_____________________________________________________________________________________________ 

____________________________________________________________________________________________________________________________ 

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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 Opinion Robert P. Young, Jr. 

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
 

accumulation of ice or snow on the sidewalk at issue does not
 

give rise to an actionable breach of defendant’s duty, and the
 

claimed depression in the sidewalk was not an independent
 

defect, plaintiff cannot prove the elements required to
 
 

establish a negligence claim 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. FACTS AND PROCEEDINGS
 

On January 29, 1996, plaintiff was walking on a snowcovered sidewalk located in her neighborhood. Plaintiff
 

claims that she slipped and fell on a patch of ice that had
 

formed on the sidewalk.2 Apparently, the ice had formed in a
 

depressed portion where two sections of the sidewalk 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
 

nearest 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. 


2
 
But 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 inspection of the portion of
 

sidewalk upon which plaintiff claimed ice had formed.3
 

According to Dziurman, there was a “depression” where two
 

slabs of the concrete sidewalk met, although 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 formation 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 riding on a
 

3
 We note that Theodore Dziurman’s inspection of the


sidewalk occurred on July 2, 1997.
 

3
 
 

 

 

bicycle if they are going real fast, they could hit


the bottom of that thing and cause the bike to go


out of control. There are possibilities of other


accident potential because of that sunken
 

condition.
 

Q. Do you have any information 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 disposition, brought pursuant to
 

MCR 2.116(C)(7) and (10). The trial court denied defendant’s
 

motion, and the Court of Appeals, in an unpublished opinion,
 

affirmed, stating that 


[i]n addition to the presence of snow and ice,


plaintiffs allege there was a defect in the
 

sidewalk 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. STANDARD OF REVIEW
 

We review the grant or denial of summary disposition de
 

novo. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817
 

(1999). “MCR 2.116(C)(7) tests whether a claim is barred
 

4
 
 

 

because of immunity granted by law, and requires consideration
 

of all documentary evidence filed or submitted by the
 

parties.” Glancy v Roseville , 457 Mich 580, 583; 577 NW2d
 

897 (1998). 


In reviewing a motion for summary disposition brought
 

under MCR 2.116(C)(10), we must consider 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 NW2d 314 (1996).
 

Summary disposition may be granted if the evidence
 

demonstrates that there is no genuine 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
 

construction de novo as questions of law. Donajkowski v
 

Alpena Power Co, 460 Mich 243, 248; 596 NW2d 574 (1999).
 

III. GOVERNMENTAL IMMUNITY
 

The governmental tort liability act, MCL 691.1401 et
 

seq., provides immunity for governmental agencies, including
 

municipalities 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
 

5
 
 

exception applies.4 MCL 691.1407; Nawrocki v Macomb Co Rd
 

Comm, 463 Mich 143, 156; 615 NW2d 702 (2000); Suttles v Dep’t
 

of Transportation, 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 exceptions narrowly drawn.5
 

Nawrocki, supra at 149; Ross, supra at 618. 


The only exception implicated in the present case is the
 

so-called “highway exception” to governmental immunity, which
 

is set forth in MCL 691.1402, and provides in part:
 

Each governmental 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 property 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 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).
 

5
 Although governmental agencies may be under a wide


variety of duties, with regard to services that they provide


to the public, only those enumerated within the statutorily


created exceptions are legally compensable if breached. MCL
 

691.1407; Nawrocki, supra at 157.
 

6
 Plaintiff’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 statutory language, which was enacted


(continued...)
 

6
 
Pursuant to subsection 1402(1), the duty to maintain public
 

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
 

action falls within the “highway exception” to governmental
 

immunity is not the end of the analysis:
 

In every instance where a plaintiff alleges a


cause of action 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)


by 1999 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 the state 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 authorized by constitution, statute, local charter or
 

ordinance, or other law.” Subsection 1401(f).
 

7
 
 

a 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
 

in a location encompassed by MCL 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 reasonably 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” doctrine, see
 

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] immunity and negligence.” Canon
 

v Thumudo, 430 Mich 326, 335; 422 NW2d 688 (1988).
 

8
 
IV. THE NATURAL 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
 

signal negligence of that public authority.” Stord v
 

Transportation Dep’t, 186 Mich App 693, 694; 465 NW2d 54
 

(1991). The following cases present an overview of the
 

“natural accumulation” doctrine as it relates to public
 

sidewalks, and municipal defendants.
 

In Mayo v Village of Baraga, 178 Mich 171; 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


in the [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 caused by the melting of snow


upon or adjoining such a walk? If the liability of


a city for damages resulting from a failure to keep


its highways in a reasonably safe condition for


travel extends to cases where such condition is not
 

ascribable to defects in the construction and
 

maintenance of the way, or to the action of the


officers to the city or their negligence in the


performance of a duty, it may be contended that


cities must cause the streets to be patrolled, in


search of bricks or coals that fall from wagons,


for the treacherous 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.]
 

9
 
In 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 condition made 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 liability was that
 

when two causes combine to produce an injury to a traveler
 

upon a 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 place to slip into,” this Court held that the
 

rule obtaining in Michigan places no liability upon the
 

municipality for 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
 

10
 
 

sidewalk, 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, whether on level
 

places or in depressions, constitutes no defect entailing
 

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.
 

In determining that the plaintiff in Hopson could not
 

prevail, this Court stated that
 

wherever ice or snow is the sole proximate cause of
 

the accident, there shall be no liability, but


where at the time of the accident there 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 for the
 

purpose of ascertaining whether there is at that


time any other danger to the steps of the traveler


than that arising from the presence of ice or snow;


if there be no other danger, then for the time


being the way is “otherwise reasonably safe and


convenient.” [Id. at 252, quoting Newton v
 

Worcester, 174 Mass 181, 187; 54 NE 521
 

(1899)(emphasis added).]
 

In Johnson, supra, the plaintiff suffered injuries as the
 

11
 
 

result 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
 

within the 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
 

an existing defect in the sidewalk rendering it not reasonably
 

safe for public travel.
 

V. ANALYSIS 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 sidewalk in
 

reasonable repair. Further, plaintiff cannot prove that her
 

injuries resulted from a defect on the sidewalk, as distinct
 

12
 
 

from the accumulation of ice.9 Although plaintiff has
 

9
 The dissent’s dominant theme is that we have 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
 

doctrine.” Slip op at 5. The dissent also sets forth
 

plaintiff’s expert’s reference to the accumulation of ice that


occurred 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


places or in depressions, constitutes no defect entailing


liability.” Id. at 250-251 (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 defect in the walk, rendering the


walk not reasonably safe for public travel at any time.” Id.
 

at 250 (emphasis added). As the Supreme Court of
 

Massachusetts observed in Newton, supra at 187, a case upon


which Hopson relied:
 

[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 accident be due in


part to ice or snow; otherwise, there is no such


liability, even if the defect was the cause of the


accumulation of ice or snow.
 

Therefore, an independent 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...)
 

13
 
 

properly 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
 

depression was a proximate cause of her slip and fall for
 

purposes of the highway exception under the rule set forth in
 

Hopson, supra. 


To establish 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 cause in fact and legal, or proximate, cause.
 

Skinner v Square D Co, 445 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 at 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 defect, rather than the accumulated ice alone, caused her


injury.
 

14
 
 

‘proximate cause’ normally involves examining the
 

foreseeability of consequences, and whether a defendant should
 

be held legally responsible for such consequences.” 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 demonstrate that it was
 

the combination of 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 persistent 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 represented a condition that rendered the sidewalk not


“reasonably safe 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 better illustrated by way of


example. Under the first scenario, a six-foot deep hole
 

exists in the middle of a sidewalk. Water naturally


accumulates in the top of the hole and, because of the weather


conditions, freezes so that, in effect, the hole no longer


exists. While walking upon the sidewalk, an individual steps


(continued...)
 

15
 
Simply put, a plaintiff cannot recover in a claim against
 

a governmental agency where the sole proximate cause of the
 

slip and fall is the natural accumulation of ice or snow.
 

This is true even where the ice or snow naturally accumulates
 

in a portion of the highway (i.e., sidewalk) that was
 

otherwise not “reasonably safe and convenient 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
 

depression in 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, however, would


present under a scenario where the same six-foot hole in the


sidewalk is present, but the ice forms several inches below


the top of the hole. While walking 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 injury is due solely to the presence of ice on the


sidewalk, even if a depression in the sidewalk caused the


(continued...)
 

16
 
 

 

VI. CONCLUSION
 

The claimed sidewalk depression in the present case
 

merely allowed the natural accumulation of ice to form, and
 

factually presented no “other danger 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
 

proposition that 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.
 

In the 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 natural 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.
 

CORRIGAN, C.J., and WEAVER, TAYLOR, and YOUNG, JJ., concurred
 

11(...continued)


accumulation. In 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


exception to governmental immunity. MCL 691.1401(e).


Hopson’s formulation of proximate cause is limited to those


cases that have arisen in this specific context. 


17
 
with MARKMAN, 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 snow on which Valeria Haliw fell was a "natural
 

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 province 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 upheld
 
the trial court's denial of defendant's motion for summary
 

disposition.
 

I
 

In the proceedings below, defendant moved for summary
 

disposition under MCR 2.116(C)(7) and (C)(10). It argued that
 

summary disposition was proper because the natural
 

accumulation doctrine barred plaintiffs' claim, and there was
 

no defect in the sidewalk in question. Plaintiffs retorted
 

that there were questions of fact whether the sidewalk was
 

defective because the depression in it created an unnatural
 

accumulation of 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 this Court's specific


perspective raises an issue of fact, you are saying


that by a preponderance 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 Court does believe


that plaintiff has shown–this fact issue has been


raised by provisions raised by the expert and his


credentials and you [defendant] may provide your
 

2
 
own expert, but if a finder of fact should have the


opportunity, then, to 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.
 

Rather, plaintiffs claim that the fall was caused


by an unnatural accumulation of ice and snow
 

resulting from a depression in the sidewalk. Thus,


in addition to the presence of snow and ice,


plaintiffs allege that there was a defect in the


sidewalk itself, and therefore their 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 that a factual
 

dispute existed whether the sidewalk where Valeria Haliw fell
 

was reasonably safe for public travel. 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
 

1Unpublished opinion per curiam, issued October 5, 1999,


(Docket No. 206886).
 

3
 
summary disposition motion de novo. Maiden v Rozwood, 461 Mich
 

109, 118; 597 NW2d 817 (1999). Summary disposition is proper
 

under MCR 2.116(C)(7) where a claim is barred because of
 

immunity granted by law.
 

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

of a plaintiff's claim. See Smith v Globe Life Ins Co, 460
 

Mich 446, 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
 

on a motion for summary disposition. Questions of fact must be
 

settled by the finder of fact. See Zamler v Smith, 375 Mich
 

675, 679; 135 NW2d 349 (1965); Miller v Miller, 373 Mich 519,
 

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).
 

4
 
Here, it is undisputed that plaintiffs' claim falls
 

within the "highway exception" to governmental immunity found
 

in MCL 691.1402(1). Nevertheless, the majority determines that
 

summary disposition in favor of defendant is proper. It
 

reasons that the "claimed depression in the sidewalk was not
 

an independent defect . . . ." It asserts, also, 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 presence 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 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 doctrine.2 Therefore, a proper
 

resolution of 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
 

2See 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 maintenance [of a sidewalk], and a consequent


unnatural or artificial accumulation of ice or snow."
 

5
 
Dziurman. Dziurman noted that his inspection of the sidewalk
 

revealed the following:
 

The second and third slabs north of the
 

driveway [the site where plaintiff fell3

] had


settled about 2 inches. 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"
 

accumulation of ice which caused her to fall.
 

However, 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,


in January of 1996. These defects had existed for


several years. The most significant defect was a
 

settlement of two slabs resulting in a depression
 

that 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
 

depression in the sidewalk sections noted on
 

3In 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.
 

6
 
January 29, 1996 which created an unnatural
 

accumulation of ice. 


Based on weather data for January of 1996,


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 Arlene, 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.]
 

In support 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.
 

Construing the evidence in the light most favorable to
 

plaintiffs, the nonmoving parties below, a jury could infer
 

that the sidewalk's depression rendered it out of "reasonable
 

repair."4 Thus, a question of fact existed whether defendant
 

4See Cornell v City of Ypsilanti, 212 Mich 540, 547; 180


NW 405 (1920), recognizing that "while a municipality is not


liable, as matter of law, for slight depressions in its


sidewalks, 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...)
 

7
 
breached its statutory duty under MCL 691.1402. See Miller,
 

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 can properly 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 of fact
 

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).
 

5See 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 accumulation of ice, and (3) whether


this was the proximate cause of the plaintiff's injury. Cf.


Hopson v 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


because the plaintiff had failed to establish a "culpable


defect in the [side]walk."
 

8
 
be left for the jury. In that case, the evidence justified the
 

jury's inference that the sidewalk's "depressed condition . .
 

. was such as to induce the formation of ice in unusual
 

quantities . . . ."6 Therefore, by determining that the
 

sidewalk was not defective and that this case concerns a
 

"natural accumulation" of ice or snow, the majority has
 

impermissibly invaded the province of the factfinder. See
 

Zamler, supra at 679; Miller, supra at 524.
 

Alternatively, the majority asserts, even if the
 

depression in the sidewalk rendered it no longer 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 accumulation here was "natural." Again, the question
 

of fact regarding the defective nature of the sidewalk
 

precludes making such a determination. See Zamler, supra at
 

679. 


Finally, the majority states that summary disposition for
 

defendant is appropriate because plaintiffs cannot demonstrate
 

6See also Whinnen, supra at 377, "[i]n almost every case


whether the condition was due to a natural accumulation or an
 

artificial or unnatural 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


defendant city was 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.
 

9
 
that the claimed depression was the proximate cause of the
 

fall under Hopson, supra. The trial court made no findings
 

regarding proximate cause. The 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
 

7Moreover, the majority's reliance on Hopson is
 

misplaced. Hopson held 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 reconcile Hopson with other cases
 

from this Court, it should be read as holding that no actual


defect was shown. Hence, Hopson does not control where, as


here, there is evidence of an actual defect in the sidewalk.
 

8See Johnson v Marquette, 154 Mich 50, 53-54; 117 NW 658


(1908), finding whether 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.
 

10
 
regarding whether the sidewalk at issue was in reasonable
 

repair. Consequently, there is also a question of fact
 

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.
 

CAVANAGH, J., concurred with KELLY, J.
 

11