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___________________________________________ Michigan Supreme Court Lansing, Michigan 48909

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

# Opinion

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 accumulationof ice or snow on the sidewalk at issue does not give rise to an actionable breach of defendant’s duty, and the claimed depr ession in the sidewalk was not an independent defect, plai ntiff cannot prove the elements required toestablisha negligence c lai m 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. F ACTS AND PROCEEDINGS OnJanuary 29, 1996, pla intiff was walking on a snowcovered sidewalk located in her neighbor ho od. Plaintiff claims that she slipped and fell on a patch of ice that had formed onthe sidewalk. 2 Apparently, the ice had formed in a depressed portion where two sections of the s idew alk 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

neare st 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. 2But 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 inspectionof the portion of sidewalk upon which plaintiff claimed ice had fo rmed. 3 According to Dziurman, there was a “depressio n” w here two slabs of the concrete sidewalk met, a lthoug h 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 format ion 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 ridi ng on a

3We note that The odore Dziurman’s inspection of the sidewalk occurred on July 2, 1997. 3bicycle if they are going real fast, they could hit the bottom of that thing and cause the bike to go out o f co ntrol. There are possibilities of other accident potential because of that sunken condition. Q . Do you have a ny inf ormation 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 disp osition, brought pursuant to MCR2.116(C)(7) and (10). The trial court denied defendant’s motion, and the Court of Appeals, in an unpublished opinion, affirmed, stating that [i]naddition to the presence of snow and ice, plaintiffs allege there was a defect in the s idew alk 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. S TANDARD OF REVIEW We review the grant or denial of summary disposition de

novo. M aiden v Rozwood , 461 Mich 109, 118; 597 NW2d 81 7 (1999). “MCR 2.116(C)(7) tests whether a claim is barred

4because of immunity granted by law, and requires consideration of all doc umen tary evidence filed or submitted by the parties.” Glancy v Roseville , 457 Mich 580, 583; 577 NW2d 897 (1998). Inreviewing a motion for summary disposition brought under MCR 2.116(C)(10), we must consid er 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 NW2 d 314 (199 6). Summary disposition may b e granted if the evidence demonstrates that there is no gen uine 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 constructionde novo as quest ions o f law. Donajkowski v Alpena Power Co , 460 Mich 243, 248; 596 NW2d 574 (1999). III. G OVERNMENTAL IMMUNITY The governmental tort liability a ct, M CL 691.1401 et seq. , provides immunity for governmental agencies, including municipaliti es 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

5exceptionapplies. 4 MCL 691.1407; Nawrocki v Macomb Co Rd Comm, 463 Mich 143, 156; 615 NW2d 702 (2000) ; Suttles v Dep’t of Transportati on , 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 excep tions narrowly drawn. 5 Nawrocki, supra at 149; Ross, supra at 618. The only exception implicated inthe present case is the so-called “highway exception” to governmental immunity, which is set forth in MCL 691.1402, and provides in part: Eachgovernmental agency having jurisdiction over a highway shall ma intain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. A personwho 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 conditi on r easonably 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).

5Althoug h go vernmental agencies may be under a wide variety of duties, with regard to services that they provide to the public, only those enum erat ed within the statutorily created exceptions are legally compensable if breached. MCL 691.1407; Nawrocki , supra at 157.

6Plaintiff’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 statutorylanguage, which was enacted (continued...) 6Pursuant to subsection 1402(1), the duty to mainta in p ublic 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 actionfalls within the “highway exception” t o go vernmental immunity is not the end of the analysis: In every instance where a plaintiff alleges a cause of a ction 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) by1999 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 t he s tate 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 authorize d by constitution, statute, local charter or ordinance, or other law.” Subsection 1401(f). 7a 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 ina location encompassed by M CL 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 reas ona bly 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” doctrin e, se e 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] immunityand negligence.” Canon v Thumudo, 430 Mich 326, 335; 422 NW2d 688 (1988). 8IV. THE N ATURAL 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

s igna l negligence of that public authority.” Stord v TransportationDep’t , 186 Mich App 693, 694; 465 NW2d 54 (1991). The following cases present an o ver view of the “natural accumulation” doctrine as it relates to publi c sidewalks, and municipal defendants. In Mayo v Village of Baraga, 178 Mich171; 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 inthe [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 ca used by the melting of snow uponor adjoining such a walk? If the liability of a city for damages resulting from a failure to keep its highways in a reasonably safe cond ition for travel extends to cases where suchcondition is not ascribable to defects in the construction and maintenance of the way, or to the action of the officers to the cit y or their negligence in the performance of a duty, it may be conten ded that cities must cause the streets to be patrolled, in searchof bricks or coals that fall from wagons, for t he tr eacherous 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.]

9In 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 conditionmade 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 liabil itywas that when two causes combine to produce an injury to a traveler upona 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 pla ce to slip into,” this Court held that the rule obtaining in Michigan places no liabilit y up on the municip alityfor 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

10sidewalk, 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, wheth er o n level places or in depressions , constitutes no defect entai ling 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. Indetermining that the plaintiff in Hopson could not prevail, this Court stated that wherever ice or snow is the sole proximate cause of the accide nt , there shall be no liability , but where at the time of the acciden t ther e 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 f or the purpose of ascertaining whether there is at that time any other danger to the steps of the traveler thanthat arising from the presence of ice or snow; if th ere be no other danger, then for the time being the way is “oth erwis e reasonably safe and convenient.” [ Id. at 252, quoting Newton v Worcester, 174 Mass 1 81 , 187; 54 NE 521 (1899)(emphasis added).] In Johnson , supra , the plaintiff suffered injuries as the

11result 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 withinthe 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

anexisting defect in the sidewalk rendering it not reasonably safe for public travel. V . A NALYSIS 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 sid ewa lk in reasonable repair. Further, plaintiff cannot prove that her injuries resulted from a defect on the sidewalk, as distinct

12from the accumulation of ice. 9 Although plaintiff has

9The dissent’s dominant theme is that w e ha ve 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 doct rine.” Slip op at 5. The dissent also sets fort h plaintiff’s expert’s reference to the accumulation of ice that oc curre d 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 plac es or in depressions , constitutes no defect entailing liability.” Id . at 2 50-251 (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 de fect in the walk, rendering the walk not reasonably safe for public travel at any time.” Id . at 250 (emphasis added). As the Supreme C our t of Massachusetts obser ved in Newton , supra at 187, a case upon which Hopsonrelied: [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 acci dent be due in part to ice or sno w; otherwise, there is no such liability, even if the defect was the cause of the accumulation of ice or snow. Therefore, anindependent 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...) 13properly 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 depressionwas a proximate cause of her slip and fall for purposes of the highway exception under the rule set forth in Hopson , supra . To est ablish 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 c ause in fact and legal, or proximate, cause. Skinner v Square D Co, 44 5 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 a t 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 def ect, rather than the accumulated ice alone, caused h er injury. 14‘proximate cause’ normally involves examining the foreseeability of consequences, and whether a defendant should be held legally responsible for suchconsequences.” 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 demonstrat e th at it was the combinationof 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 pe rsistent 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 repres ente d a condition that rendered the sidewalk not “reaso nablysafe 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 b ette r illustrated by way of example. Under the first scenario, a si x-foot deep hole exists in the middle of a sidew alk . Water naturally accumulates in the top of the hole and, because of the weather conditions, freez es so that, in effect, the hole no longer exists. While walking upon the sidewalk, an individual steps (continued...) 15Simply put, a plaintiff cannot recover in a claim against

a governmental agency where the sole proxi mate c ause of the slip and fall is the natural accumulation of ice or snow. This is true even where the ice or snow naturally accumulates ina portio n of the highway (i.e., sidewalk) that was otherwise not “reasonably safe and c on venient 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 depressionin 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, howe ver, would present under a scenario where the same six-foot hole in the sidewalk is pres ent, b ut the ice forms several inches below the top of the hole. Whil e wa lking 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 inju ry is due solely to the presence of ice on the sidewalk, even if a depression in the sidewalk caused the (continued...) 16VI. CONCLUSION The claimed sidewalk depres si on in the present case merely allowed the natural accumul ation of ice to form, and factually presented no “othe r dang er 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 prop osit ionthat 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. Inthe 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 na tur al 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. C ORRIGAN , C.J., and W EAVER , T AYLOR , and Y OUNG , JJ., concurred

11 (...continued) accumulation. I n 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 exceptionto governmental immunity. MCL 691.1401(e). Hop son’s formulation of proximate cause is limited to tho se cases that have arisen in this specific context. 17with M ARKMAN , J.

18___________________________________ v S T A T E O F M I C H I G A N SUPREME COURT

VALERIA HALIW and ILKO HALIW, Plaintiffs-Appellees, 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 sn ow on which Valeria Haliw fell was a "natur al 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 prov ince 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 upheldthe trial court's denial of defendant's motion for summary disposition. I Inthe proceedings below, defendant moved for summary dispositionunder MCR 2.116(C)(7) and (C)(10). It argued that summary disposition was proper because the natural accumulationdoctrine barred plaintiffs' claim, and there was

no defect in the sidewalk in question. Plaintiffs retorted that there were questions of fact whether th e s idewalk was defective because the depression in i t cr eated an unnatural accumulationof 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 t his Court's specific perspective raises an issue of fact, you are saying that by a preponderanc e 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 Co urt does believe that plain tiff has shown–this fact issue has been raised by provisions raise d bythe expert and his credentials and you [defendant] may provide your 2ownexpert, but if a finder of fact should have the opportunity, then, t o 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. R athe r, plaintiffs claim that the fall was caused by an unnatural accumulation o f i ce and snow resulting from a depression in the sidewalk. Thus, inaddition to the presence of snow and ice, plaintiffs allege that there was a defect in the sidewalk itself, and therefore t heir 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 t hat a factual dispute existed whether the sidewalk where Valeria Haliw fell

was reasonably safe for public tra vel. 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). 3summary dispositionmotion de novo. Maiden v Rozwood , 461 Mich 109, 118; 597 NW2d 817 (1999). Summary disposition is proper under MCR 2.116(C)(7) wher e a cl aim is barred because of immunity granted by law. A

motion under MCR 2.116(C)(10) tests the factual support

o f a plaint iff's claim. See Smith v Globe Life Ins Co , 460 Mich446, 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

ona motion for summary disposition. Questions of fact must be

se ttled by the finder of fact. See Zamler v Smith , 375 Mic h 675, 679; 135 NW2d 349 (1965); Miller v Miller , 373 Mich519, 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).

4Her e, it is undisputed that plaintiffs' claim falls withinthe "highway exception" to governmental immunity found inMCL 691.1402(1). Nevertheless, the majority determines that summary dispo siti on in favor of defendant is proper. It reasons that the "claimed depression in the sidewalk was not

anindependent defect . . . ." It asserts, al so, 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 p resenc e 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 de termination whether the sidewalk was in "rea sonable repair" is a precursor to the issue whether th e accumulationwas natural, which is a precursor to application of the natur al a ccumulation doctrine. 2 Therefore, a proper resolutionof 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 m aintenance [of a sidewalk], and a consequent unnatural or artificial accumulation of ice or snow." 5Dziurman. Dziurman noted that his inspection of the sidewalk revealed the following: The second a nd third slabs north of the driveway [the site where plaintiff fell 3 ] had settled about 2 inch es. 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" accumulationof ice which caused her to fa ll. Ho weve r, 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, inJanuary of 1996. These defects had existe d fo r several years. The most significant defect was a settlement of two slabs resul ting in a depression th at 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 depressionin 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. 6January 29, 1996 which created an unnatural accumulation of ice . Ba sed on weather data for January of 1 996 , 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 Arle ne, 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.] Insupport 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. C onstruing the evidence in the light most favorabl e t o plaintiffs, the nonmoving parties belo w, 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 matte r o f law, for slight depressions in its sidewalk s, 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...) 7breached its statutory duty under MCL 691.1402. See Mil ler , 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 canprope rly 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 o f fac t 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 accumu lation of ice, and (3) whether this was the proximate ca use of the plaintiff's injury . Cf. Hopsonv 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 be caus e the plaintiff had failed to establish a "culpable defect in the [side]walk." 8be left for the jury. In that case, the evidence justified the jury's inference that the sidewalk's "depressed condition . .

. was su ch as to induce the formation of ice in unusual quantities . . . ." 6 Therefore, by determining that the sidewalk was not defective and t hat th is case concerns a "natural accumulation" of ice or snow, the majority has impermissibly invaded the province of the fac tfind er. See Zamler , supra at 679; Miller , supra at 524. Alternatively, the majority asserts, even if the depressionin the sidewalk rendered it no l onger 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 accumulationhere was "natural." Again, the question of fact regarding the defective nature of the sidewalk precludes making such a determination. See Zamler , supr a 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 unn atural 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 defendan t citywas 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. 9that the claimed d epr ession was the proximate cause of the fall under Hops on , supra . The trial court made no findings regarding proximate cause. T he 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 Hopsonis misplaced. Hopsonheld 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 re con cile Hopsonwith other cases from this Court, it should be read as holding that no actual defect was shown. Hence, Ho psondoes not control where, as here, there is evidence of an actual defect in the sidewalk.

8 See Johnsonv Marquette , 154 Mich50, 53-54; 117 NW 658 (1908), finding whe the r 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. 10regarding whether the sidewalk at issue was i n re asonable repair. Consequently, there is also a question of f ac t 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. C AVANAGH , J., concurred with K ELLY , J.

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