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### STATE OF MICHIGAN

COURT OF APPEALS

DEBORAH MATO,

Plaintiff-Appellee, UNPUBLISHED October 29, 2015

v No. 323071 Wayne Circuit Court CITY OF LIVONIA, LC No. 13-010174-NO

Defendant-Appellant, and

BRYAN MARRA,

Defendant.

Before: M ETER , P.J., and W ILDER and R ONAYNE K RAUSE , JJ.

P ER C URIAM

. In this slip-and-fall case, defendant 1 appeals as of right from the trial court’s denial of its motion for summary disposition b ased on governmental immunity. We affirm.

On October 23, 2012, plaintiff trip ped and fell on a sidewalk while walking her dog in her Livonia neighborhood. She suf fered injuries and sued defen dant for failure to maintain the sidewalk in a safe condition. Defendant filed a motion for sum mary disposition under MCR 2.116(C)(7) and (C)(10). Defendant argued that plaintiff had n ot rebutted the statutory presumption that the sidewalk wa s in reasonable repair, that th e notice plaintiff was required to provide was defective, and that the proxima te cause of plaintif f’s injuries was a n accumulation of leaves on the sidewalk that defendant had no duty to remove. T he trial court ruled, in part:

This court will deny the motion. We believe in light of the p hotographs, there has been a successful rebut ting of the statutory presumpt ion that the sidewalk was in reasonable repair. At the very least it remain s an issue of fact whether the sidewalk at issue was in reasonable repair. The de fendant focuses his

1 References to “defendant” in thi s opinion are to the city of L ivonia.-2- argument on the requirement th at the condition be a proximate c ause of the injury. Defendant believes that the accumulation of the leaves was the sole proximate cause of the accident.

As you know, under the statute the defendant need not prove th at the defect was the sole proximate cause of the injury. Under the s tatute it is sufficient to establish that it was simpl y a proximate cause of the injury

. . . . With regard to the issue of notice and whether or not the noti ce was sufficient because it didn’t make reference to the leaves invol ved here, we believe that the notice was proper. Pla intiff gave notice of the only hazardous condition for which the city could be responsible.

We review de novo a trial court’s grant or denial of a motion for summary disposition. Maiden v Rozwood , 461 Mich 109, 118; 597 NW2d 817 (1999). A court may grant su mmary disposition under MCR 2.116(C)(7) based on “immunity granted by law . . . .” “In reviewing a motion for summary disposition under MCR 2.116(C)(7), a court considers the affidavits, pleadings, and other documentary evidence presented by the part ies and accepts the plaintiff's well-pleaded allegations as true, e xcept those contradicted by documentary evidence.” McLean v Dearborn , 302 Mich App 68, 72-73; 836 NW2d 916 (2013). “In reviewing a motion under MCR 2.116(C)(10), the trial court considers affidavits, p leadings, depositions, admissions, and other evidence introduced by the parties to determine wheth er no genuine issue of material fact exists and the moving party is entitled to judgment as a m atter of law.” McLean , 302 Mich App at 73. “The evidence submitted must be considered in the l ight most favorable to the opposing party.” Id . (citation and quotation marks omitted).

MCL 691.1402a states:

(1) A municipal corporation in which a sidewalk is installed adjacent to a municipal, county, or state highway shall maintain the sidewalk in reasonable repair.

(2) A municipal corporation is not liable for breach of a dut y to maintain a sidewalk unless the plainti ff proves that at least 30 days be fore the occurrence of the relevant injury, death, or damage, the municipal corporatio n knew or, in the exercise of reasonable diligence, should have known of the exis tence of the defect in the sidewalk.

(3) In a civil action, a munici pal corporation that has a dut y to maintain a sidewalk under subsection (1) is presumed to have maintained th e sidewalk in reasonable repair. This presumption may only be rebutted by ev idence of facts showing that a proximate cau se of the injury was 1 or both of t he following:

(a) A vertical discontinuity def ect of 2 inches or more in th e sidewalk.

(b) A dangerous condition in the sidewalk itself of a particu lar character other than solely a v ertical discontinuity.-3- (4) Whether a presumption under subsection (3) has been rebut ted is a question of law for the court.

(5) A municipal corporation’s liability under subsection (1) is limited by section 81131 of the natural resources and environmental protec tion act, 1994 PA 451, MCL 324.81131.

Defendant does not dispute that the sidewalk on which plaintif f tripped, at its edge, did in fact contain a vertical discontinuity defect of two inches or m ore. It argues, however, that it is pure speculation that plaintiff fell because of this discontinu ity defect. Defendant claims that “since the argument that [plaintiff] tripped only where the dis continuity was greater than two inches is based upon conjecture and speculation, it cannot serv e to rebut the [statutory] presumption.”

Defendant’s argument is unavailing. At her deposition, plaint iff testified that, before her fall, she did not see the defect in the sidewalk because of lea ves that were covering it. However, she clearly testified that after she fell, she was able to dete rmine that the sidewalk was raised where she had tripped and that she “tripped on [her] right foot as [her] right foot hit the right edge of the sidewalk.” Plainti ff’s attorney asked, “[Y]ou coul d visualize that there was [a] twoto[-]three-inch height discrepancy there?” Plaintiff replied, “Right.” The attorney then asked, “And that’s where you tripped?” Plaintiff replied, “Yes.” Pla intiff’s testimony served to rebut the statutory presumption. 2

Defendant next argues that plai ntiff provided inadequate notic e under MCL 691.1404(1), which states:

As a condition to any recovery for injuries sustained by reaso n of any defective highway, the injured person, within 120 days from the time the injury occurred, except as otherwise provided in subsection (3) shall serve a notice on the governmental agency of the occurrence of the injury and the defect. The notice shall specify the exact location and nature of the defec t, the injury sustained and the names of the witnesses known at the time by t he claimant.

2 Citing Plunkett v Dep’t of Transp , 286 Mich App 168, 188; 779 NW2d 263 (2009), defendant argues that the presumption could not have been rebutted becaus e the sidewalk was not unsafe for public travel at all times , stating that “no harm has befallen anyone traversing that sid ewalk in a fully populated residential area occupied by families” and further stating that “it is only a problem when it is covered by a foreign substance.” This argum ent is untenable. Clearly the vertical discontinuity defect w as a continually unsafe conditio n and served to rebut the presumption in MCL 691.1402a(3). The Plunkett Court stated, “The plaintiff must show that the injury was caused by the ice, snow, or water, in tandem with the defect itself , for example, tripping or losing one’s balance on the edge of the defect and then slipping. Plunkett , 286 Mich App at 188 (emphasis in original) . This case, involving a cont inual defect combined with leaves, is analogous.-4- Defendant claims that plaintiff’s notice was inadequate because it failed to mention the leaves covering the sidewalk. Once ag ain, defendant’s argument is una vailing.

In Plunkett v Dep’t of Transp , 286 Mich App 168, 176-177; 779 NW2d 263 (2009), this Court stated:

[W]hen notice is required of an average citizen for the benefit of a governmental entity, it need only be underst andable and sufficient to bring the important facts to the governmental entity’s attention. Thus, a liberal construction of the notice requirements is favored to avoid penalizing an inexpert layman for some technical defect. The principal purposes to be s erved by requiring notice are si mply (1) to provide the governmental agency with an opportunity to investig ate the claim while it is still fresh and (2) to remedy the defect before oth er persons are injured. [Citations omitted.]

The defect as applied to defendant was the vertical discontinuity defect, not the leaves. Plaint iff never argued that defendant had a duty to remove the leaves and admits that defendant could not be held liable for a failure to remove leaves from the sidewalk

. 3 The notice referred to the defect for which defendant was responsib le. The notice was proper.

Defendant argues that the accumulation of leaves, and not the vertical discontinuity defect, was the sole proximate cause of plaintiff’s injuries. Yet again, defendant’s argument is unavailing. As noted by the trial court, MCL 691.1402a(3) refe rs to “ a proximate cause . . .” (emphasis added). There may be more than one proximate cause o f an injury. Brisboy v Fibreboard Corp , 429 Mich 540, 547; 418 NW2d 650 (1988). Plaintiff’s testimon y sufficiently indicated that she tripped because of the vertical discontinuit y defect. As such, the vertical discontinuity defect was a proximate cause such that the statutory presumption in MCL 691.1402a was rebutted.

Defendant argues that it had no actual or constructive notice of the defect under MCL 691.1402a(2) because the sidewalk “was reasonably safe and conv enient for travel, except when covered by leaves.” As noted, the focus of this case as applie d to defendant is the vertical discontinuity defect, not the leaves. Accordingly, defendant’s argument is without merit. In addition, plaintiff’s safety engi neer averred that the defect h ad been in existence for more than 30 days. We find no basis for reversal.

Affirmed and remanded for fur ther proceedings. We do not reta in jurisdiction.

/s/ Patrick M. Meter /s/ Kurtis T. Wilder /s/ Amy Ronayne Krause

3 Defendant filed a notice of nonpa rty fault against the owner o f the property adjoining the portion of the sidewalk wh ere plaintiff fell.