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These cases present the issue whether the second sentence of MCL 691.1407(1); MSA 3.996(107)(1), which affirms governmental immunity as it existed before July 1, 1965, codified the “two-inch rule”
FACTS AND PROCEEDINGS
These two cases arise out of slip and fall accidents involving sidewalk defects of less than two inches. In Glancy, the portion of sidewalk at issue was between IV4 and IV2 inches higher than the surrounding sidewalk. In Ashton, the sidewalk portion at issue was between 1 and IV2 inches higher than the surrounding sidеwalk. Defendants in both cases moved for summary disposition under MCR 2.116(C)(7) and (10), contending that subsection 7(1) reinstated the two-inch rule. In each case, the trial court granted defendant’s motion for summary disposition, concluding that subsection 7(1) codified the two-inch rule into Michigan law. In Glancy, the Court of Appeals reversed, concluding that subsection 7(1) only preserved pre1965 immunity for the state, not other governmental entities, i.e., municipalities.
STANDARD OF REVIEW
Appellate review of a trial court ruling on a motion for summary disposition is de nоvo. Spiek v Dep’t of Transportation,
MCR 2.116(C)(10) tests the factual support of a plaintiff’s claim. The court considers the affidavits, pleadings, depositions, admissions, and other documentary evidence submitted or filed in the action to determine whether a genuine issue of any material fact exists to warrant a trial. [Spiek, supra at 337.]
I. MUNICIPALITY LIABILITY FOR SIDEWALK DEFECTS
The governmental tort liability act, MCL 691.1401 et seq.) MSA 3.996(101) et seq., provides governmental immunity for governmental agencies, including municipalities like defendants here. “[T]he heart of the act, § 7, provides for broad immunity from tort liability for governmental agencies engaged in governmental functions.” Wade, supra at 166. “[Exceptions to governmental immunity are to be narrowly construed.” Id. MCL 691.1402(1); MSA 3.996(102)(1) sets forth the “highway exception” to governmental immunity. Subsection 2(1) states in pertinent part:
Each governmental agency having jurisdiction over a highway shall mаintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. A person sustaining bodily injury or damage to his or her property by reason of failure of a governmental agency to keep a highway under its jurisdiction in reasonable repair, and in condition reasonably safe and fit for travel, may recover the damages suffered by him or her from the governmental agency.
Subsection 2(1) requires municipalities to maintain sidewalks in “reasonable repair.”
H. AFFIRMATION OF
Subsection 7(1) of the governmental tort liability act, as amended in 1986, provides:
Except as otherwise provided in this act, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engаged in the exercise or discharge of a governmental function. Except as otherwise provided in this act, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed before July 1, 1965, which immunity is affirmed.
The second sentence of subsection 7(1) “retains preexisting governmental immunity law except where provided otherwise in the act” and mandates an historical approach. Hadfield v Oakland Co Drain Comm’r,
By its terms, this provision of subsection 7(1) applies to “the state.” MCL 691.1401; MSA 3.996(101) provides distinct definitions of “state” and “municipal corporation” and defines “governmental agency” to inсlude both. In the context of the first sentence of subsection 7(1), which uses the term “governmental agencies,” the use of the term “the state” in the second sentence might be read to indicate that this provision applies only to the state, not to governmental agencies generally.
However, in Li v Feldt (After Remand),
The present case does not require this Court to reconsidеr whether these authorities
ID. WHETHER THE TWO-INCH RULE IS A GOVERNMENTAL IMMUNITY PRINCIPLE THAT SUBSECTION 7(1) WOULD AFFIRM
Here, defendants contend that the second sentenсe of subsection 7(1) mandates the continued application of the two-inch rule despite this Court’s abolition of it in 1972. The basis of the two-inch rule is the concept of “reasonable repair.” The highway exception, subsection 2(1) of the governmental tort liability act, subjects governmentаl agencies to liability when they fail to maintain highways in “reasonable repair.” The two-inch rule was a bright-line rule stating that defects of two inches or less constituted “reasonable repair” as a matter of law.
The roots of the two-inch rule can be traced to Weisse, supra, which involved injuries allegedly arising out of a defective crosswalk. The Weisse Court notеd that, in 1887, the Legislature amended the statute, imposing a duty on municipalities to maintain highways so that it required “reasonable repair” rather than “good repair” and imposed a duty that streets be “reasonably safe,” not absolutely safe.
In Rule, supra at 283, this Court abolished the two-inch rule:
[W]e will no longer hold as a matter of law that a depression or obstruction of two inches or less in a sidewalk may not be the basis for a municipality’s liability for negligence.
In abolishing the two-inch rule, the Rule Court relied on Justice Adams’ dissent in Harris, supra. Justice Adams stated that the two-inch rule “gradually hardened into a rule of law that where a defect in a walk was less than 2 inches in depth, the walk would be considered to be safe and the city free from negligence.”
As this Court has previously noted, tort actions against governmental agencies generally raise two separate issues: 1) whether the plaintiff has pleaded a cause of action in avoidance of governmental immunity, and 2) whether the plaintiff can establish the еlements of a negligence action.
The two-inch rule’s relationship to the statutory highway exception distinguishes it from common-law principles of immunity like the tresрass-nuisance exception recognized in Hadfield, which are properly the subject of the second sentence of subsection 7(1). By its terms, this provision of subsection 7(1) affirms pre-1965 common-law immunity that is not addressed by the governmental tort liability act. There is no need to resort to pre-1965 commоn law with respect to the statutory exceptions explicitly set forth in the act. For these reasons, subsection 7(1) would not resuscitate the two-inch rule after this Court abolished it in Rule.
Moreover, even with respect to immunity principles, subsection 7(1) does not preserve governmental immunity law in a time capsule as of July 1, 1965. Subsection 7(1) states that the act “shall not be construed as modifying or restricting” immunity as it existed before July 1, 1965. But this provision does not prohibit this Court from reconsidering and amending or abolishing pre-1965 precedent regarding governmental immunity. In Ross v Consumers Power Co (On Rehearing),
IV. WHETHER TO ADOPT THE TWO-INCH RULE UNDER SUBSECTION 2(1)
Alternatively, defendants argue that even if subsection 7(1) did not codify the two-inch rule, this Court should adopt the two-inch rule as a threshold for lack of “reasonable repair” under subsection 2(1). In support of adopting the two-inch rule, defendants cite the great expense to municipаlities of defending lawsuits for injuries arising out of sidewalk defects of two inches or less. The Legislature, with its ability to consider testimony from a variety of sources and make compromise decisions, is much better positioned than the judiciary to consider such policy arguments and make policy choices.
CONCLUSION
For these reasons, we affirm the Court of Appeals decisions in both Glancy and Ashton.
Notes
This Court articulated the two-inch rule as “a depression in a walk which does not exceed 2 inches in depth will not render a municipality liable for damages incident to an accident caused by such depression.” Harris v Detroit,
Subsection 2(1) specifically states that the duty of the state and counties to maintain highways does not include “sidewalks, crosswalks, or any other installation outside of the improved portion of the highway designed for vehicular travel.”
See, e.g., Canon v Thumudo,
In further support of the proposition that the two-inch rule bears on negligence rather than governmental immunity, the Ashton plaintiff notes that this Court has at least considered the two-inch rule in the context of actions against nongovеrnmental defendants. See Crowe v Michigan Central R Co,
The version of subsection 7(1) applied in Ross affirmed immunity “as it existed heretofore”; in 1986 this portion of the statute was аmended to “as it existed before July 1, 1965.”
An example of the adoption of a bright-line rule by statutory presumption is MCL 257.625a(9); MSA 9.2325(1)(9).
Concurrence Opinion
(concurring in part and dissenting in part). I concur with the result reached by the majority, and with much of its reasoning. However, I cannot join part iv of today’s opinion.
Defendants argue that, if we find that the two-inch rule was not revivеd by statute, we should revive the two-inch rule ourselves. I agree with the majority’s conclusion that we should not revive the two-inch rule at this time. I reach that decision, not because the Court lacks the power to revive the rule, but because defendants have not persuaded us that our decision in Rule was incorrect. Ante at 589-591.
I dissent because the majority, in an alternate position, rejects defendants’ argument that the Court should adopt the two-inch rule because it would be unconstitutional to do so. I agree that, in areas properly within the province of the Legislature, the Court may not formulate its own publiс policy and, on that basis, change a statute. However, nothing in the opinion convinces me that reviving the two-inch rule would violate that limitation, and therefore, I cannot join the portion of the opinion that implies as much. I hesitate to construe limitations placed on this Court by our constitution where it is not necessary to do so.