FILED APRIL 8, 2010 BARBARA A. ROBINSON, Plaintiff-Appellant,

v No. 138669 CITY OF LANSING, Defendant-Appellee.

BEFORE THE ENTIRE BENCH

M ARKMAN , J.

At issue here is whether the two-in ch rule of MCL 6 91.1402a(2), which provides that a discontinuity defect of le ss than two inches in a sidewalk creates a rebuttable inference that the municipality maintained the sidewalk in reasonable repair, applies to sidewalks adjacent to state highways, as with the sidewalk at issue here, or only to sidewalks adjacent to county highways . The trial court concluded that the rule only applies to side walks adjacent to county highways and, thus, granted plaintiff’s motion to strike the rule as an affirmative defense and denied defendant’s motion for summary disposition. However, the Court of Appeals reversed, holding that the rule is not limited to sidewalks that are adjacent to county highways, and re manded for further proceedi ngs. Because we agree Michigan Supreme Court Lansing, Michigan 

# Opinion Chief Justice: Marilyn Kelly Justices: Michael F. Cavanagh Elizabeth A. Weaver Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman Diane M. Hathaway2 with the trial court that the rule only applies to sidewalks adjacent to county highways, we reverse the judgment of th e Court of Appeals, reinstate the trial court’s orders, and remand to the tr ial court for further proceedings.

I. FACTS AND HISTORY On December 4, 2005, plaintiff, Barb ara Robinson, was walking on the brick sidewalk that is adj acent to Michigan Av enue, a state highwa y in Lansing, in front of the Lansing Center. She steppe d into a depressed area of the sidewalk, lost her balance, tripped on a raised and uneven area of br icks next to the depression, and fell forward. As a result, she fractured her wrist, necessitating two surgeries. It is undisputed that the rais ed portion of the sidewa lk was less than two inches and that defendant, the city of Lansing, maintained this sidewalk.

Plaintiff sued defendant under the highway exception to governmental immunity, alleging that defendant had br eached its duty under MCL 691.1402(1)

to maintain the sidewalk in reasonable re pair. Defendant answered, raising as an

affirmative defense the two-inch rule of MCL 691.1402a(2). Before the close of discovery, defendant move d for summary dispositio n under MCR 2.116(C)(7) (governmental immunity), cl aiming that it was entitled to judgment as a matter of law because plaintiff had not rebutted th e inference created by the rule that

defendant had maintained th e sidewalk in reasonable repair. Plaintiff responded

and moved to strike the rule as an affi rmative defense by argui ng that the rule applies only to sidewa lks adjacent to county highways and, as a result, was3 inapplicable. The trial court agreed with plaintiff and thus granted plaintiff’s

motion to strike and denied defend ant’s motion for summary disposition. Defendant appealed by right, arguing that nothing in MCL 691.1402a(2) limits its application to coun ty highways. The Court of Appeals reversed and held that, in contrast to subsections (1) a nd (3), subsection (2) of MCL 691.1402a contains no language limiting its application to c ounty highways. Robinson v City of Lansing , 282 Mich App 610, 6 16-618; 765 NW2d 25 (2009). It then remanded

the case to the trial court to rule on the remaining issues and noted that defendant

could refile its summ ary disposition motion. Plaintiff has sought leave to appeal , claiming that the Court of Appeals erred in its interpretation of MCL 691.1402a(2). This Court directed that oral argument be heard on the application for leave to appeal, 483 Mich 1134 (2009), and argument was heard on December 9, 2009.

II. STANDARD OF REVIEW

Whether the two-inch rule of MCL 691.1402a(2) applies to sidewalks adjacent to state highways or only to side walks adjacent to co unty highways is a question of law that this Court reviews de novo. Ostroth v Warren Regency, GP,

LLC , 474 Mich 36, 40; 709 NW 2d (2006). A trial court’s decision to deny a motion for summary disposition is also reviewed de novo. Id.4 III. ANALYSIS

A. GOVERNMENTAL IMMUNITY AND HIGHWAY EXCEPTION

In Michigan, governmental immun ity was origina lly a common-law doctrine that protected all levels of g overnment. However, in 1961, this Court abolished common-law governme ntal immunity with respect to municipalities. Williams v Detroit, 364 Mich 231; 111 NW2d 1 (1961); McDowell v State Hwy

Comm’r , 365 Mich 268; 112 NW2d 491 (1961). In 1965, the Legislature reacted

to Williams and McDowell by enacting the governmental tort liability act (GTLA),

MCL 691.1401 et seq ., restoring immunity for muni cipalities and preserving this protection for the state and its agenci es. The GTLA provides: “Except as otherwise provided in this act, a governmental agency [1] is immune from tort liability if the governmental agency is e ngaged in the exercise or discharge of a governmental function.” MCL 691.1407(1). This grant of immunity is currently subject to six statutory exceptions. 2

1 “Governmental agency” is defined as “the state or a political subdivision.” MCL 691.1401(d). The “state” includes “t he state of Michigan and its agencies, departments [and] commissions,” MCL 691. 1401(c), and a “political subdivision” includes “a municipal corporation, count y, [and] county road commission,” MCL 691.1401(b). Finally, a “municipal corpora tion” includes a “city, village, [and] township . . . .” MCL 691.1401(a).

2 The six statutory exceptions ar e (1) the highway exception, MCL 691.1402; (2) the moto r-vehicle exception, MCL 691.1 405; (3) the public-building exception, MCL 691.1406; (4 ) the proprietary-function exception, MCL 691.1413; (5) the governmental-hospital exception, MCL 691.1407(4); an d (6) the sewagedisposal-system exception, MCL 691.1417.5 At issue in this case is the highway exception, MCL 691.1402(1), which provides, in relevant part: Except as otherwise provided in [MCL 691.1402a], 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. [3] 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 suffe red by him or her from the governmental agency. . . . The duty of the st ate and the county road commissions to repair and mainta in highways, and the liability for that duty, extends onl y to the improved portion of the highway designed for vehicular travel a nd does not include sidewalks, trailways, crosswalks, or any other installation outside of the improved portion of the highway de signed for vehicular travel. “Highway” is defined as “a public highway, road, or stre et that is open for public travel and includes bridges, sidewalks , trailways, crosswalks, and culverts on the highway.” MCL 691.1401(e) (emphasis added). From these statutory provisions, we know that all governmental agencies, including the state, counties, and munici palities, have a duty to maintain highways under their jurisdiction in r easonable repair. However, we also know that the duty of state and county road commissions is limited to the “improved portion of the highway designed for vehicular travel,” which specifically “does not include

3 Const 1963, art 7, § 29 provides that “the right of all counties, townships, cities and villages to the reasonable control of their highways, streets, alleys and public places is hereby reserv ed to such local units of government.” As the Court of Appeals noted, “the city does not dispute that it has jurisdiction over the sidewalk adjacent to Michigan Avenue.” Robinson , 282 Mich App at 612-613.6 sidewalks . . . .” MCL 691. 1402(1). A municipality’s du ty, on the other hand, is not similarly limited; rather, a municipality has a duty to main tain highways in reasonable repair and “highway” is specific ally defined to include “sidewalks.” MCL 691.1402(1); MCL 6 91.1401(e). Thus, while MCL 691.1402(1) exempts state and county road co mmissions from liability fo r injuries resulting from defective sidewalks, municipalities are not exempt; municipalitie s do have a duty to maintain sidewalks in reasonable repair. Haliw v Sterling Hts , 464 Mich 297, 303; 627 NW2d 581 (2001) (“Pursuant to [MCL 691.1402(1)], the duty to maintain public sidewalks in ‘reasonabl e repair’ falls on local governments, including cities, village s, and townships.”); Glancy v City of Roseville , 457 Mich 580, 584; 577 NW2d 897 (1998) (“[MCL 691. 1402(1)] requires municipalities to maintain sidewalks in ‘reasonable repair.’”); Listanski v Canton Twp , 452 Mich 678, 690; 551 NW2d 98 (199 6) (“[T]ownships are liable for injuries occurring on sidewalks that abut state or county roads as a result of their negligent failure to maintain their sidewalks in reasonable repair.”), citing Mason v Wayne Co Bd of

Comm’rs , 447 Mich 130, 136 n 6; 523 NW2d 791 (1994) (“ [T]he purpose of [the limiting sentence of MCL 691.1402(1)], wh ich applies only to counties and the state, is to allocate responsibility fo r sidewalks and crosswalks to local governments, including townsh ips, cities, and villages.”); Jones v City of Ypsilanti , 26 Mich App 574, 581; 182 NW2d 795 (1970) (h olding that cities are liable for injuries occurring on sidewalks that ab ut state highways as a result of their negligent failure to maintain their sidewalks in reasonable repair). In other words,7 when MCL 691.1402(1) and MCL 691 .1401(e) are read together, 4 it is clear that all governmental agencies except the st ate and county road commissions have a duty to maintain sidewalks in reasonable repair. Indeed, in the instant case, defendant does not argue that it does not have a duty to maintain the sidewalk at issue in reasonable repair, 5 but only argues that because the sidewalk’s discontinuity defect was less than 2 inches, MCL 691.1402a(2) creates a rebuttable inference that the municipality maintained the sidewalk in reasonable repair and that plaintiff has not rebutted this inference. Therefore, as the Court of Appeals recognized, the “salient question . . . is whether the city is entitled to

assert as a defense the two-inch rule set forth in MCL 691.1402a(2).” Robinson , 282 Mich App at 615.

4 “It is elementary that statutes in pari materia are to be taken together in ascertaining the intenti on of the legislature, and that courts will regard all statutes upon the same general subject ma tter as part of 1 system.” Dearborn Twp Clerk v Jones , 335 Mich 658, 662; 57 NW2d 40 (1953). In this case, both MCL 691.1401 and MCL 691.1402 are in the GTLA, MC L 691.1401 immediately precedes MCL 691.1402, and MCL 691.1401 expressl y states, “As used in this act: . . . ‘Highway’ . . . includes . . . sidewalks . . . .” Therefore, “highway” as used in MCL 691.1402 clearly in cludes “sidewalks.”

5 As noted by the Court of Appeals, “t here is no dispute that the city has jurisdiction over the sidewalk adjacent to Michigan Avenue and therefore must keep it ‘in reasonable repair so that it is reasonably safe and convenient for public travel.’” Robinson , 282 Mich App at 615, quotin g MCL 691.1402(1). See also defendant’s answer to the co mplaint, ¶ 9, p 2, in whic h defendant admitted that it “had a duty to mainta in the sidewalk in reasonable re pair so that it was reasonably safe and convenient for public travel.”8 B. TWO-INCH RULE As with governmental immunity itself, the two-inch rule was originally a

common-law rule. 6 In Harris v Detroit , 367 Mich 526, 528; 117 NW2d 32 (1962),

6 Justice B LACK , in his concurring statement in Harris v Detroit , 367 Mich 526, 537; 117 NW2d 32 (1962) (B LACK , J., concurring), referr ed to the two-inch rule as a culmination of “cases construing an unamended statute; not a case or line of cases announcing a rule of the comm on law.” However, given that the statute referred to by Justice B LACK did not refer to a discon tinuity of less than two inches, we respectfully disagree. The statute referred to by Justice B LACK at that time stated: Any person or persons sustaini ng bodily injury upon any of the public highways or streets in th is state, by reason of neglect to keep such public highways or str eets, and all bridges, sidewalks, crosswalks and culverts on the sa me in reasonable repair, and in condition reasonably safe and fit for travel by the to wnship, village, city or corporation whose corporate authority extends over such public highway, street, bridge, si dewalk, crosswalk or culvert, and whose duty it is to keep the sa me in reasonable repair, such township, village, city or corporati on shall be liable to and shall pay to the person or persons so injure d or disabled, and to any person suffering damages by reason of such injury, just damages, to be recovered in an action of trespass on the case before any court of competent jurisdiction. [MCL 24 2.1, as amended by 1951 PA 19.] Because neither this statute nor any ot her contemporaneous statute referred to anything resembling the two-inch rule, we c onclude that the rule at that time could only have been a common-law rule. See Glancy , 457 Mich at 588, which explained that “the two-inch rule was . . . a common-law threshold for negligence based on the ‘reasonable repair’ standa rd of care of the statutory highway exception.” See also Rule v Bay City , 387 Mich 281, 282; 195 NW2d 849 (1972), in which this Court held that “for the reasons stated by Mr. Justice A DAMS in his dissent in Harris v Detroit , 367 Mich 526, 529 (1962), we do not regard it as desirable to continue to enforce th e ‘two-inch’ rule,’” and Justice A DAM ’s dissent in Harris , in which he referred to the two-inch rule as a “j udge-made rule of law,” and opined that “‘“chang[ing] [the common-law] should not be left to the legislature.”’” Harris, 367 Mich at 533-534 (A DAMS , J., dissenting), quoting Bricker v Green , 313 Mich 218, 235; 21 NW2d 105 (1946), quoting the William9 the two-inch rule was described as mean ing that “a depression in a walk which does not exceed 2 inches in depth will not render a municipality liable for damages incident to an accident caused by such de pression.” “The basis of the two-inch rule [was] the concept of ‘reasonable repair.’” Glancy , 457 Mich at 586. “The two-inch rule was a bright-line rule sta ting that defects of two inches or less constituted ‘reasonable repair’ as a matter of law.” Id. at 586-587. In 1972, however, this Court abolished the rule, Rule v Bay City , 387 Mich 281; 195 NW2d 849 (1972), 7 and, in 1998, we re fused to readopt it, Glancy , 457 Mich at 582. In 1999, the Legislature took up the issue, and a statutory two-inch rule was adopted in MCL 691.1402a, 8 which provides: (1) Except as otherwise provided by this section, a municipal corporation has no duty to repair or maintain, and is not liable for injuries arising from, a portion of a county highway outside of the improved portion of the highway de signed for vehicular travel, including a sidewalk, trailway, crossw alk, or other installation. This

L. Storrs Lectures by Justice Benjamin Cardozo before the Yale University Law School in 1921, collected in Cardozo, The Nature of the Judicial Process , pp 151- 152.

7 In Rule , 387 Mich at 283, this Court announced , “[W]e will no longer hold as a matter of law that a depression or obstruction of two inches or less in a sidewalk may not be the basis for a municipality’s liability for negligence.” (Emphasis in the original.)

8 The catchline of MCL 691.1402a in the Michigan Complied Laws Annotated states, “Duties to repair or maintain county highways; liabilities”; however, we recognize that the Legislature did not itself enact this catchline as part of the statute, and that such a cat chline shall not be used to construe the section more broadly or narrowly than th e text of the sec tion would otherwise indicate. See MCL 8.4b.10 subsection does not pr event or limit a municipal corporation’s liability if both of the following are true: (a) At least 30 days before th e occurrence of the relevant injury, death, or damage, the muni cipal corporation knew or, in the exercise of reasonable diligence, sh ould have known of the existence of a defect in a sidewalk, trailway , crosswalk, or other installation outside of the improved portion of the highway designed for vehicular travel. (b) The defect described in su bdivision (a) is a proximate cause of the injury, death, or damage. (2) A discontinuity defect of less than 2 inches creates a rebuttable inference that the muni cipal corporation maintained the sidewalk, trailway, crosswalk, or other installation outside of the improved portion of the highway de signed for vehicular travel in reasonable repair. (3) A municipal corporation’s lia bility under subsection (1) is limited by section 81131 of the natu ral resources and environmental protection act, 1994 PA 451, MCL 324.81131. [9] Although the very first sentence of MCL 691.1402a(1) begins by stating that a municipality is not liable for injuries arising from a portion of a county highway outside the improved portion of the hi ghway designed for vehicular travel, including a sidewalk, trailway , crosswalk, or other insta llation, this sentence is prefaced by the language “[e]xcept as othe rwise provided by this section,” and the very next sentence of this subs ection states that a municipality is liable for such injuries under certain circumstances. 10 That is, a municipality is liable for injuries

9 MCL 324.81131(11) provides that muni cipalities are not liable for injuries resulting from the use of off-road ve hicles absent gross negligence.

10 That MCL 691.1402a(1) does not completely abrogate a municipality’s liability for injuries resulting from defec tive sidewalks is further supported not11 arising from a defective sidewalk adjace nt to a county hi ghway if (a) the municipality knew or should have known at least 30 days before the occurrence of the injury of the exis tence of the defect in the side walk and (b) that defect was a proximate cause of the injury. MCL 691.1402a(1 ). In addition, MCL 691.1402a(2) provides that a discontinuity defect of less than 2 inches creates a rebuttable inference that the municipality maintained the sidewalk in reasonable repair, as is required by MC L 691.1402(1); this is th e statutory two-inch rule. 11

only by the fact that the second sentence of subsection (1) states that “[t]his subsection does not prevent or limit a municipa l corporation’s liability” under certain circumstances, but also by the fact that subsection (3) states that “[a] municipal corporation’s liability under subsection (1) is limited by . . . MCL 324.81131.” (Emphasis added.) It would have been unnecessary to indicate in subsection (3) that a municipality’s lia bility is limited by MCL 324.81131 if subsection (1) had already comp letely abrogated that liab ility. It would have been similarly unnecessary to indicate in subsec tion (2) that a discontinuity defect of less than 2 inches creates a rebuttable in ference that the municipality maintained the sidewalk in reasonable repair if subsection (1) had al ready abrogated a municipality’s duty in this regard. Ther efore, although subsection (1) does limit a municipality’s liability for injuries resulti ng from defective sidewalks, it does not completely abrogate th is liability.

11 The statutory two-inch rule’s “rebu ttable inference” of reasonable repair is distinct from the common-law rule’s irrebutable presumption of reasonable repair. As the Court of Appeals explained in Gadigian v City of Taylor , 282 Mich App 179, 183-184; 774 NW2d 352 (2009), [i]n crafting [MCL 691.1402a(2 )], the Legislature could have adopted the former common-law rule , which flatly prohibited claims involving discontinuity defects of less than two inches. . . . But rather than eliminating a ll sidewalk-injury claims arising from defects of less than two inches, . . . the Legislature used the term “rebuttable inference.”12 As discussed earlier, MCL 691.1402(1 ) imposes liability on municipalities for injuries resulting from defective sidewa lks, i.e., sidewalks that the municipality has failed to maintain in reasonable repair. Haliw , 464 Mich at 303 (“Pursuant to [MCL 691.1402(1)], th e duty to maintain public sidewalks in ‘reasonable repair’ falls on local governments, including citie s, villages, and townships.”). However, MCL 691.1402a limits this liability by pr oviding that municipalities are only liable for injuries resulting from de fective sidewalks adjacent to county highways under the specified circumstances. Moreover, if this defect constitute s a discontinuity of less than 2 inches, a rebutta ble inference arises that the municipality maintained the sidewalk in reasonable repair, which is all that the municipality is required to do under MCL 691.1402(1). Therefor e, when MCL 691.1402(1) and MCL 691.1402a are read together, it is clear that municipalities are generally liable for injuries resulting from defective sidewalks. 12

This Court has granted leave to appeal in Gadigian to address the meaning of “rebuttable inference” in MC L 691.1402a(2). In the order granting leave, the parties have been directed to address “w hat evidence a plain tiff must present to rebut the inference of reasonable repair.” Gadigian v City of Taylor , 485 Mich ___ (2009). Given our conclusion that th e two-inch rule does not apply in the instant case, there is no need to hold this case in abeyance for Gadigian

. 12 Both MCL 691.1402 and MCL 691 .1402a are in the GTLA, MCL 691.1402 immediately preced es MCL 691.1402a, and MCL 691.1402 expressly states, “Except as otherwise provided in section 2a [MCL 691.1402a], each governmental agency having jurisdic tion over a highway shall maintain the highway in reasonable repair . . . .” (Em phasis added.) Therefore, it is absolutely clear that MCL 691.1402 and MCL 691.1402 a must be read together. See n 4 of this opinion.13 While defendant contends that the rebuttable inference of MCL 691.1402a(2) applies to all cases in whic h a plaintiff is seeking to impose liability on a municipality for an injury resulti ng from a defective sidewalk, plaintiff contends that this rebuttable inference only applies in cases in which the defective sidewalk is adjacent to a county highway. For several reasons, we agree with plaintiff. First, as discussed above, MCL 6 91.1402a(1) begins by stating that a municipality “is not liable for inju ries arising from, a portion of a county highway . . . , including a sidewalk,” unless certain conditions are satisfied. (Emphasis added.) These conditions are then set forth in MCL 691.1402a(1)(a) and (b). Then, immediately thereafte r, MCL 691.1402a(2) indicates that a discontinuity defect of less than 2 inch es creates a rebuttal inference that the municipality maintained the sidewalk in reasonable repair. Nothing in subsection (2) suggests that its scope is any different th an that of subsection (1); that is, there is no language in subsection (2) that in dicates that although subsection (1) only applies to county highways, subsection (2) should be construed as additionally applying to highways other than county highways, such as state or city highways. Second, not only do the placement of subsection (2) and the absence of language in subsection (2) distinguis hing it from subsection (1) suggest that subsection (2), as with subs ection (1), only applies to county highways, but the syntax of subsection (2) also suggests th at both these subsecti ons apply only to14 county highways. Subsection (2) refers to “ the highway.” (Emphasis added.) As this Court has explained:

“The” and “a” have different me anings. “The” is defined as “definite article. 1. (used, [esp ecially] before a noun, with a specifying or particularizing effect, as opposed to the indefinite or generalizing force of the indefin ite article a or an). . . .” Random House Webster’s College Dictionary , p 1382. [ Massey v Mandell , 462 Mich 375, 382 n 5; 614 NW2d 70 (2000).] [13] Because subsection (2) refers to “ the highway,” we must determine to which “specific or particular” highway subsec tion (2) refers to. That is, because subsection (2) does not refer to “ a highway,” we cannot read subsection (2) as applying to highways in “general.” 14 Given that subsection (2) immediately follows subsection (1), which li mits its application to “ county highway[s],” “ the highway” referred to in subsection (2) mu st be the same highway referred to in subsection (1) -- the county highway. Third, subsection (2) cannot be read in isolation, but must be read in context. Defendant argues, and the Court of Appeals agreed, that because the Legislature did not expressly use the word “county” in subsection (2), this word

13 We must follow these distinctions between “a” and “the” because the Legislature has directed that “[a]ll wo rds and phrases shall be construed and understood according to the common and approved usage of the language . . . .” MCL 8.3a. See, e.g., Detroit v Tygard , 381 Mich 271, 275; 161 NW2d 1 (1968) (“We regard the use of the definite article ‘the’ as significant.”).

14 Contrary to the Court of Appeal s and defendant’s contention, MCL 691.1402a(2) does not appl y to “any” highway. See Robinson , 282 Mich App at 618; Defendant’s brief opposing the applicat ion for leave to appeal, p 14. Instead, it applies to “the” highway, i.e., “the” hi ghway referred to in MCL 691.1402a(1) -- the county highway.15 cannot be read into subsection (2). If subsec tion (2) were to be read in isolation, defendant and the Court of Appeals might be correct in this anal ysis because it is

well established that “we ma y not read into the statut e what is not within the Legislature’s intent as derived from the language of the statute.” AFSCME v

Detroit , 468 Mich 388, 400; 6 62 NW2d 695 (2003). However, it is equally well established that to discern the Legisl ature’s intent, statutory provisions are not to be read in isolation; rather, context matters , and thus statutory pr ovisions are to be

read as a whole. Apsey v Mem Hosp , 477 Mich 120, 132 n 8; 730 NW2d 695 (2007) (“To discern the true intent of the Legislature, . . . statutes must be read together, and no one section shou ld be taken in isolation.”); Griffith v State Farm

Mut Automobile Ins Co , 472 Mich 521, 533; 697 NW2d 895 (2005) (“‘[T]he meaning of statutory language, plain or not, depends on context.’”) (citation omitted); G C Timmis & Co v Guardian Alarm Co , 468 Mich 416, 421; 662 NW2d 710 (2003) (“‘[W]ords in a statute should not be construe d in the void, but should be read together to harmonize the meaning, givi ng effect to the act as a whole.’”) (citation omitted). 15 “[A]ny attempt to segregate any portion or exclude

15 Defendant’s contention that the s ubsections comprising MCL 691.1402a should be read as “stand[ing] alone” st ands in stark contrast to these wellestablished rules of construc tion. In addition, defend ant’s reliance on the equally well-established doctrine of expressio unius est exclusio alterius (“the expression of one thing is the ex clusion of another”), Miller v Allstate Ins Co , 481 Mich 601, 611; 751 NW2d 463 (2008 ), is misplaced. All that doct rine tells us is that which everybody agrees -- the express refe rence in MCL 691.1402a(1) to county highways excludes all other highways; th at is, MCL 691.1402a(1) only applies to county highways. However, because MCL 691.1402a(2) does not expressly refer16 any portion [of a statute] from considera tion is almost certain to distort the legislative intent.” 2A Singer & Singer, Statutes and Statutory Construction (7th ed), § 47.2, p 282. For the reasons disc ussed throughout this opinion, although only subsection (1) expressly refers to “co unty” highways, we believe that when MCL 691.1402a is read as a whole, it is clear that both subsections (1) and (2) only apply to such highways. Fourth, the Legislature is not required to be overly repetitive in its choice of language. In essence, the issue here bo ils down to whether the Legislature was required to repetitively restate “county” th roughout the entire st atutory provision. We do not believe that this is requir ed of the Legislature in order that it communicate its intentions. Instead, we believe that a reasonable person reading

this statute would un derstand that all three subsecti ons of this pr ovision apply only

to county highways. Indeed, if the Legislat ure had intended subsections (2) and (3) to apply to highways other than co unty highways, we believe that it would have been reasonably incumbent upon th e Legislature to so indicate. Even subsection (1) only refers to “county highway” one time and thereafter simply refers to “the highway,” and defendant conceded at oral argument that these subsequent references to “the highway” in subs ection (1) signify “county highway.” The first time that “highway ” is used in MCL 691.1402a, it is

to a specific highway, other than “the hi ghway,” this doctrine does not aid us in our interpretation of MCL 691.1402a(2).17 immediately preceded by the wo rd “county”; however, the next three times that it is used, it is not preceded by the word “county .” Although de fendant concedes

that the second and thir d such references mean “county highway,” defendant argues that the fourth refe rence to “hig hway” means any highway. We respectfully disagree. Instead, we believe that the f ourth reference to “highway,” just like the previous references in MCL 691.1402a, is a reference only to “county highways.” In short, we do not believe that the Legisl ature is under an obligation to cumbersomely repeat language that is su fficiently incorporated into a statute by the use of such terms as “the,” “such,” and “that.” 16 Fifth, unless the Legislature indicates otherwise, when it repeatedly uses the same phrase in a statute, that phrase shoul d be given the same meaning throughout

the statute. Paige v Sterling Hts , 476 Mich 495, 520; 720 NW2d 219 (2006) (indicating that “absolu tely identical phrases in our st atutes” should have identical meanings). In MCL 691.1402a, all th e references to “the highway” are encompassed within the identical phrase -- “outside of the improved portion of the highway designed for vehicular travel.” Ther efore, all the references to “the highway” should be interp reted in the same manner. Given that the first three references to “highway” in MCL 691.1402a indisputably refer to county highways

16 See, e.g., Townsend v M-R Products, Inc , 436 Mich 496, 502 n 8; 461 NW2d 696 (1990) (“Rather than rep eat the phrases ‘w eekly compensation benefits,’ and ‘accrued weekly benefits ,’ the drafters used the shorter ‘[the] compensation’/‘benefits’ to encompass both.”).18 only, we see no reason why the fourth re ference to “highway” should be construed any differently. Finally, the principle that statutory prov isions should not be construed in a manner that renders language within t hose provisions meaningless also supports

our conclusion that the two-inch rule of MCL 691.1402a(2) only applies to sidewalks adjacent to county highways. Nat’l Pride at Work, Inc v Governor , 481 Mich 56, 70; 748 NW2d 524 (2008) (“[A]n interpretation that renders language meaningless must be avoided.”). As di scussed earlier, be fore MCL 691.1402a was enacted in 1999, MCL 691.1402( 1) already imposed liability on municipalities for injuries resulti ng from defective sidewalks. Haliw , 464 Mich at

303 (“Pursuant to [MCL 691.1402(1)], the duty to maintain public sidewalks in ‘reasonable repair’ falls on local governme nts, including cities, villages, and townships.”). Therefore, MCL 691.1402a was plainly not enacted to introduce such liability on municipalities. Instead, it was enacted to limit this liability. 17 So

17 As the Court of Appeals explained in Carr v City of Lansing , 259 Mich App 376, 380-381; 67 4 NW2d 168 (2003): . . . MCL 691.1402a, added by 1999 PA 205, effective December 21, 1999, creates no liab ility for municipalities that would not otherwise exist. The 1999 legislation also amended [MCL 691.1402(1)] to add “[e]xcept as otherwise provided in section 2a” immediately preceding the impos ition of the duty of “each governmental agency having ju risdiction over a highway” to maintain it “in reasonable repair so that it is reasonably safe and convenient for public travel.” Section 2a is MCL 691.1402a. So, reading the plain language of the amendment, [MCL 691.1402a] is an exception to [MCL 691.1402(1)], the high way exception to the19 one must ask how does MCL 691.1402a lim it this liability? At first blush, it would appear that MCL 691.1402a(1) limits this liability to inst ances in which (a) the municipality knew or should have known of the defect in the sidewalk at least 30 days before the injury occurred and (b) this defect was a proximate cause of the injury. However, both of th ese limitations also existed before the enactment of MCL 691.1402a. Indeed, both of thes e limitations have existed since the Legislature first enacted the GTLA in 1965. The first of these limitations, i.e., th e one set forth in MCL 691.1402a(1)(a) regarding the municipality’s knowledge of the defect, was first set forth in MCL 691.1403, which provides: No governmental agency is lia ble for injuries or damages caused by defective highways unle ss the governmental agency knew, or in the exercise of reasonable di ligence should have known, of the existence of the defect and had a r easonable time to repair the defect before the injury took place. Knowledge of the defect and time to repair the same shall be conclusi vely presumed when the defect

general rule of governmental immunity established in [MCL 691.1407(1)]. The obvi ous purpose of [MCL 691.1402a] is to limit the liability municipalities would otherwise face to maintain sidewalks, trailways, crosswalks, or other installations pursuant to [MCL 691.1401(e)] and [MCL 6 91.1402(1)] by virtue of the exclusion of municipalities from th e fourth sentence of [MCL 691.1402(1)], which lim its state and county liability to “the improved portion of the highway desi gned for vehicular travel . . . .” See Haliw, [464 Mich] at 303, and Weakley [ v Dearborn Hts (On Remand) , 246 Mich App 322, 32 6; 632 NW2d 177 (2001)]

. Moreover, by its plain terms, [MCL 691.1402a] applies only to “a portion of a county highway outside of the improved portion of the highway designed for vehicular trav el” (emphasis added), but only a state highway and a city street are involved in this case.20 existed so as to be readily apparent to an ordinarily observant person for a period of 30 days or longer before the injury took place. As one can see, MCL 691.1402a(1)(a) an d MCL 691.1403 are virtually identical; they both limit a municipality ’s liability to instances in which the municipality

knew or should have known of the defect at least 30 da ys before the injury took place.

The second of these limitations , i.e., the one set forth in MCL 691.1402a(1)(b) requiring that the defect in the sidewalk have been a proximate cause of the injury, was first set forth in MCL 691.1402(1), which provides, in pertinent part: A person who sustains bodily in jury or damage to his or her property by reason of failure of a governmental agency to keep a highway under its jurisdiction in re asonable repair and in a condition reasonably safe and fit for travel may recover the damages suffered by him or her from the governmental agency. [Emphasis added.] This Court has held that this language requires that the defect have been a proximate cause of the injury: [W]here a plaintiff successfully pleads in avoidance of governmental immunity, i.e., that the alleged injury occurred in a location encompassed by MCL 691.1 402(1), the plaintiff must still prove, consistent with traditi onal negligence principles, the remaining elements of breach, ca usation, and damages contained within the statute. . . . * * * Proof of causation requires both cause in fact and legal, or proximate, cause. [ Haliw , 464 Mich at 304, 310.]21 See also Allison v AEW Capital Mgt, LLP , 481 Mich 419, 434; 751 NW2d

8 (2008) (“To recover under MCL 69 1.1402(1), a plaintiff must demonstrate that a defect in the highway was [a] proximate cause of the plaintiff’s injury.”). Although it is clear that MCL 69 1.1402a(1) was enacted to limit the liabilities of a municipality with regard to county highways, given that the two

limitations set forth in MCL 691.1402a (1)(a) and (b) existed before MCL

691.1402a was enacted and that th ese limitations already applied to all highways,

there must be some other reason that the Legislature chose to enact MCL 691.1402a(1). We believe that this othe r reason was to codify the two-inch rule with respect to county highways only. That is, unless MCL 691.1402a(1) is interpreted as limiting the tw o-inch rule to sidewalks adjacent to county highways, it is nothing more than a restatement of ex isting law in Michigan. In other words, MCL 691.1402a(1) is mere surplusage unles s “county highway” in that subsection

is construed to limit the application of the two-in ch rule in MCL 691.1402a(2),

and it is well established th at “[i]n interpreting a stat ute, we [must] avoid a construction that would render part of the statute surplusage or nugatory.” People

v McGraw , 484 Mich 120, 126; 7 71 NW2d 655 (2009). In li ght of this historical backdrop, we believe it is clear that th e significance of MCL 691.1402a(1) is its

limitation to county highways. 18

18 The fact that the two-inch rule was placed in MCL 691.1402a , rather than MCL 691.1402 further supports our co nclusion that the two-inch rule was intended to apply to county highways only, rather than all highways. In other22 To summarize, MCL 691.1402a(1) lim its a municipality’s liability with regard to county highways, MCL 691.1402a (2) codifies the tw o-inch rule with regard to county hi ghways, and MCL 691.1402a(3) limits a municipality’s liability with regard to county high ways and off-road vehicles. 19 In other words, subsection (1) sets forth in clear terms th e general rule regarding a municipality’s liability for defective sidewalks adjacent to county highwa ys, subsection (2) adopts a statutory two-inch rule for t hose sidewalks, and subsection (3) provides an exception to liability for these same sidewalks. Th is establishes a fully rational and coherent legislative scheme. MCL 691.1402a does not apply to sidewalks adjacent to highways other th an county highways, such as sidewalks adjacent to

words, if the Legislature had intended the two-inch rule to apply to all highways, why did the Legislature place the two-inch rule in MCL 691.1402a, a statutory provision in which two out of its three subsections indisputably apply only to county highways, rather than MCL 691.1402, which applies to all highways?

19 Given that MCL 6 91.1402a(1) and (2) thorough ly address the liability of municipalities with regard to county highways, it makes sense that the Legislature would want to clarify in MCL 691.1402a(3) that th e limitations of liability pertaining to off-road vehicles alrea dy found in the Natural Resources and Environmental Protection Act, MCL 324.81131, and referred to in MCL 691.1402(4), are still to be applied to municipalities with regard to county highways. That is, the Legislature may well have been concerned that, in the absence of subsection (3), the argument mi ght be raised that MCL 324.81131 was preempted by MCL 691.1402a w ith regard to a municipality ’s liability for injuries resulting from defective county highways . Further, contrary to defendant’s contention, the mere fact that MCL 691. 1402a(3) expressly refers back to MCL 691.1402a(1), while MCL 691.1402a(2) does not, does not mean that only subsections (1) and (3) are limited to coun ty highways. Instead , this difference is most likely attributable to the simple f act that subsection (3 ), unlike subsection (2), provides that a municipality’s “liability” is limited, and, thus, it is necessary in subsection (3) to explain to what “liab ility” this subsection is referring.23 state highways. Therefore, the two-inch rule of MCL 691.14 02a(2) does not apply

to the latter. 20

IV. CONCLUSION For the reasons discussed, we conclu de that the two-inch rule of MCL 691.1402a(2) does not apply to sidewa lks adjacent to state highways; it only applies to sidewalks adjacen t to county highways. Th erefore, we reverse the judgment of the Court of Appeals, rein state the trial court’s orders granting plaintiff’s motion to strike th e two-inch rule as an affi rmative defense and denying

20 As the Court of Appeals stated in Darity v City of Flat Rock , unpublished opinion per curiam of the Court of Appe als, decided February 21, 2006 (Docket No. 256481), at 4-5, lv den 476 Mich 858 (2006): Because the sidewalk at issue was adjacent to a state trunkline and not a county ro ad, MCL 691.1402a doe s not govern this action. . . . [I]n enacting MCL 691.1402a, the Legislature decided to limit liability w ith respect to county roads only . The Legislature’s failure to impose similar limits with respect to state roads does not suggest that the Legislature was una ware of that liability or did not intend that liability would exist. Rather, the absence of a provision concerning portions of state highw ays outside the improved portion means that a municipal corporation’s liability for those areas pursuant to MCL 691.1402 remain s unreduced. [Emphasis added.]24 defendant’s motion for summary dispositio n, and remand to the trial court for further proceedings. Stephen J. Markman Marilyn Kelly Michael F. Cavanagh Maura D. Corrigan Robert P. Young, Jr. Diane M. HathawayS T A T E O F M I C H I G A N

SUPREME COURT

BARBARA A. ROBINSON, Plaintiff-Appellant,

v No. 138669 CITY OF LANSING, Defendant-Appellee.

Y OUNG , J. ( concurring ). I concur with the majority’s decision in this case to the ex tent that it offers

a sensible construction of MCL 691.1402a, the interpre tation of which I believe reasonable minds can differ. However, I write separately for two purposes. First, I wish to set forth a plausi ble alternative interpretation that the Legislature very well could have intended when drafting MCL 691.1402a. And second, to the extent that the majority opi nion in this case has adopted an incorrect interpretation of this statute, I urge the Legislature to cl arify its intent with regard to the scope of

the “two-inch rule” of th e highway exception to governmental immunity. This case requires that we determine whether the two-inch rule of MCL 691.1402a(2) is limited in application to count y highways like the liability created elsewhere in that statute, or whether the rule may apply generally to all sidewalks that abut any public roadway. Generally, MCL 691. 1402(1) requires a municipality to “maintain” its highways in reasonable repair, and this includes2 sidewalks. 1 However, MCL 691.1402a, which is divided into three separate subsections, further clarifies this duty. 2 There is no dispute that the plain language of MCL 691.1402a(1) provides the standa rd under which a municipal corporation will be liable with respect to sidewalks abutting county highways . There is further no dispute that MCL 691.1402 a(3) explicitly refers back to MCL 691.1402a(1) to

1 MCL 691.1401(e).

2 MCL 691.1402a provides: (1) Except as otherwise provid ed by this section, a municipal corporation has no duty to repair or maintain, and is not liable for injuries arising from, a portion of a county highway outside of the improved portion of the highway de signed for vehicular travel, including a sidewalk, trailway, crossw alk, or other installation. This subsection does not prevent or limit a municipal corporation's liability if both of the following are true: (a) At least 30 days before the occurrence of the relevant injury, death, or damage, the muni cipal corporation knew or, in the exercise of reasonable diligence, sh ould have known of the existence of a defect in a sidewalk, trailway , crosswalk, or other installation outside of the improved portion of the highway designed for vehicular travel. (b) The defect described in subdivision (a) is a proximate cause of the injury, death, or damage. (2) A discontinuity defect of less than 2 inches creates a rebuttable inference that the muni cipal corporation maintained the sidewalk, trailway, crosswalk, or other installation outside of the improved portion of the highway de signed for vehicular travel in reasonable repair. (3) A municipal corporation's liability under subsection (1) is limited by section 81131 of the natu ral resources and environmental protection act, 1994 PA 451, MCL 324.81131.3 provide a particular excepti on to the liability created in that subsection, and thus by direct reference is also limited in ap plication to county highways. The present dispute concerns only whether the rebuttabl e inference for discontinuity defects of

less than 2 inches in MCL 691.1402a(2) is limited to county highways like the liability created in subsections (1) and (3 ), or whether MCL 6 91.1402a(2) applies generally to sidewalks abutting any public roadway within a municipal corporation’s jurisdiction. Plaintiff, w ho was injured on a sidewalk abutting a state trunk line highway, has advanced an interpretation adopted by the majority whereby the two-inch rule is limited in application to in juries that occur on county highways. Defendant conve rsely advances an interp retation providing for the broadest application of the two-inch ru le when defending against this type of

lawsuit. The majority concludes that plaintiff has the stronger position in this case and provides a reasonable and text-based analysis in supp ort, utilizing well

established canons of statutor y construction. I join that decision, yet I am not wholly convinced that the Legislature intended to create a distinction between county and non-county hi ghways when codifying th e two-inch rule of MCL 691.1402a(2). 3 Accordingly, I am setting forth here several considerations that support an alternativ e legislative intent.

3 The practical effect of this decisi on creates a rule whereby municipalities have the benefit of a statutory inferenc e that somewhat arbitrarily depends on whether a plaintiff’s slip and fall occu rred on a sidewalk abutting a county4 First and foremost, MCL 691.1402a(2) itself does not expressly contain a limitation to county highways. In this se nse, MCL 691.1402a(2) is clear: without a reference to county highways, we shoul d be hesitant to impute language to MCL 691.1402a(2) that the Legislature did not use. This could represent a specific omission by the Legislature, and words excluded from a statute—particularly

when used elsewhere in the statute—must be presumed to have been excluded for a specific purpose. 4 Structurally, MCL 691.1402a contains three separate subsections, all of which may stand independently and need not necessarily be read together. These subsections are not joined together by an introductory paragraph that would clearly indicate that they all encompass th e same limitation—that is, application to county highways. In this way, MCL 691.1402a may logically be read as a compendium of highway liability rules. If th at is the case, limitations in one

subsection should not be read into another subsection absent explicit commands to do so. Unlike MCL 691.1402a(3), in which the Legislature provided an explicit

highway or a state trunk line highway. I re cognize that it is certainly within the province of the Legislature to create such a rule, and this Court enforces that intent, even if an unus ual outcome results. See Lansing Mayor v Pub Service Comm , 470 Mich 154, 161; 680 NW2d 840 (2004). Yet the “arbitrariness” of where the rule applies under the major ity’s interpretation suggests that the Legislature may have intended no such limitation of the rule.

4 See Farrington v Total Petroleum, Inc , 442 Mich 201, 21 0; 501 NW2d 76 (1993). It is axiomati c that this Court does not read words into a st atute that the Legislature has excluded. Byker v Mannes , 465 Mich 637, 646-647; 641 NW2d 210 (2002).5 command to read that subsec tion subject to the limitatio ns of MCL 691.1402a(1),

there is no such command that limits the appli cation of MCL 691.1402a(2) to the subject matter of MCL 691.1402a(1). Reco gnizing that separate subsections of a statute may have independent signi ficance does not offend the canon of construction that statutory pr ovisions are to be read in the context of that which

surrounds them. 5 Additionally, neither the sy ntax employed by the Le gislature nor rules of grammar necessarily compels the majority’s interpretation. As the majority correctly notes, the Legislature’s varied use of definite versus i ndefinite articles in a statute requires that those articles be accorded their grammatically correct meanings. 6 The definite articles in MCL 691.1402a(2) in the phrases “the municipal corporation” and “the highway” must refer to a spec ific antecedent.

5 See, e.g., Griffith v State Farm Mu t Automobile Ins Co , 472 Mich 521, 533; 697 NW2d 895 (2005); Lansing Mayor , 470 Mich at 167-168.

6 A comparison of the definitions for “a” and “the” in Black’s Law Dictionary notes: [ A. ] The word “a” has varyin g meanings and uses. “A” means “one” or “ any ,” but less emphatically than either. . . . * * * The. An article which particularizes the subject spoken of

. “Grammatical niceties should not be resorted to without necessity; but it would be extendin g liberality to an unwa rrantable length to confound the articles ‘a’ and ‘the’. The most unlettered persons understand that ‘a’ is indefinite, but ‘the’ refers to a certain object .” [Black’s Law Dictionary (5 th ed) (emphasis added).]6 The majority quite reasonably believes th at these definite articles in MCL 691.1402a(2) refer back to the indefinite modification of “def ect” and “municipal corporation” in MCL 691.1402a(1). Howe ver, this is not necessarily so: the definite articles used in MCL 691.1402a(2 ) may logically refer to an earlier noun modified indefinitely in MCL 691.1402a(2) itself—“ a discontinuity defect.” Under this reading, the phrases “ the municipal corporation” and “ the highway” refer back to the specific corporation and highway relating to the indefinite “discontinuity defect” at the beginning of MCL 691.1402a(2). This indefinite

defect does not necessar ily refer back to “ the defect” (in county highways) discussed in MCL 691.1402a(1). Thus, the uses of the definite article “the” may

not have been intended to refer to a def ect mentioned in a prev ious subsection, but

instead could have been utilized because the use of indefinite articles at this point would simply not make grammatical sense. 7 I believe that these considerations, taken together, evidence a legitimate

contention that MCL 691.1402a(2) neither explicitly subjects itself to the county highway limitation nor implicitly relies on th is limitation in order to make logical

7 For example, it would be nonsensical (o r, at least, make less sense) for the statute to read: “A discontinuity defect of less than 2 inches creates a rebuttable inference that a municipal corporation maintained the sidewalk . . . outside the improved portion of a highway . . . in reasonable re pair.” There would be no reason for the drafter to use the italicized indefinite articles here. By this point, MCL 691.1402a(2) is not referring to an y municipal corporation or any highway; rather, it is a definite municipality that has definite control over a particular highway with the defect.7 sense. Yet while this analysis represen ts a separate plausible understanding of MCL 691.1402a(2), ultimately I am fa irly convinced by the majority’s interpretation that MCL 691.1402a is best understood as a seamless whole that applies to county highways , the separate provisions of which work better in concert than contrast. Thus, I concur in the majority opini on, but would call the Legislature to action if this Court has re asonably, yet mistakenly, limited the scope

of the two-inch rule when construi ng the provisions of MCL 691.1402a.

Robert P. Young, Jr.S T A T E O F M I C H I G A N

SUPREME COURT

BARBARA A. ROBINSON, Plaintiff-Appellant,

v No.138669 CITY OF LANSING, Defendant-Appellee.

W EAVER , J. ( concurring ). I concur in the result of the majority opinion because I believe that in this close case, the plaintiff has a more pers uasive position. I agree with Justice

Y OUNG as he states in his concurrence: “I am fairly convinced . . . that MCL

691.1402a is best understood as a seamless whole that applies to county highways, the separate provisions of which work better in concert than contrast.” Further, I also agree with Justice Y OUNG that, “to the ex tent that the majority opinion in this case has adopted an incorrect inte rpretation of this statute, I urge the Legislature to clarify its intent with regard to the scope of the ‘two-inch rule’ of the highway exception to governmental immunity.”

Elizabeth A. Weaver