GLANCY v CITY OF ROSEVILLE; ASHTON v CITY OF HAZEL PARK
Docket Nos. 106283, 109241
Supreme Court of Michigan
Decided June 9, 1998
457 Mich 580
Argued March 3, 1998 (Calendar Nos. 1-2).
Frances C. and James Ashton brought an action in the Oakland Circuit Court against the city of Hazel Park, alleging that Frances Ashton slipped and fell on a defective sidewalk that was between 1 and 1 1/2 inches higher than the surrounding sidewalk. The court, Robert C. Anderson, J., granted summary disposition for the defendant, concluding that subsection 7(1) codified the two-inch rule. The Court of Appeals, D. E. HOLBROOK, JR., P.J., and WHITE аnd A. T. DAVIS, JJ., reversed and remanded in an unpublished memorandum opinion on the basis of Glancy (Docket No. 182876). The defendant appeals.
In an opinion by Justice TAYLOR, joined by Chief Justice MALLETT, and Justices BRICKLEY, BOYLE, and WEAVER, the Supreme Court held:
Because the two-inch rule is a negligence rule rather than a principle of governmental immunity,
The governmental tort liability act provides governmental immunity for governmental agencies, including municipalities, engaged in governmental functions. The second sentence of subsection 7(1) retained preexisting governmental immunity law except where provided otherwise in the act. Although, by its terms, the provision аpplies to the state, case law has held that it also applies to all governmental agencies, including municipalities. - Tort actions against governmental agencies generally raise two separate issues: whether the plaintiff has pleaded a cause of action in avoidance of governmental immunity, and whether the elements of a negligence action can be established. Whether a defect is over two inches bears on the issue of negligence, i.e., whether a municipality failed to keep a sidewalk in reasonable repair. The two-inch rule was a common-law threshold for negligence based on the reasonable repair standard of care of the statutory highway exception to governmental immunity. Subsection 7(1) did not resuscitate the two-inch rule after it was abolished in Rule v Bay City.
- While the judiciary has authority to formulate policy regarding common-law issues, it may not adopt rules that change statutes on the basis of policy arguments. Rather, the judiciary‘s role in determining the policy behind a statute is to attempt to determine the policy choice the Legislature made. Pоlicy arguments regarding adoption of a bright-line rule that defects of two inches or less do not constitute a lack of reasonable repair under subsection 2(1) should be directed to the Legislature.
Glancy, affirmed.
Ashton, affirmed.
Justice KELLY, joined by Justice CAVANAGH, concurring in part and dissenting in part, stated that the two-inch rule should not be revived at this time, not because the Supreme Court lacks the power to revive the rule, but because the defendants have not persuaded the Court that Rule v Bay City was incorrectly decided. While, in areas properly within the province of the Legislature, the Court may not formulate its own public policy and, on that basis, change a statute, the majority offers nothing convincing that reviving the two-inch rule would violate that limitation.
216 Mich App 390; 549 NW2d 78 (1996) affirmed.
Bieber & Czechowski, P.C. (by Walter J. Czechowski and William J. Brady), for plaintiff-appellee Glancy.
Plunkett & Cooney, P.C. (by Mary Massaron Ross), for the defendants-appellants.
Amici Curiae:
Granzotto & Nicita, P.C. (by Angela J. Nicita), for Michigan Trial Lawyers Association.
Johnson, Rosati, Galica, Labarge, Aseltyne & Field, P.C. (by Marcia L. Howe), for Michigan Municipal League.
TAYLOR, J. These cases present the issue whether the second sentencе of
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 1 1/4 and 1 1/2 inches higher than the surrounding sidewalk. In Ashton, the sidewalk portiоn at issue was between 1 and 1 1/2 inches higher than the surrounding sidewalk. 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 subsectiоn 7(1) only preserved pre-1965 immunity for the state, not other governmental entities, i.e., municipalities. 216 Mich App 390; 549 NW2d 78 (1996). In Ashton, the Court of Appeals reversed on the basis of Glancy. Ashton v Hazel Park, unpublished memorandum opinion of the Court of Appeals, issued April 4, 1997 (Docket No. 182876).
STANDARD OF REVIEW
Appellate review of a trial court ruling on a motion for summary disposition is de novo. Spiek v Dep‘t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). “MCR 2.116(C)(7) tests whether a claim is barred because of immunity granted by law, and requires consideration of all documentary еvidence filed or submitted by the parties.” Wade v Dep‘t of Corrections, 439 Mich 158, 162; 483 NW2d 26 (1992).
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 submit-
I. MUNICIPALITY LIABILITY FOR SIDEWALK DEFECTS
The governmental tort liability act,
Each governmental agency having jurisdiction over a highwаy shall maintain 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 damagеs suffered by him or her from the governmental agency.
Subsection 2(1) requires municipalities to maintain sidewalks in “reasonable repair.”2 Under the two-inch rule, sidewalk defects of two inches or less did not constitute a lack of “reasonable repair” as a matter of law. See Weisse v Detroit, 105 Mich 482, 483, 487; 63
II. AFFIRMATION OF PRE-1965 GOVERNMENTAL IMMUNITY
Subsection 7(1) of the governmental tort liability act, as amended in 1986, provides:
Except as otherwisе provided in this act, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged 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 sentenсe 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, 430 Mich 139, 147, 170; 422 NW2d 205 (1988).
By its terms, this provision of subsection 7(1) applies to “the state.”
However, in Li v Feldt (After Remand), 434 Mich 584, 592-593, n 8; 456 NW2d 55 (1990), which involved tort liability of municipalities, this Court stated that
The present case does not require this Court to reconsider whethеr these authorities accord with the statutory language of subsection 7(1). Rather, this Court may assume, without deciding, that this provision of subsection 7(1) applies to municipalities because this provision would not affect the two-inch rule.
III. WHETHER THE TWO-INCH RULE IS A GOVERNMENTAL IMMUNITY PRINCIPLE THAT SUBSECTION 7(1) WOULD AFFIRM
Here, defendants contend that the second sentence of subsection 7(1) mandates the continued application of the two-inch rule desрite 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 governmental agencies to liability when they fail to maintain highways in “reasonable repair.” The two-inch rule was a bright-line rule stating that
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 noted 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. 105 Mich 486-487. The Weisse Court concludеd that the street at issue was reasonably safe despite the alleged defect of approximately two inches and held that the trial court should have given the defendant‘s request to charge that “as a matter of law that no such defect existed as authorized a recovery.” Id. at 483.
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 inсhes 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.” 367 Mich 531 (emphasis added). He agreed with Colorado authority indicating that it is impropеr to determine “actionable negligence” by an arbitrary measurement and concluded that the facts and circumstances of each case must be considered to deter-
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 elements of a negligence action.3 Whether a defect is over two inches bears on the issue of negligence, i.e., whether the municipality failed to keep the sidewalk in “reasonable repair.” The cases apрlying the two-inch rule as well as those abolishing it indicate that the two-inch rule barred recovery because a plaintiff would be unable to prove actionable negligence, i.e., lack of “reasonable repair,” rather than because a municipality was governmentally immune from liability for defects of two inches or less. Thus, the two-inch rule was not a rule of commоn-law immunity; rather, it was a common-law threshold for negligence based on the “reasonable repair” standard of care of the statutory highway exception.4
The two-inch rule‘s relationship to the statutory highway exception distinguishes it from common-law
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), 420 Mich 567, 609; 363 NW2d 641 (1984), this Court reiterated that “to read the second sentence of [subsection 7(1)] as ‘preserving for all time state governmental immunity heretofore recognized by case-law’ would be to ‘assume that the Legislature failed to recognize that the evolution of case law precedent is exclusively committed to the judicial branch of government.‘”5
IV. WHETHER TO ADOPT THE TWO-INCH RULE UNDER SUBSECTION 2(1)
Alternatively, defendants argue that even if subsec-
CONCLUSION
For these reasons, we affirm the Court of Appeals decisions in both Glancy and Ashton. While we agree with the result in both cases, we analyze the issues differently than did the Court of Appeals. The two-inch rule is a rule of negligence, not a common-law principle of governmental immunity that the second sentence of subsection 7(1) would codify. Policy arguments in favor of adopting the two-inch rule as a bright-line threshold for lack of “reasonable repair” under subsection 2(1) should be addressеd to the Legislature.
MALLETT, C.J., and BRICKLEY, BOYLE, and WEAVER, JJ., concurred with TAYLOR, J.
KELLY, J. (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 revived by statute, we should revive the two-inch rule ourselves. I agree with the majority‘s
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 рroperly within the province of the Legislature, the Court may not formulate its own public 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 сonstitution where it is not necessary to do so.
CAVANAGH, J., concurred with KELLY, J.