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### STATE OF MICHIGAN

COURT OF APPEALS

KATHRINE CURTIS,

Plaintiff-Appellee, UNPUBLISHED November 22, 2016

v No. 328456 Charlevoix Circuit Court CITY OF CHARLEVOIX, LC No. 15-017825-NO

Defendant-Appellant.

Before: R ONAYNE K RAUSE , P.J., and O’C ONNELL and G LEICHER , JJ.

P ER C URIAM

. In this governmental-immunity case, defendant, the city of Cha rlevoix, appeals as of right the trial court’s order denying defendant’s motion for summary disposition pursuant to MCR 2.116(C)(7). The trial court concluded that the pavement where plaintiff was injured—a walkway which ran alongside a drive-through parking lot and con nected at either end to parallel city streets—was adjacent to those two streets. Because this d ecision is contrary to binding caselaw, we are constrained to reverse and remand for entry of summary disposition in defendant’s favor.

Plaintiff tripped and fell, injur ing her ankle, after a misste p on a tree grate in the middle of a sidewalk that ran alongside a parking lot owned by defendant. Both the linear parking lot and the sidewalk ran perpendicu lar to, and connected with, two parallel city streets. Specifically, the complaint stated that plaintiff had been “walking from the Cinema III, through the Kusina/Beacon Center municipal parking lot,” and that defendant “owns the Kusina/Beacon Center municipal parking lot, i ncluding the sidewalk within the parking lot.”

Defendant moved for summary disposition under MCR 2.116(C)(7), asserting that the sidewalk was not adjacent to a public highway, and therefore, the highway exception to governmental immunity, MCL 691.1402, did not apply. Defendant argued that, under MCL 691.1402a, plaintiff had to show that she fell on a sidewalk ad jacent to a public highway outside of the improved portion of the hi ghway designed for vehicular t raffic. At the hearing on the motion, the trial court referenced Black ’ s Law Dictionary , using the definition “ ‘lying near or close to, but not necessarily touching.’ And then as a compari son it gives ‘adjoining.’ ” In applying this definition, the tria l court ruled as follows:

[I]t sure looks like a sidewalk and it’s a continuation – you k now, a – perpendicular continuation of the sidewalk along Antrim Street and the sidewalk-2- along Mason Street. So it’s a sidewalk. . . . The question is , [is] it adjacent? It is lying near or close to but not necessarily touching the sidewal ks, and both of those public roads. It’s obviously more closely associated wit h that parking lot, which is not a public highway under the de finitions of these st atutory sections, but I think it’s close enough to Mason Street and Antrim Streets to meet the definition of adjacent under Black’s Law Dictionary.

Accordingly, the trial court denied defendant’s motion for summ ary disposition and this appeal followed.

We review de novo a trial court’s decision on a motion for sum mary disposition. Under MCR 7.2116(C)(7) the court’s decisions regarding the applicabil ity of governmental immunity and the statutory exceptions to immunity are also reviewed de n ovo on appeal. Moraccini v Sterling Hts , 296 Mich App 387, 391; 822 NW2d 799 (2012). Although the mov ing party may submit documentary support for its motion, the contents of the complaint must be accepted as true unless contradicted by t he documentary evidence. Id

. The governmental tort liab ility act (GTLA), MCL 691.1401 et seq ., broadly shields a governmental agency from tort liability “if the governmental ag ency is engaged in the exercise or discharge of a governmental function.” MCL 691.1407(1). Excep tions exist, including the “highway exception,” MCL 691.1402, which includes sidewalks to a certain extent: “A municipal corporation in which a sidewalk is installed adjacent to a municipal, county, or state highway shall maintain the sidewal k in reasonable repair.” MCL 691.1402a(1). “An action may not be maintained under the highway exception unless it is clea rly within the scope and meaning of the statute.” Hatch v Grand Haven Charter Twp , 461 Mich 457, 464; 606 NW2d 633 (2000). The statutory scheme defines “si dewalk” but not “adjacent”: “ ‘ Sidewalk’, except as used in subdivision (c), means a paved public sidewalk intended for ped estrian use situated outside of and adjacent to the improved portion of a highway designed for vehicular travel.” MCL 691.1401(f).

At the hearing, the focus of the parties’ arguments was on the meaning of “adjacent.” The trial court referenced Black ’ s Law Dictionary ’s definition for adjacent: “ ‘lying near or close to, but not necessarily touching.’ And then as a comparison it gives ‘adjoining.’ ” The court applied this definition, noting that the sidewalk in question l ooked like the sidewalks running along the public streets and that it was a “perpendicular conti nuation” of those sidewalks. It was “lying near or close to but not necessarily touching the sidewa lks, and both of those public roads.” The court found this met the definition of “adjacent t o” and accordingly denied defendant’s motion.

We find that the trial court erred by focusing on the dictiona ry meaning of “adjacent” while failing to recognize that caselaw regarding the meaning o f “sidewalk” is quite specific: “[A] sidewalk is a path for pedestrians along the side of a road .” Hatch , 461 Mich at 464 (emphasis added). This Court e xplored the meaning of “sidewalk ” in depth in Stabley v HuronClinton Metro Park Auth , 228 Mich App 363, 367; 579 NW2d 374 (1998):

According to Webster ’ s New World Dictionary , a “sidewalk” i s “a path for pedestrians, usually paved, along the side of a street.” The American Heritage-3- Dictionary: Second College Edition defines “sidewalk” as a “walk or raised path for pedestrians along the side of a road.” Random House Webster ’ s College Dictionary (1992) defines “sidewalk” as “a usu. paved walk at the side of a roadway.” In Black’s Law Dictiona ry (6th ed), “sidewalk” is de fined as “[t]hat part of a public street or highw ay designed for the use of pede strians.”

Furthermore, the Supreme Court has looked to definitions set f orth in the Michigan Vehicle Code to ascertain the meaning of terms shared by the Michigan Vehicle Code and the governmental immunity statute. See Roy v Dep ’ t of Transportation , 428 Mich 330, 338–340; 408 NW2d 783 (1987). In the Michigan Vehicle Code, the term “sidewalk ” is defined as “that portion o f a street between the curb lines, or lateral lines of roadway, and the adjacent p roperty lines intended for the use of pedestrians.” MCL 257.60; MSA 9.1860. [ Stabley , 228 Mich App at 367-368 (footnotes omitted).]

The Stabley Court concluded that where the path did not run alongside the road, it was not a sidewalk for purposes of the statute:

[W]e conclude that linking the w ord “sidewalk” with an adjacen t road is in accord with the common and approved usage of the word. Plainti ff’s fall did not occur on the portion of the trail that runs adjacent to the roadway , but rather on the portion that runs through the wooded interior of the park. Because plaintiff’s fall did not occur on a pedestrian way that ran alongside a public roadway
, plaintiff’s fall did not occur on a “sidewalk” within the meani ng of MCL 691.1401(e); MSA 3.996(101)(e).” [ Id . at 369 (emphasis added, citation omitted).]

This Court did not state that non e of the trail was a sidewalk, nor did it affirmatively state that the part of the trail running adjacent to the road was a sidewa lk; it only made clear that the part of the path that was not alongside the road was not a sidewalk. There was no mention of how near the plaintiff was to the roadway when the spill occurred; what was importantto the Court was that the path where the injury occurred did not run alongside the road. Con trary to plaintiff’s argument, Stabley clearly states that it is the orientation of the walkway in re lation to the road that matters, not the pr oximity of the accident to the road.

This Court again applied this rationale in Haaksma v Grand Rapids , 247 Mich App 44; 634 NW2d 390 (2001), where the facts are markedly similar to th ose of the present case. In Haaksma , 247 Mich App at 49-50, the plaintiff sued both the city, whic h owned the sidewalk, and the owner of the adjacent building, which had put a tempora ry patch on exposed wires that had injured the plain tiff when she stepped on them. The sidewa lk in that case “runs between, not alongside, Monroe and Ottawa Streets and is adjacent to a parki ng lot and 50 Monroe Place.” Id

. at 55. This Court held that the trial court’s grant of summary disposition in favor of the city “is clearly supported by Michigan case law.” Id . at 47. The plaintiff’s arguments in Haaksma were similar to those made by plai ntiff in the present case:

Plaintiff claims that Stabley is distinguishable because, here, the length of the sidewalk is short, the sidewalk is located in a downtown ar ea with regular-4- pedestrian traffic, and the side walk “is part of one interconne cted sidewalk system.” However, the length of the sidewalk and the amount of foot traffic it bears is not relevant to our int erpretation of the phrase “side walks . . . on a highway” because the statute makes no such distinction. MCL 69 1.1401(e). Moreover, regardless of whether the sidewalk is part of an “int erconnected sidewalk system,” parts of which may run parallel to a roadway, Stabley makes clear that the critical inquiry is whether the injury occurred on a portion of the sidewalk that runs adjacent to a public roadway

. Stabley , [228 Mich App] at 369. Accordingly, the trial court did not err in ruling that the hig hway exception does not apply to plaintiff’s claim against the city. [ Haaksma , 247 Mich at 55-56 (emphasis in original).]

Notably, this Court made no mention of whether the parking lots in Haaksma allowed through traffic because that was not a factor in its analysis. Contrar y to plaintiff’s assertion that Haaksma impermissibly added to the statute the requirement that a side walk must be both “adjacent to” and “parallel to” the roadway, it is apparent from Stabley , 228 Mich App at 369, that, as used in the statute, the word “sidewalk” itself inhere ntly includes the re quirement that the walkway runs alongside a road.

Finally, we need not consider plaintiff’s alternative basis fo r affirming, which is that the parking lot in this case was in fact a street because it serves as a throughway. Plaintiff’s complaint consistently alleged that she was walking “through [a ] parking lot” and fell on “the sidewalk within the parking lot. ” “[W]here a plaintiff does no t plead facts in avoidance of governmental immunity and only, as an afterthought, claims fact s on appeal that might raise a question of fact, this Court is inclined to accept the claims i n plaintiff’s original complaint, which entitled defendant to summary disposition.” Collins v Ferndale , 234 Mich App 625, 631; 599 NW2d 757 (1999). We express no opinion, and none should be implied, regarding the substantive merit of this argum ent; we state only that this arg ument is not properly before us.

Accordingly, the trial court e rred in denying defendant’s moti on for summary disposition. We therefore reverse and remand for entry of an order granting summary disposition in favor of defendant.

/s/ Amy Ronayne Krause /s/ Peter D. O'Connell /s/ Elizabeth L. Gleicher