                                                                                       Michigan Supreme Court
                                                                                             Lansing, Michigan
                                                                Chief Justice:         Justices:



Syllabus                                                        Robert P. Young, Jr.   Stephen J. Markman
                                                                                       Brian K. Zahra
                                                                                       Bridget M. McCormack
                                                                                       David F. Viviano
                                                                                       Richard H. Bernstein
                                                                                       Joan L. Larsen
This syllabus constitutes no part of the opinion of the Court but has been             Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader.               Corbin R. Davis



                                     BERNARDONI v CITY OF SAGINAW

               Docket No. 152097. Decided July 5, 2016.

               Sue Bernardoni brought a negligence action in the Saginaw Circuit Court against the city
       of Saginaw after she tripped on a 2.5-inch vertical discontinuity between adjacent sidewalk slabs.
       Plaintiff alleged that defendant was liable for the resulting injuries under the “highway
       exception” to governmental immunity, MCL 691.1402(1), for having failed to maintain the
       sidewalk in reasonable repair. In support of her allegation, plaintiff submitted photographs of the
       sidewalk discontinuity that were taken about 30 days after plaintiff’s accident. Defendant moved
       for summary disposition under MCR 2.116(C)(7), (C)(8), and (C)(10), and the trial court, Janet
       M. Boes, J., granted defendant’s motion without indicating under which rule. The Court of
       Appeals, RONAYNE KRAUSE, P.J., and MURPHY and SERVITTO, JJ., reversed in an unpublished
       opinion per curiam issued June 23, 2015 (Docket No. 320601), noting that the trial court had not
       granted summary disposition under MCR 2.116(C)(8) and holding that summary disposition was
       improper under either MCR 2.116(C)(7) or (C)(10) because reasonable minds could have
       differed regarding whether the discontinuity would have been present and readily apparent for at
       least 30 days before the injury. Defendant appealed.

            In lieu of granting leave to appeal and without hearing oral argument, in a unanimous
       memorandum opinion, the Supreme Court held:

              For purposes of the highway exception, plaintiff’s photographs of a sidewalk defect taken
       about 30 days after an accident alone did not create a genuine issue of material fact as to whether
       the sidewalk defect existed at least 30 days before the accident as required under
       MCL 691.1402a(2). Without more, a jury would have had no basis for concluding that the
       defect was present for the requisite period of time. Accordingly, defendant was entitled to
       summary disposition under MCR 2.116(C)(10).

               Court of Appeals judgment reversed; trial court order dismissing the case reinstated.




                                                 ©2016 State of Michigan
                                                                            Michigan Supreme Court
                                                                                  Lansing, Michigan
                                                      Chief Justice:          Justices:



OPINION                                               Robert P. Young, Jr. Stephen J. Markman
                                                                           Brian K. Zahra
                                                                           Bridget M. McCormack
                                                                           David F. Viviano
                                                                           Richard H. Bernstein
                                                                           Joan L. Larsen

                                                                       FILED July 5, 2016


                              STATE OF MICHIGAN

                                    SUPREME COURT


SUE BERNARDONI,

              Plaintiff-Appellee,

v                                                              No. 152097

CITY OF SAGINAW,

              Defendant-Appellant.


BEFORE THE ENTIRE BENCH

MEMORANDUM OPINION.
       At issue is whether for purposes of the “highway exception” to governmental

immunity from tort claims, MCL 691.1402, plaintiff’s photographs of a sidewalk defect

taken about 30 days after plaintiff’s accident are sufficient evidence to establish a

genuine issue of material fact regarding whether the defect existed at least 30 days before

the accident. We conclude that such evidence alone is not probative of a sidewalk’s past

condition and is thus insufficient, without more, to forestall summary disposition.

Consequently we reverse the Court of Appeals judgment and reinstate the trial court’s

dismissal of plaintiff’s action.
       Plaintiff was walking on a sidewalk in defendant city when she was injured after

tripping on a 2.5-inch vertical discontinuity between adjacent sidewalk slabs. She sued

defendant, alleging inter alia that the sidewalk’s hazardous condition had existed for

more than 30 days before her fall. However, in her deposition, she stated that she did not

know for how long the discontinuity had existed.          The only relevant evidence she

submitted was three photographs of the defect taken by plaintiff’s husband about 30 days

after the accident. The photographs depict a raised portion of a sidewalk, each taken

from a different perspective and seemingly from a different distance. In two of the

photographs, a ruler is used to indicate the size of the discontinuity in the sidewalk.

       In the trial court, defendant moved for summary disposition pursuant to

MCR 2.116(C)(7), (C)(8), and (C)(10). The trial court found plaintiff’s photographs

insufficient to establish the defect’s origin and duration and granted summary disposition

without specifying under which rule it had granted the motion. On appeal, the Court of

Appeals noted that the trial court had reviewed material outside of the pleadings and

therefore concluded that the trial court could not have granted summary disposition under

MCR 2.116(C)(8). Bernardoni v Saginaw, unpublished opinion per curiam of the Court

of Appeals, issued June 23, 2015 (Docket No 320601), at 1, citing Spiek v Dep’t of

Transp, 456 Mich 331, 338, 572 NW2d 201 (1998).              The Court of Appeals found

summary disposition improper under both MCR 2.116(C)(7) and (C)(10). Bernardoni,

unpub op at 2. Specifically with respect to MCR 2.116(C)(10), the Court of Appeals

reasoned that “in consideration of the high unlikeliness that sidewalk[] slabs could shift,

wear, and accumulate debris with great rapidity, reasonable minds could differ as to

whether the condition would have been present and readily apparent for at least 30 days


                                              2
before the injury.” Id. For the reasons stated below, we conclude that defendant is

entitled to summary disposition under MCR 2.116(C)(10). Accordingly, we reverse the

Court of Appeals on this ground and reinstate the trial court’s dismissal. 1

       We review de novo a trial court’s decision regarding a motion for summary

disposition to determine if the moving party is entitled to judgment as a matter of law.

Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). A motion for summary

disposition made under MCR 2.116(C)(10) tests the factual sufficiency of the complaint.

Id. at 120. The Court considers all affidavits, pleadings, depositions, admissions, and

other evidence submitted by the parties in the light most favorable to the party opposing

the motion. Id. MCR 2.116(G)(4) states:

       A motion under subrule (C)(10) must specifically identify the issues as to
       which the moving party believes there is no genuine issue as to any
       material fact. When a motion under subrule (C)(10) is made and supported
       as provided in this rule, an adverse party may not rest upon the mere
       allegations or denials of his or her pleading, but must, by affidavits or as
       otherwise provided in this rule, set forth specific facts showing that there is
       a genuine issue for trial. If the adverse party does not so respond,
       judgment, if appropriate, shall be entered against him or her.

This rule requires the adverse party to set forth specific facts at the time of the motion

showing a genuine issue for trial. Maiden, 461 Mich at 121. A reviewing court should

consider the substantively admissible evidence actually proffered by the opposing party.

Id. When the proffered evidence fails to establish a genuine issue regarding any material

fact, the moving party is entitled to judgment as a matter of law. Id. at 120.


1
  Because we find summary disposition appropriate under MCR 2.116(C)(10), we decline
to consider whether summary disposition is also appropriate under MCR 2.116(C)(7).



                                              3
      Under the governmental tort liability act, MCL 691.1401 et seq., “a governmental

agency is immune from tort liability if the governmental agency is engaged in the

exercise or discharge of a governmental function.” MCL 691.1407(1). An exception to

this immunity is found in MCL 691.1402, the highway exception, that allows individuals

to “recover the damages suffered by him or her” resulting from a municipality’s failure to

keep highways—including sidewalks, MCL 691.1401(c)—“in reasonable repair and in a

condition reasonably safe and fit for travel . . . .” MCL 691.1402(1); see also Robinson v

City of Lansing, 486 Mich 1, 7; 782 NW2d 171 (2010). When the liability allegedly

arises from a sidewalk defect, a plaintiff must meet additional requirements:

             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. [MCL 691.1402a(2).]

A defendant is “conclusively presumed” to have knowledge of the defect “when the

defect existed so as to be readily apparent to an ordinarily observant person for a period

of 30 days or longer before the injury took place.” MCL 691.1403. Thus, to invoke the

highway exception as it pertains to sidewalks, a plaintiff must show that the defect

existed at least 30 days before the accident.             Robinson, 486 Mich at 19

(“MCL 691.1402a(1)(a) and MCL 691.1403 are virtually identical; they both limit a

municipality’s liability to instances in which the municipality knew or should have

known of the defect at least 30 days before the injury took place.”). “Generally, the

question of whether a street defect, otherwise actionable against the municipality, ‘has

existed a sufficient length of time and under such circumstances that the municipality is



                                            4
deemed to have notice is a question of fact, and not a question of law.’ ” Cruz v Saginaw,

370 Mich 476, 481; 122 NW2d 670 (1963), quoting Hendershott v Grand Rapids, 142

Mich 140, 143; 105 NW 140 (1905); see also Beamon v Highland Park, 85 Mich App

242, 246; 271 NW2d 187 (1978).

       In the instant case, after discovery had closed, defendant moved for summary

disposition arguing, inter alia, that there was no genuine issue of material fact that

defendant did not know or have reason to know of the alleged defect. In opposition,

plaintiff submitted as her only proof the aforementioned photographs of the alleged

sidewalk defect taken about 30 days after the incident. No evidence was submitted to

establish that the condition of the sidewalk in the photographs was the same 30 days

before the incident. For the following reasons, these photographs are insufficient to raise

a genuine issue of material fact regarding whether the defect originated at least 30 days

before the incident.

       Plaintiff acknowledges that these photographs were taken about 30 days after the

incident. Therefore, the images of the sidewalk condition in the photographs do not show

the sidewalk’s condition 30 days before the incident, as required by MCL 691.1402a(2).

Furthermore, the photographs alone fail to give rise to a reasonable inference that the

defect had been present for at least 60 days. The photographs merely show the alleged

defect from several different angles and indicate the size of the defect. The basis for the

Court of Appeals’ finding of such an inference was the accumulated debris seen in the

photographs.    But that inference amounts merely to speculation, relying on the

assumption that the debris, and thus the defect itself, could not have arisen in less than 60

days. Thus, even when viewed in the light most favorable to plaintiff, the photographs


                                             5
standing alone cannot permit the conclusion that the defect existed 30 days before the

incident.

       The necessary inference that would connect the photographs to the sidewalk’s

condition 60 days earlier becomes tenable only with additional evidence. Absent such

evidence, one can imagine any number of scenarios in which the defect formed within 60

days of when the photographs were taken. Yet plaintiff has offered no evidentiary

support of any kind for her assumptions that the defect existed for the necessary amount

of time. For example, she has offered no affidavits from neighbors who viewed the

sidewalk 30 days before the accident, nor did she introduce expert testimony

demonstrating that the sidewalk discontinuity was of a type that usually forms or enlarges

over a long period of time. Such additional evidence might have narrowed or closed the

inferential gap between the photographs and the conclusions plaintiff and the Court of

Appeals drew from them.        Instead, plaintiff’s attempt to prove the sidewalk’s past

condition simply by proving its current condition fails, as more is needed to explain why

the current condition is probative of the past condition. Cf. Beamon, 85 Mich App at 246

(“[P]laintiff merely proved that the defect existed at the moment of her fall. Absent

additional evidence, it was not reasonable to infer that the defect was sufficiently long-

standing and/or notorious in support of the jury verdict of constructive notice.”).

       For these reasons, we hold that for purposes of the highway exception, plaintiff’s

photographs of a sidewalk defect taken about 30 days after an accident alone do not

create a genuine issue of material fact as to whether the sidewalk defect existed at least

30 days before the accident. Without more, a jury has no basis for concluding that the

defect was present for the requisite period of time.       Because plaintiff has provided


                                             6
photographs of the defect only as it existed about 30 days after her fall and has not

explained why these photographs indicate the state of the sidewalk 60 days earlier, she

cannot withstand summary disposition. We thus reverse the Court of Appeals judgment

and reinstate the trial court’s dismissal of plaintiff’s action.


                                                           Robert P. Young, Jr.
                                                           Stephen J. Markman
                                                           Brian K. Zahra
                                                           Bridget M. McCormack
                                                           David F. Viviano
                                                           Richard H. Bernstein
                                                           Joan L. Larsen




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