Jennifer Buhl v. City of Oak Park

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

JENNIFER BUHL, FOR PUBLICATION

August 29, 2019

Plaintiff-Appellant,

v No. 340359

Oakland Circuit Court

CITY OF OAK PARK, LC No. 2017-157097-NI

Defendant-Appellee.

Before: O’BRIEN, P.J., and TUKEL and LETICA, JJ.

LETICA, J. (dissenting).

I respectfully dissent. The sole question is whether the amendment allowing a

municipality to employ an open and obvious defense to an action brought under the defective

sidewalk exception to governmental immunity, MCL 691.1402a, may be applied retroactively.

In my opinion, the statutory language confirms the Legislature intended prospective application.

In addition, this portion of the statutory amendment must apply prospectively because it is a

substantive change impairing Jennifer Buhl’s vested rights, as plainly evidenced by the circuit

court’s dismissal. 1 I would reverse and remand for further proceedings.

1

Another panel of this Court earlier reached the same conclusion. Schilling v Lincoln Park,

unpublished per curiam opinion of the Court of Appeals, issued May 16, 2019 (Docket No.

342448). See also Farley v United States, unpublished opinion of the United States District

Court for the Southern District of West Virginia, issued September 30, 2015 (Case No. 2:13-cv-

17090) (following the state Supreme Court’s abrogation of the open and obvious defense, the

federal district court declined to retroactively apply a West Virginia statute, W Va Code 55-7-28,

reinstating the plaintiff’s pre-existing cause of action). Also, a separate panel of this Court held

that an earlier 2012 amendment, 2012 PA 50, applied prospectively; the 2012 amendment added

a statutory presumption describing circumstances under which a municipality would have

satisfied its duty to keep a sidewalk in reasonable repair. Sufi v Detroit, unpublished per curiam

opinion of the Court of Appeals, issued February 17, 2015 (Docket No. 312053), p 6 (“[T]he

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I. STANDARD OF REVIEW

The question of whether the amendment of MCL 691.1402a, which added an open and

obvious defense, applies retroactively is a question of law reviewed de novo. Frank W Lynch &

Co v Flex Technologies, Inc, 463 Mich 578, 583; 624 NW2d 180 (2001).

II. THE APPLICABLE LEGAL PRINCIPLES

“[T]he presumption against retroactive legislation is deeply rooted in our jurisprudence,

and embodies a legal doctrine centuries older than our Republic.” Landgraf v USI Film Prod,

511 US 244, 265; 114 S Ct 1483; 128 L Ed 2d 229 (1994). “Elementary considerations of

fairness dictate that individuals should have an opportunity to know what the law is and to

conform their conduct accordingly; settled expectations should not be lightly disrupted.” Id.

Applying legislation retroactively “ ‘presents problems of unfairness . . . because it can deprive

citizens of legitimate expectations and upset settled transactions.’ ” Downriver Plaza Group v

Southgate, 444 Mich 656, 666; 513 NW2d 807 (1994), quoting Gen Motors Corp v Romein, 503

US 181, 191; 112 S Ct 1105; 117 L Ed 2d 328 (1992).

For these reasons, our Supreme Court requires the Legislature to “make its intentions

clear when it seeks to pass a law with retroactive effect.” LaFontaine Saline, Inc v Chrysler

Group, LLC, 496 Mich 26, 38; 852 NW2d 78 (2014). Moreover, in determining whether a law

has retroactive effect, our courts keep four principles in mind:

First, we consider whether there is specific language providing for retroactive

application. Second, in some situations, a statute is not regarded as operating

retroactively merely because it relates to an antecedent event.[2] Third, in

determining retroactivity, we must keep in mind that retroactive laws impair

vested rights acquired under existing laws or create new obligations or duties with

respect to transactions or considerations already past. Finally, a remedial or

procedural act not affecting vested rights may be given retroactive effect where

the injury or claim is antecedent to the enactment of the statute. [Id. at 38-39

(citations omitted).]

III. THE STATUTORY LANGUAGE SUPPORTS PROSPECTIVE APPLICATION

The first principle that this Court must consider is whether the amendment’s language

indicates it is to have retroactive effect. “In determining whether a statute should be applied

retroactively or prospectively only, ‘[t]he primary and overriding rule is that legislative intent

amended version of MCL 691.1402a is inapplicable to plaintiff’s claims because it is

prospective, not retroactive.”).

2

I agree with the majority that the second principle “relate[s] to measuring the amount of

entitlement provided by a subsequent statute in part by services rendered pursuant to a prior

statute,” In re Certified Questions, 416 Mich 558, 571; 331 NW2d 456 (1982), and is not at issue

here.

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governs. All other rules of construction and operation are subservient to this principle.’ ” Frank

W Lynch & Co, 463 Mich at 583, quoting Franks v White Pine Copper Div, 422 Mich 636, 670;

375 NW2d 715 (1985) (alteration in original). “Statutes are presumed to apply prospectively

only unless a contrary intent is clearly manifested.” Brewer v A D Transp Express, Inc, 486

Mich 50, 56; 782 NW2d 475 (2010). Indeed, “the Legislature has shown on several occasions

that it knows how to make clear its intention that a statute apply retroactively.” Frank W Lynch

& Co, 463 Mich at 584.3 “Use of the phrase ‘immediate effect’ does not at all suggest that a

public act applies retroactively.” Johnson v Pastoriza, 491 Mich 417, 430; 818 NW2d 279

(2012). To the contrary, when the Legislature provides a law will take immediate effect, this

“only confirms its textual prospectivity.” LaFontaine Saline, Inc, 496 Mich at 40. Here, the

Legislature directed the statutory amendment “to take immediate effect” and used no retroactive

language. This weighs against retroactive effect, and, instead, confirms the statutory amendment

applies prospectively.

IV. PROSPECTIVE APPLICATION IS ALSO REQUIRED BECAUSE THE AMENDMENT

TAKES AWAY OR IMPAIRS PLAINTIFF’S PRE-EXISTING CAUSE OF ACTION

The third question to be answered in determining whether a statutory amendment may be

applied retroactively is whether it “takes away or impairs vested rights acquired under existing

laws, or creates a new obligation and imposes a new duty, or attaches a new disability with

respect to transactions or considerations already past.” In re Certified Questions, 416 Mich 558,

571; 331 NW2d 456 (1982), quoting Hughes v Judges’ Retirement Bd, 407 Mich 75, 85; 282

NW2d 160 (1979) (quotation marks omitted). Stated otherwise, “this rule is . . . triggered when a

plaintiff’s accrued cause of action would be totally barred or taken away by a new act.” In re

Certified Questions, 416 Mich at 577.

The circuit court ruled Buhl had no vested right in not having an open and obvious

defense raised. The court explained that Buhl was “not getting left out in the cold” as she “still

has the very claim that she had on the day that she fell and was injured.” The circuit court added

that the city’s ability to raise the open and obvious defense was simply “a procedural change and

not a substantive change in [Buhl’s] ability to bring her claim[.]” The majority accepts these

conclusions, holding that the statutory amendment operates in a remedial or procedural manner

and, therefore, may be applied retrospectively.

However, the law is clear that “the term ‘remedial’ in this context should only be

employed to describe legislation that does not affect substantive rights.” Frank W Lynch & Co,

3

During the 2016 session alone, the Legislature passed several statutes explicitly providing for

retroactive application. See e.g., 2016 PA 7, enacting § 1, amending MCL 205.92 (“This

amendatory act is retroactive and is effective December 15, 2013.”); 2016 PA 15, enacting § 1,

adding MCL 600.6094a (“This amendatory act applies retroactively to all judgments entered

after May 6, 2015.”); 2016 PA 283, enacting § 2, amending the Michigan Medical Marihuana

Act, MCL 333.26421, et seq. (“This amendatory act is curative and applies retroactively as to the

following: . . . .”); 2016 PA 372, enacting § 1, amending MCL 205.54w (“This amendatory act is

retroactive and effective for taxes levied after December 31, 2012.”).

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463 Mich at 585 (emphasis added). And the Michigan Supreme Court has held that where an

amended statute is enacted to invalidate a prior decision of the Court, it “effect[ed] a substantive

change in the law” and would apply prospectively. Hurd v Ford Motor Co, 423 Mich 531, 534;

377 NW2d 300 (1985). A substantive right is one “that can be protected or enforced by law; a

right of substance rather than form.” Black’s Law Dictionary (10th ed), p 1520.

Michigan law is “clear that once a cause of action accrues,—i.e., all the facts become

operative and are known—it becomes a ‘vested right’.” In re Certified Questions, 416 Mich at

573 (citations omitted). A vested right is “an interest that the government is compelled to

recognize and protect of which the holder could not be deprived without injustice.” Detroit v

Walker, 445 Mich 682, 699; 520 NW2d 135 (1994). In this case, Buhl’s cause of action accrued

on May 4, 2016—the day she fell. This was well before the January 4, 2017 effective date of the

statutory amendment.

The next question is not simply whether the statutory amendment destroyed Buhl’s

ability to sue, but also whether it impaired Buhl’s vested right or her substantial rights. To

answer this question it is helpful to understand how the open and obvious defense functions in a

premises-liability action and how it previously functioned in a suit seeking recovery for an injury

resulting from a municipal corporation’s failure to maintain its sidewalk in reasonable repair.

In general, “whether a duty exists in a tort action is . . . a question of law to be decided by

the court, and when a court determines that a duty was not owed, no jury-submissible question

exists.” Hoffner v Lanctoe, 492 Mich 450, 476; 821 NW2d 88 (2012) (citations omitted). A

possessor of land owes no duty to an invitee to protect from, or to warn the invitee of, dangers

that are open and obvious “because such dangers, by their nature, apprise an invitee of the

potential hazard, which the invitee may then take reasonable measures to avoid.” Id. at 460-461.

“Whether a danger is open and obvious depends on whether it is reasonable to expect an average

person with ordinary intelligence would have discovered it upon casual inspection.” Id. at 461.

This is an objective standard that is not dependent on whether the plaintiff actually discovered

the hazard. Id. The open and obvious doctrine is not an exception to the duty or duties owed by

a landowner; instead, it is an integral part of the definition of that duty or duties. Lugo v

Ameritech Corp, Inc, 464 Mich 512, 516; 629 NW2d 384 (2001). Accordingly, “establishing

whether a duty exists in light of the open and obvious nature of a hazard is an issue within the

province of the court.” Hoffner, 492 Mich at 476.

Before the statutory amendment at issue in this case became effective, our appellate

courts held that the open and obvious doctrine of common-law premises liability was

“inapplicable to a claim that a municipality violated its statutory duty to maintain a sidewalk on a

public highway in reasonable repair.” Jones v Enertel, Inc, 467 Mich 266, 267; 650 NW2d 334

(2002). See also Haas v Ionia, 214 Mich App 361; 543 NW2d 21 (1996); Walker v City of Flint,

213 Mich App 18; 539 NW2d 535 (1995). Unlike a typical landowner, who had no duty to make

repairs to protect invitees, the statutory exception to governmental immunity imposed a duty on a

municipality to keep its sidewalks in good repair so as to be reasonably safe for public travel.

Jones, 467 Mich at 268-269; Haas, 214 Mich App at 362; Walker, 213 Mich App at 22-23. As

this Court explained, if the open and obvious doctrine applied, a municipality “could meet its

statutory duty merely by allowing the . . . sidewalks to deteriorate until their appearance made

any danger apparent to the public.” Haas, 214 Mich App at 363. “Thus, absolving the city of

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liability in this situation would be tantamount to allowing the open and obvious danger rule to

swallow the statutory duty to maintain . . . sidewalks[] in good repair.” Id.4 Finally, the

Supreme Court had no difficulty rejecting the city’s argument that, under MCL 691.1412,5 it

must be allowed to advance “the open and obvious ‘defense’ . . . available to private parties,”

holding:

We disagree. Assuming for purposes of discussion that MCL 691.1412 read in

isolation would allow [the city] to use the open and obvious doctrine as a defense

in the present case, we conclude that MCL 691.1412 would have to yield to the

more specific statutory duty to maintain highways in reasonable repair under

MCL 691.1402(1). “[W]here a statute contains a general provision and a specific

provision, the specific provision controls.” Gebhardt v O’Rourke, 444 Mich 535,

542-543; 510 NW2d 900 (1994). . . . MCL 691.1402(1) imposes a duty on

municipalities specific to maintaining highways (including sidewalks on

highways) in reasonable repair. In contrast, MCL 691.1412 applies generally to

all claims under the [governmental tort liability act]. Thus, the specific provisions

of MCL 691.1402(1) prevail over any arguable inconsistency with the more

general rule of MCL 691.1412. [Jones, 467 Mich 270-271 (second alteration in

original).]

Here, the statutory amendment vitiates the municipal corporation’s duty through

application of the open and obvious doctrine, resulting in the dismissal of Buhl’s lawsuit. Buhl’s

substantial rights and vested right were negatively impacted. As the Schilling panel succinctly

explained when confronted with the identical question of how the statutory amendment adding

an open and obvious defense applied:

[P]laintiff had a vested right in her cause of action that accrued when her trip and

fall accident occurred before the effective date of the statutory amendment under

2016 PA 419. Under the applicable version of MCL 691.1402a, at the time her

action accrued, the City was liable for a breach of its statutory duty to maintain its

sidewalk in reasonable repair, so long as plaintiff could prove that the City had

the requisite knowledge of the defect and could rebut the statutory presumption

that the sidewalk was in reasonable repair. MCL 691.1402a(1)-(3). Before the

amendment under 2016 PA 419, the municipality could not assert an open and

obvious defense to claims brought pursuant to its statutory duty under MCL

691.1402a. Jones, 467 Mich at 269-270; Walker, 213 Mich App at 22-23.

4

Although “the openness and obviousness of the danger does not absolve a municipality of its

statutory obligation to repair its sidewalks,” it may establish comparative negligence on the

plaintiff’s part. Haas, 214 Mich App at 364.

5

MCL 691.1412 provides that claims brought under the governmental tort liability act, MCL

691.1401 et seq., “are subject to all of the defenses available to claims sounding in tort brought

against private persons.”

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The amendment, adding subsection (5) to permit a municipality to assert

the open and obvious defense, in effect, now additionally absolves a municipality

of liability stemming from a dangerous condition that is open and obvious, i.e.,

where “it is reasonable to expect that an average person with ordinary intelligence

would have discovered [the condition] upon casual inspection.” Hoffner v

Lanctoe, 492 Mich 450, 460-461; 821 NW2d 88 (2012); Novotney v Burger King

Corp (On Remand), 198 Mich App 470, 474-475; 499 NW2d 379 (1993).

Accordingly, the amended version of MCL 691.1402a not only shields a

municipality from liability for injuries caused by a vertical discontinuity defect of

less than two inches, MCL 691.1402a(3), but additionally shields a municipality

from liability if the dangerous condition of the sidewalk was open and obvious.

MCL 691.1402a(5). Thus, the amendment clearly further limits a municipality’s

liability for injuries arising from a defective sidewalk, and conversely, effectively

precludes an injured party from bringing a claim, where he or she previously

could, if the dangerous condition of the sidewalk was open and obvious. The

amendment under 2016 PA 419, thus, would impair and effectively destroy any

claim resulting from a condition of the sidewalk that is open and obvious and not

unreasonably dangerous. Hoffner, 492 Mich at 461-463. [Schilling, unpub op at

11 (footnote omitted; emphasis added; second alteration in original)].

Just like the plaintiff in Schilling, Buhl may sue, but if the dangerous condition of the

municipality’s sidewalk is open and obvious, her suit is doomed to dismissal because she cannot

establish the municipality had a duty.6 See Benton v Dart Props Inc, 270 Mich App 437, 440;

6

Other jurisdictions have recognized that a statute providing a defense that may operate to bar a

plaintiff’s cause of action applies prospectively. See, e.g., Anagnost v Tomecek, 390 P3d 707,

712; 2017 OK 7 (2017) (reversing trial court’s dismissal retroactively applying an amendment

that “create[d] a new defense to causes of action involving first amendment rights [because it]

effectively provide[d] immunity from suit and would act as a complete bar to the plaintiff’s

claim”); Pollock v Highlands Ranch Community Ass’n, 140 P3d 351, 354 (Colo App, 2006)

(reversing the trial court’s grant of summary disposition after retroactively applying a release

statute that “recognizes a substantive defense to negligence claims that often will operate as a

complete bar to relief”); Cole v Silverado Foods, Inc, 78 P3d 542, 548; 2003 OK 81 (2003)

(reinstating the Workers’ Compensation Court judge’s refusal to retrospectively apply an

amendment that refashioned a statutory defense “into a different and more extensive liability-

defeating mechanism” that “destroy[ed] the claimant’s right to present her claim free from being

subjected to new and more extensive instruments of destruction”); Irvine v Salt Lake Co, 785

P2d 411 (Utah, 1989) (reversing the trial court’s dismissal via retroactive application of statute

providing for a governmental immunity defense for flood control activities where the conduct

giving rise to cause of action occurred before amendment went into effect); Brookins v Sargent

Indus, Inc, 717 F2d 1201, 1203 (CA 8, 1983) (reversing the trial court’s application of a new

defense because it “potentially cuts off a plaintiff’s right to recover[,]” and adding, “[W]e have

no difficulty in concluding that this is not a procedural change but is a substantive change in

rights and obligations.”).

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715 NW2d 335 (2006) (identifying a duty owed the plaintiff as an essential element of actions

sounding in premises liability). Stated otherwise, Buhl’s accrued cause of action is “totally

barred or taken away by [the] new act.” In re Certified Questions, 416 Mich at 577. This

statutory amendment is not remedial or procedural, it is a substantive game-changer and applies

prospectively.

V. RESPONSE TO THE MAJORITY

The majority reframes Buhl’s argument, suggesting she has no vested right, but simply an

“expectation of success” in her litigation. I recognize that there is a distinction between a right

of action and a right of recovery. Accrual of a cause of action means the right to institute and

maintain the action. On the other hand, recovery depends not only on successful litigation, but

also on the defendant’s ability to pay. Buhl, however, does not argue she has a vested right to

recover damages from the municipality; instead, she contends she has a vested right to continue

her cause of action under the substantive law in existence before the statutory amendment.

Again, the law recognizes Buhl has a vested right in her cause of action. Id. at 573. Whether the

statutory amendment at issue abolishes Buhl’s cause of action outright or its application results

in dismissal of her lawsuit, albeit after a judicial finding on the question of whether the danger

was open and obvious, makes no difference. Either way, Buhl’s “accrued cause of action [is]

totally barred or taken away by a new act.” Id. at 577.

Moreover, the majority’s discussion of the relevancy of reliance to determine the

amendment’s retroactivity is unpersuasive. Even if Buhl was not relying on the municipality’s

statutory duty when she fell, she need not demonstrate reliance on the prior law in structuring her

conduct. Landgraf contains no such requirement. Vartelas v Holder, 566 US 257, 272; 132 S Ct

1479; 182 L Ed 2d 473 (2012). Rather “[t]he essential inquiry . . . is ‘whether the new provision

attaches new legal consequences to events completed before its enactment.’ ” Id. at 273. That is

precisely what happened here.

To buttress its conclusion that the Legislature’s intent to overrule our Supreme Court’s

2002 Jones decision renders the 2016 statutory amendment remedial and retroactive, the

majority extracts from Brewer a rule that substantive changes are only to apply prospectively “if

the Legislature adopts an amendment directed at a particular judicial decision, and through that

amendment not only overrules the judicial decision but also reinstates the state of the law as it

existed prior to the amendment, then the amendment is considered remedial and will be applied

retroactively.” But in Brewer, the Supreme Court explained that “[e]ven if the Legislature acts

to invalidate a prior decision of this Court, the amendment is limited to prospective application if

it enacts a substantive change in the law.” Brewer, 486 Mich at 56, citing Hurd, 423 Mich at

533. See also Johnson, 491 Mich at 430, quoting Brewer, 486 Mich at 56. The Supreme Court

did not incorporate the majority’s rule. See also Frank W Lynch & Co, 463 Mich at 585 (“[W]e

have rejected the notion that a statute significantly affecting a party’s substantive rights should

be applied retroactively merely because it can also be characterized in a sense as ‘remedial.’ ”).

Thus, while the majority applies a rule it derives from Brewer, I discern non-binding obiter

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dictum.7 Perry v Sied, 461 Mich 680, 687 n 9; 611 NW2d 516 (2000) (“[O]bservations by way

of obiter dicta are not binding.”)

The majority further buttresses its conclusion describing this amendment as a

clarification that resolved a controversy about the statute’s meaning. But “[a]n amendment that

affects substantive rights generally will not fall within this rule.” Gen Motors Corp v Dep’t of

Treasury, 290 Mich App 355, 372; 803 NW2d 698 (2010). And our Supreme Court has

explained this clarification rule applies “when a legislative amendment is enacted soon after a

controversy arises regarding the meaning of an act [because] it is logical to regard the

amendment as a legislative interpretation of the original act . . . .” Adrian Sch Dist v Mich Pub

Sch Employees Retirement Sys, 458 Mich 326, 337; 582 NW2d 767 (1998) (quotation marks and

citations; emphasis added). Fourteen years is not “soon” and characterizing this amendment as

clarifying ignores the Legislature’s passage of the interim 2012 amendment before it added this

“new defense.” House Legislative Analysis, HB 4686 (December 9, 2015), p 2.

Finally, the majority repeatedly quotes Lahti v Fosterling, 357 Mich 578, 589; 99 NW2d

490 (1959), quoting Evans Prod Co v State Bd of Escheats, 307 Mich 506, 545; 12 NW2d 448

(1943), for the proposition that “ ‘no right is destroyed when the law restores a remedy which

had been lost.’ ” In Lahti, the Supreme Court retroactively applied an amendment to a workers’

compensation statute that eliminated a two-year limitation on the payment of medical benefits

for work-related injuries. Id. at 582-583. The Court explained that the workers’ compensation

law “was originally adopted to give employers protection against common-law actions and to

place upon industry, where it properly belongs, . . . the expense of the hospital and medical bills

of the injured employee . . . .” Id. at 585. If the worker had been the plaintiff in a common-law

tort action, he would have had the right to recover lifetime medical benefits, leading the Court to

conclude the amendment at issue simply “restored” this remedy. Id. at 589. The Court also

determined that the amendment did not affect any vested rights because it “did not afford the

employee a new cause of action, but merely expanded the remedies then in effect.” Id. at 587.

In other words, although the amendment reduced the statutory protections afforded to the

employer, the employer was still in a better position than it would have been had it been subject

to common-law tort liability. This is not true here—application of the open and obvious doctrine

vitiates the municipality’s duty, defeating Buhl’s preexisting cause of action. Moreover, our

Supreme Court later clarified that “[a]n amendment that affects substantive rights is not

7

After concluding there was no language clearly manifesting a legislative intent to apply the new

statute retroactively, the Supreme Court held “the amendment applies only to injuries occurring

on or after” its effective date. Brewer, 486 Mich 56. The Court also reviewed the effective date

language in 2008 PA 499 (“to take immediate effect”), and held that it, too, supported the

conclusion that the statute should be applied prospectively. Id. Only at that point did the Court

mention that “[f]urther undermining any notion of a legislative intent to apply the

amendment . . . retroactively is the fact that, although the Legislature adopted the amendment

after our decision in Karaczewski [v Farbman Stein & Co, 478 Mich 28; 732 NW2d 56 (2007),]

it did not reinstate the pre-Karaczewski state of the law[,]” but opted for a new rule. Brewer, 486

Mich at 57.

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considered ‘remedial’ . . . .” Brewer, 486 Mich at 57. See also Frank W Lynch & Co, 463 Mich

at 585 (“[W]e have rejected the notion that a statute significantly affecting a party’s substantive

rights should be applied retroactively merely because it can also be characterized in a sense as

‘remedial.’ ”).

The question here is not whether the Legislature may alter the law. It surely may. The

legal question before us is whether the Legislature clearly stated its intention to apply 2016 PA

419 retroactively. Like my colleagues in Schilling, I answer “no.” Schilling, unpub op at 10. A

follow-up question before us is whether retroactive application of this statutory amendment

would take away or impair a vested right. Again, like my colleagues in Schilling, I answer

“yes.” Id. at 10-11. So, like my colleagues in Schilling, I conclude 2016 PA 419 applies

prospectively. Id. at 12-13.

VI. THE CITY’S REMAINING ARGUMENT

The city also relies upon Rookledge v Garwood, 340 Mich 444; 65 NW2d 785 (1954), for

the proposition that a statutory defense is not a vested right. In that case, the plaintiff was injured

in an automobile accident while walking to lunch. Id. at 449. On the date of the accident, the

workers’ compensation law provided the plaintiff two mutually exclusive options: he could

either sue the responsible tortfeasor or seek recovery from his employer and leave his employer

to pursue the tortfeasor. Id. at 448. The plaintiff opted to recover from his employer under the

workers’ compensation law. Id. at 449. Thereafter, the law was amended to allow the plaintiff

to recover from the tortfeasor notwithstanding his choice to seek compensation under the

workers’ compensation law. Id. at 450. The plaintiff then sued the tortfeasor. Id. at 449. The

tortfeasor argued that the earlier statute had given him “a substantive right, and that the statute

[was] not retroactive,” while the plaintiff maintained that the amended statute was remedial and

afforded him both rights. Id. at 452.

The Supreme Court agreed with the plaintiff, discussing the remedial nature of the statute

and noting that it had previously addressed the injustice of requiring this particular election,

characterizing it “as working a hardship solely to the advantage of the third party tortfeasor.” Id.

at 453-454. Importantly, the Court noted that in amending the statute to eliminate the election

requirement, the Legislature had rejected a proposal to limit its application to those employees

who had not previously made an election. Id. at 454. The Court also explained that the

amendment did not create “a new cause of action against the defendant, thereby affecting a

vested or substantive right, nor [did] it impose a new liability upon the defendant where none

existed before.” Id. at 456. The Court further discussed the difficulty of determining what

constituted a vested right, but agreed that it was “a right of which the individual could not be

deprived without injustice” or one “of which the individual could not be deprived arbitrarily

without injustice.” Id. (quotation marks and citations omitted). Applying these definitions, the

tortfeasor defendant “did not have a vested right in the statutory defense accorded him under the

prior provision of the Workmen’s Compensation Act. His right then . . . ‘sprang from the

kindness and grace of the legislature. And it is the general rule that that which the legislature

gives, it may take away.’ ” Id. at 457, quoting Wylie v City Comm’n of Grand Rapids, 293 Mich

571, 588; 292 NW 668 (1940). The Court added that “[a] statutory defense, though a valuable

right, is not a vested right and the holder thereof may be deprived of it after the cause of action to

which it may be interposed has arisen.” Rookledge, 340 Mich at 457.

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Rookledge is easily distinguished. There, the statute removed a defense that was

dependent on a choice made by the plaintiff in a situation where the tortfeasor defendant did not

have a right to avoid liability even before the amendment. In this case, the amendment added a

new defense that abrogated the duty the city owed and resulted in dismissal of Buhl’s suit.

VII. CONCLUSION

I have no doubt the Legislature intended to extend the same protection and cost savings

land possessors enjoy by employing the open and obvious danger defense to a municipal

corporation’s duty to maintain its sidewalks in reasonable repair.8 But, applying 2016 PA 419

retroactively eliminates the city’s duty and impairs Buhl’s substantive rights, namely, her ability

to pursue her pre-existing cause of action. In my opinion, the law and the Legislature’s chosen

language require us to apply this amendment prospectively.

/s/ Anica Letica

8

The following argument was made in support of the bill:

[It] extends cost savings already enjoyed by the private sector, to taxpayers in the

public sector. How so? Proponents note that courts have permitted private

enterprise to employ an ‘open and obvious’ defense for years, such that today it is

routinely considered their first line of protection in such cases. So, while the

private sector has a common law duty to make its premises reasonably safe, it is

protected from liability if a visitor suffers an injury due to a dangerous condition

that is an ‘open and obvious’ one. The same policy should apply in the public

sector. [House Legislative Analysis, HB 4686 (December 9, 2015), p 2.]

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