMPLAINT
In December 2015, plaintiff filed an action against the city, alleging in the complaint that
“[o]n September 7, 2014, while on the sidewalk adjacent to the property known as the Jolly
Pumpkin located at 311 S. Main Street in the [c]ity . . ., the [p]laintiff . . . did trip and fall as a
direct and proximate result of a depressed, cracked, broken, and unlevel section of concrete.”
For ease of reference and simplicity’s sake, and consistent with the four photographs in the lower
court record, we shall refer to the alleged defect as the “hole” in the sidewalk. Plaintiff alleged
that the city knew or should have known about the hole and that the city breached its duty of care
owed to plaintiff in numerous ways, including a failure to warn of the hazard and a failure to
maintain the sidewalk in a reasonably safe condition. Plaintiff contended that she suffered,
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amongst other injuries, “[a] calcaneal fracture requiring an open reduction with internal
fixation,” as directly and proximately caused by the breaches of the duty of care. Plaintiff
asserted that she incurred economic and noneconomic damages as a result of the fall.
B. DOCUMENTARY EVIDENCE
The parties submitted documentary evidence in support of their respective positions with
regard to the city’s motion for summary disposition. The evidence reflected that in November
2011, the residents of the city passed a millage to cover sidewalk repairs. On the basis of this
funding, the city crafted a five-year plan to repair its sidewalks. Under the plan, which
encompassed 2012 through 2016, 20 percent of the city’s sidewalks were to be inspected and
repaired in a given year until 100 percent of the sidewalks were addressed by the end of the five
years. With respect to prioritization of areas in the city under the plan, although the timing of
pre-2012 repairs was a factor taken into consideration, there was no initial assessment of need or
condition in determining what areas would first be served. For example, the 20 percent of city
sidewalks covered in year one, 2012, did not come first because of any particular determination
that said area had the most deteriorated sidewalks compared to other areas. There was testimony
that the city lacked adequate resources to do an initial city-wide inspection to identify areas most
in need of sidewalk repairs. The city does have a program called A2 Fix It, which is an
application for mobile devices that allows residents to notify city officials about infrastructure
problems such as potholes and sidewalk defects. Under the five-year plan, the area of plaintiff’s
trip and fall was not scheduled for inspection and repair until 2015; the fall occurred in
September 2014.
There is no dispute that there is typically heavy pedestrian traffic where the incident
occurred, which was in the vicinity of the Jolly Pumpkin restaurant. In her deposition, plaintiff,
a college librarian who was walking with a friend at the time of the fall, gave the following
description of what transpired:
We were walking down the sidewalk. It was very, very crowded. And I
tripped and fell flat on my face. My foot curved in. There was nothing supporting
it.
Plaintiff testified that it was clear and sunny when she tripped on the hole in the sidewalk outside
the restaurant. Later that day, her friend took four photographs of the hole, one of which showed
plaintiff standing on the spot of the fall with one sandaled foot in the hole. Plaintiff explained
that an employee of the restaurant helped her up and went to get the restaurant’s manager. A
restaurant employee provided plaintiff with a bag of ice and a damp cloth, and eventually the
manager, a male, came outside and spoke to plaintiff. Plaintiff testified that she did not know the
manager’s name. She further indicated that the manager informed her that the hole was the
city’s and not the restaurant’s responsibility and that the restaurant had contacted the city several
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times in the past about the hole but nothing was ever done. The manager did not execute an
affidavit or testify in a deposition during the lower court proceedings.1
As revealed in e-mails between city personnel, the manager of the restaurant called the
city within a day or two of the accident and complained about the sidewalk hole. The e-mails
further indicated that the hole was patched by September 9, 2014. 2 As part of discovery, the city
subpoenaed the restaurant requesting any e-mails between the city and the restaurant covering
the period from August 1 to October 1, 2014. The restaurant responded that none could be
identified or located.
A project engineer who oversaw the city sidewalk program testified that he could not say
how long the hole had existed prior to plaintiff’s fall. He acknowledged that the photographs of
the hole taken by plaintiff’s friend revealed that the hole had previously been patched, but he
could not ascertain when that took place. The project engineer stated that he certainly would
have noticed the hole had he inspected the area. He testified that the depth of the hole could not
be discerned from simply looking at the photographs. He conceded that he would have no basis
to disagree if plaintiff’s expert opined that the sidewalk, given the hole, was not in reasonable
repair. A city sidewalk inspector testified that on his review of the photographs, he believed that
the hole was wider and longer than two inches and that, as to the hole’s depth, it was “close to 2
inches,” either a little below or above. He could not tell how long the hole had been in existence.
The inspector testified that the photographs revealed that a prior concrete repair had been made
to the area of the hole, but he could not put a timeframe on when that repair was made. He also
stated that asphalt was used to patch the hole after the accident as a temporary repair. The
inspector agreed that the hole was a tripping hazard.
1
At the hearing on the city’s motion for summary disposition, plaintiff’s counsel indicated that,
through the efforts of a private investigator, counsel had identified and spoke with an employee
of the Jolly Pumpkin who was prepared to testify that the hole had indeed existed for several
months prior to plaintiff’s fall. It is not clear whether this employee was the manager alluded to
by plaintiff in her deposition. The trial court did not appear to take into consideration the claims
by plaintiff’s counsel regarding this employee when ruling to deny the summary disposition
motion. After the trial court denied the city’s motion for summary disposition, plaintiff filed a
motion to amend her witness list in order to add the above-referenced Jolly Pumpkin employee
as a witness, along with yet another employee. The lower court record contains no ruling on the
motion, presumably because the city had filed the instant appeal. Given the procedural posture
of the case, we cannot take into consideration the purported claims of the Jolly Pumpkin
employee for purposes of analyzing the appellate issues. We would note, however, that had we
concluded that the city had raised valid arguments associated with the 30-day statutory provision,
we nonetheless would have contemplated a remand for a ruling by the trial court on whether it
would be proper, at this late stage of the litigation, to consider the employee’s claims in relation
to the city’s entitlement to summary disposition, assuming sufficient proof of the employee’s
claims.
2
Again, the accident occurred on September 7, 2014.
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This case turns on the report, testimony, and opinions of plaintiff’s expert. He is a long-
time civil engineer who has done an equal amount of work on behalf of plaintiffs and defendants
over the years. In a preliminary report prepared by plaintiff’s expert, he offered the following
opinions that were based on his review of five deposition transcripts and the four photographs:
1. The defect appears to be several months old. There is no debris
from the original permanent patch present. The hole appears to be partially filled
with dirt and pebbles that would have accumulated over time. The edges of the
hole appear to be slightly eroded and rounded off. Finally, the adjacent concrete
appears to contain hairline cracks. Water can easily infiltrate into this type of
crack and, when frozen, the water expands and causes spalling of the concrete. I
understand the accident happened on September 7, 2014. The most recent
freezing weather would have been in March or perhaps April several months
prior.
2. Ample time was available between the spalling and the incident to
have detected and repaired the hole.
3. Although I understand the hole has since been repaired and is no
longer available for inspection and measurement, it does appear from the photos
that at least one edge is two inches deep and the bottom of the hole is uneven.
4. I also understand that the hole had at one time been repaired with
“cold patch.” If my understanding of “cold patch” is the same as the City’s, this is
a totally inappropriate method of patching a concrete sidewalk. It would be okay
for a temporary fix in road pavement but not a concrete walk.
5. Finally, I find it hard to understand how a five year repair program
could be addressed by inspecting only 20% of the sidewalks at a time. It would
seem that a serious defect in some other area would be overlooked in favor of a
minor defect in the area being inspected. In my opinion, a more reasonable
approach would have been to find all the defects in the entire City inventory of
concrete walks, prioritize them and then attack the most serious in year 1, the
second most serious in year 2, etc.
Subsequently, plaintiff’s expert testified in a deposition. There were certain steps that the
expert conceded he had not undertaken in forming his opinions. These included not taking any
measurements or conducting any testing at the accident scene, not going to, surveying, or
photographing the sidewalk in person, not interviewing employees or owners of surrounding
businesses, not examining plaintiff’s sandals to help in gauging the depth of the hole, not
assessing pedestrian traffic and travel patterns at the site, and not contemplating whether the hole
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was caused by erosion. 3 When asked why he formed the opinion that the hole had existed for
several months prior to the accident, he testified as follows:
Well, because from Exhibit No. 4 [photograph], I can see some . . . other
patch material that was in there or perhaps it’s some of the original concrete, but
it’s got a hairline crack in it, and those hairline cracks are particularly susceptible
to water infiltration. Water expands when it freezes, and it would have caused
spa[l]ling[4] of the concrete. I’ve seen this type of damage on other concrete
surfaces. And I thought, well, when was the last time we had freezing weather in
Ann Arbor? March, April maybe. . . . .
Plaintiff’s expert additionally explained that water can infiltrate sidewalk cracks, that
cold weather can then freeze the water in the cracks and cause expansion, and that the expansion
can cause the surrounding concrete to pop and come out in chunks or pieces. He noted that the
photographs showed cracked pieces of concrete around the hole that were still in place but ready
to come or pop out, as had occurred where the hole existed. Plaintiff’s expert further testified
that the photographs reflected that the edges of the hole were slightly rounded off, appearing to
have been scuffed by people walking back and forth, thereby causing the rounding, which
“would have taken a period of time . . . to happen.”
Plaintiff’s expert acknowledged that the hole conceivably could have been created by
something heavy dropping on the sidewalk, but he opined to a reasonable degree of scientific
certainty that the hole had existed for several months before plaintiff fell and was formed by the
expansion of frozen water in the cracks and spalling, as part of the freeze-thaw cycle. He
admitted that he did not have personal knowledge of water infiltrating the cracks. The expert
additionally testified as follows upon questioning by the city’s attorney:
Q. [I]n terms of basing your opinion that this was caused by water
infiltrating cracks, that is . . . speculation, is it not?
A. I don’t know if I would call it speculation. Based on my experience
with cracks and concrete, this is what happens.
3
The expert testified that he asked plaintiff’s counsel whether he should travel to the scene of the
accident in order to examine the sidewalk, and counsel responded that there was nothing to see
because the city had repaired the hole. The expert indicated that had he gone to the scene, and
assuming that he could have removed patch material or taken a core of it from the former hole
and done so without destroying the parent material lying underneath, he may have been “able to
get a better idea of the thickness” of the patch.
4
The expert was later asked to define “spalling,” and he responded:
Concrete breaks off as opposed to being chipped away with a hammer and
a chisel. Spa[l]ling is because there’s maybe a hairline crack where water could
have gotten in or perhaps some sort of foreign material in there that the concrete
didn’t adhere to, and it would pop off. That’s what I mean by spa[l]ling.
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He acknowledged that he did not know for sure whether the most recent freeze preceding the
September 2014 accident was in March or April of 2014, or some other month that spring or
winter.
With respect to the presence of dirt, pebbles, and other debris in the hole, plaintiff’s
expert agreed that it was possible that the debris had blown into the hole within a short time
period and that the debris did not necessarily take several months to accumulate in the hole.5 In
regard to the expert’s opinion, found in the preliminary report, that it appeared from the
photographs that at least one edge of the hole was two inches deep, he testified that this
conclusion was based in part on plaintiff’s sandaled foot, along with his previous experience in
assessing the depth of defects in association with the so-called two-inch rule. He did concede
that a layperson could likely make the same assessment.6 Plaintiff’s expert testified that the
length and width of the hole was more than two inches. The following colloquy then took place
between the expert and the city’s attorney:
Q. And would you consider the length and the width of the defect to
be a dangerous condition in the sidewalk itself of a particular
character other than solely a vertical discontinuity?
A. Yes. The volume of that hole is important.
Finally, the expert testified that the cold patch repair of the hole after the fall with
“asphalt tar” was not a proper permanent fix for the hole because the material would not adhere
to the surrounding concrete and thus be susceptible to being displaced by pedestrians walking on
it.
C. PROCEDURAL HISTORY
In November 2016, following the close of discovery, the city filed a motion for summary
disposition under MCR 2.116(C)(7) and (10), attaching documentary evidence in support of the
motion. The city maintained that plaintiff could not successfully invoke the “sidewalk
exception” to governmental immunity pursuant to the requirements of MCL 691.1402a, because
the city did not have actual or constructive knowledge of the alleged defect, because plaintiff had
no admissible evidence that the alleged defect was in existence in excess of the requisite 30-day
period prior to the fall, and because plaintiff could not meet her burden of establishing the
existence of an actual defect, as necessary to overcome the statutory presumption that the
sidewalk was in reasonable repair. The primary premise of the city’s motion for summary
disposition was that the opinions of plaintiff’s expert were purely speculative and not admissible
under MRE 702. Plaintiff responded and contested the city’s claims, submitting documentary
5
At a different stage of the expert’s deposition, he observed, “I don’t know how long it’s
[debris] been there, but that would have taken some time to accumulate.”
6
Earlier in his deposition, the expert stated that it did not take an advanced degree or experience
to determine the depth of a hole.
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evidence in support of her position and relying heavily on the opinions of her expert, which
plaintiff argued were admissible under MRE 702 and were not speculative.
At the hearing on the city’s motion for summary disposition, the trial court, ruling from
the bench, denied the motion. The trial court determined that plaintiff had “offered expert
testimony based on legitimate and scientific reasons that the sidewalk defect outside the Jolly
Pumpkin restaurant was several months old[,]” and that there was “ample time between spalling
of the concrete and accident to repair it.” The court also observed that plaintiff’s expert, and
possibly one of the city’s own employees, indicated that the hole constituted a two-inch vertical
discontinuity. Finally, the trial court, relying on MCL 691.1403, found that plaintiff had shown
that the hole had existed so as to be readily apparent to an ordinarily observant person for a
period of 30 days or longer before plaintiff was injured, thereby entitling plaintiff to a conclusive
presumption that the city had knowledge of the hole and time to repair it.
II. ANALYSIS
A. STANDARDS OF REVIEW AND MCR 2.116(C)(7)
In Moraccini v City of Sterling Hts, 296 Mich App 387, 391; 822 NW2d 799 (2012), this
Court, addressing the standard of review in a case entailing a claim of governmental immunity,
explained:
This Court reviews de novo a trial court's decision on a motion for
summary disposition. The applicability of governmental immunity and the
statutory exceptions to immunity are also reviewed de novo on appeal. 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. The contents of the complaint must be accepted as true
unless contradicted by the documentary evidence. We must consider the
documentary evidence in a light most favorable to the nonmoving party for
purposes of MCR 2.116(C)(7). 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. But when a relevant factual dispute does exist,
summary disposition is not appropriate. [Citations, quotation marks, and ellipses
omitted.]
In the context of examining whether a trial court properly deemed documentary evidence
to be admissible or inadmissible for purposes of rendering a ruling on a motion for summary
disposition, our review is for an abuse of discretion, although questions of law underlying the
evidentiary ruling are reviewed de novo. Elher v Misra, 499 Mich 11, 21; 878 NW2d 790
(2016).
B. GOVERNMENTAL IMMUNITY
The Moraccini panel set forth the basic analytical framework with respect to actions
against governmental entities, observing as follows:
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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. 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. A governmental agency can be held liable under the GTLA
only if a case falls into one of the enumerated statutory exceptions. An activity
that is expressly or impliedly authorized or mandated by constitution, statute,
local charter, ordinance, or other law constitutes a governmental function. This
Court gives the term “governmental function” a broad interpretation, but the
statutory exceptions must be narrowly construed. A plaintiff filing suit against a
governmental agency must initially plead his claims in avoidance
of governmental immunity. [Citations and quotation marks omitted.]
C. THE SIDEWALK EXCEPTION TO GOVERNMENTAL IMMUNITY
At the time of the alleged trip and fall, MCL 691.1402a, which pertains to municipal
sidewalks, provided:
(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.
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(5) 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. [See 2012 PA 50, effective March 13, 2012.7]
With respect to the 30-day knowledge provision in MCL 691.1402a(2), our Supreme
Court in Bernardoni v City of Saginaw, 499 Mich 470, 474; 886 NW2d 109 (2016), tied it to
MCL 691.1403, which provides:
No governmental agency is liable for injuries or damages caused by
defective highways unless the governmental agency knew, or in the exercise of
reasonable diligence should have known, of the existence of the defect and had a
reasonable time to repair the defect before the injury took place. Knowledge of the
defect and time to repair the same shall be conclusively presumed when the defect
existed so as to be readily apparent to an ordinarily observant person for a period
of 30 days or longer before the injury took place. [Emphasis added.]
“[T]o invoke the highway exception as it pertains to sidewalks, a plaintiff must show that
the defect existed at least 30 days before the accident.” Bernardoni, 499 Mich at 474.
“Generally, the question of whether a street defect, otherwise actionable against the municipality,
has existed a sufficient length of time and under such circumstances that the municipality is
deemed to have notice is a question of fact, and not a question of law.” Id. (quotation marks
omitted). In Bernardoni, the Supreme Court held:
[F]or purposes of the highway exception, plaintiff's photographs of a
sidewalk defect taken about 30 days after an accident alone do not create a
genuine issue of material fact as to whether the sidewalk defect existed at least 30
days before the accident. Without more, a jury has no basis for concluding that the
defect was present for the requisite period of time. Because plaintiff has provided
photographs of the defect only as it existed about 30 days after her fall and has not
explained why these photographs indicate the state of the sidewalk 60 days
earlier, she cannot withstand summary disposition. [Id. at 476.]
Our Supreme Court further explained:
The necessary inference that would connect the photographs to the
sidewalk's condition 60 days earlier becomes tenable only with additional
evidence. Absent such evidence, one can imagine any number of scenarios in
which the defect formed within 60 days of when the photographs were taken. Yet
plaintiff has offered no evidentiary support of any kind for her assumptions that
7
Pursuant to 2016 PA 419, which was made effective January 4, 2017, the Legislature added a
provision that a municipal corporation can raise “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). The city does not argue that the
amendatory language is applicable to this case.
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the defect existed for the necessary amount of time. For example, she has offered
no affidavits from neighbors who viewed the sidewalk 30 days before the
accident, nor did she introduce expert testimony demonstrating that the sidewalk
discontinuity was of a type that usually forms or enlarges over a long period of
time. Such additional evidence might have narrowed or closed the inferential gap
between the photographs and the conclusions plaintiff and the Court of Appeals
drew from them. Instead, plaintiff's attempt to prove the sidewalk's past condition
simply by proving its current condition fails, as more is needed to explain why the
current condition is probative of the past condition. [Id. at 475-476.]
D. DISCUSSION AND RESOLUTION
On appeal, the city first argues that there was no admissible evidence that the city had
actual or constructive notice that the alleged defect – the hole – had been in existence for 30 or
more days prior to the accident. Closely tied to this argument is the city’s additional contention
that there was no admissible evidence that the hole had even actually been in existence for the
requisite 30-day period. The underlying premise of these arguments is twofold. First, the city
maintains that plaintiff’s deposition testimony about the Jolly Pumpkin manager informing her
that the restaurant had previously complained to the city about the hole without a response was
inadmissible hearsay. Second, the city argues that the opinions of plaintiff’s expert were
impermissibly speculative and not admissible under MRE 702. We disagree with the latter
argument, but agree with respect to the former proposition.
In order for documentary evidence to be considered in ruling on a motion for summary
disposition, the evidence must be admissible in content, although it need not be in admissible
form, e.g., an affidavit. Maiden v Rozwood, 461 Mich 109, 124 n 6; 597 NW2d 817 (1999).
Plaintiff could not testify at trial that the Jolly Pumpkin’s manager claimed that the restaurant
had previously complained to the city about the hole, with the complaints falling on deaf ears.
Such testimony would clearly constitute inadmissible hearsay, as plaintiff would be offering the
statement to prove the truth of the matter asserted, MRE 801(c), and no applicable hearsay
exception is readily apparent, MRE 803. Again, there is no affidavit or deposition testimony
from the manager himself. However, there is no indication in the record that the trial court, in
making its ruling, placed any weight or reliance whatsoever on plaintiff’s testimony regarding
the manager’s comments. Accordingly, there is no basis for reversal on this issue. Absent
consideration of the testimony by plaintiff concerning the manager’s remarks, plaintiff’s case
either fails or goes forward depending on the admissibility of the opinions by plaintiff’s expert,
as there is no other evidence that would support application of the sidewalk exception under
MCL 691.1402a.
With respect to plaintiff’s expert, MRE 702 governs the admissibility of expert
testimony, providing:
If the court determines that scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine a
fact in issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education may testify thereto in the form of an opinion or otherwise if
(1) the testimony is based on sufficient facts or data, (2) the testimony is the
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product of reliable principles and methods, and (3) the witness has applied the
principles and methods reliably to the facts of the case.
In Elher, 499 Mich at 22-23, our Supreme Court discussed the nature of MRE 702,
stating:
This rule requires the circuit court to ensure that each aspect of an expert
witness's testimony, including the underlying data and methodology, is reliable.
MRE 702 incorporates the standards of reliability that the United States Supreme
Court articulated in Daubert v Merrell Dow Pharm, Inc[, 509 US 579; 113 S Ct
2786; 125 L Ed 2d 469 (1993),] in order to interpret the equivalent federal rule of
evidence. Under Daubert, the trial judge must ensure that any and all scientific
testimony or evidence admitted is not only relevant, but reliable. A lack of
supporting literature, while not dispositive, is an important factor in determining
the admissibility of expert witness testimony. Under MRE 702, it is generally not
sufficient to simply point to an expert's experience and background to argue that
the expert's opinion is reliable and, therefore, admissible. [Citations and
quotation marks omitted.]
Although the exercise of the gatekeeper role under MRE 702 falls within a trial court’s
discretion, a court may neither abandon the obligation nor perform the function inadequately.
Gilbert v DaimlerChrysler Corp, 470 Mich 749, 780; 685 NW2d 391 (2004).
We conclude that the city’s arguments challenging the admissibility of the opinions
espoused by plaintiff’s expert go to the weight and credibility of the opinions, not to their
admissibility. See Surman v Surman, 277 Mich App 287, 309-310; 745 NW2d 802 (2007) (a
trial court's doubts regarding credibility, or the opposing party's disagreement with an expert's
interpretation of facts or opinion, present issues concerning the testimony’s weight, not its
admissibility); see also Ykimoff v Foote Mem Hosp, 285 Mich App 80, 101; 776 NW2d 114
(2009) (citing Surman and indicating that the “defendant is confusing the admissibility of the
testimony with the weight to be attributed to the expert's opinion”). Initially, we note that the
city does not dispute the general science that the freeze-thaw cycle in conjunction with water
infiltration of concrete cracks can cause the concrete to break apart or spall.8 Rather, the city
contends that plaintiff’s expert is engaging in pure speculation by opining that this was the
physical mechanism by which the hole in front of the Jolly Pumpkin was actually created, given
that other possibilities existed, e.g., something heavy being dropped on the sidewalk. The city
maintains that the expert’s opinions were not based on sufficient facts, nor did the expert apply
the accepted scientific principles reliably to the facts in this case. We disagree.
As pointed out by plaintiff’s expert,9 the photographs of the hole show existing hairline
cracks in the sidewalk around and leading to the hole, which would have allowed water
8
Indeed, as Michiganders, we are all too familiar with this process.
9
The city does not contest the expert’s qualifications to generally give opinions in this case.
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infiltration, freezing, and expansion consistent with the expert’s theory. And, as also noted by
the expert, there are surrounding pieces of cracked concrete that appear ready to come or pop
out. Moreover, while the expert could not pinpoint exactly when the last freeze had occurred, it
was certainly many months prior to the accident on September 7, 2014. Further, plaintiff’s
expert indicated that the photographs reflected that the edges of the hole were slightly rounded
off, appearing to have been scuffed by people walking back and forth, thereby causing the
rounding, which “would have taken a period of time . . . to happen.” The city does not challenge
this view. Disregarding the matter concerning the debris in the hole, there were still sufficient
facts to support the expert’s opinion with regard to how the hole was created, such that his
opinion is admissible, and the evidence does not support the city’s claim, for purposes of
admissibility, that the expert applied the principles associated with freeze-thaw cycles and
spalling unreliably to the facts of this case. Again, the hairline cracks in the sidewalk are very
telling. With respect to the steps not taken by plaintiff’s expert in the process of forming his
opinions, as spelled out earlier, these failures speak to credibility and weight relative to the
opinions, which are to be assessed by the trier of fact. In sum, the trial court did not err by taking
into consideration the opinions expressed by plaintiff’s expert and by finding that the opinions
provided support for the proposition that the hole had been in existence for at least 30 days prior
to the accident.
With respect to the city’s knowledge of the hole, because we cannot consider the claims
by plaintiff’s counsel that a Jolly Pumpkin employee is prepared to testify that the city knew
about the hole beforehand, nor can we consider plaintiff’s testimony about the manager’s
remarks regarding the city’s knowledge, there is no evidence that the city had actual knowledge
of the hole 30 days before plaintiff tripped and fell. However, under MCL 691.1403, as applied
to MCL 691.1402a, Bernardoni, 499 Mich at 474, we agree with the trial court that the city’s
constructive knowledge must be conclusively presumed, where the hole “existed so as to be
readily apparent to an ordinarily observant person for a period of 30 days or longer before the
injury took place.” The hole is sufficiently substantial that it would have been readily apparent
to an ordinarily observant person for the 30-day period. The city’s project engineer
acknowledged that he certainly would have noticed the hole had he inspected the area and that he
would have no basis to disagree with plaintiff’s expert’s opinion that the sidewalk was not in
reasonable repair in light of the hole. And the city sidewalk inspector agreed that the hole posed
a tripping hazard. Given the evidence, the trial court did not err in applying the conclusive
presumption of knowledge.
Finally, in regard to the presumption in MCL 691.1402a(3) that the city maintained the
sidewalk in reasonable repair, which can be rebutted with evidence of a vertical discontinuity
defect of two or more inches, with the question of whether the presumption has been rebutted
being one of law for the court to decide, we hold that the trial court did not err in ruling that the
presumption was rebutted under the two-inch rule. While we cannot discern from the
photographs the depth of the hole, the trial court was presented with the expert’s opinion that one
edge of the hole was two inches deep, the testimony of the city sidewalk inspector that the hole
was close to two inches in depth, perhaps more, and testimony that the depth could not be
ascertained. There was no documentary evidence that the hole was definitively not two inches
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deep. In light of the evidence, we cannot conclude that the trial court erred in finding that
plaintiff had rebutted the presumption of reasonable repair.10
Affirmed. Having fully prevailed on appeal, plaintiff is awarded taxable costs under
MCR 7.219.
/s/ William B. Murphy
/s/ Michael J. Kelly
/s/ Brock A. Swartzle
10
Although we believe that the alternative manner to rebut the presumption may be applicable,
i.e., through evidence showing that the hole constituted a dangerous condition, regardless of its
depth, MCL 691.1402a(3)(b), the trial court did not reach that particular issue, so it is not
appropriate for us to rule on the question.
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