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### STATE OF MICHIGAN

COURT OF APPEALS

DEBRA HARPER,

Plaintiff-Appellee, UNPUBLISHED August 30, 2016

v No. 327573

Macomb Circuit Court CITY OF FRASER, LC No. 14-002512-NO

Defendant-Appellant/Third-Party Plaintiff,

v

DAN’S EXCAVATING, INC.,

Third-Party Defendant.

Before: K. F. K ELLY , P.J., and M. J. K ELLY and R ONAYNE K RAUSE , JJ.

P ER C URIAM

.

Defendant City of Fraser made a motion for summary disposition in the trial court, arguing that it was shielded by governmental immunity from liab ility for damages resulting from a bicycle accident occurring on a city sidewalk. Defendant app eals as of right the trial court’s order denying its motion for s ummary disposition. We affirm.

I. FACTS AND PROCEDURAL HISTORY

On October 30, 2013, plaintiff Debr a Harper was riding her bik e on the sidewalk along the western side of Groesbeck Highway, north of 13 Mile Road. Plaintiff alleges that she lost control of her bicycle when she encountered a portion of the si dewalk that was unpaved, covered in loose gravel, and had a drop in height from the surface of t he rest of the paved sidewalk. As a result of the incident, plainti ff incurred injuries, including but not limited to; physical pain and suffering in her back, shoulder, and neck; disability and disfi gurement; mental anguish; denial of social pleasures and enjoyment of life.

Plaintiff filed a Complaint on June 25, 2014, alleging that de fendant did not fulfill their duty to keep the sidewalk in reas onable repair. On January 16, 2015, defendant filed a Motion for Summary Disposition pursuan t to MCR 2.116(C)(7) and (10), a rguing that it is entitled to governmental immunity and that no issue of material fact exists in the case, and dismissal of-2- plaintiff’s complaint is therefore warranted. Plaintiff respon ded on February 23, 2015, arguing that an exception to governmental immunity had been satisfied a nd that summary disposition would be improper, as issues of material fact exist and need to be decided by a fact finder. A written opinion and order followed on May 4, 2015, denying defe ndant’s motion, which defendant now appeals.

II. STANDARD OF REVIEW

“We review de novo the trial court’s denial of a defendant’s m otion for summary disposition under MCR 2.116(C)(7) and MCR 2.116(C)(10).” Oliver v Smith , 269 Mich App 560, 563; 715 NW2d 314 (2006). MCR 2.116(C)(7) permits summary disposition when a claim is barred because of immunity granted by law. “To survive such a motion, the plaintiff must allege facts justifying the application of an exception to gove rnmental immunity.” Fane v Detroit Library Com ’ n , 465 Mich 68, 74; 631 NW2d 678 (2001). MCR 2.116(C)(10) states that “[e]xcept as to the amount of damages, there is no genuine issu e as to any material fact, and the moving party is entitled to judgment or partial judgment as a m atter of law.” MCR 2.116(C)(10). A genuine issue of material fact exists when the record, viewed in the light most favorable to the nonmoving party, leaves open an issue upon whi ch reasonable minds could

differ. West v General Motors , 469 Mich 177, 183; 665 NW2d 468 (2003). “If the evidence fails to demonstrate a genuine i ssue of material fact, the mova nt is entitled to judgment as a

matter of law.” Blue Harvest

, Inc v Department of Transp , 288 Mich App 267, 276; 792 NW2d 798 (2010).

III. GOVERNMENTAL IMMUNITY

Defendant first argues that the trial court erred in denying i ts motion for summary disposition because plaintiff did not adequately satisfy a stat utory exception to governmental immunity, and secondly, that the defect in the sidewalk did not violate the statute, as any discontinuity was under 2 inches . Michigan law states that “[a ] municipal corporation in which a sidewalk is installed adjacent to a municipal, county, or state highway shall maintain the sidewalk in reasonable repair .” MCL 691.1402a(1). However, “a municipal corporation that has a duty to maintain a sidewalk under subsection (1) is presumed to have maintained the sidewalk in reasonable repair,” and in order to overcome that presumptio n, evidence must be put forth that the “proximate cause of the injury was 1 or both of the followi ng: (a) a vertical discontinuity defect of 2 inches or more in the sidewalk [or] (b) a dangerous condition in the sidewalk itself of a particular character other t han solely a vertical discontinui ty.” MCL 691.1402a.

Plaintiff testified at her deposition that the condition of th e defect was as follows: a hole of approximately five to seven i nches deep, sloping down from t he existing slab of pavement on the north side of the hole, covered in loose gravel. This defe ct was clearly the result of a construction project occurring on the sidewalk, and unless a hi ghway area is effectively closed to the public, the duty to keep the highway area in reasonable rep air is not suspended despite ongoing construction. Snead v John Carlo

, Inc , 294 Mich App 343, 370; 813 NW2d 294 (2011). While the discontinuity may not have been precisely vertical, i t was alleged to have been well over the 2 inch minimum needed to satisfy the first prong of th e statute. However, even if the first prong of the statute is not sufficiently evidenced in thi s case, it is clear that the second prong of the statute has been met. The steep slope created by the re moval of the pavement, covered in-3- loose gravel, created a condition that was inherently dangerous to pedestrians, bicyclists, etc. The sidewalk was not kept in reasonable repair, as the aforemen tioned status of the sidewalk created a dangerous condition in the sidewalk itself, and there fore, plaintiff has rebutted the city’s presumed governmental immunity.

Additionally, under defendant’s arguments as to why an excepti on to governmental immunity cannot be met in this cas e, it claims that the defect plaintiff fell and was injured upon

should not be considered “sidewalk” under the statute. Sidewal k, as defined by MCL 691.1401(k), and for the purposes of the governmental immunity statute, is “a paved sidewalk intended for pedestrian use.” Due to the fact that at the time of the accident, the defective area was not paved, defendant argues the defective area does not com e within the scope of the statute. To hold that the defective area, which was clearly once a part of the paved sidewalk, but was under construction at the time plaintiff encountered it, should not be considered “sidewalk” simply because it was not paved at the precise time of injury, would be nonsensical. The defect on which plaintiff was injured falls well within the scope of t he sidewalk statute, so if one or both of the exceptions to governmental immunity are met, as the y are in this case, the presumption of reasonable repair r egarding the defect has been rebutted.

IV. ORDINARY NEGLIGENCE

Defendant also takes issue with several of the allegations con tained within plaintiff’s complaint and demand for jury trial. Paragraphs 9, 12, and 13 contain allegations of defendant violating duties of ord inary care, failure to inspect, failure to warn, etc. and defendant contends that because they exceed the limited exceptions to governmental immunity, they must be precluded. Plaintiff included th ese allegations in her complai nt for the purpose of suggesting an absence of warning signs or barri ers to a portion of sidewalk u nder construction. To reiterate what the trial court said in its Opinion and Order denying defe ndant’s motion for summary judgment, a governmental agency may suspend its duty to maintai n a highway in reasonable repair while the highway is being improved or repair by closing that portion to public traffic. Grounds v Washtenaw County Road Com ’ n , 204 Mich App 453, 456: 516 NW2d 87 (1994).

When the trial court decided th e issues presented in the afore mentioned allegations, it had already concluded that plaintiff had satisfied the requirements of at least one of the exceptions to governmental immunity, and it was then beginning to analyze whe ther or not defendant had properly closed the sidewalk to p edestrian traffic. This is th e issue of material fact and therefore is the reason that summary dispos ition may not be granted under MCR 2.116(C)(10) at this time. Any and all factual allegations i n plaintiff’s complaint or oth er pleadings regarding defendant’s actions, or lack thereof, to close the sidewalk are relevant to defendant’s liability. Defendant has not provided any legal support fo r striking any of plaintiff’s allegations at this time and they

should all remain.-4- V. CONCLUSION

The trial court properly denied defendant’s motion for summary disposition, as plaintiff has rebutted the presumption that defendant kept the sidewalk i n reasonable repair. We affirm

the trial court’s decision.

/s/ Kirsten Frank Kelly /s/ Michael J. Kelly /s/ Amy Ronayne Krause