________________ _______________ ___________ Michigan Supreme Court 

# Order

Lansing, Michigan

April 25, 2008 Clifford W. Taylor, Chief Justice

133772 Michael F. Cavanagh
Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan Robert P. Young, Jr. ESTATE OF CHANTELL BUCKNER, by its Stephen J. Markman, Personal Representativ e, RICHARD RASHID, Justices and LAQUATA WRIGHT, Minor, by her Conservator, MICHAEL J. PANEK, Plaintiffs-Appellees, Cross-Appellants, SC: 133772 v COA: 270455 Ingham CC: 05-001467-NI CITY OF LANSING, Defendant-Appellant, Cross-Appellee, and

ESTATE OF LUTHER WAMPLER, by its Personal Representativ e, PAMELA WAMPLER, Defendant, Cross-Plaintiff-Appellee, Cross-Appellee, and

MARTHA WAMPLER, Defendant, Cross-Plaintiff, and

MORLEY S. OATES POST 701 VETERANS OF FOREIGN WARS OF TH E UNITED STATES, Defendant, Cross-Defendant-Appellee, Cross-Appellee.

On order of the Court, leave to appeal having been granted and the briefs and oral argument of the parties having been considered by the Court, we REVERSE in part the March 15, 2007 judgment of the Court of Appeals. MCR 7.302(G)(1). Under the doctrine of governmental immunity, MCL 691.1401 et seq ., governmental agencies are entitled to immunity “for all tort liability when ever they are engaged in the exercise or discharge of a governmental function.” Nawrocki v Macomb Co Rd Comm , 463 Mich 143, 156 (2000) (emphasis in original). However, the Legislature has provided six specific exceptions to this ge neral immunity; at issue here is the hi ghway exception to immunity, MCL 691.1402(1). A governmental agency with jurisdiction over a highway2

has the duty to “maintain the highway in reasonable repair.” MCL 691.1402(1);
Nawrocki

, supra at 160. The term “highway ” includes “sidewalks.” MCL 691.1401(e). In order to show that a governmental ag ency failed to “maintain [a] highway in reasonable repair,” a plaintiff must demonstrat e that a “defect” exists in the highway.
Nawrocki

, supra at 158; Haliw v City of Sterling Hts , 464 Mich 297, 309 n 9 (2001). Because the accumulation, by its elf, of ice and snow on a sidewalk, regardle ss of whether it accumulated through natural causes or otherwise, does not constitute a “defect” in the sidewalk, plaintiffs have not shown that d efendant violated its dut y to “maintain” the sidewalk “in reasonable repair.” Thus, there is no need for this Court to address the issue of proximate causation. Accordingly, MCL 691.1402(1) bars plaintiffs’ suit. We REMAND this case to the Ingham Circuit Court for entry of an order granting defendant’s motion for summary disposition and for further pr oceedings not inconsistent
with this order.

M ARKMAN , J. concurs and states as follows:

I concur with the order. I write separat ely only to respond to several arguments in Justice Weaver’s dissent, which have the potential to misl ead future litigants and which seek to replace the policy determinations of the Legislature, as explained in Nawrocki v
Macomb Co Rd Comm , 463 Mich 143 (2000), with those of Justice Weaver.

The central proposition of Justice Weaver’s dissent is that, under MCL 691.1402(1), municipalities have a “statutory duty to maintain [a] highway ‘in reasonable repair and in a condition reasonabl y safe and fit for travel.’” Post at 4. However,
Nawrocki (a decision in which Justice Weaver join ed) quite clearly explains that the duty
established under the first sentence of MC L 691.1402(1) is lim ited to keeping the highway “in reasonable repair”:

The first sentence of the statutory clau se, crucial in determining the scope of the highway exception, descri bes the basic duty imposed on all governmental agencies, including th e state, having jurisdiction over any highway: “[to] maintain the highway in reasonable repair so that it is reasonably safe and conve nient for public travel.” This sentence establishes the duty to keep the highway in reasonable repa ir. The phrase “so that it is reasonably safe and convenient for pub lic travel” refers to the duty to maintain and repair. The plain langua ge of this phrase thus states the desired outcome of reasonably repairing and maintaining the highway; it
does not establish a seco nd duty to keep the highway “reasonably safe.” [ Nawrocki

, supra at 160.]3

Nawrocki thus clearly asserts that the duty of a municipality under MC L 691.1402(1) is
limited to maintain ing highways in “reasonable repair.” 1

Justice Weaver’s dissent then goes to extraordinary lengths to distinguish Haliw v Sterling Hts , 464 Mich 297 (2001), noting that Haliw involved a natu ral accumulation of snow, unlike the instant case. 2 However, the only relevant co nsideration for deciding the instant case is that a municipality’s duty is limited to “maintaining the [sidewalk] in reasonable repair,” and under th at language plaintiff must show some defect in the
sidewalk. The fact that Haliw involved a natural accumulati on of snow, an d the instant case does not, is utterly irrel evant and beside the point.

After distinguishing Haliw on the facts, Justice Weaver’s dissent then relies on several cases to support its contention that a plaintiff may recover for an injury that arises
from an unnatural accumulation of ice and snow. What Justi ce Weaver’s dissent fails to acknowledge is that two of these cases — Kowalczyk v Bailey , 379 Mich 568 (1967), and Johnson v City of Marquette , 154 Mich 50 (1908) — did no t involve the application of the governmental tort liability act (GTLA), MCL 691.1401 et seq ., which was enacted in 1964. Although the third case cited by the dissent, Hampton v Master Products, Inc , 84 Mich App 767 (1978), did refer to the GTLA, Hampton relied on Kowalczyk , a preGTLA case, to conclude that an unnatural accumula tion could permit recovery. Accordingly, Justice Weaver’s reliance on these cases is misp laced because all of them have been superseded with the 1964 enactment of the G TLA, which was the subject of thorough interpretation in Nawrocki

.

Justice Weaver’s dissent rightly notes that the facts of this case are extremely tragic. However, the question before this Court is not how to ensure that plaintiffs obtain a recovery; rather, we must dete rmine whether, under the laws of our state, a recovery has been authorized against a m unicipality under the present ci rcumstances. For under our laws, “[i]t is well settled” that a municipa lity is generally “immune from tort liability while engaging in a governme ntal function unless an exceptio n [in the GTLA] applies.”

1 Nawrocki further clarified a municipality’s duty: “‘The duty to repa ir would generally limit the government’s liability to cases in which there are defects.’” Nawrocki

, supra at 177 n 32 (citation omitted). Th is Court has repeatedly equated the duty to “repair” with a duty to fix “defects.” Nawrocki

, supra at 158; Haliw v Sterling Hts, 464 Mich 297, 309 n 9 (2001); see also Teufel v Watkins , 267 Mich App 425, 429 n 1 (2005) (“The plain meaning of ‘reasonable repair’ as used in MC L 554.139(1)(b) requires repair of a defect in the premises. Accumulati on of snow and ice is not a defect in the premises.”).

2 Justice Weaver’s dissent also expends a great deal of effort distinguishing MacLachlan v Capital Area Transp Auth , 474 Mich 1059 (20 06). Given that the majority’s order
never cites MacLachlan , I am unsure why Justice Weaver be lieves it necessary to do so. The order is a simple and st raightforward application of Nawrocki

.4

Haliw

, supra at 302; see also MCL 691.1407(1). Consequently, to conclude that defendant is not liable for damages under the GT LA is, as in every other such case, not the equivalent of this C ourt lauding defenda nt’s performance of its municipal responsibilities or approving its sens e of public priorities.

To reach its result, Justice Weaver’s dissent transforms Nawrocki , irrelevantly distinguishes Haliw , and relies upon opinions long si nce superseded by new statutes. Most significantly, it acco rds unnatural meanings to the words of the la w. Although I too
have harbored concerns about the impact of our state’s gov ernmental immunity law, see,

e.g., Reid v Detroit , 474 Mich 1116 (2006); Ewing v Detroit , 468 Mich 886 (2003), any solution must lie in legislative amendment, not in the revision of statutory law by this
Court.

C AVANAGH , J., dissents and states as follows:

I would affirm the rulings of the trial c ourt and the Court of Appeals that denied summary disposition for defendant city of Lansing. I also concur with part III(C) of Justice Weaver’s dissenting statement.

W EAVER , J., dissents and states as follows:

I dissent from the order reversing the Court of Appe als judgment affirming the trial court’s denial of summary disposition for the defendant, the city of Lansing. Because both lower courts pr operly concluded that a ques tion of fact exists regarding whether the city created an unn atural accumulation of snow and ice, the plaintiffs should be permitted to present that question of fact to a jury.

The majority of four (C hief Justice Taylor, and Jus tices Corrigan, Young, and Markman) has now decided that, despite th e statutory mandate requiring governmental entities to maintain highways (including sidewalks) in reasonable repair and in a condition reasonably safe and fit for travel, the city’s creation of an unnatural
accumulation of snow and ice “does not c onstitute a ‘defect’ in the sidewalk” and therefore, the plaintiffs have faile d to establish that the city violated its duty to maintain the sidewalk in reasonable rep air. However, while the ma jority does not view an
unnatural accumulation of snow and ice to be a “structural defect,” the statutory duty to maintain a highway “in reasona ble repair and in a condition reasonably safe and fit for travel” is not limited to a duty to repair “structural defects.” Because both the statute and prior cases interpreting the duty to repair a highway indicate that an unnatural
accumulation of snow and ice is a “defect” that a governmental entity has an obligation to address given its duty to maintain the sidewalk in reas onable repair and in a condition reasonably safe and fit for travel , and because a question of fact exists regarding whether the city created an unnatural accumulation of snow and ice, I dissent and would affirm5

the judgment of the Court of Appeals affirmi ng the circuit court’s denial of the city’s motion for summary disposition.

Further, the majority of four’s completely incorrect extension of Nawrocki v
Macomb Co Rd Comm 3 by a one-page order, instead of by a full opinion, appears to be an attempt by the majority to con ceal its latest example of j udicial activism by unrestrained statutory interpretation.

I. FACTS

On January 29, 2005, at approximately 6:45 p.m., Chantell Buckner (then age seven), Lanecia Wright (the n age 14), and LaQuata Wright (then age 13) were walking from their home on Saginaw Street to a near by McDonald’s Restaurant located at the north corner of Saginaw and Larch streets. 4 The three girls had been walking on the sidewalk on the north side of Saginaw St reet, in a westbound direction facing oncoming traffic. However, when they reached the intersection of Sa ginaw and Prudde n streets, the sidewalk became impassable because of a larg e, unnatural accumulation of snow and ice that had been plowed off Sa ginaw Street and piled onto the sidewalk by the city of Lansing.

The city of Lansing’s public service de partment had a policy of not clearing the north sidewalk along Saginaw Street to disc ourage pedestrians from walking on the north
sidewalk. 5

When the north sidewalk of Saginaw Street became impassable because of the snow and ice piled onto it, the girls decided to walk in the roadway along the north curb of Saginaw Street. As the girls walked al ongside the curb, a car he aded east toward the

3 Nawrocki v Macomb Co R d Comm, 463 Mich 143 (2000).

4 By January 29, 2005, the city had received approximately 26.5 inches of snow since January 1, 2005. The average temperature for the two weeks before January 29 was below freezing. The largest snowfall occurred one week befo re the accident at issue here when, on January 22, the c ity received 12.6 inches of snow in one day.

5 During a February 3, 2005, Lansing City Co uncil meeting, a city employee of the public service department stated th at the “sidewalk gets plow ed occasionally but there is discretion given to the employee, but the ge neral practice during heavy snow fall is to only plow the South side of that particular road.” See also Sidewalk Near Site of Fatality to Close, Lansing State Journal, Fe b. 1, 2005, at 1A and City Considers Extending Sidewalk Near Hit-and-Run, Lansing State Journal, Feb. 11, 2005, at 1A.6

girls struck Chantell Buckner and LaQuata Wright. Both gi rls suffered massive injuries,
and Chantell died as a result of her injuries. 6

After the accident, it became evident that the city’s decision not to clear the sidewalk likely stemmed from the fact that th e sidewalk itself, irrespective of snow and ice, was defective in that it had never been completed after a construc tion project in 1998. When the city constructed Pr udden Street in 1998, it damage d the existing sidewalk along Saginaw Street such that th e north sidewalk of Sagina w between Prudden and Larch
streets was defective. 7 This portion of the sidewalk (where the snow was piled up so as to make it impassable for the girls) remained in disrepair until aft er January 2005, i.e.,
after the accident.

The plaintiffs’ original co mplaint against the city alle ged failure to maintain, clear, shovel, or remove the unnatural accumulation of snow and ice from the north sidewalk. Essentially, the plaintiffs alle ged that the city was liable under the highway exception to governmental immunity for injuries that resulted because of the city’s failure to clear the
unnatural accumulation of snow and ice fro m the north sidewalk of Saginaw Street. 8

6 The car’s driver was def endant Luther Wamp ler (now deceased), who was allegedly
intoxicated at the time his car co llided with the girls. He was subsequently charged with operating a vehicle while intoxicated, MCL 257. 625, and failing to stop at the scene of an accident, MCL 257.618.

7 A city employee admitted that it had been an unwritten policy of the city not to plow the north sidewalk for over 20 years. Thus, a pparently even befo re the Prudden Street installation, the city had not plowed the area in question.

8 MCL 691.1402(1) provides in pertinent part:

Except as otherwise prov ided in section 2a, each governmental agency having jurisdiction over a highway shall maintain the highway in reasonable repair so that it is reasona bly 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 govern mental agency to keep a highway under its jurisdiction in reasonable repai r and in a condition reasonably safe and fit for travel may recover the da mages suffered by him or her from the governmental agency.

MCL 691.1401 defines “government al agency” and “highway” as:

(d) “Governmental agency” means the state or a political subdivision. [A city is a political subdivision.]

(e) “Highway” means a pub lic highway, road, or street that is open for public travel and includes bridges, sidewalks, trailways, crosswalks, and7

The city subsequently brought a motion for summary disposition asserting that
under the law of natural accumulations, an actual defect in the sidewalk surface must
exist. 9 The plaintiffs then filed an amended complaint alleging that the sidewalk
underneath the snow and ice wa s itself defective and that this defect caused the girls’ injuries or death. The city also filed a motion for summary disposition with regard to the plaintiffs’ amended complaint.

The circuit court denied both of the city’s motions for summary disposition, stating with respect to the first complaint:

Plaintiff’s contention is that there was an unnatu ral accumulation
that occurred and the un natural accumulation doctrine is still good law and distinguishes it self from the MacLachlan [10] case and the Court concurs. I was affirmed, so that I kn ow the case. I know it well. I do believe that doctrine is still good law. The unna tural accumulation was not argued in front of the Court of Appeals or th e Supreme Court, which clearly makes the facts in the Court’s opinion distin guishable. Therefore, based on the oral argument and the Plaintiff’s resp onse, Defendant’s Motion is denied.

The city appealed, and the Court of App eals affirmed the circuit court’s denial of the city’s motion for su mmary disposition with respect to th e plaintiffs’ first complaint on the basis that the “City coul d be found liable for creating an unnatural accumulation of
snow that caused the accident, notwithstandi ng the provisions of the governmental tort liability act (GTLA) , MCL 691.1401 et seq .” 11

The city again appealed, an d the plaintiffs filed a cross -appeal. This Court granted leave and requested that the parties consider

(1) whether the children ’s decision to risk walking in the street prevents the plaintiffs from establishing proximate causation; (2) whether the city of Lansing is entitled to governmental immunity because the

culverts on the highway. The term highway does not include alleys, trees, and utility poles.

9 Haliw v Sterling Hts, 464 Mich 297 (2001).

10 MacLachlan v Capital Area Transportation Auth, 474 Mich 1059 (2006).

11 Estate of Buckner v City of Lansing, 274 Mich App 672, 673 (2007). The Court of Appeals reversed the circuit court’s denial of the city’s motion for summary disposition with regard to the second co mplaint on the basis that “p laintiffs came forward with
insufficient evidence to establish a genuine issue of f act regarding whether the alleged defect in the city’s sidewalk proxim ately caused the accident at issue.” Id.8

injuries did not occur on the sidewalk that the city allegedly failed to maintain, i.e., the injuries were not the direct result of the allegedly unmaintained condition; and (3) whether the statutory duty to “maintain the highway in reasonable repair,” MCL 691.1402(1), imposes obligations relating only to structural-t ype defects, or whether it includes a duty not to place temporary obstacles on a high way that render it impassable. [ Buckner Estate v City of Lansing, 480 Mich 895 (2007).]

II. STANDARD OF REVIEW

This Court reviews the applicability of the governmental immunity statute, a question of law, de novo. 12 An appellate court also revie ws de novo a lower court’s grant or denial of a motion for summary disposition. 13

III. ANALYSIS

The governmental to rt liability act (GTLA) 14 “provides broad immunity from tort liability to governmental agen cies whenever they are engaged in the exercise or discharge of a governmental function.” 15 The city of Lansing is a governmental agency that is immune from tort liability for its negligence while engaged in a governmental activity, unless one of the five statutory exceptio ns to governmental immunity applies. 16 The exception at issue here is the hi ghway exception, MCL 691.1402:

(1) Except as otherwise provide d in section 2a, each governmental agency having jurisdiction over a high way shall maintain the highway in reasonable repair so that it is reasona bly 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 govern mental agency to keep a highway under its jurisdiction in reasonable repai r and in a condition reasonably safe and fit for travel may recover the da mages suffered by him or her from the governmental agency. . . . The duty of the state and the county road commissions to repair and maintain highways, and the liability for that

12 Ostroth v Warren Regenc y GP, LLC , 474 Mich 36, 40(2006).

13 Cowles v Bank West, 476 Mich 1, 13 (2006).

14 MCL 691.1401 et seq

.

15 Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 595 (1984).

16 The five statutory exceptions are: (1) th e highway exception, MCL 691.1402; (2) the motor-vehicle exception, MC L 691.1405; (3) the publi c-building exception, MCL 691.1406; (4) the propri etary-function exception, MC L 691.1413; and (5) the governmental-hospital excep tion, MCL 691.1407(4).9

duty, extends only to the improved portion of the highway designed for
vehicular travel and does not include sidewalks, trailways, crosswalks, or any other installation outside of th e improved portion of the highway designed for vehicular travel. . . .

MCL 691.1401 defines “government al agency” and “highway” as:

(d) “Governmental agency” means the state or a political
subdivision.

(e) “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. The term highway does not include alleys, trees, and utility poles.

Inserting the definitions into § 1402, the highway exception to governmental immunity provides: “Each governmental agency [which includes cities] having jurisdiction over a highway [whi ch includes sidewalks] sha ll maintain th e highway in reasonable repair so that it is reasonably safe and convenient for public travel. A person who sustains bodily injury . . . by reason of failure of a gov ernmental agency to keep a highway . . . in reasonable repair and in a co ndition reasonably safe a nd fit for travel may recover . . . damages.” Pared down even furth er for purposes of this case, the plaintiffs’ position is that pursuant to MCL 691.1402, the c ity, having jurisdiction over the sidewalk in question, has a duty to “maintain the [s idewalk] in reasonable repair so that it is reasonably safe and convenient for public travel.” Further, th e personal injuries sustained by the girls in this case o ccurred “by reason of failure of [the city]” “to keep [the sidewalk] in reasonable repair and in a co ndition reasonabl y safe and fit for public
travel.”

A. Nawrocki Only Concerns Defects in “t he improved portion of the highway designed for vehicular travel

. ”

In Nawrocki , this Court was only co ncerned with an injury that occurred on an improved portion of the highway. This Cour t did not address a city’s duty to maintain sidewalks “in reasonable repair and in a cond ition reasonably safe and fit for travel.” 17

17 MCL 691.1402(1).

Justice Markman insists, ante at 2, that our decision in Nawrocki limited the duty to keep a highway “in reasonable repair so th at it is reasonably safe and convenient for public travel” only to keep a highway that is designed for vehicular travel “in reasonable repair.” That statement is correct, and I join ed the majority’s deci sion in that respect. However, the discussion of duty in Nawrocki was limited to the fact s presented in that case, which specifically co ncerned an inju ry sustained as a result of a county’s failure to maintain a highway designed for vehicular travel.10

The plaintiff, Rachel Nawroc ki, after getting out of a truck from the passenger side and walking to the end of the truc k to step off the curb and ont o the street, seriously injured her ankle when she stepped in to cracked and broken pavement in the roadway. This Court held that the county had a duty to pr otect pedestrians from dangerous or defective conditions in the impr oved portion of th e highway designed for ve hicular travel, even when the injury di d not arise as the result of a vehicu lar accident. This Court went on to
hold:

[T]he location of an alleged dangerous or d efective condition, as narrowly defined in th e fourth sentence of the statutory clause , is the critical factor in determining whether a plaintiff is successful in pleading in avoidance of governmental immu nity under the hi ghway exception.

* * *

While it is true that the second sentence of MCL 691.1402(1) ; MSA 3.996(102) (1) generally allows “a ny person” to recover damages from a governmental agency with highway jurisdiction, the fourth sentence of the statutory clause specifically limits th e state and county road commissions’ duty, and resultant liability for breach of this duty, “only to the improved portion of the highway desi gned for vehicular travel.” The plain language of this sentence, though limiting the duty and resultant liability, does not expressly exclude any particular class of injured trav eler from recovering damages under the highway exception. Th us, we believe that pedestrians who sue the state or a county road commission are not automatically and entirely excluded, as a class, from the protections of the statutory clause. [18]

The italicized language above estab lishes that this Court viewed the limited duty for the “improved portion of the highway” as applicable only to the state and to counties.

The present case is di stinguishable not only because it concerned a city’s failure to
maintain a sidewalk , but also because it concerned a city’s duty with respect to the
creation of an unnatural accumu lation of snow on a city sidewalk . As we noted in Nawrocki, supra at 176, the duty of the state and count y road commissi ons to keep a highway “in reasonable repair” “is significantly limited, extending ‘ only to the improved portion of the highway designed for vehicular travel. ’” (Emphasis in original.) The reason this duty is limited in such fashion is that the state and county governmental agencies do not have as broad a duty as other governmental agencies (that broader duty extending not just to highwa ys designed for vehicular trav el, but also to bridges, sidewalks, trailways, crossw alks, and culverts, MCL 691. 1401[e]) because the fourth sentence of MCL 690.1402(1) lim its the state and th e counties to a du ty to repair and maintain highways designed for vehicular t ravel. In that respect, state and county governmental agencies have no duty to maintain a sidewalk “in reasonable repair so that it is reasonably safe and convenient for public travel.” MCL 690.1402(1).

18 Nawrocki, supra at 168-170 (emphasis added).11

Accordingly, the broader duty applicable to government al agencies in general, as set
forth in the first sentence of MCL 691.1402(1), is still intact. In other words, even after Nawrocki, cities still have a “duty to maintain the highway [including side walks] in reasonable repair so that it is reasonably s afe and convenient for public travel.” 19 And an individual who is injured as a result of the government’s failure “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 gov ernmental agency.” 20

The majority’s order improperl y extends the limited holding in Nawrocki to this case, in which a defect in th e improved portion of the highway is not even at issue.
Nawrocki does not stand for the proposition that in order for a plaintiff to properly allege a claim of negligence against a city for failure to mainta in a sidewalk in reasonable repair, the plaintiff must first show there wa s a defect in the sidewa lk itself. There is simply no language in the statute, or in Nawrocki, supporting that conclu sion. In fact, a footnote in that case exposes the error in the majo rity’s strained interpretation of the holding in Nawrocki :

We acknowledge that repairi ng and maintaining the improved portion of the highway in a conditi on reasonably safe and convenient for public travel represents a higher duty of care on the part of government than repairing and maintaining it for vehicular travel. [21]

The reference to “public travel” is a reference to travel on surfaces other than roadways designed for “vehicular travel,” th at is, sidewalks, bridges, trailways, crosswalks, and culverts. Because this Court did not extend its holding to re quire that a plaintiff alleging a city’s failure to maintain a sidewalk in reasonable repair must show an actual defect in “bridges, sidewalks, t railways, crosswalks, and culverts on the highway,” 22 Nawrocki is inapplicable to this case, which concerns the unnatural
accumulation of snow and i ce on a city sidewalk.

Moreover, the majority of four’s completely incorrect extension of Nawrocki in a one-page order, as opposed to a full opinion, appears to be an attempt by the majority to conceal another example of judicial activism by unrestrained statutor y interpretation.

B. Haliw Only Addresses the Natura l Accumulation of Snow and Ice;
MacLachlan Does Not Address the Un natural Accumulation of Snow and Ice

19 MCL 691.1402(1).

20 Id.

21 Nawrocki

, supra at 172 n 28 (emphasis added).

22 MCL 691.1401(e).12

Unlike Nawrocki

, Haliw did concern the accumulation of snow and ice, but the question was whether a natural accumulation of snow and ice alone rose to the level of creating a defect upon which liab ility could rest. The plainti ff slipped on a patch of ice created by a depression in a city sidewalk. Water had pooled in the depression and subsequently hardened into ice. There were no other rou gh edges or defects in the depression and the ice that formed was level with the sidewalk. It was on the basis of these precise facts that this C ourt concluded that the “accumu lation” of ice was “natural” and that because the hole, by its elf, did not contribute to th e plaintiff’s injury, the city
was not liable.

Specifically, this Court held that “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.” 23 Thus, Haliw established only that a plaintiff cannot recover on a claim against a governmental agency where the sole proximate cause of the slip and fall is the natural accumulation of ice or snow:

[W]e reject the proposition th at the presence of ice alone, which naturally accumulates and which is the sole proxi mate cause of a slip and fall, satisfies the remaining elements of the negligence analysis employed in actions against governmental agenci es. In the absence of a persistent defect in the highway (i.e ., a sidewalk), rendering it unsafe for public travel at all times, and whic h combines with the natural accumulation of ice or

snow to proximately cause injury, a pl aintiff cannot prevail against an otherwise immune municipality. [24]

Importantly, in MacLachlan, this Court was faced with a case where there was a question of fact concer ning whether the snow and ice on a roadway was the result of a natural or unnatural accumulation. The pl aintiff was getting off a bus when he came
face-to-face with a “wall of snow and ice” created when the c ity of Lansing plowed the street and had not yet cleared the snow and ice pushed to the side of the road. As the plaintiff walked alongsid e the wall in an attempt to find an opening so that he could get to the sidewalk, he was hit by a car. The circuit court gran ted summary disposition to the city, but the Court of Appeals reversed the ci rcuit court’s order, concluding that there was a question of fact regarding whet her the snow pushed off to the side was the result of a
natural or unnatural accumulation of snow and i ce. In particular, the Court discussed the
distinction between natural versus unnatural accumula tions of snow and ice:

Under the long-recognized “natu ral accumulation” doctrine, “‘a governmental agency’s failure to remove the natural accumulations of ice and snow on a public highway does no t signal negligence of that public

23 Haliw, supra at 309 n 9.

24 Id. at 312 (emphasis added).13

authority.’” When, howev er, the accumulation of ice and snow is the result of unnatural causes, the municipality may be liable.

If there is any questio n regarding whether the condition was natural or unnatural, determination of this ques tion of fact is with in the province of a jury. Here, however, there is no disput e that the wall of ice and snow was created by the plowing efforts of the City of Lansing. Thus, reasonable
minds could not differ on the fact that the snow wall was an unnatural
accumulation.

We recognize that a city shou ld not be punished merely for removing snow from the ro adway. However, a m unicipality can be held liable if in clearing ice and snow it “i ntroduced a new elem ent of danger not previously present, or creat ed an obstacle to travel, such as a snow bank,
that exceeds the inco nvenience posed by a natural accumulation.” Here it is alleged that a wall of snow and i ce, three-to-four-feet high and created by the defendant city, caused an unusual obstacle that increased the hazard to decedent. A jury may conclude that th e city’s act of piling ice and snow so high that it would be difficult, if not impossible, to traverse, introduced a new element of danger that exceeded th e inconvenience pos ed by a natural
accumulation. Plaintiff th rough his expert presente d evidence that the city had adequate time to remove the sn ow wall from the bus stop and that it
would not have been an unreasonable burden in light of the potential risk for the city to leave or create an openi ng in the piled snow to allow access to the sidewalk in an area designa ted as a bus stop. We accordingly conclude that plaintiff has created a ju sticiable question of fact relative to the alleged unnatural accumulation of i ce and snow in the form of a snow
wall and in avoidance of governmental immunity. [25]

In so holding, the Court of Appeals acknowled ged that a city could be “held liable if, in clearing ice and snow, it ‘introduced a new elem ent of danger not prev iously present, or created an obstacle to travel, such as a snow bank, that exceeds the inconv enience posed by a natural accumulation.’” 26

This Court reversed the judg ment of the Court of Appe als. However, the Court’s
order did not address the issue of natural ve rsus unnatural accumulation of snow and ice; instead it merely stated that “[t]here was no defect in th e roadway rendering it unsafe for public travel at all times.” 27 Thus, this Court’s order did not address a key underlying

25 MacLachlan v Capital A rea Trans Auth , unpublished decision per curiam of the Court of Appeals, decided January 20, 2005 (Doc ket No. 252221), pp 5-6 (emphasis added; citations omitted).

26 Id. , citing Skogman v Chippewa Co Rd Comm, 221 Mich App 3 51, 354 (1997).

27 MacLachlan , 474 Mich at 1059.14

issue in the case: whether th e plaintiff’s injuries occurred as a resu lt of the defendant city’s failure to remove an unnatural accumulation of snow and ice from the roadway.
All that this Court’s order in MacLachlan makes clear is that there was no defect in the highway rendering it unsa fe for public travel . This Court did not speak definitively to the
issue of unnatural accumula tion of snow and ice after Nawrocki and Haliw.

In summary, after Nawrocki , it appears clear that this Court has limited state and county liability under the highway exception to defects that a ppear in the improved portion of the roadway. This case does not concern a defect in the impr oved portion of the roadway. The question here is whether, given the city’s duty to maintain sidewalks in reasonable repair, the city coul d be held liable for inten tionally creating an unnatural
accumulation of snow and ice so as to make the sidewalk impassable. Thus, Nawrocki is not applicable to this case. Haliw establishes that a government al entity is not liable for a natural accumulation of snow or ice, an d while there was a question of fact in
MacLachlan concerning whether the snow and ice at issue were th e result of a natural or unnatural accumulation, this Court’s order in that case does not establish that a governmental entity will not be liable for an unnatural accumulation of snow and ice.

C. Cities Have a Duty to Maintain Sidewalks in Reasonable Repair

In Jones v Enertel, Inc

, 28 this Court unanimously affirm ed the statut ory duty set
forth in MCL 691.1402 requiring cities to maintain sidewalks in reasonable repair:

MCL 691.1402(1), part of the governmental tort liability act (GTLA), imposes a general duty on municipalities to keep “a highway,” including a sidewalk on the highway, under its jurisdiction in reasonable repair:

“Except as otherwise provided in section 2 a[2] each governmental agency having jurisdiction over a highway shall maintain the highway in reasonable repair so that it is reasonably sa fe and convenient for public
travel . A person who sustains bodily in jury or damage to his or her property by reason of failure of a gover nmental 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 su ffered by him or her from the governmental agency. [Emphasis added.]”

The emphasized language places a duty on municipalities to maintain their sidewalks on public highways in reasonable repair . This means that municipalities have an ob ligation, if necessary, to actively perform repair work to keep such sidewa lks in reasonable repair. This is a greater duty than the duty a premises possessor owes to invitees under

28 Jones v Enertel, Inc, 467 Mich 266 (2002).15

common-law premises liability principl es. The basic duty owed to an invitee by a premises possessor is “t o exercise reasonable care to protect the
invitee from an unreasonable risk of harm caused by a dangerous condition
on the land.” Lugo v Ameritech Corp , 464 Mich 512, 516; 629 NW2d 384 (2001). Accordingly, as we discussed in Lugo , this duty does not generally require a premises possessor to rem ove open and obvious conditions because, absent special aspects, such conditions are not unreasonably dangerous precisely becau se they are open and obvious. However, such reasoning cannot be applie d to the statutory duty of a municipality to maintain sidewalks on public highwa ys because the statute requires the sidewalks to be kept in “reasonable repair.” The st atutory language does not allow a municipality to forego such repairs because the defective condition of a sidewalk is open and obvious. Accordingl y, we conclude that the open and obvi ous doctrine of common-law premises liability cannot bar a claim against a muni cipality under MCL 691.1402(1). [29]

The question in this case is whether the statutory duty to “maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel” includes a duty not to place temporary obst acles on a highway that rende r it impassable. The plain language of the statute requires a city to “m aintain the highway [inc luding sidewalks] in reasonable repair.” The statute fu rther provides that if an individual is injured “by reason of failure of a governmental agency to keep a highway [including sidewalks] under its jurisdiction in reasonable repair and in a condition reasonabl y safe and fit for travel,” the injured party can recover damages from the governme ntal agency. 30 If a sidewalk is made impassable because of an intentional act by the city, the city has not fulfilled its duty. The goal of the legisla tive directive to maintain highwa ys in reasonable repair is to make highways, including si dewalks, “reasonably safe and convenient for public
travel.” 31 If a city intentionally makes a sidewa lk impassable by creating an obstacle of unnatural accumulated snow and ice, it has fa iled to “maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel.” And if plaintiffs can establish that the injuries su stained by the girls occurred b ecause the city failed to keep the sidewalk in “reasonable repair and in a condition reasonably safe a nd fit for travel,” plaintiffs can recover damages from the city. 32

Moreover, Michigan courts ha ve previously held that a c ity can be held liable if, in the process of clearing snow and ice, the c ity “introduced a new element of danger not previously present, or created an obstacle to tra vel, such as a snow bank , that exceeds the

29 Jones

, supra at 268-269 ( emphasis added).

30 MCL 691.1402(1)

31 Id

.

32 Id.16

inconvenience posed by a natural accumulation.” 33 In fact, in Kowalczyk v Bailey

, 34 this Court specifically held that cities can be held statutorily liable “for injuries caused by their negligent failure to rem ove obstructions in their streets after notice thereof.”

Kowalczyk was cited by the Court of Appeals in a case concerni ng the village of Yale’s duty to remove snow from a sidewalk, Hampton v Master Products, Inc

. 35 The plaintiff, Dolly Hampton, was injured after she slipped on a snow bank formed on a sidewalk in the village of Ya le. The plaintiff alleged that the village had neglected its duty to keep the sidewalks in a condition safe for public travel . The plaintiff introduced photographic exhibits into evidence depicting that “the snow bank was much higher than any snow surrounding it” and there was also testimony “that the v illage had plowed the street adjacent to the sidewalk.” 36 On the basis of this ev idence, the Court of Appeals concluded that “[a] jury could reasonably infer from this that the village was responsible
for the unnatural accumulation of snow.” 37 Specifically, the Court noted

This unnatural accumu lation created an obstru ction on the sidewalk
which should have been remov ed so that the village could fulfill its duty of keeping the highways “reasonably safe and convenient for p ublic travel.” MCL 691.1402; MSA 3.996( 102). The village wa s liable for injuries caused by its negligent failure to remove the obs truction after it had notice
thereof. Kowalczyk v Bailey, 379 Mich 568; 15 3 NW2d 660 (1967).

* * *

In this case, the testimony revealed that the drift had been present two days and that the city had plowed the st reets. The jury could reasonably have inferred that the defenda nt Village of Yale had caused the drift to be placed across the sidewalk th rough the use of its snowplows. A

33 Skogman, supra at 354 (e mphasis added).

34 Kowalczyk v Bailey

, 379 Mich 568, 572 (1967).

35 Hampton v Master Products, Inc , 84 Mich App 767 (197 8). Justice Markman, ante at 3, questions my reliance on cases that preceded the enactment of th e GTLA; however, the fact that there are pre-GTLA cases establishing a duty by cities to main tain sidewalks in a condition that is safe for public travel and that a post-GTLA case cites pre-GTLA cases provides even stronger evidence that th e enactment of the GTLA in no way abrogated the existing duty of a city to maintain a sidewalk in a condition that is safe for public travel. Had such duty been abrogated, the Hampton Court would not have cited a pre-GTLA
case that made reference to the continue d existence of such a duty.

36 Id. at 772.

37 Id.17

jury could deem the agents of Yale responsible for producing the drift where it was as high as it was. [38]

For the past 100 years, Michig an courts have held that a jury should be allowed to consider whether a city was liable when there is a questi on about the accumulation of snow and ice on a highway or sidewalk. For example, in Johnson v City of Marquette, 39 the plaintiff’s wife was killed after the hors e-drawn sleigh in whic h she was riding was overtaken by a runaway team of horses. In that it was pr oper for a jury to consider whether the city was neglig ent in failing to remove snow from the street crossing in question, the Court stated:

We do not think it open to seri ous question that there was evidence in this case that at this crossing there was an unnatural accumulation of snow and ice, occasioned by shovelin g from the railroad track, so as to produce a hump on either side of the track of several inches in depth; thus increasing the height of the bank on eith er side. We think it was at least a question for the jury as to whether this left th e highway in a condition reasonably safe and fit for trav el. It is true that the natural accumulations of
snow and ice and the natu ral results of traveling on the same do not of
themselves make a case of faulty highway which justif ies a jury in finding a municipality in fault. But that is not this case, as the evidence was ample to
show that snow was thrown and piled on this highway in such a manner as to make an unnatural hump or ridge on either side of the track. [40]

Of note in Johnson is the fact that the d ecedent’s cause of death was not due to the fact that the sleigh in which she was ridi ng came into contact with the unnatural
accumulation of snow and ice. Instead, the deced ent was trampled to death after the
driver of another horse-drawn sl eigh lost control of the team when he came upon the unnatural “hump” of snow and ice in the roadway. Again, this Court held that it was proper for the jury to consider whether th e decedent’s death was proximately caused by the city’s negligence:

The question of whether there is sufficient causal connection between the defective highway and the injuries to the plaintiff’s intestate to justify the court in submitting this cas e to the jury has been sufficiently discussed in dealing with the question of proximate cause. If it is open to the jury to find that the driver would not have lost the control of the team

38 Id. at 772-773.

39 Johnson v City of Marquette , 154 Mich 50 (1908).

40 Id. at 53.18

but for the defect in the highway, then the connection between the wrong and the injury is suffici ent to justify a recovery. [41]

To summarize, Michigan courts have prev iously held that cities have a duty under
MCL 691.1402 to remove unnatural accu mulations of snow and ice that create obstructions on highways and sidewalks. Courts have also recognized that if there is a question of fact concerning wh ether the snow and ice are th e result of a natural or unnatural accumulation, juries should be permitted to wei gh the evidence and determine whether the governmental entity is liable for failing to rem ove an unnatural accumulation of snow that proximately cau ses a plaintiff’s injuries.

Applying the law to the facts in this case, neither the Court of Appeals nor the circuit court erred in denying the city’s motion for summary di sposition. Here, the city was aware that the sidewalk in question was defective and admitted to intentionally piling up plowed snow and ice onto th e defective north sidewalk to encourage pedestrians to use the south sidewalk. Conseq uently, there is a question of fact regarding whether the
accumulation of snow and ice was natural or unnatural. The city wa s aware of the risk that pedestrians (including children) would walk in the road becau se of unplowed sidewalks. In fact, the city had both an or dinance and a recently ad opted city resolution calling for all citizens to clear th e sidewalks in front of their property in order to make the sidewalks passable and to prevent pedestri ans from walking in the street. Given the city’s duty to maintain th e sidewalk in reasonable repai r “and in a condition reasonably safe and fit for travel,” a jury should have been allowed to consider whether the city was negligent in failing to remove the snow and ice from the sidewalk.

IV. CONCLUSION

In this tragic case, the majority of four has summarily dispensed with the plaintiffs’ claim against the c ity on the basis that the accu mulation of snow and ice was
not a “defect.” In additi on, the majority of fou r’s incorrect extension of Nawrocki in a one-page order, instead of in a full opinion, appears to be an attempt by th e majority to conceal its latest example of judicial activis m by unrestrained statut ory interpretation. I would find that both lower courts properly concluded that a question of fact exists

41 Id. at 57._______________________________________ __ 19

regarding whether the city created an unnatural accu mulation of snow and ice. Accordingly, the plaintiffs shoul d be permitted to bring that que stion of fact before a jury.

The statutory duty to maintain the highway “in reasonabl e repair and in a condition reasonably safe and fit for travel” is not limited to a duty to repair “structural defects.” Because both the statute and prio r cases interpreting the highway-repair duty can be interpreted so as to find that an unnatural accumulation of snow and ice is a “defect” that a governmental entity has an obligation to address given its duty to maintain the sidewalk in reasonable repai r and in a condition reasonably safe and fit for travel, and because a question of fact exis ts with regard to whether the city created an unnatural accumulation of snow and ice, I dissent and would affirm the judgme nt of the Court of Appeals affirming the circuit court’s denial of the city’s motion fo r summary disposition.

K ELLY , J., dissents and states as follows:

I would affirm the lower courts’ denials of defendant’s motion for summary disposition. As I noted in my dissent in Nawrocki v Macomb Co Rd Comm

, 42 the second
sentence of the highway exception 43

imposes liability on a government agency having jurisdiction over a highway for failure “to keep a highwa y under its jurisdiction in reasonable repair and in a condition reasonably safe and fit for travel . . . .” Thus, liability not only exte nds to highways in a state of disrepair, but to those in a condition not reasonably safe and fit for travel. [44]

The City of Lansing in this case plowed snow over a city sidewalk, impeding foot travel on it. Hence, a questio n of fact exists whether the city failed to keep the sidewalk in a condition reasonably safe an d fit for travel. Therefore, I concur with part III(C) of Justice Weaver’s dissenting statement.

42 Nawrocki v Macomb Co Rd Comm , 463 Mich 143 (2000).

43 MCL 691.1402(1).

44 Nawrocki , 463 Mich at 192 (Kelly, J. dissenting).

t0416 I, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

April 25, 2008

Clerk