Order Michigan Supreme Court 

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. 

_________________________________________/ 

On order of the Court, the application for leave to appeal the August 22, 2006 

judgment of the Court of Appeals is considered, and it is DENIED, because we are not 

persuaded that the question presented should be reviewed by this Court. 

KELLY, J., dissents and states as follows: 

Plaintiff is a 50-year-old blind 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 discrepancy in height between adjoining sidewalk slabs. 

Plaintiff brought suit alleging 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 whether the sidewalk was in reasonable repair. However, it also 

concluded that plaintiff had failed 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 found that plaintiff had not rebutted the inference of reasonable 

repair. Judge Davis dissented. He agreed with the majority’s notice analysis, but would 

have found that a genuine issue of fact existed with regard to the issue of reasonable 

repair. 

The Governmental Tort Liability Act (GTLA) provides that “each governmental 

agency having jurisdiction over a highway shall maintain the highway in reasonable 
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2 

repair so that it is reasonably safe and convenient 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 rebuttable inference 

that the municipal corporation maintained the sidewalk in reasonable repair.1 

The issue in this case is whether plaintiff has presented sufficient evidence to rebut 

the inference that the particular area of sidewalk where plaintiff fell was in reasonable 

repair.2

 By providing for a rebuttable inference, not an irrebuttable presumption, the 

Legislature intended a case-by-case determination about whether a height differential 

under two inches gives rise to liability. 

The plaintiff presented evidence that the sidewalk slab he tripped on was 

weathered and in poor condition. There was also testimony 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 engineer surmised that the city adopted this policy 

because it had decided that a height differential of three-quarters 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 than anyone, has decided that any differential more than threequarters of an inch is unsafe and needs remedying. This decision 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 weathered and in poor condition, 

the inference that the sidewalk was in reasonable repair at this particular location has 

been rebutted. I would reverse and remand for further proceedings. 

CAVANAGH, J., joins the statement of KELLY, J. 

1

 MCL 691.1402a(2) provides: 

A discontinuity defect of less than 2 inches creates a rebuttable 

inference that the municipal corporation maintained the sidewalk, 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 plaintiff’s falls was less than two inches, the 

rebuttable inference of MCL 691.1402a(2) applies, and it was plaintiff’s duty to rebut this 

inference. 

t0109 

I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the 

foregoing is a true and complete copy of the order entered at the direction of the Court. 

January 12, 2007 

Clerk