Michigan Supreme Court 

# Order

Lansing, Michigan

January 12, 2007 Clifford W. Taylor, Chief Justice
132195 Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan RUSSELL ALLGAIER, Plaintiff-Appellant, Robert P. Young, Jr. Stephen J. Markman, Justices

v SC: 132195 COA: 268102 Macomb CC: 05-000127-NO CITY OF WARREN, Defendant-Appellee.

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On order of the Court, the application for leave to appeal the August 22, 2006 judgment of the Court of Appeals is cons idered, and it is DENIED, because we are not persuaded that the question presented s hould be reviewed by this Court.

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

Plaintiff is a 50-year-old blin d man. He resides in the city of Warren and routinely goes for walks by himself. He uses a cane to avoid tripping or running into things. On two separate occasions, plaintiff fell in front of 32849 Grinsell Drive. The cause of the falls was a 11⁄2-inch discrepan cy in height between adjo ining sidewalk slabs.

Plaintiff brought suit alle ging that defendant city had failed to maintain the sidewalk in reasonable repair, in violation of its statutory duty. Defendant moved for summary disposition. The trial court granted the motion. The court found that an issue of fact existed about wh ether the sidewalk was in reasona ble repair. However, it also concluded that plaintiff had fa iled to show that defendant had notice of the defect. The Court of Appeals affirmed in a split decision. The majority disagreed with the trial court on the notice issue, but fou nd that plaintiff had not reb utted the inference of reasonable repair. Judge Davis dissented. He agreed wi th the majority’s notice analysis, but would have found that a genuine i ssue of fact existed with regard to the issue of reasonable repair.

The Governmental Tort Liability Act (GTL A) provides that “each governmental agency having jurisdiction over a highway shall mainta in the highway in reasonable_______________________________________ __ 2

repair so that it is reasonably safe and convenien t for public travel.” MCL 691.1402(1). The term “highway” expressly includes sidewalks. MCL 691.1401(e). MCL 691.1402a(2) provides that defects of less than two inches create a re buttable inference that the municipal corporation mainta ined the sidewalk in reasonable repair. 1

The issue in this case is whether plaintiff has presente d sufficient evidence to rebut the inference that the particular area of sidewa lk where plaintiff fell was in reasonable repair. 2 By providing for a rebu ttable inference, not an irre buttable presumption, the Legislature intended a case-by-case determin ation about whether a height differential under two inches gives rise to liability.

The plaintiff presented ev idence that the sidewalk slab he tripped on was weathered and in poor condition. There was also testim ony from the city engineer that the city had adopted a policy of replacing sidewalk slabs if the height differential was three-quarters of an inch or more. The engin eer surmised that the ci ty adopted this policy because it had decided that a height differential of three-qu arters of an inch or more represented a safety hazard.

I think that the evidence plaintiff presented is sufficient to rebut the inference created by MCL 691.1402(a)(2). Defendant city, which is more familiar with the condition of its roadways th an anyone, has decided that any differential more than threequarters of an inch is unsafe and needs remedying. This deci sion is entitled to weight. Since (1) the height differential causing plaintiff’s fall violated the city’s own policy, and (2) there was also evidence that the slab in question was w eathered and in poor condition, the inference that the sidewalk was in reasona ble repair at this particular location has been rebutted. I would reverse and remand for further proceedings.

C AVANAGH , J., joins the statement of K ELLY , J.

1 MCL 691.1402a(2) provid es: A discontinuity defect of less than 2 inches creates a rebuttable inference that the municipal corporation maintained the si dewalk, trailway, crosswalk, or other installation outside of the improved portion of the highway designed for vehicular travel in reasonable repair.

2 Since the height differential causing plain tiff’s falls was less than two inches, the rebuttable inference of MC L 691.1402a(2) applies, and it was plaintiff’s duty to rebut this inference.

t0109 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.

January 12, 2007

Clerk