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____________________________________ Michigan Supreme Court Lansing, Michigan 48909

C hief Justice Justices Maura D. Corrigan Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. 

# Opinion

Stephen J. Markman

FILED SEPTEMBER 17, 2002

BETTY J. JONES, Plaintiff-Appellee,

v No. 119578 ENERTEL, INC., a Michigan corporation, Defendant, and CITY OF SOUTH LYON, a municipal corporation, Defendant-Appellant

PER CURIAM Inthis ca se, plaintiff alleged that she suffered injuries as a result of the failure of defendant city of South Lyonto fulfill its statutory d uty un der MCL 691.1402(1) to maintain a sidewalk in reasonable repair. The circuit court denied SouthLyon’s motion for summary disposition, which was premised on the position that it should not be held liablebecause the condition of the sidewalk was open and o bvious . The Court of Appeals denied South Lyon’s i nte rlocutory applicationfor leave to appeal that decision. We affirm the circuit court’s denial of the motion for summary disposition because the open and obvious doctrine of common-law premises liability is inapplicable to a claim that a municipality violated its statutory duty to maintain a sidewalk on a public highway in reasonable repair. I Plaintiff alleges that she fell on a sidewalk located along a road in South Lyon “due to the h azardous n ature of said sidewalk, includin g br oken cement [and] differences in height between t he cem ent slabs” and that she suffered a fracture of her right arm and other injuries as a result. She fur ther asserts that South Lyon failed to properly maintai n the sidewalk. SouthLyon moved for summary disposition pursuant to MCR 2.116(C)(10) on the ground that it was not liable because the condition of the sidewalk was open and obvious. The circuit court denied that motion, ruling that it was bound to follow the holding in Haas v Ionia, 214 Mich App 361; 543 NW2d 21 (1995 ), that the open and obvious doctrine cannot bar an actionfor violation of a municipality’s statutory obligation 2under MCL 691.1402(1) to keep a sidewalk in reasonable repair. Thereafter, South Lyon filed aninterlocutory application for leave to appeal the denial o f i ts motion for summary dispositionwith the Co urt of Appeals, which denied the application. II We review the resolution of a summary disposition motion de novo. Roberts v Mecosta Co General Hosp, 466 Mich 57, 62; 642 NW2d 663 (2002). III MCL 691.1402(1), part of the governmental tort liability act (GTLA), imposes a general duty on municipalities to keep “a highw ay,” including a sidewalk on the highway 1 , under its jurisdiction in reasonable repair: Except as otherwise provided in section 2a [2] eachgovernmental 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 proper ty 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 ma y recover the damages suffered by him or her from the governmental agency. [Emphasis added.]

1 The applicable statutory definition of “highway” includes “sidewalks . . . on the highway.” MCL 691.1401(e). 3The emphasized language places a duty on municipalities to maintaintheir sidewalks on public highways in reas onabl e repair. This means that municipalities have an obligation, if necessary, to actively pe rfor m repair work to keep such sidewalks in reasonable repair. This is a greater duty thanthe duty a premises possessor owes to invitees under commonlaw premises liability principles. The basic duty owed to an invitee by a premises possessor is “to exercise reasonable

care to protect the invitee from an unreasonable risk of harm caused by a dangerous condition on the land.” Lugo v AmeritechCorp, 464 Mich 512, 51 6; 629 NW2d 384 (2001). Accordingly, as we discus sed in Lugo, this duty does not ge nera lly require a premises possessor to remove open and obvious conditions because, absent special aspects, such conditions are not unreasonably dangerous precisely because they are open and obvious. However, such reasoning cannot be applied to the statutory duty of a municipality to maint ain sidewalks on public highways because the statute requires the sidewalks to be kept in “reasonabl e repa ir.” The statutory language does not allow a municipality to forego such repairs because the defective condition of a sidewalk is open and obvious. Accordingly, we conclude that the open and obvious doctrine of common-law premises liability cannot bar a claim 4against a municipality under MCL 691.1402(1). Moreover, MCL 691.1403, in qualifying the gene ral duty imposed on municipalities to maintain highways, provides: No governmental agency is liable for injuries or damages caused by defective highways unless the go vernm ental agency knew, or in the exercise of reasonable diligence should have known, of the existence of the defect and had a reasonable time to repair the defect before the injury took place. Knowledge of the defect and time to repair the same shall be conclusively presumed when the defect existed so as to be readily apparent to an ordinarily observant personfor a period of 30 days or longer before the injury took place. This language contemplates that a city may, in appropriate circumstances, be held liable f or def ects in a highway that

are “readily apparent to an ordinarily observant person”—or in other words are open and obvious. Thus, MCL 691.1403 reflects that the Legislature did not intend to allow a municipality to invoke the open and obvi ous doctrine in this context. Accordingly, MCL 691.1403 reinforces our conclusion that the openand obvious doctrine is inapplicable to a claim that a municipality has violated its duty to maintain a highway (including a sidewalk on a highway). IV In arguing that it should be allowed to avail itself of the open and obvious doctrine, South Lyon, in its application for leave to appeal, cites MCL 691.1412, which provides: 5Claims under this act are subject to all of the defense s av ailable to claims sounding in tort brought against private persons. SouthLyon argues that, because the open and obvious “defense” is available to private parties, MCL 691.1412 requires that it be allowed to advance that doctrine in this case. We disagree. Assuming for purposes of dis cuss ion that MCL 691.1412 read in isolation would allow South Lyon 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 prov is ion and a specific provision, the specific provision controls.” Gebhardt v O’Rourke, 444 Mich 535, 542­ 543; 510 NW2d 900 (1994). As discussed in the previous

se ction, MCL 691.1402(1) imposes a duty on municipali tie s specific to maintaining highways (including sidewalks on highways) in reasonable repair. In contrast, MCL 691.1412 applies generally to all claims under the GTLA. Thus, the specific provisions of MCL 691.1402 (1) pr evail over any arguable inconsistency with the more general rule of MCL 691.1412. V For these reasons, we affirm the circuit court denial of 6the motion for summary disposition. C ORRIGAN , C.J., and C AVANAGH , W EAVER , K ELLY , T AYLOR , Y OUNG , and M

ARKMAN , JJ., concurred.

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