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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S PAULA ROUSH, Plaintiff-Appellee,

UNPUBLISHED November 21, 2017

v No. 334975 Van Buren Circuit Court

CITY OF HARTFORD,

LC No. 15-065830-NO

Defendant-Appellant.

Before: SWARTZLE, P.J., and SAWYER and MARKEY, JJ. PER CURIAM.

Plaintiff Paula Roush tripped on a “rolled curb” in defendant City of Hartford’s public sidewalk and sued defendant for a breach of its duty to maintain its sidewalk in reasonable repair. Defendant moved for summary disposition under MCR 2.116(C)(7), arguing that, because the rolled curb was an intentional design, plaintiff’s claim was barred under the doctrine of governmental immunity. In a September 19, 2016 order, the trial court denied defendant’s motion, concluding that the design defect was potentially actionable. Defendant now appeals that order as of right. We reverse the trial court and remand for further proceedings consistent with this opinion.

I. BACKGROUND

The facts of this dispute are straightforward. On August 10, 2015, plaintiff allegedly fell while she was walking on the sidewalk in front of the PNC Bank on East Main Street in Hartford and suffered injuries to her left elbow and a finger on her left hand. The sidewalk in that area features a “rolled curb” that was installed in 2008 as part of an “intersection improvement project” defendant undertook in tandem with the Michigan Department of Transportation (MDOT) to make the area more handicap-accessible.

The rolled curb was designed to address a four-inch elevation difference between the section of sidewalk adjacent to the street and the section of sidewalk adjacent to the bank. The basement of the bank extends outside of the bank’s above-surface outer walls such that the sidewalk adjacent to the bank is actually the roof of the bank’s basement.1 According to 1 Such an extended basement is not uncommon in older buildings.

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defendant’s city engineer, the section of sidewalk above the bank’s basement could not be lowered. Similarly, the city could not increase the elevation of the sidewalk adjacent to the street because doing so would bring the sidewalk out of compliance under the federal Americans with Disabilities Act. The design team was left with two options to address the elevation: a rolled curb or a straight vertical face. The design team determined that a straight vertical face would have been dangerous in that area and implemented the rolled curb design.

As evidenced in several photographs presented to the trial court and in Exhibit A to this opinion, the rolled curb was installed in the four inches preceding the section of sidewalk covering the bank’s basement. Because the vertical disparity between the section of sidewalk adjacent to the street and the section of sidewalk adjacent to the bank was also approximately four inches, the sidewalk extends from the lower area up an approximate 45-degree slope to the higher area. The sidewalk exhibited no cracks, breaks, or other structural defects as of the time of plaintiff’s fall.

At the time of her fall, plaintiff had been walking the same route in front on the bank three times per week for approximately one year. Plaintiff fell when she stepped off the higher section of sidewalk onto the lower section. At the time of the accident, the rolled curb was not painted but, after plaintiff’s husband talked with the city manager following plaintiff’s fall, the city painted the curb as a precautionary measure.

On January 4, 2016, plaintiff sued defendant for breach of its duty to maintain the public sidewalk in a reasonably safe condition. According to plaintiff, the curb constituted a “vertical discontinuity greater than two inches” or other “dangerous condition” under MCL 691.1402a, commonly known as the sidewalk exception to the governmental tort liability act (GTLA), MCL 691.1401 et seq. Accordingly, plaintiff claimed that she could maintain a premises liability action against defendant, despite defendant’s general immunity from tort liability under the GTLA.

Defendant disagreed and moved the trial court for summary disposition under MCR 2.116(C)(7). Defendant argued that the “sidewalk exception” found in MCL 691.1402a was not applicable to this case because there was no discontinuity defect in the sidewalk and there was no genuine dispute that the sidewalk was maintained in good repair. According to defendant, plaintiff complained of the design of the sidewalk itself, which was not exempt from governmental immunity under the sidewalk exception’s duty to maintain and repair. Accordingly, defendant argued that it was entitled to immunity from plaintiff’s tort claim under MCL 691.1407.

Plaintiff responded to defendant’s motion for summary disposition by arguing that only “original” designs were exempt from the sidewalk exception and that the rolled curb at issue was actually a defect created in the 2008 “repair” of the sidewalk. Plaintiff further argued that defendant could not prove that the rolled curb was a design because defendant did not present any expert testimony, and plaintiff maintained her position that the curb constituted a vertical discontinuity within the meaning of MCL 691.1402a.

The trial court found that there was a genuine issue of material fact with respect to whether there was a vertical discontinuity of greater than two inches or that the slope was

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otherwise a dangerous condition. The trial court concluded that it was not dispositive that the slope may have been part of an intended design, and denied defendant’s motion for summary disposition.

II. ANALYSIS

We review a grant of summary disposition under MCR 2.116(C)(7) de novo. Peters v Department of Corrections, 215 Mich App 485, 486; 546 NW2d 668 (1996). Summary disposition is appropriate for governmental immunity when, considering all of the evidence before the court in the light most favorable to the plaintiff, no further factual development would justify a right of recovery against the public defendant. Id. at 486-487.

Under the GTLA, a governmental entity is generally immune from tort liability for its performance or nonperformance of a governmental function, subject to limited exceptions. MCL 691.1407. Under the highway exception, an injured plaintiff may recover in tort for the governmental entity’s breach of its duty to maintain a highway under its jurisdiction in reasonable repair. MCL 691.1402. Similarly, under the public-building exception, an injured plaintiff may recover in tort for the governmental entity’s breach of its duty to “repair and maintain public buildings under their control.” MCL 691.1406.

The GTLA provides a similar exception for public sidewalks. MCL 691.1402a. The sidewalk exception provides:

(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 duty to maintain a sidewalk unless the plaintiff proves that at least 30 days before the occurrence of the relevant injury, death, or damage, the municipal corporation knew or, in the exercise of reasonable diligence, should have known of the existence of the defect in the sidewalk.

(3) In a civil action, a municipal corporation that has a duty to maintain a sidewalk under subsection (1) is presumed to have maintained the sidewalk in reasonable repair. This presumption may only be rebutted by evidence of facts showing that a proximate cause of the injury was 1 or both of the following:

(a) A vertical discontinuity defect of 2 inches or more in the sidewalk.

(b) A dangerous condition in the sidewalk itself of a particular character other than solely a vertical discontinuity.

These exceptions share the common purpose of providing for tort liability when a governmental entity breaches its duty of maintaining property within its control in reasonable repair. Accordingly, we must read the exceptions consistently with each other. Maple Grove Twp v Misteguay Creek Intercounty Drain Bd, 298 Mich App 200, 212; 828 NW2d 459 (2012). Where the Legislature uses the same language throughout related statutes, we must give that

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language a uniform interpretation across the statutes. See Robinson v City of Lansing, 486 Mich 1, 17; 782 NW2d 171 (2010). Therefore, where each of the above exceptions in the GTLA provides for the governmental entity’s duty to “maintain” and “repair” property within its control, that duty must be consistently interpreted across each of the exceptions.

Our Supreme Court has already determined that defects in the design of a highway or public building do not breach a governmental entity’s duty to maintain and repair highways and public buildings. Hanson v Board of County Road Comm’rs of County of Mecosta, 465 Mich 492, 503; 638 NW2d 396 (2002); Renny v Dept of Transp, 478 Mich 490, 507; 734 NW2d 518 (2007). Under the same line of reasoning, our Supreme Court has indicated that a design defect is not a breach of a governmental entity’s duty to maintain and repair sidewalks.

In LaMeau v Royal Oak, 289 Mich App 153, 159-160; 796 NW2d 106 (2010), a city engineering assistant instructed a paving company to pour a sidewalk through an existing anchor from a guy wire attached to a utility pole. A person riding a motorized scooter down the sidewalk was killed when he struck the guy wire, fell off his scooter, and hit his head and neck on the ground. Id. at 162-163. The personal representative of his estate sued the city, claiming the city breached its duty to maintain the sidewalk in reasonable repair under the highway exception of MCL 691.1402. Id. at 163-164. On appeal, a majority panel of this Court concluded that the city was not entitled to summary disposition under MCR 2.116(C)(7), because it did not rectify the defect it created in the sidewalk by paving through the guy wire anchor. Id. at 174-175.

Judge Talbot dissented, arguing that the defect at issue was a design defect, which could not breach the city’s duty to maintain and repair, as consistent with our Supreme Court’s interpretations of the highway exception. Id. at 191. According to Judge Talbot, the terms “maintain” and “repair” referred to the city’s duty to preserve the sidewalk from decay, damage, or decline, not a duty to design the sidewalk free of defects. Id. at 189-191. For these reasons, Judge Talbot concluded that the city was entitled to governmental immunity from plaintiff’s tort claim as that claim alleged only a defect in design. Id at 191.

Our Supreme Court subsequently reversed the majority’s opinion “for the reasons stated in the Court of Appeals dissenting opinion,” thereby rendering the dissenting opinion the controlling analysis. Lameau v City of Royal Oak, 490 Mich 949; 805 NW2d 841 (2011).

The highway exception applies both to traditional notions of highways, as well as public sidewalks when those sidewalks are designed for vehicular travel. MCL 691.1401(c); 691.1402; Buckner Estate v. City of Lansing, 480 Mich 1243, 1244, 747 NW2d 231 (2008). The sidewalk exception applies to sidewalks adjacent to a highway with no limit on whether the sidewalk is used for vehicular travel. MCL 691.1402a; MCL 691.1401(f). Nonetheless, both exceptions refer to the governmental entity’s duty to “maintain” the sidewalk “in reasonable repair.” See MCL 691.1402; MCL 691.1402a. Because we must read that duty consistently across these statutes, Maple Grove Twp, 298 Mich App at 212; Robinson, 486 Mich at 17, we conclude that a design defect is not actionable under the sidewalk exception set forth in MCL 691.1402(a).

Here, defendant’s city engineer testified that the rolled curb at issue was intentionally designed as part of a project to improve handicap accessibility in Hartford. Plaintiff offered no

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evidence to rebut that testimony. Instead, plaintiff argued that the testimony was not sufficient to prove that the rolled curb was in fact a design because defendant’s city manager was not presented as an expert. Defendant’s city manager, however, was not testifying to any opinion that the design was structurally sound or free from defects. Rather, defendant’s city manager was simply testifying to the fact that the curb was an intended design from his own personal knowledge of the design process. Such factual testimony need not be presented by an expert and is sufficient for a rationale trier of fact to conclude that the curb was, in fact, an intended design. Compare MRE 601-602 with MRE 701-702.

Plaintiff also argues that the rolled curb could not have been a design because MDOT did not approve the design. Yet, plaintiff’s argument is belied by the city engineer’s unrebutted testimony that MDOT did approve the rolled curb design, after several iterations. Moreover, MDOT’s approval or disapproval of the plan does not change the fact that defendant intentionally designed the rolled curb. Whether approved or disapproved, sound or deficient, a design is still a design within the confines of MCL 691.1402 and MCL 691.1402(a).

Finally, plaintiff argues that the GTLA only protects governmental entities for defects in an original design and that defendant’s replacement of the sidewalk at issue constitutes a reconstruction or repair, not an original design. While plaintiff is correct that a governmental entity’s negligent maintenance or repair of an original installation is not immune from tort liability, plaintiff’s application of that principle to the facts of this case strains credulity. Under plaintiff’s reasoning, anytime a governmental entity replaces an existing sidewalk, highway, or public building with an improved, redesigned structure, the design is not protected under the GTLA. Stated differently, under plaintiff’s view, the only designs protected under the GTLA would be original installations on vacant land in its natural state. Such a conclusion is not a reasonable interpretation of the GTLA, the exceptions to which we must narrowly construe. Nawrocki v Macomb Co Rd Comm, 463 Mich 143, 158; 615 NW2d 702 (2000). As used in the GTLA, maintenance and repair refer to a governmental entity’s duty to prevent or remedy the decay of existing structures within its control. See Renny, 478 Mich at 500-501; LaMeau, 289 Mich App at 189-191. A redesign or improvement is intended to replace the existing structure, at least in part, not to prevent or remedy decay, and therefore is not akin to maintenance or repair.

Therefore, we conclude that any defects in defendant’s rolled-curb design were not actionable under MCL 691.1402a. Because plaintiff did not present any evidence of any break, crack, or other defect in defendant’s sidewalk, plaintiff’s tort claims are barred by the GTLA. MCL 691.1407. Accordingly, defendant was entitled to summary disposition under MCL 2.116(C)(7). We reverse the trial court’s order denying defendant’s motion for summary disposition and remand for an entry of summary disposition in defendant’s favor.2 We do not retain jurisdiction.

2 Because we conclude that defendant was entitled to summary disposition because plaintiff’s claim was barred by governmental immunity, MCR 2.116(C)(7), we need not address

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/s/ Brock A. Swartzle /s/ David H. Sawyer /s/ Jane E. Markey

Exhibit A

defendant’s alternative argument, raised for the first time on appeal, that the rolled curb was an open-and-obvious danger.