Date: 05-01-2012
Case Style: Antonio Moraccini v. City of Sterling Heights
Case Number: 301678
Judge: Murphy
Court: Michigan Court of Appeals on appeal from the City Court, Macomb County
Plaintiff's Attorney:
Defendant's Attorney:
Description: Defendant City of Sterling Heights (the city) appeals as of right an order denying its
motion for summary disposition in this tort liability action concerning an injury sustained by
plaintiff and allegedly caused by defects in a city sidewalk. The city, relying on governmental
immunity principles, maintained that the alleged defects pertained to a highway curb, not a
sidewalk, thereby falling within the jurisdiction of the county and not the city for purposes of the
highway exception to governmental immunity, MCL 691.1402. We affirm, holding as a matter
of law that, under MCL 691.1402a(1),1 the site of the alleged defects constituted a portion of a
county highway, i.e., part of an abutting sidewalk or other installation, existing outside of the
improved portion of the county highway designed for vehicular travel. Accordingly, the city is
potentially liable under MCL 691.1402a, and the motion for summary disposition was properly
denied.
Plaintiff alleged that he was operating his three-wheeled motorized scooter when the
wheels of the scooter struck concrete defects and irregularities, catapulting him from the scooter
to the ground and causing severe injuries. Plaintiff described the concrete where the scooter’s
wheels became jammed as being uneven, damaged, and unstable, with deep cracks and crevices.
Plaintiff had been traveling down a sidewalk on the scooter and was about to cross a road, which
indisputably fell within the jurisdiction of the county, when the accident occurred. The sidewalk
1 MCL 691.1402a was amended pursuant to 2012 PA 50, effective March 13, 2012. The
amended version of the statute, which limits its application solely to “a sidewalk . . . installed
adjacent to a municipal, county, or state highway,” is not applicable here, considering the
effective date of the amendment and the earlier date of the incident.
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was constructed by the city in 1977, and the contractor who built the sidewalk chipped or cut out
the raised portion of the existing curb to bring the road flush with the sidewalk as required by
MCL 125.1361.2 The defects alleged by plaintiff were located at the base of the area comprising
the curb cutout.
Plaintiff filed suit, alleging negligence on the part of the city and asserting that the city
failed to keep the sidewalk in reasonable repair so as to make it reasonably safe and convenient
for public travel. The city answered, alleging, in part, that it was shielded by governmental
immunity. The city subsequently filed a motion for summary disposition pursuant to MCR
2.116(C)(7) and (10). The city conceded that it had jurisdiction over the sidewalk and was
required to keep the sidewalk in reasonable repair. The city contended, however, that discovery
had shown that plaintiff “fell as a result of an alleged defective condition in the curb and gutter
portion of Macomb County’s roadway[.]” The city argued that the county had jurisdiction over
the road and the area of the curb cutout and that the sidewalk did not include the curb cutout.
Therefore, according to the city, the defective highway exception to governmental immunity,
MCL 691.1402, did not apply. Plaintiff countered that the curb cutout was part of the sidewalk,
thereby making it the city’s responsibility under MCL 691.1402. The trial court agreed with
plaintiff and denied the city’s motion for summary disposition, ruling that it was “persuaded that
the area in question served as an extension of the sidewalk, particularly since there [was] no
evidence that it was used for vehicular traffic.”
This Court reviews de novo a trial court’s decision on a motion for summary disposition.
Spiek v Dep’t of Transp, 456 Mich 331, 337; 572 NW2d 201 (1998). The applicability of
governmental immunity and the statutory exceptions to immunity are also reviewed de novo on
appeal. Snead v John Carlo, Inc, __ Mich App __; __ NW2d __ (2011), slip op at 6. MCR
2.116(C)(7) provides for summary disposition where a claim is “barred because of . . . immunity
granted by law.” See Odom v Wayne Co, 482 Mich 459, 466; 760 NW2d 217 (2008). The
moving party may submit affidavits, depositions, admissions, or other documentary evidence in
support of the motion if substantively admissible. Id. The contents of the complaint must be
accepted as true unless contradicted by the documentary evidence. Id. We must consider the
documentary evidence in a light most favorable to the nonmoving party for purposes of MCR
2.116(C)(7). RDM Holdings, Ltd v Continental Plastics Co, 281 Mich App 678, 687; 762 NW2d
529 (2008). “If there is no factual dispute, whether a plaintiff’s claim is barred under a principle
2 MCL 125.1361 provides in relevant part:
A sidewalk constructed or reconstructed after April 12, 1973 on public or
private property for public use within this state, whether constructed by a public
agency or a person, firm, corporation, nonprofit corporation, or organization, shall
be constructed in a manner that will facilitate use by persons with physical
disabilities. At points of intersection between pedestrian and motorized lines of
travel, and at other points when necessary to avoid abrupt changes in grade, a
sidewalk shall slope gradually to street level so as to provide an uninterrupted line
of travel. . . .
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set forth in MCR 2.116(C)(7) is a question of law for the court to decide.” Id. But where a
relevant factual dispute does exist, summary disposition is not appropriate. Id.
Except as otherwise provided, the governmental tort liability act (GTLA), MCL 691.1401
et seq., broadly shields and grants immunity to governmental agencies from tort liability when an
agency is engaged in the exercise or discharge of a governmental function. MCL 691.1407(1);
Duffy v Dep’t of Natural Resources, 490 Mich 198, 204; 805 NW2d 399 (2011); Grimes v Dep’t
of Transp, 475 Mich 72, 76-77; 715 NW2d 275 (2006). “The existence and scope of
governmental immunity was solely a creation of the courts until the Legislature enacted the
GTLA in 1964, which codified several exceptions to governmental immunity that permit a
plaintiff to pursue a claim against a governmental agency.” Duffy, 490 Mich at 204. A
governmental agency can be held liable under the GTLA only if a case falls into one of the
enumerated statutory exceptions. Grimes, 475 Mich at 77; Stanton v Battle Creek, 466 Mich
611, 614-615; 647 NW2d 508 (2002). An activity that is expressly or impliedly authorized or
mandated by constitution, statute, local charter, ordinance, or other law constitutes a
governmental function. Maskery v Univ of Mich Bd of Regents, 468 Mich 609, 613-614; 664
NW2d 165 (2003). This Court gives the term “governmental function” a broad interpretation,
but the statutory exceptions must be narrowly construed. Id. at 614. “A plaintiff filing suit
against a governmental agency must initially plead his claims in avoidance of governmental
immunity.” Odom, 482 Mich at 478-479.
The highway exception to governmental immunity, MCL 691.1402, provides in pertinent
part:
(1) Except as otherwise provided in section 2a, 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. The liability, procedure,
and remedy as to county roads under the jurisdiction of a county road commission
shall be as provided in section 21 of chapter IV of 1909 PA 283, MCL 224.21.
The duty of the state and the county road commissions to repair and maintain
highways, and the liability for that duty, extends only to the improved portion of
the highway designed for vehicular travel and does not include sidewalks,
trailways, crosswalks, or any other installation outside of the improved portion of
the highway designed for vehicular travel. [Emphasis added.]
A “highway” is statutorily defined as “a public highway, road, or street that is open for
public travel and includes bridges, sidewalks, trailways, crosswalks, and culverts on the
highway[,] [and it] . . . does not include alleys, trees, and utility poles.” MCL 691.1401(e)
(emphasis added). MCL 691.1402(1) imposes a general duty on municipalities to keep a
sidewalk under its jurisdiction in reasonable repair. Jones v Enertel, Inc, 467 Mich 266, 268;
650 NW2d 334 (2002). “[W]hile MCL 691.1402(1) exempts state and county road commissions
from liability for injuries resulting from defective sidewalks, municipalities are not exempt;
municipalities do have a duty to maintain sidewalks in reasonable repair.” Robinson v City of
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Lansing, 486 Mich 1, 7; 782 NW2d 171 (2010). “[W]hen MCL 691.1402(1) and MCL
691.1401(e) [definition of highway] are read together, it is clear that all governmental agencies
except the state and county road commissions have a duty to maintain sidewalks in reasonable
repair.” Id. at 8.
As indicated in the prefatory language to MCL 691.1402(1), the statute applies except as
otherwise provided in MCL 691.1402a. In relevant part, MCL 691.1402a previously provided:
(1) Except as otherwise provided by this section, a municipal corporation
has no duty to repair or maintain, and is not liable for injuries arising from, a
portion of a county highway outside of the improved portion of the highway
designed for vehicular travel, including a sidewalk, trailway, crosswalk, or other
installation. This subsection does not prevent or limit a municipal corporation's
liability if both of the following are true:
(a) 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 a defect in a sidewalk, trailway,
crosswalk, or other installation outside of the improved portion of the highway
designed for vehicular travel.
(b) The defect described in subdivision (a) is a proximate cause of the
injury, death, or damage.[3]
We hold that MCL 691.1402a, in conjunction with MCL 691.1402(1), governs the proper
analysis of this case. The location where the accident took place was subject to the general
authority and control of Macomb County, which is the reason that the county had to grant a
permit to the city to allow installation of the sidewalk.4 However, MCL 691.1402a(1) made
abundantly clear that a municipal corporation5 can nonetheless be held liable, upon satisfaction
of the knowledge and proximate cause provisions, for a failure to repair or maintain that “portion
of a county highway outside of the improved portion of the highway designed for vehicular
travel, including a sidewalk . . . or other installation.” Thus, there was a general duty by
3 Subsection (2) of the statute contained the two-inch rule. MCL 691.1402a(2); see generally
Robinson, 486 Mich 1. Subsection (3) of the statute contained a liability limitation pertaining to
off-road recreation vehicles (ORVs). MCL 691.1402a(3); Robinson, 486 Mich at 11 n 9.
4 There was documentary evidence indicating that in 1974, the Macomb County Road
Commission granted the city a “permit to contract, operate, use and/or maintain within the rightof-
way.” The permit allowed the city to install sidewalks. Under the permit, the city was
required to operate and maintain the sidewalks it installed. As stated earlier, in 1977, the city
hired a contractor who installed the sidewalk and created the curb cutout.
5 A “municipal corporation” is defined as “a city, village, or township or a combination of 2 or
more of these when acting jointly.” MCL 691.1401(a). Accordingly, the city here is a municipal
corporation for purposes of MCL 691.1402a(1).
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municipal corporations to repair and maintain such areas subject to the enumerated conditions,
effectively giving municipal corporations jurisdiction for purposes of repair, maintenance, and
any associated liability.6
MCL 691.1402a and its relationship to MCL 691.1402(1) were examined in Robinson,
486 Mich at 11-13, 22, wherein the Court stated:
Although the very first sentence of MCL 691.1402a(1) begins by stating
that a municipality is not liable for injuries arising from a portion of a county
highway outside the improved portion of the highway designed for vehicular
travel, including a sidewalk, trailway, crosswalk, or other installation, this
sentence is prefaced by the language “[e]xcept as otherwise provided by this
section,” and the very next sentence of this subsection states that a municipality is
liable for such injuries under certain circumstances. That is, a municipality is
liable for injuries arising from a defective sidewalk adjacent to a county highway
if (a) the municipality knew or should have known at least 30 days before the
occurrence of the injury of the existence of the defect in the sidewalk and (b) that
defect was a proximate cause of the injury. MCL 691.1402a(1). In addition, MCL
691.1402a(2) provides that a discontinuity defect of less than 2 inches creates a
rebuttable inference that the municipality maintained the sidewalk in reasonable
repair, as is required by MCL 691.1402(1); this is the statutory two-inch rule.
As discussed earlier, MCL 691.1402(1) imposes liability on municipalities
for injuries resulting from defective sidewalks, i.e., sidewalks that the
municipality has failed to maintain in reasonable repair. . . . However, MCL
691.1402a limits this liability by providing that municipalities are only liable for
injuries resulting from defective sidewalks adjacent to county highways under the
specified circumstances. . . . [W]hen MCL 691.1402(1) and MCL 691.1402a are
read together, it is clear that municipalities are generally liable for injuries
resulting from defective sidewalks.
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6 On the issue of jurisdiction in relationship to governmental immunity, this Court in Carr v
Lansing, 259 Mich App 376, 381; 674 NW2d 168 (2003), observed:
A governmental agency must have jurisdiction over a highway for it to be
liable under the highway exception for breaching its duty to maintain a highway
“in reasonable repair so that it is reasonably safe and convenient for public
travel.” An agency has jurisdiction when it has control over the highway. . . .
[O]nly one agency may have jurisdiction for purposes of liability under the
highway exception[.] [Citations omitted.]
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MCL 691.1402a does not apply to sidewalks adjacent to highways other
than county highways, such as sidewalks adjacent to state highways. [Footnotes
and citations omitted.]
The area in dispute here is adjacent to and abuts a county highway, and while Robinson
concerned a sidewalk, MCL 691.1402a(1) also spoke of “other installation[s]” outside of the
improved portion of the highway designed for vehicular travel.
MCL 691.1402a, which first took effect on December 21, 1999, see 1999 PA 205, was
enacted to limit municipal liability relative to injuries occurring due to defective sidewalks,
trailways, crosswalks, and other installations located within portions of a county highway, where
the county’s liability was limited under MCL 691.1402(1) to improved portions designed for
vehicular traffic, but where caselaw had developed to impose broad liability on municipalities for
such defects in remaining portions of the county highway. In Listanski v Canton Twp, 452 Mich
678, 681; 551 NW2d 98 (1996), a case predating MCL 691.1402a, our Supreme Court addressed
the issue “whether townships can be held liable under MCL 691.1402 . . . for injuries occurring
on public sidewalks abutting county roads within the townships' boundaries.” The Court held
“that townships have jurisdiction over public sidewalks located along county roads within the
township sufficient to support a cause of action against the township under the highway
exception for failure to maintain them in reasonable repair.” Id. at 682.7 The Listanski Court
reasoned and concluded:
After analyzing the Michigan Constitution, statutes, and common law on
this issue, we believe that the Legislature intended municipalities to retain
reasonable control over sidewalks within their boundaries, as long as the control
pertains to local concerns and does not interfere with the state or counties' control
over their highways. . . . [O]ur conclusion is consistent with public policy and the
overall legislative scheme. It treats townships the same as cities, and ensures that
those persons injured on township sidewalks abutting a county road are not within
the only class of persons without a remedy against a governmental agency.
Because we believe the Legislature intended townships to be subject to liability
for injuries occurring as a result of a failure to maintain sidewalks within their
boundaries, we would remand these cases to their respective circuit courts for
trial. [Id. at 690-691 (emphasis added).]8
7 We also note Mason v Wayne Co Bd of Comm’rs, 447 Mich 130, 136 n 6; 523 NW2d 791
(1994), in which the Court stated that the purpose behind the language in MCL 691.1402(1),
which limits the state and counties’ liability to defects in the improved portion of a highway
designed for vehicular travel, “is to allocate responsibility for sidewalks and crosswalks to local
governments, including townships, cities, and villages.”
8 The Listanski Court also observed: Additionally, there is no reason in logic or policy for the
Legislature to have . . . retained city responsibility to repair and maintain sidewalks along city
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Subsequently, the Legislature enacted MCL 691.1402a, and we note for historical
background purposes the following commentary in House Legislative Analysis, HB 4010,
January 4, 2000, with respect to the proposed act:
The statute [MCL 691.1402] does not directly address the liability of local
governments for sidewalks, etc. alongside . . . county roads, but the courts have
rendered decisions on the matter. . . . [I]n a recent decision, Listanski v Canton
Township (1996), the Michigan Supreme Court said townships are liable for
injuries occurring on sidewalks abutting county roads within their boundaries.
This decision overturned a court of appeals decision saying townships were not
liable because they lack sufficient jurisdiction. (Townships must seek approval
from the county in order to construct, repair, or maintain sidewalks along county
roads.) The state supreme court said its decision, “treats townships the same as
cities, and ensures that those persons injured on township sidewalks abutting a
county road are not within the only class of persons without a remedy against a
government agency.” Legislation has been introduced to address the liability of
municipalities for “installations” alongside county roads.
* * *
The bill would provide protection to townships, cities, and villages against
“slip and fall” and similar lawsuits on sidewalks, bikepaths, trailways, and similar
installations along the side of county highways. It limits liability to instances in
which [knowledge, causation, and two-inch rule provisions are set forth][.]
With respect to MCL 691.1402a(1), the question that must be answered in the case at bar
is whether the concrete base of the area comprising the so-called curb cutout (hereafter simply
referred to as the “curb cutout”) constituted a portion of the county highway falling outside of the
improved portion of the highway designed for vehicular travel, which includes sidewalks or
other installations. We initially find that the curb cutout was not an improved portion of the
highway designed for vehicular travel. Clearly, the curb cutout was designed to make pedestrian
travel easier for all individuals, not for ease in vehicular travel. We shall, however, review a
couple of cases addressing curbs in general.
In Meek v Dep’t of Transp, 240 Mich App 105, 113; 610 NW2d 250 (2000), a highway
design defect case, this Court held that a “barrier curb must be considered part of the improved
portion of the highway designed for vehicular travel and comes within the highway exception to
governmental immunity.” The Meek panel, in support of its holding, relied on Gregg v Dep’t of
State Hwys, 435 Mich 307, 314-315; 458 NW2d 619 (1990), where our Supreme Court ruled that
a highway shoulder is part of the improved portion of the highway designed for vehicular travel.
Meek, 240 Mich App at 114. However, in Grimes, 475 Mich at 84, the Michigan Supreme Court
“overrule[d] Gregg and its progeny to the extent that they can be read to suggest that a shoulder
roads, but eliminated city and township responsibility for repair and maintenance of sidewalks
along state or county roads. [Listanski, 452 Mich at 687 n 10 (citation omitted).]
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is ‘designed for vehicular travel.’”9 (Emphasis added.) The Grimes Court held that “only the
travel lanes of a highway are subject to the duty of repair and maintenance specified in MCL
691.1402(1).” Id. at 91. The curb cutout here was not part of the highway’s travel lanes.
Accordingly, Meek cannot serve as a basis to reject our conclusion that the curb cutout does not
constitute an improved portion of the highway designed for vehicular travel.
In Sharp v Benton Harbor, 292 Mich App 351; 806 NW2d 760 (2011), the plaintiff
stepped onto a curb that abutted a city street and the curb allegedly crumbled, causing the
plaintiff to fall to the ground.10 The plaintiff sued the defendant, the city of Benton Harbor,
which acknowledged jurisdiction over the curb. In a motion for summary disposition, Benton
Harbor argued that the curb did not come within the definition of a “highway.” Id. at 352. This
Court held that a curb falls under the statutory definition of highway and “that governmental
immunity does not bar a claim against a municipality arising from a defective curb.” Id. at 357.
The Court concluded “that the curb framing [the] [s]treet constitutes an integral part of the road,
and that Benton Harbor bore responsibility for maintaining . . . [the] curb in reasonable repair.”
Id. at 358. We note that Sharp dealt with a curb that “was neither at the corner nor within a
crosswalk” and that “[a] grass verge separated the curb from the sidewalk.” Id. at 352. We
additionally note that the abutting road in Sharp was not a county roadway, but rather a city
street. Sharp did not address MCL 691.1402a, as an abutting county road was not at issue, nor
did the panel, as expressly indicated, have to concern itself with whether the curb was part of the
improved portion of the highway designed for vehicular travel, given that the defendant was not
a county or the state. Id. at 353. Sharp does lend support for the proposition that a curb cutout
falls within the general definition of a highway.
Having found that the curb cutout did not constitute an improved portion of the county
highway designed for vehicular travel, the final question to be answered is whether the curb
cutout otherwise qualified as a portion of the county highway under MCL 691.1402a(1), i.e.,
whether it constituted an abutting “sidewalk, trailway, crosswalk, or other installation.” The
curb cutout abutted the county highway, and we believe that it falls within the definition of
“highway” pursuant to Sharp and that it also constituted an “installation” for purposes of MCL
691.1402a(1). An “installation” is defined as “something installed, as machinery or apparatus
placed in position or connected for use.” Random House Webster’s College Dictionary (2001).
While we have a fairly unique set of circumstances where the original curb was simply cut up, as
opposed to the common situation in which a curb and sidewalk are designed, poured, and
constructed to flow together in order to accommodate pedestrian traffic, there remains a concrete
base, or remnants thereof, that fits within the broad definition of an “installation” and which is
9 We note that Meek was also effectively overruled by Hanson v Mecosta Co Rd Comm’rs, 465
Mich 492, 502; 638 NW2d 396 (2002), which held that the highway exception to governmental
immunity “does not include a duty to design, or to correct defects arising from the original
design or construction of highways.”
10 A “curb” is defined in the dictionary as “‘a rim, esp. of joined stones or concrete, along a street
or roadway, forming an edge for a sidewalk.’” Sharp, 292 Mich App at 356, quoting Random
House Webster’s Unabridged Dictionary (2d ed, 1998).
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comparable in kind, character, and nature to a sidewalk, crosswalk, or trailway. See Neal v
Wilkes, 470 Mich 661, 669; 685 NW2d 648 (2004) (“Under the statutory construction doctrine
known as ejusdem generis, where a general term follows a series of specific terms, the general
term is interpreted ‘to include only things of the same kind, class, character, or nature as those
specifically enumerated.’”) (citation omitted). Just like a sidewalk, crosswalk, and trailway, a
curb cutout is an area and part of a pathway or walkway that is traversed by pedestrians, and to
the extent that a full curb might be considered an obstacle to the flow of pedestrian traffic, the
curb itself does not exist for purposes of a curb cutout. The goal in removing or not constructing
sections of curb in areas where sidewalks abut roadways is to create obstacle-free, level
walkways for pedestrians. Curb cutouts are specifically designed for pedestrian traffic and,
contrary to the city’s argument, they are not comparable to highway shoulders, which are not
designed nor intended for pedestrian travel, despite occasional use by pedestrians, often in
emergency situations.11 Moreover, we also find that the curb cutout qualified as a “sidewalk” for
purposes of the general definition of “highway” and in relationship to the term’s use in MCL
691.1402a(1).
“[A] sidewalk is a path for pedestrians along the side of a road.” Hatch v Grand Haven
Twp, 461 Mich 457, 464; 606 NW2d 633 (2000).12 We find that the curb cutout where the
alleged defects existed was part or an extension of the sidewalk, given that it constituted a path
for pedestrians and was designed and intended to be used by pedestrians. The whole purpose
behind curb cutouts is to facilitate pedestrian use “by persons with physical disabilities.” MCL
125.1361. As indicated earlier, MCL 125.1361 provides that “[a]t points of intersection between
pedestrian and motorized lines of travel, . . . a sidewalk shall slope gradually to street level so as
to provide an uninterrupted line of travel.” Absent a curb as mandated by MCL 125.1361, a
sidewalk would naturally extend to the motorized line of travel, encompassing the area where the
curb was formerly located or where it typically would be located. A curb cutout is conducive,
and is intended to be conducive, to pedestrian travel, and it qualifies as part or an extension of
the sidewalk.
11 The city argues that a “short curb” still exists in the curb cutout areas at issue, pointing to lines
of demarcation that are generally present in the concrete. Even were we to use the “short curb”
terminology, it would not change our analysis, given that the area, regardless of its moniker, is
designed and used for pedestrian traffic. As such, a “short curb” constitutes an “installation” for
purposes of former MCL 691.1402a, as it is similar to a sidewalk, crosswalk, and trailway.
12 The Court cited with approval definitions of “sidewalk” set forth by this Court in Stabley v
Huron-Clinton Metro Park Auth, 228 Mich App 363, 367; 579 NW2d 374 (1998), which
included “a path for pedestrians, usually paved, along the side of a street,” a “walk or raised path
for pedestrians,” and “part of a public street or highway designed for the use of pedestrians.”
Hatch, 461 Mich at 462 (citations and internal quotation marks omitted). We note that, with the
enactment of 2012 PA 50, the Legislature specifically added a definition of “sidewalk,” which
provides that a sidewalk means “a paved public sidewalk intended for pedestrian use situated
outside of and adjacent to the improved portion of a highway designed for vehicular travel.”
MCL 691.1401(f), as amended.
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Whether constituting a sidewalk or an installation, or a combination thereof, the curb
cutout was indeed a portion of the county highway not designed for vehicular travel, thereby
falling within the parameters of MCL 691.1402a(1).
With respect to whether the city knew or should have known about the alleged defects 30
days prior to the occurrence, whether the alleged defects were the proximate cause of plaintiff’s
injuries, and whether the statutory two-inch rule has any application, MCL 691.1402a(1) and (2),
these are all matters outside the scope of this appeal and may be raised by the city after remand.
Outcome: Affirmed. Having prevailed in full, plaintiff is awarded taxable costs pursuant to MCR
7.219.
Plaintiff's Experts:
Defendant's Experts:
Comments:
