Supreme Court Holds that Affirmative Defense in MCL 691.1402a(2) Only Applies to Sidewalks Adjacent to County Highways
Foster Swift Municipal Law News
In Robinson v City of Lansing, __ NW2d __ (2010), the Michigan Supreme Court examined the issue of whether MCL 691.1402a(2), which provides that a discontinuity defect of less than two inches in a sidewalk creates a rebuttable inference that the municipality maintained the sidewalk in reasonable repair, applies to sidewalks adjacent to state highways or only to sidewalks adjacent to county highways. The Supreme Court reversed the holding of the Court of Appeals and held that the rule only applies to sidewalks that are adjacent to county highways.
This case arose when the plaintiff injured herself as a result of tripping on a raised and uneven area of a brick sidewalk adjacent to Michigan Avenue, a state highway in Lansing. Throughout the course of the proceedings, neither party disputed that the raised portion of the sidewalk was less than two inches and that the defendant, the city of Lansing, maintained the sidewalk. Plaintiff argued that the City breached its duty under MCL 691.1402(1) to maintain the sidewalk in reasonable repair. The City raised MCL 691.1402a(2) as an affirmative defense and moved for summary disposition, arguing that the plaintiff failed to rebut the inference that the City maintained the sidewalk in reasonable repair. Plaintiff argued that the affirmative defense only applied to sidewalks adjacent to county highways and, as a result, was inapplicable. The trial court adopted the plaintiff’s interpretation. The Court of Appeals reversed, holding that the statute at issue contained no language limiting its application to county highways.
The Michigan Supreme Court explained that MCL 691.1402a(1) states that a municipality "is not liable for injuries arising from, a portion of a county highway . . . including a sidewalk," unless the conditions set forth in MCL 691.1402a(1)(a) and (b) are satisfied. The Court pointed out that nothing in MCL 691.1402a(2), which immediately follows MCL 691.1402a(1), suggests that subsection (1) only applies to county highways but section (2) should be construed to apply to county, city, and state highways. According to the Court, subsection (2)’s use of "the highway" means that the subsection is referring to the same highway referred to in subsection (1)--the county highway.
The Court also pointed out that it is the Legislature’s intent that statutory provisions are not to be read in isolation but rather as a whole. According to the Court, when MCL 691.1402a is read as a whole, it is "clear" that subsections (1) and (2) only apply to county highways. Further, the Court believed that instead of choosing to repeat "county" throughout the entire statutory provision, the Legislature only mentioned "county" in the first subsection but intended for the word to apply throughout the statutory provisions. The Court explained that if the Legislature intended subsections (2) and (3) to apply to highways other than county highways, the Legislature would have drafted the subsections accordingly.
Next, the Court stated that since the first three references of "highway" in MCL 691.1402a "indisputably" referred to county highways, the fourth reference to "highway" should not be construed differently. Finally, the Court emphasized that MCL 691.1402a(1) would be mere surplusage unless "county highway" in that subsection was construed to limit the application of the two-inch rule in MCL 691.1402a(2).
In sum, the Court held that MCL 691.1402a(1) limits a municipality’s liability as to county highways, while MCL 691.1402a(2) codifies the two-inch rule as to county highways. MCL 691.1402a(2) only applies to sidewalks adjacent to county highways.