Haliw v. City of Sterling Heights

627 N.W.2d 581, 464 Mich. 297

• Court: Michigan Supreme Court
• Decided: November 16, 2001
• Docket: 115686, Calendar No. 10
• Status: Published

Opinions

Markman, J.

We granted defendant city of Sterling Heights’ application for leave to appeal in this case to decide the proper application of the “natural accumulation” doctrine to municipal liability. Because we conclude that the natural accumulation of ice or snow on the sidewalk at issue does not give rise to an actionable breach of defendant’s duty, and the claimed depression in the sidewalk was not an independent defect, plaintiff cannot prove the elements required to establish a negligence claim against a governmental agency.¹ Accordingly, we reverse the judgment of the Court of Appeals, and remand to the Macomb Circuit Court for entry of an order granting summary disposition in favor of defendant.

1. facts and proceedings

On January 29, 1996, plaintiff was walking on a snow-covered sidewalk located in her neighborhood. Plaintiff claims that she slipped and fell on a patch of ice that had formed on the sidewalk.² Apparently, the ice had formed in a depressed portion where two sections of the sidewalk met. According to plaintiff, it had snowed before the incident, and the sidewalk had not yet been shoveled.

Anna Marson, plaintiffs neighbor and the homeowner nearest the portion of sidewalk at issue here, stated that, although the depression at the joint of the two cement slabs allowed water to settle, there was no raised edge or gap between the two slabs, and neither slab was actually broken. According to Mar-son, even in the winter, when “it just snows it would melt and there would be nothing [i.e., no ice] there. But this [time], it happened to rain [before plaintiff’s slip and fall] and there was ice ... .” Marson, who provided aid to plaintiff just after her fall, stated that plaintiff told her that she had slipped on the ice that had formed on the sidewalk.

Plaintiff retained an engineering expert, Theodore Dziurman, who performed an inspection of the portion of sidewalk upon which plaintiff claimed ice had formed.³ According to Dziurman, there was a “depression” where two slabs of the concrete sidewalk met, although he stated that there was no separation between the two slabs, and that “it [was] not any different than [a] normal joint, not unusual.” It was Dziurman’s opinion that, because of the presence of the depression, water was allowed to “pond” at that point resulting in the formation of ice under the proper weather conditions. When Dziurman was asked if the depression presented a dangerous or defective condition in the sidewalk in the absence of ice, the following colloquy ensued:

Q. When there is no rain and no freezing, is there anything particularly defective or dangerous about that condition in and of itself?

A. It could be dangerous to someone that wasn’t expecting a depression there that could throw them off stride when they are walking causing them to stumble or fall. Someone riding on a bicycle if they are going real fast, they could hit the bottom of that thing and cause the bike to go out of control. There are possibilities of other accident potential because of that sunken condition.

Q. Do you have any information any of those things ever happened to that sidewalk slab?

A. No, I don’t.

Q. Your statements about what could happen are theoretical; correct?

A. I think you asked me that.

As a result of her fall, plaintiff suffered a broken ankle that required surgical intervention and thereafter initiated a lawsuit against defendant. In response, defendant filed a motion for summary disposition, brought pursuant to MCR 2.116(C)(7) and (10). The trial court denied defendant’s motion, and the Court of Appeals, in an unpublished opinion, affirmed, stating that

[i]n addition to the presence of snow and ice, plaintiffs allege there was a defect in the sidewalk itself, and therefore their claim is not barred by the natural accumulation doctrine .... Here, plaintiffs presented evidence creating a genuine issue of material fact regarding whether the sidewalk where [plaintiff] fell was reasonably safe for public travel. [Issued October 5, 1999 (Docket No. 206886), slip op at 1-2.]

H. STANDARD OF REVIEW

We review the grant or denial of summary disposition de novo. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). “MCR 2.116(C)(7) tests whether a claim is barred because of immunity granted by law, and requires consideration of all documentary evidence filed or submitted by the parties.” Glancy v Roseville, 457 Mich 580, 583; 577 NW2d 897 (1998).

In reviewing a motion for summary disposition brought under MCR 2.116(C)(10), we must consider the affidavits, pleadings, depositions, admissions, and documentary evidence filed in the action or submitted by the parties in the light most favorable to the party opposing the motion. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996). Summary disposition may be granted if the evidence demonstrates that there is no genuine issue with respect to any material fact, and the moving party is entitled to judgment as a matter of law. Id. As with motions for summary disposition, we also review questions of statutory construction de novo as questions of law. Donajkowski v Alpena Power Co, 460 Mich 243, 248; 596 NW2d 574 (1999).

HI. GOVERNMENTAL IMMUNITY

The governmental tort liability act, MCL 691.1401 et seq., provides immunity for governmental agencies, including municipalities like defendant. It is well settled in this state that governmental agencies are immune from tort liability while engaging in a governmental function unless an exception applies.⁴ MCL 691.1407; Nawrocki v Macomb Co Rd Comm, 463 Mich 143, 156; 615 NW2d 702 (2000); Suttles v Dep’t of Transportation, 457 Mich 635, 641; 578 NW2d 295 (1998); Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 591; 363 NW2d 641 (1984). The immunity conferred on governmental agencies is broad, and the exceptions narrowly drawn.⁵ Nawrocki, supra at 149; Ross, supra at 618.

The only exception implicated in the present case is the so-called “highway exception” to governmental immunity, which is set forth in MCL 691.1402, and provides in part:

Each governmental agency having jurisdiction over a highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. A person who sustains bodily injury or damage to his or her property by reason of failure of a governmental agency to keep a highway under its jurisdiction in reasonable repair and in a condition reasonably safe and fit for travel may recover the damages suffered by him or her from the governmental agency.[⁶]

Pursuant to subsection 1402(1), the duty to maintain public sidewalks in “reasonable repair” falls on local governments, including cities, villages, and townships. See Chaney v Dep’t of Transportation, 447 Mich 145, 172, n 2; 523 NW2d 762 (1994); Mason v Wayne Co Bd of Comm’rs, 447 Mich 130, 136, n 6; 523 NW2d 791 (1994). Accordingly, a municipality’s maintenance and repair of its sidewalks is the performance of a governmental function. MCL 691.1401(f).⁷

However, as we noted in Suttles, simply asserting that an action falls within the “highway exception” to governmental immunity is not the end of the analysis:

In every instance where a plaintiff alleges a cause of action based on the highway exception to governmental immunity, MCL 691.1402(1); MSA 3.996(102)(1), the court must engage in a two-step analysis. [Id. at 651, n 10.]

First, it must be determined whether the plaintiff has pleaded a cause of action in avoidance of governmental immunity. Second, where a plaintiff successfully pleads in avoidance of governmental immunity, i.e., that the alleged injury occurred in a location encompassed by MCL 691.1402(1), the plaintiff must still prove, consistent with traditional negligence principles, the remaining elements of breach, causation, and damages contained within the statute. Id., see also Nawrocki, supra at 172, n 29. The statute at issue contains the duty element of these principles; namely, the duty of a municipality to “maintain” the sidewalk “in reasonable repair so that it is reasonably safe and convenient for public travel.” MCL 691.1402(1).⁸ See Johnson v Pontiac, 276 Mich 103, 105; 267 NW 795 (1936), explaining that “[t]he liability of cities for this class of cases is statutory . . . and it is the duty of defendant to keep its sidewalk in repair.” Concepts such as the “natural accumulation” doctrine, see below, are pertinent to this second step of the analysis. See Johnson, supra, stating that a plaintiff cannot recover if an injury is due “solely to the presence of ice or snow” (emphasis added).

IV. the natural accumulation doctrine

“It has long been the law in this state . . . that a governmental agency’s failure to remove the natural accumulations of ice and snow on a public highway does not signal negligence of that public authority.” Stord v Transportation Dep’t, 186 Mich App 693, 694; 465 NW2d 54 (1991). The following cases present an overview of the “natural accumulation” doctrine as it relates to public sidewalks, and municipal defendants.

In Mayo v Village of Baraga, 178 Mich 171; 144 NW 517 (1913), the plaintiff brought an action to recover damages for injuries sustained as a result of falling on ice and snow on a sidewalk. This Court determined that

[i]f a liability exists, it is because of a defect in the [sidewalk]; and, if ice frozen upon a sidewalk is a defect when it is caused by water flowing from a roof, why should it not be when it flows from a vacant lot, or when it falls upon the [side]walk, or is caused by the melting of snow upon or adjoining such a walk? If the liability of a city for damages resulting from a failure to keep its highways in a reasonably safe condition for travel extends to cases where such condition is not ascribable to defects in the construction and maintenance of the way, or to the action of the officers to the city or their negligence in the performance of a duty, it may be contended that cities must cause the streets to be patrolled, in search of bricks or coals that fall from wagons, for the treacherous banana peel, upon which the unwary are sure to slip, and for tacks or bits of glass or other rubbish, which puncture the tires of bicycles. [S]uch are not defects in the highway. [Id. at 173-174.]

In Hopson v Detroit, 235 Mich 248; 209 NW 161 (1926), a case involving facts similar to the instant one, the plaintiff was walking on a public sidewalk. There was a depression in the sidewalk where the concrete had settled and disintegrated; this condition made the sidewalk lower in the center. In this depression, water from natural causes had settled, with ice at the bottom and a thin layer of water on top. The plaintiff slipped on the ice that had formed in the depression, fell and was injured. The plaintiffs theory of liability was that when two causes combine to produce an injury to a traveler upon a public sidewalk, both of which are in their nature proximate-the one being a defect in the sidewalk, and the other some occurrence for which neither party is responsible-the municipality is liable, provided the injury would not have been sustained but for the defect. Id. at 250. This Court concluded that the defendant was not liable for the plaintiffs injury.

Stating that “[i]n order to employ the doctrine of a slippery place precipitating into an unsafe place, there must be an unsafe place to slip into,” this Court held that the rule obtaining in Michigan places no liability upon the municipality for ice forming in this way. Id. Rather, the rule under which a plaintiff could recover is that where two causes combine to produce an injury to a pedestrian using a sidewalk, one of the causes at least must be a defect in the sidewalk rendering the sidewalk not reasonably safe for public travel at any time. “Ice on a sidewalk, whether on level places or in depressions, constitutes no defect entailing liability.” Id. at 250-251 (emphasis added). The depression, no matter what caused it, did not render the sidewalk out of repair “within the meaning of our statute relative to the duty of defendant to keep the walk in repair and reasonably safe for public travel.” Id. at 251.

In determining that the plaintiff in Hopson could not prevail, this Court stated that

wherever ice or snow is the sole proximate cause of the accident, there shall be no liability, but where at the time of the accident there is any other defect to which, as a proximate cause, the accident is in part attributable, there may be a liability notwithstanding the fact that it also may be attributable in part to ice or snow. This other defect, however, is not a proximate cause within the meaning of this rule, simply because it causes the accumulation of the ice or snow. In considering whether, “at the time of the accident, the way is otherwise reasonably safe and convenient,” the attention is to be directed to the actual physical condition of the way for the purpose of ascertaining whether there is at that time any other danger to the steps of the traveler than that arising from the presence of ice or snow; if there be no other danger, then for the time being the way is “otherwise reasonably safe and convenient.” [Id. at 252, quoting Newton v Worcester, 174 Mass 181, 187; 54 NE 521 (1899)(emphasis added).]

In Johnson, supra, the plaintiff suffered injuries as the result of a fall sustained while walking over or around a piece of defective sidewalk. There was an accumulation of ice and snow upon the sidewalk. The claimed defect in the sidewalk, an upheaval, was likely caused by the roots of a nearby tree. Applying 1929 CL 4223, which established a duty within the defendant to keep its sidewalks in reasonable repair, this Court determined that where the plaintiff’s slip and fall was due solely to the presence of the ice and snow, she could not prevail in her cause of action against the governmental agency. Id. at 105 (emphasis added).

Accordingly, the natural accumulation doctrine provides that a governmental agency’s failure to remove ice or snow from a highway does not, by itself, constitute negligence. Pursuant to this doctrine, plaintiff must prove that there was an existing defect in the sidewalk rendering it not reasonably safe for public travel.

V. ANALYSIS AND APPLICATION

Turning to the present case, we apply this longstanding rule and conclude that the natural accumulation of ice on the sidewalk, without more, did not constitute a breach of defendant’s statutory duty to maintain the sidewalk in reasonable repair. Further, plaintiff cannot prove that her injuries resulted from a defect on the sidewalk, as distinct from the accumulation of ice.⁹ Although plaintiff has properly pleaded that her claim falls within the “highway exception” to governmental immunity found in MCL 691.1402(1), she cannot establish an injury caused by a defect in the sidewalk under traditional negligence principles. Specifically, plaintiff cannot demonstrate that the claimed depression was a proximate cause of her slip and fall for purposes of the highway exception under the rule set forth in Hopson, supra.

To establish a prima fade case of negligence, a plaintiff must be able to prove four elements: (1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty, (3) causation, and (4) damages. Schultz v Consumers Power Co, 443 Mich 445, 449; 506 NW2d 175 (1993). Proof of causation requires both cause in fact and legal, or proximate, cause. Skinner v Square D Co, 445 Mich 153, 162-163; 516 NW2d 475 (1994); Davis v Thornton, 384 Mich 138, 145; 180 NW2d 11 (1970). Cause in fact requires that the harmful result would not have come about but for the defendant’s negligent conduct. Skinner, supra at 163, citing Prosser & Keeton, Torts (5th ed), § 41, p 266. “On the other hand, legal cause or ‘proximate cause’ normally involves examining the foreseeability of consequences, and whether a defendant should be held legally responsible for such consequences.” Skinner, supra at 163. Here, in our judgment, plaintiff cannot demonstrate that her injury was caused by a breach of the duty set forth in MCL 691.1402(1).

As in Hopson, plaintiff cannot demonstrate that it was the combination of ice and a defect in the sidewalk that caused her to slip and fall. See id. at 250-252. Plaintiff admitted, with Anna Marson’s testimony supporting the admission, that she slipped on the ice that was present on the sidewalk; she did not trip over, or lose her balance in any way because of the claimed depression in the sidewalk. The sole proximate cause of plaintiff’s slip and fall was the ice; there was no persistent defect in the sidewalk rendering it unsafe for public travel at all times that, in combination with the ice, caused the incident.¹⁰

Simply put, a plaintiff cannot recover in a claim against a governmental agency where the sole proximate cause of the slip and fall is the natural accumulation of ice or snow. This is true even where the ice or snow naturally accumulates in a portion of the highway (i.e., sidewalk) that was otherwise not “reasonably safe and convenient for public travel . . . .” Hopson, supra at 250. Rather, there must exist the combination of the ice or snow and the defect that, in tandem, proximately causes the slip and fall. Thus, even if we accept plaintiffs claim, in the present case, that a depression in the sidewalk allowed the ice to form and be present, we conclude that such a depression, under the facts here, did not render the sidewalk out of repair within the meaning of subsection 1402(l).¹¹

vi. conclusion

The claimed sidewalk depression in the present case merely allowed the natural accumulation of ice to form, and factually presented no “other danger to the steps of the traveler than that arising from the presence of the ice . . . Hopson, supra at 252. As in Hopson, we reject the proposition that the presence of ice alone, which naturally accumulates and which is the sole proximate cause of a slip and fall, satisfies the remaining elements of the negligence analysis employed in actions against governmental agencies. In the absence of a persistent defect in the highway (i.e., a sidewalk), rendering it unsafe for public travel at all times, and which combines with the natural accumulation of ice or snow to proximately cause injury, a plaintiff cannot prevail against an otherwise immune municipality.

The judgment of the Court of Appeals is reversed, and we remand this case to the Macomb Circuit Court for entry of an order granting defendant’s motion for summary disposition.

Corrigan, C.J., and Weaver, Taylor, and Young, JJ., concurred with Markman, J.

1 Throughout this opinion, “plaintiff” refers to Valeria Haliw. The loss of consortium claim of Dko Haliw, plaintiff’s husband, is derivative in nature.

2 At her deposition, plaintiff admitted that she slipped on the ice patch; she did not trip on, or over, anything relating to the actual physical condition of the sidewalk itself.

3 We note that Theodore Dziurman’s inspection of the sidewalk occurred on July 2, 1997.

4 The five statutory exceptions to governmental immunity are: the “highway exception,” MCL 691.1402, the “motor vehicle exception,” MCL 691.1405, the “public building exception,” MCL 691.1406, the “proprietary function exception,” MCL 691.1413, and the “governmental hospital exception,” MCL 691.1407(4).

5 Although governmental agencies may be under a wide variety of duties, with regard to services that they provide to the public, only those enumerated within the statutorily created exceptions are legally compensable if breached. MCL 691.1407; Nawrocki, supra at 157.

6 Plaintiffs accident occurred on January 29, 1996. Accordingly, the statutory language applicable in this case is that found in 1990 PA 278, § 1, effective December 11, 1990, rather than the current statutory language, which was enacted by 1999 PA 205, and which became effective regarding causes of action arising on or after December 21, 1999.

7 For purposes of application of the highway exception to a municipality, MCL 691.1401 provides: (1) “governmental agency” means the state or a “political subdivision”; (2) “political subdivision” means a “municipal corporation”; and (3) “municipal corporation” means a “city, village, or township.” Subsection 1401(a), (b), (d). Moreover, “highway” means a public highway, road, or street that is open for public travel and includes bridges, sidewalks, trailways, crosswalks, and culverts on the highway. Subsection 1401(e). “Governmental function,” as used in the governmental immunity act, is “an activity that is expressly or impliedly mandated or authorized by constitution, statute, local charter or ordinance, or other law.” Subsection 1401(f).

8 “Courts should take care not to confuse their separate inquiries into [governmental] immunity and negligence.” Canon v Thumudo, 430 Mich 326, 335; 422 NW2d 688 (1988).

9 The dissent’s dominant theme is that we have invaded the province of the finder of fact by concluding that the accumulation of ice at this location was natural. In support of this, the dissent asserts that “[a] determination whether the sidewalk was in ‘reasonable repair’ is a precursor to the issue whether the accumulation was natural, which is a precursor to application of the natural accumulation doctrine.” Post at 316. The dissent also sets forth plaintiffs expert’s reference to the accumulation of ice that occurred here as an “unnatural accumulation,” and further asserts that whether the claimed depression was a defect rendering the sidewalk not reasonably safe was a question of fact. Post at 316-318. This, in our judgment, is an incorrect analysis of the law.

In Hopson, this Court rejected the dissent’s argument that a depression that allows water to accumulate and freeze is an underlying defect precluding application of the natural accumulation doctrine. “Ice on a sidewalk, whether on level places or in depressions, constitutes no defect entailing liability.” Id. at 250-251 (emphasis added). The Court continued: “[t]he rule, and the only rule, under which plaintiff could recover is that, where two causes combine to produce an injury to a pedestrian using a sidewalk, one of the causes at least must be a defect in the walk, rendering the walk not reasonably safe for public travel at any time.” Id. at 250 (emphasis added). As the Supreme Court of Massachusetts observed in Newton, supra at 187, a case upon which Hopson relied:

[T]he real question is not simply whether the way, with no ice or snow upon it, is defective, but whether, if there be such a defect, it was operative as such at the time of the accident, and was in part the proximate cause of it. If there be such an operative defect, then there may be a liability, even although the accident be due in part to ice or snow; otherwise, there is no such liability, even if the defect was the cause of the accumulation of ice or snow.

Therefore, an independent defect, other than the accumulation of ice or snow, must be at least a proximate cause of a plaintiffs injury in order for the plaintiff to recover under the statute. It is clear from the testimony of plaintiff, plaintiffs expert, and the eyewitness, that there was no such defect that proximately caused plaintiffs fall in the instant case. Thus, we conclude in accord with Hopson, that plaintiff failed to establish a genuine issue of material fact whether a defect, rather than the accumulated ice alone, caused her injury.

10 Even if we were to assume that the claimed depression here represented a condition that rendered the sidewalk not “reasonably safe for public travel” at all times, under the facts of the present case the natural accumulation of ice in the depression effectively vitiated the unsafe condition presented by the depression itself.

This point, perhaps, is better illustrated by way of example. Under the first scenario, a six-foot deep hole exists in the middle of a sidewalk. Water naturally accumulates in the top of the hole and, because of the weather conditions, freezes so that, in effect, the hole no longer exists. While walking upon the sidewalk, an individual steps on the ice, slips, and falls, thereby incurring injury. Under this scenario, it can only be said that the sole proximate cause of the slip and fall was tire presence of the natural accumulation of ice. A different outcome, however, would present under a scenario where the same six-foot hole in the sidewalk is present, but the ice forms several inches below the top of the hole. While walking upon the sidewalk, an individual steps on the edge of the hole, which causes him to momentarily lose his balance. While attempting to remain upright, this individual slips on the ice that had naturally accumulated in the hole. Under this scenario, it must be said that, in tandem, the defect and the natural accumulation of ice combined to proximately cause the slip and fall.

11 The prevailing rule from Hopson, supra at 250-251, and Johnson, supra at 105, is that a plaintiff cannot recover if an injury is due solely to the presence of ice on the sidewalk, even if a depression in the sidewalk caused the accumulation. In such cases, the depression is not a proximate cause of the plaintiff’s injury. Hopson, supra at 250-251. Our law has developed this test specifically in the context of the natural accumulation doctrine and the highway exception to governmental immunity. MCL 691.1401(e). Hopson’s formulation of proximate cause is limited to those cases that have arisen in this specific context.