Robin Mitchell v. City of Lathrup Village

STATE OF MICHIGAN

COURT OF APPEALS

ROBIN MITCHELL, UNPUBLISHED

March 15, 2018

Plaintiff-Appellee,

v No. 336200

Oakland Circuit Court

CITY OF LATHRUP VILLAGE, LC No. 2016-151633-NO

Defendant-Appellant.

Before: M. J. KELLY, P.J., and JANSEN and METER, JJ.

PER CURIAM.

Defendant, City of Lathrup Village, appeals as of right the trial court’s order denying its

motion for summary disposition pursuant to MCR 2.116(C)(7) and (10). Because there are no

errors warranting relief, we affirm.

I. BASIC FACTS

On June 24, 2015, plaintiff, Robin Mitchell, tripped and fell while walking on a sidewalk

in Lathrup Village. Mitchell looked to where her foot had been caught, and she noticed gravel

and a broken sidewalk. She sustained physical injuries as a result of the fall. Mitchell sued

Lathrup Village, alleging that it breached its duty to maintain the sidewalk in reasonable repair.

Lathrup Village filed a motion for summary disposition, arguing that Mitchell could not rebut the

statutory presumption that it had maintained the sidewalk in reasonable repair. It also argued

that Mitchell had failed to establish that the Village had notice of the alleged defect. After oral

argument the trial court denied Lathrup Village’s motion, finding that there was a genuine issue

of material fact with regard to the type of defect and whether the Village had sufficient notice of

the defect before Mitchell’s fall.

II. GOVERNMENTAL IMMUNITY

A. STANDARD OF REVIEW

Lathrup Village argues that the trial court erred by denying its motion for summary

disposition. “This Court reviews de novo a trial court’s decision on a motion for summary

disposition, as well as questions of statutory interpretation[.]” Dextrom v Wexford Co, 287 Mich

App 406, 416; 789 NW2d 211 (2010). Under MCR 2.116(C)(10), summary disposition can be

granted if “there is no genuine issue as to any material fact, and the moving party is entitled to

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judgment or partial judgment as a matter of law.” Motions for summary disposition under MCR

2.116(C)(10) test the factual sufficiency of the complaint. Maiden v Rozwood, 461 Mich 109,

120; 597 NW2d 817 (1999). “A question of fact exists when reasonable minds could differ as to

the conclusions to be drawn from the evidence.” Dextrom, 287 Mich App at 416. When

evaluating motions brought under this subrule, a trial court must consider the evidence submitted

in the light most favorable to the nonmoving party. Id. at 415.

A motion for summary disposition under MCR 2.116(C)(7) “may be raised on the ground

that a claim is barred because of immunity granted by law.” Dextrom, 287 Mich App at 428. In

support of such a motion, a party may provide affidavits, pleadings, depositions, admissions, and

other documentary evidence. MCR 2.116(G)(5). Unlike a motion brought under subrule

(C)(10), “a movant under MCR 2.116(C)(7) is not required to file supportive material, and the

opposing party need not reply with supportive material.” Maiden, 461 Mich at 119. However,

the substance of this material, if provided, must be admissible in evidence. Id. When reviewing

motions under subrule (C)(7),

this Court must accept all well-pleaded factual allegations as true and construe

them in favor of the plaintiff, unless other evidence contradicts them. If any

affidavits, depositions, admissions, or other documentary evidence are submitted,

the court must consider them to determine whether there is a genuine issue of

material fact. If no facts are in dispute, and if reasonable minds could not differ

regarding the legal effect of those facts, the question whether the claim is barred

is an issue of law for the court. However, if a question of fact exists to the extent

that factual development could provide a basis for recovery, dismissal is

inappropriate. [Dextrom, 287 Mich App at 428-429.]

B. ANALYSIS

MCL 691.1407(1) states that “[e]xcept as otherwise provided in this act, a governmental

agency is immune from tort liability if the governmental agency is engaged in the exercise or

discharge of a governmental function.” That immunity, however, is subject to several

exceptions. Lash v Traverse City, 479 Mich 180, 195; 735 NW2d 628 (2007). Relevant to this

appeal is the “highway exception” set forth in MCL 691.1402(1), which allows a plaintiff to

“recover the damages suffered by him or her” as a result of a municipality’s failure to keep

highways “in reasonable repair and in a condition reasonably safe and fit for travel . . . .”1

Russell v City of Detroit, ___ Mich App ___, ___; ___ NW2d ___ (2017) (Docket No. 332934);

slip op at 2, quoting MCL 691.1402(1). More specifically, MCL 691.1402a(1) provides that a

municipal corporation may be liable for failing to maintain in reasonable repair a sidewalk

a”djacent to a municipal, county, or state highway . . . .” MCL 691.1402a(1); see also Robinson

v Lansing, 486 Mich 1, 7; 782 NW2d 171 (2010).

In order to invoke the sidewalk exception in MCL 691.1402a, a plaintiff must prove “that

at least 30 days before the occurrence of the relevant injury, death, or damage, the municipal

1

MCL 691.1401(c) defines “highway” to include a “sidewalk.”

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corporation knew or, in the exercise of reasonable diligence, should have known of the existence

of the defect in the sidewalk.” MCL 691.1402a(2); see also Bernardoni v City of Saginaw, 499

Mich 470, 474 886 NW2d 109 (2016) (stating that “to invoke the highway exception as it

pertains to sidewalks, a plaintiff must show that the defect existed at least 30 days before the

accident”). A plaintiff must also rebut the presumption created by MCL 691.1402a(3) that the

municipality “maintained the sidewalk in reasonable repair.” MCL 691.1402a(3). A plaintiff

may rebut the presumption by showing that “a proximate cause” of his or her 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. [MCL 691.1402a(3).]

On appeal, Lathrup Village argues that the trial court erred by finding a genuine question

of fact with regard to whether Mitchell could rebut the presumption that the sidewalk was

maintained in reasonable repair. In response, Mitchell contends that she can rebut the

presumption of reasonable repair by showing that a proximate cause of her fall was a two-inch

height discontinuity, and she directs this Court to a photograph she took about five days after her

fall. Viewed in the light most favorable to Mitchell, the photograph depicts two slabs of

sidewalk, one of which is higher than the other. The width of the crack between the sidewalk

slabs varies, appearing wider in some spots and narrower in others. At the spot where the gap

between the two slabs is widest is a measuring stick or ruler. The bottom of the ruler is not

visible because it is in the crack between the sidewalk slabs. The two-inch mark on the ruler is

or appears to be near the top of the higher slab. Based on the angle of the photograph and the

position of the ruler, a jury could reasonably infer that the height of the higher slab is at least two

inches high. A jury could not, however, reasonably infer that there is a “vertical discontinuity

defect of 2 inches or more in the sidewalk” given that the ruler undisputedly extends below the

top of the lower slab. And, because there is no other evidence of a vertical discontinuity of two

or more inches, we agree with Lathrup Village that Mitchell cannot rebut the presumption that

the sidewalk was maintained in reasonable repair by resorting to MCL 691.1402a(3)(a).2

However, under MCL 691.1402a(3)(b), there is a genuine question of material fact with

regard to whether Mitchell can rebut the presumption of reasonable repair by showing “[a]

dangerous condition in the sidewalk itself of a particular character other than solely a vertical

discontinuity.” Mitchell contends that she tripped because of “uneven sidewalk blocks.” Her

expert, Steven Ziemba, averred that the height differential worked in combination with the width

discontinuity and the deteriorated condition at the sidewalk joint to create a “dangerous

condition.” He asserted that the gap was wide enough for the toe of Mitchell’s shoe to get stuck

2

Mitchell argues on appeal that a width discontinuity of two or more inches is sufficient under

MCL 691.1402a(3)(a) to rebut the presumption that Lathrup maintained the sidewalk in

reasonable repair. However, the statute in effect at the time of Mitchell’s fall specified that it

had to be a vertical discontinuity. As such, we find her argument wholly without merit on this

point.

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in the gap, which “abruptly stopped” her forward momentum while her “upper body movement”

continued and caused her to fall. Based on this record, a jury could reasonably infer that the

combination of errors was sufficient to rise to the level of “a dangerous condition in the

sidewalk,” so as to subject Lathrup Village to liability under the sidewalk exception.

Lathrup Village argues that the affidavit from Ziemba was unreliable under MRE 702

because his opinion failed to provide facts, data, or scientific testing to support his conclusions.

However, this Court addressed this argument in Dextrom, 287 Mich App at 428, holding:

there is no requirement that an expert’s qualifications and methods be

incorporated into an affidavit submitted in support of, or opposition to, a motion

for summary disposition. Rather, the content of the affidavits must be admissible

in substance, not form. And the requirements of MRE 702 are foundational to the

admission of the expert’s testimony at trial. Thus, it is significant that defendants

here do not attack the admissibility of the content of [the plaintiffs’ expert’s]

affidavit, only its foundation. As MCR 2.119(B)(1)(c) provides, the affidavit

need only show that the affiant, if sworn as a witness, can testify competently to

the facts stated in the affidavit. Whether [the plaintiffs’ expert] will ultimately

meet the MRE 702 requirements to be sworn as a witness is a matter reserved for

trial.

Thus, because Ziemba has not been sworn as an expert witness to testify at trial, there is no need

to satisfy the reliability standard of MRE 702 at this point.

In sum, the trial court did not err by relying on Ziemba’s affidavit, nor did it err by

finding there was a question of fact with regard to whether Mitchell could rebut the presumption

in MCL 691.1402a(3).

Lathrup Village next argues that Mitchell cannot establish that it had the 30-day notice of

the defect required by MCL 691.1402a(2). “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.” Bernardoni, 499 Mich at 474 (quotation marks and citation omitted). “A

defendant is ‘conclusively presumed’ to have knowledge of a defect ‘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.’ ” Id., quoting MCL 691.1403. In the absence of some evidence

connecting a sidewalk’s condition after the accident to its condition 30 days before the accident,

“one can imagine any number of scenarios” where the defect formed in outside the 30-day notice

timeframe mandated by MCL 691.1402a(2). Bernardoni, 499 Mich at 475. Therefore, in

Bernardoni, where the plaintiff’s only evidence were photographs taken 30 days after her fall,

our Supreme Court recently 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

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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.]

By way of example, the Court posited that evidence that could be offered in addition to

photographs depicting a defect after an accident include affidavits from neighbors stating that the

defect existed more than 30 days before the plaintiff’s accident or “expert testimony

demonstrating that the sidewalk discontinuity was of a type that usually forms or enlarges over a

long period of time.” Id.

Here, in addition to photographs of the allegedly defective sidewalk, Mitchell relied upon

Ziemba’s affidavit. Ziemba asserted that he had “over 43 years of experience in the inspection

and evaluation of paved surfaces and in the recognition of defective pavement.” He reviewed the

complaint, Mitchell’s deposition, and photographs of the spot where she fell. Based on his

experience, he opined:

Both the severely deteriorated condition of this sidewalk at the joint (exhibit 1 is a

photograph taken 5 days after plaintiff’s fall) and the heaved slab (most likely

from winter freeze and thaw cycles) which accounts for the height differential

clearly shows that this defective sidewalk conditions has been in existence for a

period of greater than 30 days prior to this June 24th incident.

Although Lathrup Village contends that his opinion that the heaved slab was likely caused by the

winter freeze/thaw cycle is based solely on speculation, we disagree. The record reflects that

Mitchell fell in June. She testified several times that she was looking at flowers the morning she

fell. She also testified that she had started her walk around 8:00 a.m., and she added that she was

wearing gym shoes and a t-shirt. Based on this testimony, it is reasonable to infer that the

freeze/thaw cycle had ended more than 30 days before Mitchell’s June 24, 2015 accident. As

such, the jury could infer that the dangerous condition of the sidewalk existed for at least 30 days

before the accident.

Moreover, Zeimba opined that the condition of the sidewalk was severely deteriorated.

That expert opinion, combined with the photographs of the condition shortly after the accident,

would allow a jury to conclude that the defect existed for at least 30 days before the accident and

that it would be “readily apparent to an ordinarily observant person.” See MCL 691.1403.

Stated differently, the jury could rely on Ziemba’s opinion testimony that the condition existed

for more than 30 days, and it could view the photographs to determine whether the defect was

readily apparent. In short, because Mitchell has provided photographs of the defect as it existed

a few days after her fall and provided expert testimony to explain why those photographs

indicate that the state of the sidewalk was the same at least 30 days before her fall, we conclude

that the trial court did not err by denying summary disposition on this basis.

Affirmed. As the prevailing party, Mitchell may tax costs under MCR 7.219(A).

/s/ Michael J. Kelly

/s/ Kathleen Jansen

/s/ Patrick M. Meter

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