Valeria Haliw v. City of Sterling Heights

Michigan Supreme Court
Lansing, Michigan 48909
_____________________________________________________________________________________________
C hief Just ice Justices
Maura D . Corrigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED JUNE 12, 2001
VALERIA HALIW and
ILKO HALIW,
Plaintiffs-Appellees,
v No. 115686
THE CITY OF STERLING HEIGHTS,
Defendant-Appellant.
___________________________________________
BEFORE THE ENTIRE BENCH
MARKMAN, J.
We granted defendant city of Sterling Heights’
application for leave to appeal in this case to decide the
proper application of the “natural accumulation” doctrine to
municipal liability. Because we conclude that the natural
accumulation of ice or snow on the sidewalk at issue does not
give rise to an actionable breach of defendant’s duty, and the
claimed depression in the sidewalk was not an independent
defect, plaintiff cannot prove the elements required to
establish a negligence claim against a governmental agency.1
Accordingly, we reverse the judgment of the Court of Appeals,
and remand to the Macomb Circuit Court for entry of an order
granting summary disposition in favor of defendant.
I. FACTS AND PROCEEDINGS
On January 29, 1996, plaintiff was walking on a snow­
covered sidewalk located in her neighborhood. Plaintiff
claims that she slipped and fell on a patch of ice that had
formed on the sidewalk.2 Apparently, the ice had formed in a
depressed portion where two sections of the sidewalk met.
According to plaintiff, it had snowed before the incident, and
the sidewalk had not yet been shoveled.
Anna Marson, plaintiff’s neighbor and the homeowner
nearest the portion of sidewalk at issue here, stated that,
although the depression at the joint of the two cement slabs
allowed water to settle, there was no raised edge or gap
between the two slabs, and neither slab was actually broken.
According to Marson, even in the winter, when “it just snows
it would melt and there would be nothing [i.e., no ice] there.
1
Throughout this opinion, "plaintiff" refers to Valeria
Haliw. The loss of consortium claim of Ilko Haliw, plaintiff's
husband, is derivative in nature.
2
At her deposition, plaintiff admitted that she slipped
on the ice patch; she did not trip on, or over, anything
relating to the actual physical condition of the sidewalk
itself.
2
But this [time], it happened to rain [before plaintiff’s slip
and fall] and there was ice . . . .” Marson, who provided aid
to plaintiff just after her fall, stated that plaintiff told
her that she had slipped on the ice that had formed on the
sidewalk.
Plaintiff retained an engineering expert, Theodore
Dziurman, who performed an inspection of the portion of
sidewalk upon which plaintiff claimed ice had formed.3
According to Dziurman, there was a “depression” where two
slabs of the concrete sidewalk met, although he stated that
there was no separation between the two slabs, and that “it
[was] not any different than [a] normal joint, not unusual.”
It was Dziurman’s opinion that, because of the presence of the
depression, water was allowed to “pond” at that point
resulting in the formation of ice under the proper weather
conditions. When Dziurman was asked if the depression
presented a dangerous or defective condition in the sidewalk
in the absence of ice, the following colloquy ensued:
Q. When there is no rain and no freezing, is
there anything particularly defective or dangerous
about that condition in and of itself?
A. It could be dangerous to someone that
wasn’t expecting a depression there that could
throw them off stride when they are walking causing
them to stumble or fall. Someone riding on a
3
We note that Theodore Dziurman’s inspection of the
sidewalk occurred on July 2, 1997.
3
bicycle if they are going real fast, they could hit
the bottom of that thing and cause the bike to go
out of control. There are possibilities of other
accident potential because of that sunken
condition.
Q. Do you have any information any of those
things ever happened to that sidewalk slab?
A. No, I don’t.
Q. Your statements about what could happen
are theoretical; correct?
A. I think you asked me that.
As a result of her fall, plaintiff suffered a broken
ankle that required surgical intervention and thereafter
initiated a lawsuit against defendant. In response, defendant
filed a motion for summary disposition, brought pursuant to
MCR 2.116(C)(7) and (10). The trial court denied defendant’s
motion, and the Court of Appeals, in an unpublished opinion,
affirmed, stating that
[i]n addition to the presence of snow and ice,
plaintiffs allege there was a defect in the
sidewalk itself, and therefore their claim is not
barred by the natural accumulation doctrine . . . .
Here, plaintiffs presented evidence creating a
genuine issue of material fact regarding whether
the sidewalk where [plaintiff] fell was reasonably
safe for public travel. [Issued October 5, 1999
(Docket No. 206886), slip op at 1-2.]
II. STANDARD OF REVIEW
We review the grant or denial of summary disposition de
novo. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817
(1999). “MCR 2.116(C)(7) tests whether a claim is barred
4
because of immunity granted by law, and requires consideration
of all documentary evidence filed or submitted by the
parties.” Glancy v Roseville , 457 Mich 580, 583; 577 NW2d
897 (1998).
In reviewing a motion for summary disposition brought
under MCR 2.116(C)(10), we must consider the affidavits,
pleadings, depositions, admissions, and documentary evidence
filed in the action or submitted by the parties in the light
most favorable to the party opposing the motion. Quinto v
Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996).
Summary disposition may be granted if the evidence
demonstrates that there is no genuine issue with respect to
any material fact, and the moving party is entitled to
judgment as a matter of law. Id. As with motions for summary
disposition, we also review questions of statutory
construction de novo as questions of law. Donajkowski v
Alpena Power Co, 460 Mich 243, 248; 596 NW2d 574 (1999).
III. GOVERNMENTAL IMMUNITY
The governmental tort liability act, MCL 691.1401 et
seq., provides immunity for governmental agencies, including
municipalities like defendant. It is well settled in this
state that governmental agencies are immune from tort
liability while engaging in a governmental function unless an
5
exception applies.4 MCL 691.1407; Nawrocki v Macomb Co Rd
Comm, 463 Mich 143, 156; 615 NW2d 702 (2000); Suttles v Dep’t
of Transportation, 457 Mich 635, 641; 578 NW2d 295 (1998);
Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 591;
363 NW2d 641 (1984). The immunity conferred on governmental
agencies is broad, and the exceptions narrowly drawn.5
Nawrocki, supra at 149; Ross, supra at 618.
The only exception implicated in the present case is the
so-called “highway exception” to governmental immunity, which
is set forth in MCL 691.1402, and provides in 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 who sustains
bodily injury or damage to his or her property by
reason of failure of a governmental agency to keep
a highway under its jurisdiction in reasonable
repair and in a condition reasonably safe and fit
for travel may recover the damages suffered by him
or her from the governmental agency.[6]
4
The five statutory exceptions to governmental immunity
are: the “highway exception,” MCL 691.1402, the “motor vehicle
exception,” MCL 691.1405, the “public building exception,” MCL
691.1406, the “proprietary function exception,” MCL 691.1413,
and the “governmental hospital exception,” MCL 691.1407(4).
5
Although governmental agencies may be under a wide
variety of duties, with regard to services that they provide
to the public, only those enumerated within the statutorily
created exceptions are legally compensable if breached. MCL
691.1407; Nawrocki, supra at 157.
6
Plaintiff’s accident occurred on January 29, 1996.
Accordingly, the statutory language applicable in this case is
that found in 1990 PA 278, § 1, effective December 11, 1990,
rather than the current statutory language, which was enacted
(continued...)
6
Pursuant to subsection 1402(1), the duty to maintain public
sidewalks in “reasonable repair” falls on local governments,
including cities, villages, and townships. See Chaney v Dep’t
of Transportation, 447 Mich 145, 172, n 2; 523 NW2d 762
(1994); Mason v Wayne Co Bd of Comm'rs, 447 Mich 130, 136, n
6; 523 NW2d 791 (1994). Accordingly, a municipality’s
maintenance and repair of its sidewalks is the performance of
a governmental function. MCL 691.1401(f).7
However, as we noted in Suttles, simply asserting that an
action falls within the “highway exception” to governmental
immunity is not the end of the analysis:
In every instance where a plaintiff alleges a
cause of action based on the highway exception to
governmental immunity, MCL 691.1402(1); MSA
3.996(102)(1), the court must engage in a two-step
analysis. [Id. at 651, n 10.]
First, it must be determined whether the plaintiff has pleaded
6
(...continued)
by 1999 PA 205, and which became effective regarding causes of
action arising on or after December 21, 1999.
7
For purposes of application of the highway exception to
a municipality, MCL 691.1401 provides: (1) “governmental
agency” means the state or a “political subdivision”; (2)
“political subdivision” means a “municipal corporation”; and
(3) “municipal corporation” means a “city, village, or
township.” Subsection 1401(a),(b),(d). Moreover, “highway”
means a public highway, road, or street that is open for
public travel and includes bridges, sidewalks, trailways,
crosswalks, and culverts on the highway. Subsection 1401(e).
“Governmental function,” as used in the governmental immunity
act, is “an activity that is expressly or impliedly mandated
or authorized by constitution, statute, local charter or
ordinance, or other law.” Subsection 1401(f).
7
a cause of action in avoidance of governmental immunity.
Second, where a plaintiff successfully pleads in avoidance of
governmental immunity, i.e., that the alleged injury occurred
in a location encompassed by MCL 691.1402(1), the plaintiff
must still prove, consistent with traditional negligence
principles, the remaining elements of breach, causation, and
damages contained within the statute. Id., see also Nawrocki,
supra at 172, n 29. The statute at issue contains the duty
element of these principles; namely, the duty of a
municipality to “maintain” the sidewalk “in reasonable repair
so that it is reasonably safe and convenient for public
travel.” MCL 691.1402(1).8 See Johnson v Pontiac, 276 Mich
103, 105; 267 NW 795 (1936), explaining that “[t]he liability
of cities for this class of cases is statutory . . . and it is
the duty of defendant to keep its sidewalk in repair.”
Concepts such as the “natural accumulation” doctrine, see
below, are pertinent to this second step of the analysis. See
Johnson, supra, stating that a plaintiff cannot recover if an
injury is due “solely to the presence of ice or snow”
(emphasis added).
8
“Courts should take care not to confuse their separate
inquiries into [governmental] immunity and negligence.” Canon
v Thumudo, 430 Mich 326, 335; 422 NW2d 688 (1988).
8
IV. THE NATURAL ACCUMULATION DOCTRINE
“It has long been the law in this state . . . that a
governmental agency’s failure to remove the natural
accumulations of ice and snow on a public highway does not
signal negligence of that public authority.” Stord v
Transportation Dep’t, 186 Mich App 693, 694; 465 NW2d 54
(1991). The following cases present an overview of the
“natural accumulation” doctrine as it relates to public
sidewalks, and municipal defendants.
In Mayo v Village of Baraga, 178 Mich 171; 144 NW 517(1913), the plaintiff brought an action to recover damages for
injuries sustained as a result of falling on ice and snow on
a sidewalk. This Court determined that
[i]f a liability exists, it is because of a defect
in the [sidewalk]; and, if ice frozen upon a
sidewalk is a defect when it is caused by water
flowing from a roof, why should it not be when it
flows from a vacant lot, or when it falls upon the
[side]walk, or is caused by the melting of snow
upon or adjoining such a walk? If the liability of
a city for damages resulting from a failure to keep
its highways in a reasonably safe condition for
travel extends to cases where such condition is not
ascribable to defects in the construction and
maintenance of the way, or to the action of the
officers to the city or their negligence in the
performance of a duty, it may be contended that
cities must cause the streets to be patrolled, in
search of bricks or coals that fall from wagons,
for the treacherous banana peel, upon which the
unwary are sure to slip, and for tacks or bits of
glass or other rubbish, which puncture the tires of
bicycles. [S]uch are not defects in the highway.
[Id. at 173-174.]
9
In Hopson v Detroit, 235 Mich 248; 209 NW 161 (1926), a
case involving facts similar to the instant one, the plaintiff
was walking on a public sidewalk. There was a depression in
the sidewalk where the concrete had settled and disintegrated;
this condition made the sidewalk lower in the center. In this
depression, water from natural causes had settled, with ice at
the bottom and a thin layer of water on top. The plaintiff
slipped on the ice that had formed in the depression, fell and
was injured. The plaintiff’s theory of liability was that
when two causes combine to produce an injury to a traveler
upon a public sidewalk, both of which are in their nature
proximate–the one being a defect in the sidewalk, and the
other some occurrence for which neither party is
responsible–the municipality is liable, provided the injury
would not have been sustained but for the defect. Id. at 250.
This Court concluded that the defendant was not liable for the
plaintiff’s injury.
Stating that “[i]n order to employ the doctrine of a
slippery place precipitating into an unsafe place, there must
be an unsafe place to slip into,” this Court held that the
rule obtaining in Michigan places no liability upon the
municipality for ice forming in this way. Id. Rather, the
rule under which a plaintiff could recover is that where two
causes combine to produce an injury to a pedestrian using a
10
sidewalk, one of the causes at least must be a defect in the
sidewalk rendering the sidewalk not reasonably safe for public
travel at any time. “Ice on a sidewalk, whether on level
places or in depressions, constitutes no defect entailing
liability.” Id. at 250-251 (emphasis added). The depression,
no matter what caused it, did not render the sidewalk out of
repair “within the meaning of our statute relative to the duty
of defendant to keep the walk in repair and reasonably safe
for public travel.” Id. at 251.
In determining that the plaintiff in Hopson could not
prevail, this Court stated that
wherever ice or snow is the sole proximate cause of
the accident, there shall be no liability, but
where at the time of the accident there is any
other defect to which, as a proximate cause, the
accident is in part attributable, there may be a
liability notwithstanding the fact that it also may
be attributable in part to ice or snow. This other
defect, however, is not a proximate cause within
the meaning of this rule, simply because it causes
the accumulation of the ice or snow. In
considering whether, “at the time of the accident,
the way is otherwise reasonably safe and
convenient,” the attention is to be directed to the
actual physical condition of the way for the
purpose of ascertaining whether there is at that
time any other danger to the steps of the traveler
than that arising from the presence of ice or snow;
if there be no other danger, then for the time
being the way is “otherwise reasonably safe and
convenient.” [Id. at 252, quoting Newton v
Worcester, 174 Mass 181, 187; 54 NE 521(1899)(emphasis added).]
In Johnson, supra, the plaintiff suffered injuries as the
11
result of a fall sustained while walking over or around a
piece of defective sidewalk. There was an accumulation of ice
and snow upon the sidewalk. The claimed defect in the
sidewalk, an upheaval, was likely caused by the roots of a
nearby tree. Applying 1929 CL 4223, which established a duty
within the defendant to keep its sidewalks in reasonable
repair, this Court determined that where the plaintiff’s slip
and fall was due solely to the presence of the ice and snow,
she could not prevail in her cause of action against the
governmental agency. Id. at 105 (emphasis added).
Accordingly, the natural accumulation doctrine provides
that a governmental agency’s failure to remove ice or snow
from a highway does not, by itself, constitute negligence.
Pursuant to this doctrine, plaintiff must prove that there was
an existing defect in the sidewalk rendering it not reasonably
safe for public travel.
V. ANALYSIS AND APPLICATION
Turning to the present case, we apply this longstanding
rule and conclude that the natural accumulation of ice on the
sidewalk, without more, did not constitute a breach of
defendant’s statutory duty to maintain the sidewalk in
reasonable repair. Further, plaintiff cannot prove that her
injuries resulted from a defect on the sidewalk, as distinct
12
from the accumulation of ice.9 Although plaintiff has
9
The dissent’s dominant theme is that we have invaded
the province of the finder of fact by concluding that the
accumulation of ice at this location was natural. In support
of this, the dissent asserts that “[a] determination whether
the sidewalk was in ‘reasonable repair’ is a precursor to the
issue whether the accumulation was natural, which is a
precursor to application of the natural accumulation
doctrine.” Slip op at 5. The dissent also sets forth
plaintiff’s expert’s reference to the accumulation of ice that
occurred here as an “unnatural accumulation,” and further
asserts that whether the claimed depression was a defect
rendering the sidewalk not reasonably safe was a question of
fact. Slip op at 6-7. This, in our judgment, is an incorrect
analysis of the law.
In Hopson this Court rejected the dissent’s argument that
a depression that allows water to accumulate and freeze is an
underlying defect precluding application of the natural
accumulation doctrine. “Ice on a sidewalk, whether on level
places or in depressions, constitutes no defect entailing
liability.” Id. at 250-251 (emphasis added). The Court
continued: “[t]he rule, and the only rule, under which
plaintiff could recover is that, where two causes combine to
produce an injury to a pedestrian using a sidewalk, one of the
causes at least must be a defect in the walk, rendering the
walk not reasonably safe for public travel at any time.” Id.
at 250 (emphasis added). As the Supreme Court of
Massachusetts observed in Newton, supra at 187, a case upon
which Hopson relied:
[T]he real question is not simply whether the
way, with no ice or snow upon it, is defective, but
whether, if there be such a defect, it was
operative as such at the time of the accident, and
was in part the proximate cause of it. If there be
such an operative defect, then there may be a
liability, even although the accident be due in
part to ice or snow; otherwise, there is no such
liability, even if the defect was the cause of the
accumulation of ice or snow.
Therefore, an independent defect, other than the accumulation
of ice or snow, must be at least a proximate cause of a
plaintiff’s injury in order for the plaintiff to recover under
the statute. It is clear from the testimony of plaintiff,
(continued...)
13
properly pleaded that her claim falls within the “highway
exception” to governmental immunity found in MCL 691.1402(1),
she cannot establish an injury caused by a defect in the
sidewalk under traditional negligence principles.
Specifically, plaintiff cannot demonstrate that the claimed
depression was a proximate cause of her slip and fall for
purposes of the highway exception under the rule set forth in
Hopson, supra.To establish a prima facie case of negligence, a
plaintiff must be able to prove four elements: (1) a duty owed
by the defendant to the plaintiff, (2) a breach of that duty,
(3) causation, and (4) damages. Schultz v Consumers Power Co,
443 Mich 445, 449; 506 NW2d 175 (1993). Proof of causation
requires both cause in fact and legal, or proximate, cause.
Skinner v Square D Co, 445 Mich 153, 162-163; 516 NW2d 475
(1994); Davis v Thornton, 384 Mich 138, 145; 180 NW2d 11
(1970). Cause in fact requires that the harmful result would
not have come about but for the defendant's negligent conduct.
Skinner, supra at 163, citing Prosser & Keeton, Torts (5th
ed), § 41, p 266). “On the other hand, legal cause or
9
(...continued)
plaintiff’s expert, and the eyewitness, that there was no such
defect that proximately caused plaintiff’s fall in the instant
case. Thus, we conclude in accord with Hopson, that plaintiff
failed to establish a genuine issue of material fact whether
a defect, rather than the accumulated ice alone, caused her
injury.
14
‘proximate cause’ normally involves examining the
foreseeability of consequences, and whether a defendant should
be held legally responsible for such consequences.” Skinner,
supra at 163. Here, in our judgment, plaintiff cannot
demonstrate that her injury was caused by a breach of the duty
set forth in MCL 691.1402(1).
As in Hopson, plaintiff cannot demonstrate that it was
the combination of ice and a defect in the sidewalk that
caused her to slip and fall. See id. at 250-252. Plaintiff
admitted, with Anna Marson’s testimony supporting the
admission, that she slipped on the ice that was present on the
sidewalk; she did not trip over, or lose her balance in any
way because of the claimed depression in the sidewalk. The
sole proximate cause of plaintiff’s slip and fall was the ice;
there was no persistent defect in the sidewalk rendering it
unsafe for public travel at all times that, in combination
with the ice, caused the incident.10
10
Even if we were to assume that the claimed depression
here represented a condition that rendered the sidewalk not
“reasonably safe for public travel” at all times, under the
facts of the present case the natural accumulation of ice in
the depression effectively vitiated the unsafe condition
presented by the depression itself.
This point, perhaps, is better illustrated by way of
example. Under the first scenario, a six-foot deep hole
exists in the middle of a sidewalk. Water naturally
accumulates in the top of the hole and, because of the weather
conditions, freezes so that, in effect, the hole no longer
exists. While walking upon the sidewalk, an individual steps
(continued...)
15
Simply put, a plaintiff cannot recover in a claim against
a governmental agency where the sole proximate cause of the
slip and fall is the natural accumulation of ice or snow.
This is true even where the ice or snow naturally accumulates
in a portion of the highway (i.e., sidewalk) that was
otherwise not “reasonably safe and convenient for public
travel . . . .” Hopson, supra at 250. Rather, there must
exist the combination of the ice or snow and the defect that,
in tandem, proximately causes the slip and fall. Thus, even
if we accept plaintiff’s claim, in the present case, that a
depression in the sidewalk allowed the ice to form and be
present, we conclude that such a depression, under the facts
here, did not render the sidewalk out of repair within the
meaning of subsection 1402(1).11
10
(...continued)
on the ice, slips, and falls, thereby incurring injury. Under
this scenario, it can only be said that the sole proximate
cause of the slip and fall was the presence of the natural
accumulation of ice. A different outcome, however, would
present under a scenario where the same six-foot hole in the
sidewalk is present, but the ice forms several inches below
the top of the hole. While walking upon the sidewalk, an
individual steps on the edge of the hole, which causes him to
momentarily lose his balance. While attempting to remain
upright, this individual slips on the ice that had naturally
accumulated in the hole. Under this scenario, it must be said
that, in tandem, the defect and the natural accumulation of
ice combined to proximately cause the slip and fall.
11
The prevailing rule from Hopson, supra at 250-51,and
Johnson, supra at 105, is that a plaintiff cannot recover if
an injury is due solely to the presence of ice on the
sidewalk, even if a depression in the sidewalk caused the
(continued...)
16
VI. CONCLUSION
The claimed sidewalk depression in the present case
merely allowed the natural accumulation of ice to form, and
factually presented no “other danger to the steps of the
traveler than that arising from the presence of the ice . . .
.” Hopson, supra at 252. As in Hopson, we reject the
proposition that the presence of ice alone, which naturally
accumulates and which is the sole proximate cause of a slip
and fall, satisfies the remaining elements of the negligence
analysis employed in actions against governmental agencies.
In the absence of a persistent defect in the highway (i.e., a
sidewalk), rendering it unsafe for public travel at all times,
and which combines with the natural accumulation of ice or
snow to proximately cause injury, a plaintiff cannot prevail
against an otherwise immune municipality.
The judgment of the Court of Appeals is reversed, and we
remand this case to the Macomb Circuit Court for entry of an
order granting defendant’s motion for summary disposition.
CORRIGAN , C.J., and WEAVER , TAYLOR , and YOUNG , JJ., concurred
11
(...continued)
accumulation. In such cases, the depression is not a
proximate cause of the plaintiff’s injury. Hopson, supra at
250-251. Our law has developed this test specifically in the
context of the natural accumulation doctrine and the highway
exception to governmental immunity. MCL 691.1401(e).
Hopson’s formulation of proximate cause is limited to those
cases that have arisen in this specific context.
17
with MARKMAN , J.
18
S T A T E O F M I C H I G A N
SUPREME COURT
VALERIA HALIW and
ILKO HALIW,
Plaintiffs-Appellees,
v No. 115686
THE CITY OF STERLING HEIGHTS,
Defendant-Appellant.
___________________________________
KELLY, J. (dissenting).
I believe that plaintiffs established questions of fact
about whether (1) the claimed depression in the sidewalk
rendered the sidewalk no longer reasonably safe, (2) the ice
or snow on which Valeria Haliw fell was a "natural
accumulation," and (3) her injuries were proximately caused by
the sidewalk's condition.
The majority's resolution of these factual disputes is an
impermissible invasion into the province of the finder of
fact. Because the issues should be left for the finder of
fact, I would affirm the Court of Appeals decision that upheld
the trial court's denial of defendant's motion for summary
disposition.
I
In the proceedings below, defendant moved for summary
disposition under MCR 2.116(C)(7) and (C)(10). It argued that
summary disposition was proper because the natural
accumulation doctrine barred plaintiffs' claim, and there was
no defect in the sidewalk in question. Plaintiffs retorted
that there were questions of fact whether the sidewalk was
defective because the depression in it created an unnatural
accumulation of ice and snow. Therefore, they contended, the
natural accumulation doctrine has nothing to do with the case.
In denying defendant's motion, the trial court stated:
The Court: It seems [plaintiff] does have
someone who seems to have expertise–a great deal of
expertise who is saying it is a year-around defect,
not just an accumulation of ice and no defect if it
is a constant problem and he is going to testify to
that, and if that–from that this Court's specific
perspective raises an issue of fact, you are saying
that by a preponderance that doesn't meet the
standard?
I am not disposed to agree with your position
on that, so you have something else you would like
to make me aware of regarding why this isn't
something that a jury must listen to?
[Defendant's counsel]: I have nothing else
with regard to the expert, your honor. . . .
The Court: . . . [T]his Court does believe
that plaintiff has shown–this fact issue has been
raised by provisions raised by the expert and his
credentials and you [defendant] may provide your
2
own expert, but if a finder of fact should have the
opportunity, then, to weigh the issues in this
case, and I will deny the motion for summary
disposition.
In affirming, the Court of Appeals rejected defendant's
claim that the natural accumulation doctrine barred
plaintiffs' claim.1 It reasoned:
Defendant's argument fails, however, because
plaintiffs do not allege that Valeria Haliw fell
because of a natural accumulation of ice and snow.
Rather, plaintiffs claim that the fall was caused
by an unnatural accumulation of ice and snow
resulting from a depression in the sidewalk. Thus,
in addition to the presence of snow and ice,
plaintiffs allege that there was a defect in the
sidewalk itself, and therefore their claim is not
barred by the natural accumulation doctrine. [Slip
op, pp 1-2 (citation omitted).]
The appellate court disagreed, also, with defendant's
position that the alleged defect was insufficient to support
the imposition of liability. It reasoned that a factual
dispute existed whether the sidewalk where Valeria Haliw fell
was reasonably safe for public travel. It rejected as
unpersuasive defendant's argument disputing plaintiffs'
evidence, explaining that a court "may not assess credibility
or determine facts when considering a motion for summary
disposition." Id. at 2.
II
This Court reviews a trial court's decision concerning a
1
Unpublished opinion per curiam, issued October 5, 1999,
(Docket No. 206886).
3
summary disposition motion de novo. Maiden v Rozwood, 461 Mich
109, 118; 597 NW2d 817 (1999). Summary disposition is proper
under MCR 2.116(C)(7) where a claim is barred because of
immunity granted by law.
A motion under MCR 2.116(C)(10) tests the factual support
of a plaintiff's claim. See Smith v Globe Life Ins Co, 460
Mich 446, 454; 597 NW2d 28 (1999). In reviewing it, the court
considers the pleadings, affidavits, and other documentary
evidence filed or submitted by the parties in the light most
favorable to the nonmoving party. The motion is granted if the
documentary evidence shows that no genuine issue of material
fact exists, and the moving party is entitled to judgment as
a matter of law. See Spiek v Dep't of Transportation, 456 Mich
331, 337; 572 NW2d 201 (1998). Courts may not determine facts
on a motion for summary disposition. Questions of fact must be
settled by the finder of fact. See Zamler v Smith, 375 Mich
675, 679; 135 NW2d 349 (1965); Miller v Miller, 373 Mich 519,
526; 129 NW2d 885 (1964).
III
A government agency has a statutory duty to keep highways
under its jurisdiction in reasonable repair so that they are
reasonably safe and convenient for public travel. MCL
691.1402(1). At least in a municipal setting, a "highway" is
defined to include sidewalks. MCL 691.1401(e).
4
Here, it is undisputed that plaintiffs' claim falls
within the "highway exception" to governmental immunity found
in MCL 691.1402(1). Nevertheless, the majority determines that
summary disposition in favor of defendant is proper. It
reasons that the "claimed depression in the sidewalk was not
an independent defect . . . ." It asserts, also, that the
natural accumulation of ice or snow on the sidewalk does not
give rise to an actionable breach of defendant's duty. Slip op
at 1.
I agree that the presence of a natural accumulation of
ice or snow does not, itself, constitute a breach of the
municipality's statutory duty. However, it is debatable
whether the accumulation in the present case can be deemed
"natural." A determination whether the sidewalk was in
"reasonable repair" is a precursor to the issue whether the
accumulation was natural, which is a precursor to application
of the natural accumulation doctrine.2 Therefore, a proper
resolution of this case must begin with a decision whether, as
a question of fact, the sidewalk was in "reasonable repair."
In opposition to defendant's summary disposition motion,
plaintiffs introduced a report from their expert, Theodore
2
See Whinnen v 231 Corporation, 49 Mich App 371, 376-377;
212 NW2d 297 (1973), discussing the relevance of photographs
to the issue of "the combination of defective construction,
inadequate maintenance [of a sidewalk], and a consequent
unnatural or artificial accumulation of ice or snow."
5
Dziurman. Dziurman noted that his inspection of the sidewalk
revealed the following:
The second and third slabs north of the
driveway [the site where plaintiff fell3] had
settled about 2 inches. Water would accumulate in
this depression.
He then recited what he thought transpired in this case:
Based on [plaintiff's] deposition transcript,
she most likely slipped on an "unnatural"
accumulation of ice which caused her to fall.
However, on the date of the accident, there was
also a trip hazard at the same location . . . .
* * *
. . . I believe that [plaintiff's] apparent
slip and fall occurred due primarily to "defects in
the walking surface." Due to either poor compaction
of the "base" material beneath the sidewalk and/or
due to past tree root growth, at least 2 of the
sidewalk slabs at this location had settled
resulting in an unnatural depression in the
sidewalk.
Finally, Dziurman summarized his findings as follows:
There were several defects in the sidewalk in
front of 36225 Arlene, Sterling Heights, Michigan,
in January of 1996. These defects had existed for
several years. The most significant defect was a
settlement of two slabs resulting in a depression
that would pond water or ice in a 2 or 3 square
foot area. This depression was not normal and if
the sidewalk sections had been properly constructed
and maintained, there would not have been a
depression in the sidewalk sections noted on
3
In the complaint, plaintiffs claimed that Valeria fell
because of a depression in the sidewalk, among other things.
Anna Marson, the homeowner nearest the sidewalk, testified
that she helped Valeria to her feet after she fell and thought
that she had gone down where the depression existed in the
sidewalk.
6
January 29, 1996 which created an unnatural
accumulation of ice.
Based on weather data for January of 1996,
there was a source and proper temperatures to allow
ice to form. In the a.m. of January 29, light snow
had obscured the ice. As [plaintiff] walked along
the public sidewalk in front of 36225 Arlene, her
foot accidentally landed on the unnatural
accumulation of unseen ice causing her to slip and
fall. . . .
The defects in the walking surface allowed ice
to form and these defects were the proximate cause
of [plaintiff's] accident. [Emphasis added.]
In support of its motion, defendant argued that the
report was insufficient to create a factual dispute regarding
the sidewalk's condition. Also, it introduced testimony from
the homeowner nearest the sidewalk, who stated that there was
nothing dangerous about the sidewalk absent snow or ice.
Plaintiffs countered with Dziurman's testimony that the
sidewalk, without snow or ice, "could be dangerous" to
pedestrians or bicyclists who were not expecting a depression.
Construing the evidence in the light most favorable to
plaintiffs, the nonmoving parties below, a jury could infer
that the sidewalk's depression rendered it out of "reasonable
repair."4 Thus, a question of fact existed whether defendant
4
See Cornell v City of Ypsilanti, 212 Mich 540, 547; 180
NW 405 (1920), recognizing that "while a municipality is not
liable, as matter of law, for slight depressions in its
sidewalks, such depressions may be of such size, shape and
character as to make the question one of fact" for the jury to
determine. See also Williams v Bay City, 126 Mich 156, 156­
(continued...)
7
breached its statutory duty under MCL 691.1402. See Miller,
supra at 525 (Souris, J., concurring), citing Grand Trunk R Co
v Ives, 144 US 408, 417; 12 S Ct 679; 36 L Ed 485 (1892),
stating that "[u]nless a judge can properly say that all
reasonable men would agree from the undisputed evidentiary
facts that there was or was not negligence, the issue must be
submitted for jury determination . . . ."5
The factual dispute regarding whether the sidewalk was in
reasonable repair consequently creates a question of fact
whether there was a "natural accumulation" in this case. See
Navarre v Benton Harbor, 126 Mich 618, 619-620; 86 NW 138(1901), holding that whether the defendant city breached its
statutory duty to keep its sidewalks in reasonable repair must
4
(...continued)
157; 85 NW 458 (1901).
5
See Pappas v Bay City, 17 Mich App 745, 752-753; 170
NW2d 306 (1969), where the plaintiff introduced evidence that
she stepped on ice covered by snow that had accumulated in a
depression of a sidewalk of at least 2-3/8 inches. The court
held that this evidence created a question for the jury (1)
whether the defendant city breached its statutory duty to keep
the sidewalk in reasonable repair, (2) whether the defect, if
it existed, caused the accumulation of ice, and (3) whether
this was the proximate cause of the plaintiff's injury. Cf.
Hopson v Detroit, 235 Mich 248, 251; 209 NW 161 (1926), where
the plaintiff slipped and fell on ice that had accumulated in
a depression in a public sidewalk. The plaintiff sued the
defendant city, claiming that it was liable for breaching its
duty to keep its sidewalk in reasonable repair. We held that
a directed verdict in favor of the defendant city was proper
because the plaintiff had failed to establish a "culpable
defect in the [side]walk."
8
be left for the jury. In that case, the evidence justified the
jury's inference that the sidewalk's "depressed condition . .
. was such as to induce the formation of ice in unusual
quantities . . . ."6 Therefore, by determining that the
sidewalk was not defective and that this case concerns a
"natural accumulation" of ice or snow, the majority has
impermissibly invaded the province of the factfinder. See
Zamler, supra at 679; Miller, supra at 524.
Alternatively, the majority asserts, even if the
depression in the sidewalk rendered it no longer reasonably
safe, the natural accumulation of ice or snow here
"effectively vitiated the unsafe condition." Slip op at 15, n
10. This assertion is flawed because it is based on a premise
that the accumulation here was "natural." Again, the question
of fact regarding the defective nature of the sidewalk
precludes making such a determination. See Zamler, supra at
679.
Finally, the majority states that summary disposition for
defendant is appropriate because plaintiffs cannot demonstrate
6
See also Whinnen, supra at 377, "[i]n almost every case
whether the condition was due to a natural accumulation or an
artificial or unnatural accumulation or condition is one of
fact for the jury." Cf. Woodworth v Brenner, 69 Mich App 277,
281; 244 NW2d 446 (1976), summary disposition in favor of the
defendant city was proper where the only defect that the
plaintiff alleged in the sidewalk was the presence of ice; the
plaintiff failed to allege some defect in the sidewalk itself.
9
that the claimed depression was the proximate cause of the
fall under Hopson, supra. The trial court made no findings
regarding proximate cause. The parties never argued this
issue. Instead, their arguments concerned whether the sidewalk
was in reasonable repair and whether the natural accumulation
doctrine applied. Therefore, I believe it improper to decide
the instant matter on proximate cause grounds. See Miller,
supra.7
Nevertheless, given the evidence presented below,
particularly although not exclusively Dziurman's report, a
factual dispute exists whether Valeria Haliw's injuries were
proximately caused by the condition of the sidewalk. Thus,
defendant is not entitled to summary disposition on this
basis, either.8
IV
Plaintiffs established a genuine factual dispute
7
Moreover, the majority's reliance on Hopson is
misplaced. Hopson held that there was no evidence of an actual
defect in the sidewalk. See id. at 251; see also Pappas, supra
at 752, stating that, to reconcile Hopson with other cases
from this Court, it should be read as holding that no actual
defect was shown. Hence, Hopson does not control where, as
here, there is evidence of an actual defect in the sidewalk.
8
See Johnson v Marquette, 154 Mich 50, 53-54; 117 NW 658(1908), finding whether a sidewalk's condition was the
proximate cause of the plaintiff's injury was a question
properly left for the jury. The record showed that the
sidewalk contained an unnatural accumulation of ice or snow.
See also Pappas, supra at 752-753.
10
regarding whether the sidewalk at issue was in reasonable
repair. Consequently, there is also a question of fact
whether Valeria Haliw slipped on a "natural accumulation" of
ice or snow and whether her injuries were proximately caused
by the sidewalk's condition. Accordingly, I would affirm the
Court of Appeals decision to uphold the trial court's denial
of defendant's summary disposition motion.
CAVANAGH , J., concurred with KELLY , J.
11