            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



JENNIFER BUHL,                                                      FOR PUBLICATION
                                                                    August 29, 2019
               Plaintiff-Appellant,                                 9:00 a.m.

v                                                                   No. 340359
                                                                    Oakland Circuit Court
CITY OF OAK PARK,                                                   LC No. 2017-157097-NI

               Defendant-Appellee.


Before: O’BRIEN, P.J., and TUKEL and LETICA, JJ.

TUKEL, J.

        This case involves the question of whether a legislative act, 2016 PA 419, which makes
the “open and obvious” doctrine applicable to suits against municipalities, applies
retroactively—that is, whether it applies “to events antedating its enactment.” Frank W Lynch &
Co v Flex Tech, Inc, 463 Mich 578, 585; 624 NW2d 180 (2001), citing Landgraf v USI Film
Products, 511 US 244, 283; 114 S Ct 1483; 128 L Ed 2d 229 (1994). The retroactivity question
turns on whether the act impaired a “vested right,” and our Supreme Court has long noted that
“[t]he question of determining what is a vested right has always been a source of much difficulty
to all courts.” Lahti v Fosterling, 357 Mich 578, 588-589; 99 NW2d 490 (1959). The trial court
found that the statutory amendment applied retroactively and, applying the open and obvious
doctrine, granted summary disposition to defendant. We hold that because no vested right of
plaintiff was impaired by the Legislature’s actions and because the Legislature’s actions were
remedial in nature, the resulting grant of summary disposition to defendant on the basis of the
open and obvious doctrine was correct; we therefore affirm the trial court’s judgment.

        Plaintiff was injured on May 4, 2016, when she twisted her ankle on a sidewalk outside
of a store called Trend Express in Oak Park, Michigan. The sidewalk was under defendant’s
exclusive jurisdiction. On the date of the injury, it was raining. Plaintiff’s husband dropped her
off in front of the building, and plaintiff walked toward the front door. Plaintiff noticed a crack
in the sidewalk and attempted to step over it. However, plaintiff was looking at the store and
failed to notice the uneven cement slabs on the far side of the crack from where she was walking.
Plaintiff testified that she did not see the drop-off because she was not looking at the sidewalk




                                                -1-
but admitted that she would have seen it if she had been watching where she was walking instead
of looking at the store.

        Plaintiff filed suit under the defective sidewalk exception to governmental immunity,
MCL 691.1402a. Defendant moved for summary disposition under MCR 2.116(C)(10), arguing
that the defect was open and obvious.1 Plaintiff argued that it did not matter whether the defect
was open and obvious because MCL 691.1402a(5), which permitted defendant to assert the open
and obvious defense, was not enacted until after she was injured.2 Plaintiff also argued that
irrespective of the applicability of this statutory amendment, the condition was not open and
obvious because the drop-off was not clearly visible from the direction from which plaintiff
approached the store. The trial court held that the statutory amendment was retroactive because
it affected only the availability of a possible defense, not plaintiff’s ability to bring a claim.
Further, the trial court held that the condition was open and obvious because plaintiff’s
photographs clearly showed that the corner of the concrete slab where plaintiff claimed to have
tripped was raised.

                   I. RETROACTIVITY OF AMENDMENT TO MCL 691.1402a

       On appeal, plaintiff first argues that the trial court erred when it determined that the
amendment to MCL 691.1402a had retroactive effect. We disagree. This Court reviews de novo
whether a statute applies retroactively. Johnson v Pastoriza, 491 Mich 417, 428-429; 818 NW2d
279 (2012).

                                 A. STATUTORY BACKGROUND

       The governmental tort liability act (GTLA), MCL 691.1401 et seq., provides immunity
from tort liability to governmental agencies when they are engaged in the exercise or discharge
of a governmental function. MCL 691.1407(1); Moraccini v Sterling Heights, 296 Mich App
387, 391; 822 NW2d 799 (2012). The GTLA waives immunity and allows suit against a
governmental agency only if the suit falls within one of the statutory exceptions. Moraccini, 296



1
  Defendant also moved for summary disposition under MCR 2.116(C)(8) based on plaintiff’s
complaint not identifying the date of the accident. The trial court noted that even if it had agreed
with defendant, it would have allowed plaintiff to amend her complaint to include the date.
Thus, because the trial court found that summary disposition was warranted under MCR
2.116(C)(10), it declined to rule on the basis of MCR 2.116(C)(8), and that aspect of the motion
is not pertinent for our purposes on appeal.
2
    The relevant timeline of events is thus:
         May 4, 2016: plaintiff’s injury;
         January 3, 2017: enactment of amended statute;
         January 4, 2017: effective date of amended statute;
         January 31, 2017: plaintiff’s complaint filed.


                                                  -2-
Mich App at 392. MCL 691.1402a allows a plaintiff to sue a municipal corporation under some
circumstances when the municipal corporation fails to maintain a sidewalk, and 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.

       (4) Whether a presumption under subsection (3) has been rebutted is a question of
       law for the court.

       (5) In a civil action, a municipal corporation that has a duty to maintain a
       sidewalk under subsection (1) may assert, in addition to any other defense
       available to it, any defense available under the common law with respect to a
       premises liability claim, including, but not limited to, a defense that the condition
       was open and obvious.

       (6) A municipal corporation’s liability under subsection (1) is limited by section
       81131 of the natural resources and environmental protection act, 1994 PA 451,
       MCL 324.81131.

This current version of the statute was enacted on January 3, 2017, with the passage of 2016 PA
419, becoming effective on January 4, 2017. The only changes brought about by 2016 PA 419
were to add subsection (5) above, and, although not relevant for purposes of this case, to
renumber the previous subsection (5) to subsection (6).

                               B. RETROACTIVITY DEFINED

        The United States Supreme Court has noted that “courts have labored to reconcile two
seemingly contradictory statements found in our decisions concerning the effect of intervening
changes in the law. Each statement is framed as a generally applicable rule for interpreting
statutes that do not specify their temporal reach.” Landgraf, 511 US at 263-264 (citations
omitted).

                                               -3-
       The first is the rule that “a court is to apply the law in effect at the time it renders
       its decision[.]” The second is the axiom that “[r]etroactivity is not favored in the
       law,” and its interpretive corollary that “congressional enactments and
       administrative rules will not be construed to have retroactive effect unless their
       language requires this result.” [Id. at 264 (citations omitted).]

 “A statute does not operate ‘retrospectively’ merely because it is applied in a case arising from
conduct antedating the statute’s enactment or upsets expectations based in prior law,” id. at 269
(citations omitted), nor is it “ ‘made retroactive merely because it draws upon antecedent facts
for its operation,’ ” id. at 269 n 24 (citations omitted). “[C]ourts should apply the law in effect at
the time that they decide a case unless that law would have an impermissible retroactive effect as
that concept is defined by the Supreme Court.” BellSouth Telecom, Inc v Southeast Tel, Inc, 462
F3d 650, 657 (CA 6, 2006) (citation omitted).

        “[T]he court must ask whether the new provision attaches new legal consequences to
events completed before its enactment.” Landgraf, 511 US at 269-270. “The conclusion that a
particular rule operates ‘retroactively’ comes at the end of a process of judgment concerning the
nature and extent of the change in the law and the degree of connection between the operation of
the new rule and a relevant past event.” Id. at 270. “Any test of retroactivity will leave room for
disagreement in hard cases, and is unlikely to classify the enormous variety of legal changes with
perfect philosophical clarity. However, retroactivity is a matter on which judges tend to have
‘sound instincts,’ and familiar considerations of fair notice, reasonable reliance, and settled
expectations offer sound guidance.” Id. (citation and brackets omitted).

        There are four rules that a court must consider when determining whether a new statute
applies retrospectively. In re Certified Questions from US Court of Appeals for the Sixth Circuit,
416 Mich 558, 570; 331 NW2d 456 (1982):

       First, is there specific language in the new act which states that it should be given
       retrospective or prospective application. Second, a statute is not regarded as
       operating retrospectively solely because it relates to an antecedent event. Third, a
       retrospective law is one which takes away or impairs vested rights acquired under
       existing laws, or creates a new obligation and imposes a new duty, or attaches a
       new disability with respect to transactions or considerations already past. Fourth,
       a remedial or procedural act which does not destroy a vested right will be given
       effect where the injury or claim is antecedent to the enactment of the statute. [Id.
       at 570-571 (quotation marks, citations, and brackets omitted).]

        Under rule one, the intent of the Legislature governs the question of whether a statute
applies retroactively. Johnson, 491 Mich at 429. Indeed, our Supreme Court has stated that
“ ‘[t]he primary and overriding rule is that legislative intent governs. All other rules of
construction and operation are subservient to this principle.’ ” Lynch, 463 Mich at 583 (citation
omitted). Absent such clear indication that the Legislature intended retroactive application, it is
presumed that a statute applies only prospectively. Brewer v A D Transp Express, Inc, 486 Mich
50, 55-56; 782 NW2d 475 (2010); Franks v White Pine Copper Div, 422 Mich 636, 670; 375
NW2d 715 (1985).


                                                 -4-
        “Second rule cases relate to measuring the amount of entitlement provided by a
subsequent statute in part by services rendered pursuant to a prior statute,” id. at 571, which is
not applicable here. “The third rule and the cases thereunder define those retrospective situations
that are not legally acceptable, whereas the fourth rule defines those that are acceptable.” Id. at
572 (emphasis added). Because the retroactivity analysis is based in part on reasonable reliance,
the proper analysis is whether a new statute “would impair rights a party possessed when he
acted[.]” Landgraf, 511 US at 280.

                         C. APPLYING THE RETROACTIVITY TEST

                                      1. STATUTORY TEXT

        The first factor to consider is whether the text of the statute at issue provides that it is to
be given retroactive or prospective effect. In re Certified Questions, 416 Mich at 570; see also
Johnson, 491 Mich at 429. Our Supreme Court “has recognized that ‘providing a specific, future
effective date and omitting any reference to retroactivity supports a conclusion that a statute
should be applied prospectively only.’ ” Johnson, 491 Mich at 432 (citation omitted). In the
present case, the statute did not include a future effective date, but rather was given immediate
effect. “Use of the phrase ‘immediate effect’ does not at all suggest that a public act applies
retroactively.” Id. at 430. Rather, “immediate effect” means only “that the Legislature by a ⅔
vote expressed an intention that the amendatory act take effect on the date it was filed.” Id. at
431 n 30. Thus, the lack of any language here regarding retroactivity weighs in favor of
prospective application only.

                    2. TAKING AWAY OR IMPAIRING VESTED RIGHTS

        “A cause of action becomes a vested right when it accrues and all the facts become
operative and known.” Doe v Dep’t of Corrections, 249 Mich App 49, 61-62; 641 NW2d 269
(2001), citing In re Certified Questions, 416 Mich at 572-573. If the retroactive application of a
law would take away or impair vested rights, then its retroactive application is prohibited by rule
three; rule four provides the mirror image, providing that “a remedial or procedural act which
does not destroy a vested right will be given effect where the injury or claim is antecedent to the
enactment of the statute.” In re Certified Questions, 416 Mich at 572. As far as a plaintiff
asserting a claim is concerned, retroactive application is prohibited if an “accrued cause of action
would be totally barred or taken away by a new act.”

        Here, the statute at issue did not totally bar or take away a cause of action; rather it made
available to municipal corporations common-law defenses, including the open and obvious
doctrine. Importantly, even after the enactment of the amended statute, plaintiff could still assert
the identical cause of action against defendant, and the full range of damages previously
available to a prevailing plaintiff is unchanged by the statutory amendment. Cf. Johnson, 491
Mich at 433-434 (holding that an amendment which created a new right of prevailing plaintiffs
to receive damages for loss of consortium and other damages not previously available creates a
new legal burden on defendants, which may not be applied retrospectively). By the plain
language of In re Certified Questions, only the abolition of an existing or accrued cause of action
takes away or impairs a plaintiff’s vested rights. Moreover, In re Certified Questions, 416 Mich
at 577, specifically noted that only a “legal bar” would implicate the “totally barred or taken

                                                 -5-
away by the new act” language. The question in that case was whether the adoption of a
comparative negligence statute would apply to a cause of action for products liability, and if so,
whether the comparative negligence statute would be applied retroactively. See id. at 561. In
analyzing the issue, our Supreme Court stated:

       While the total damages which plaintiff could have received were significantly
       reduced by § 2949, plaintiff’s cause of action was not legally barred or taken
       away.

              Section 2949 does not bar any claim, legal or equitable, but it states that
       “damages sustained by the plaintiff shall be diminished in proportion to the
       amount of negligence attributed to the plaintiff.” Section 2949 is not a legal bar,
       but is a principle established by the Legislature which mitigates damages in
       products liability actions.

               In short, we hold that the applicability of the products liability statute in
       the instant case did not offend Michigan’s general rule against the retrospective
       application of a statute which “take[s] away vested rights.” [Id. at 577-578
       (citations omitted; emphasis added).]

The Supreme Court’s analysis was based on the plaintiff’s cause of action not being “legally
barred or taken away”; because the act at issue in that case was not “a legal bar,” it did not
deprive the plaintiff of a vested right.

        Thus, under In re Certified Questions, a cause of action can be “totally barred or taken
away by the new act” only if the act extinguishes it as a matter of law. For example, causes of
action for alienation of affection which previously existed were “totally barred by a new act”
when the Legislature repealed them because the legislative action rendered such causes of action
extinct. See former MCL 551.301-551.311, repealed by 1980 PA 180. The cause of action
against a municipality for a defective sidewalk was not rendered extinct by the enactment of
2016 PA 419—the cause of action still exists.

        The dissent seemingly understands this point when it cites the In re Certified Questions
test that rule three is implicated when an “accrued cause of action would be totally barred or
taken away by a new act,” but then goes on to argue for the misapplication of the test. The
dissent argues that if the open and obvious doctrine is applied, plaintiff will lose her case; this,
the dissent states, constitutes plaintiff’s cause of action being “ ‘totally barred or taken away by
[the] new act.’ ” (Emphasis added). The dissent asserts, contrary to In re Certified Questions,
that “[w]hether the statutory amendment at issue abolishes Buhl’s cause of action outright or its
application results in dismissal of her lawsuit, albeit after a judicial finding on the question of
whether the danger was open and obvious, makes no difference. Either way, Buhl’s ‘accrued
cause of action [is] totally barred or taken away by a new act.’ ”

        However, to the extent that that plaintiff’s case is subject to dismissal under the open and
obvious doctrine, it is not “totally barred or taken away” “by a new act,” but because in this
particular case, the hazard was readily apparent and thus the facts preclude recovery. In other
words, plaintiff’s cause of action is barred not “by a new act,” but rather by a new act plus the

                                                -6-
particular facts relating to her injury. A dismissal based on factual infirmities is not a “legal bar”
but a “factual bar.” As such, rule three is inapplicable because a cause of action being barred by
application of a new act plus particular facts simply cannot be squared with the language used by
our Supreme Court, or by its discussion of rule three, in In re Certified Questions.

        Even setting aside the dissent’s misreading of the “by a new act” language from In re
Certified Questions, its position here is curious—it would decide a legal issue (the retroactive
availability of the open and obvious doctrine to municipalities) on the basis of a purely factual
determination (whether there is merit to a defense claim that a particular hazard was open and
obvious). However, because it involves a legal doctrine, the question of whether or not the
statute is to be applied retroactively must apply equally in all cases; the statute either is
retroactive or it is not. However, as a question of fact, the open and obvious doctrine surely will
not apply in every case in which it is invoked. Some defendants will argue that a particular
plaintiff is barred from recovery because a hazard was open and obvious, but a jury nevertheless
will find factually that the hazard was not so readily apparent. Applying the dissent’s position,
then, courts would have to decide on a case-by-case basis whether a particular plaintiff’s case
would be defeated by application of open and obvious doctrine; if the answer is that it would be,
that would mean, according to the dissent, that the cause of action would be “totally barred or
taken away by the new act” and thus the act could not be applied retroactively to such a case.
This approach never would settle the question presented here but instead would require the legal
determination of the retroactivity question to be made in each lawsuit, on a case-by-case basis.
The dissent cites no authority for the proposition that the retroactivity decision must be decided
anew in each case, and that the decision will turn on the factual vagaries of a particular case.

         The distinction between a cause of action failing for legal reasons as opposed to factual
reasons is so common that the Michigan Court Rules distinguish between them. See MCR
2.116(C)(8) (governing motions for summary disposition based on a legal failure to state a claim
upon which relief can be granted) and MCR 2.116(C)(10) (governing motions for summary
disposition based on failure of proof). The In re Certified Questions analysis under rule three
applies the same distinction. Applying that analysis here, the cause of action for injuries
sustained on a municipal sidewalk remains extant; no one would say, in light of the statutory
amendment at issue, that plaintiff’s complaint fails to state a claim upon which relief can be
granted in that the cause of action no longer exists. Consequently, for purposes of applying the
test of In re Certified Questions, plaintiff’s cause of action has not been “totally barred or taken
away by a new act.” And of course, as noted above, reading “totally barred or taken away by a
new act” in this manner means the retroactivity question will be decided by a single legal
standard, and will not vary from case to case based on the facts.

         Moreover, as noted, a relevant consideration for determining whether a party had a vested
right is whether the new statute “would impair rights a party possessed when he acted[.]”
Landgraf, 511 US at 280. As one federal court of appeals has noted, a strong consideration in
determining whether a plaintiff’s rights have been impaired is whether the plaintiff relied on the
state of the law prior to the statutory amendment. Southwest Ctr for Biological Diversity v US
Dep’t of Agriculture, 314 F3d 1060, 1062 (CA 9, 2002). However, as the Southwest Ctr court
noted, “Surely the [plaintiff’s] expectation of success in its litigation is not the kind of settled
expectation protected by Landgraf’s presumption against retroactivity. As the [defendant] points
out, if that expectation were sufficient then no statute would ever apply to a pending case unless

                                                 -7-
Congress expressly made it so applicable. The Landgraf inquiry would become pointless.” Id.
at 1062 n 1.3 The dissent here commits exactly that error, by stating that “[t]he legal question
before us is whether the Legislature clearly stated its intention to apply 2016 PA 419
retroactively.” That would be true for a rule one analysis; it is incorrect for the rule three and
rule four analyses applicable here because it would override and therefore make pointless any
analysis under those rules. 4

        In the present case, the only claimed reliance on plaintiff’s part is to the non-applicability
of the open and obvious doctrine. In the words of the dissent, 2016 PA 419 is “a game changer”
because it so radically changed the “ ‘expectation of success’ in [plaintiff’s] ligitation.” As
Southwest Ctr held, however, that is not the kind of settled expectation protected by Landsgraf.
To the contrary, the United States Supreme Court has noted that “[t]he largest category of cases
in which we have applied the presumption against statutory retroactivity has involved new
provisions affecting contractual or property rights, matters in which predictability and stability
are of prime importance.” Landgraf, 511 US at 271. This principle explains cases such as
Brewer, which denied retroactive application. In Brewer, an amendment to the workers’
compensation act created “an entirely new jurisdictional standard, granting jurisdiction over out-
of-state injuries of Michigan employees whose contracts of hire were not made in Michigan.”
Brewer, 486 Mich at 57.5 Retroactive application thus would have upset expectations regarding



3
  Our courts have made the same point. See Gen Motors Corp v Dep’t of Treasury, 290 Mich
App 355, 370-371; 803 NW2d 698 (2010) (“[A] vested right is something more than such a mere
expectation as may be based upon an anticipated continuance of the present general laws; it must
have become a title, legal or equitable, to the present or future enjoyment of property, or to the
present or future enforcement of a demand, or a legal exemption from a demand made by
another.”) (quotation marks and citations omitted).
4
  The dissent dismisses our reliance on Southwest Ctr as based on a distinction between a right of
action and a right of recovery and states that its position is based only on a right of action.
However, no such distinction exists. Southwest Ctr involved a Freedom of Information Act
exemption, which was enacted after the plaintiff had filed suit; if the exemption was applicable,
it was undisputed that it would bar the suit completely. The court held that “The [plaintiff]
contends that application of § 207 ‘impairs [a] right the [plaintiff] possessed when it acted,’
because the [plaintiff] had a right to the information when it filed its suit (or when it made its
earlier request) and it loses that right by application of the new exemption. But the ‘action’ of
the [plaintiff] was merely to request or sue for information; it was not to take a position in
reliance upon existing law that would prejudice the [plaintiff] when the law was changed.”
Southwest Ctr, 314 F3d at 1062 (cleaned up). Southwest Ctr thus flatly rejected the argument
accepted by the dissent here that plaintiff “has a vested right to continue her cause of action
under the substantive law in existence before the statutory amendment.” Because plaintiff had
no vested right in the pre-existing substantive law, this case falls within rule four rather than rule
three.
5
 Part I.C.3 of this opinion discusses how the legislation at issue in Brewer created an entirely
new jurisdictional standard, which is relevant to discussion of why the present case falls within


                                                 -8-
employers’ potential liability based on existing law by imposing “a new legal burden on out-of-
state employers not previously subject to the jurisdiction of the Workers’ Compensation
Agency,” id., and “also potentially enlarged existing rights for Michigan residents injured in
other states under contracts of hire not made in Michigan,” id. at 58.

        Here, by contrast, the allegations were of negligence leading to a slip and fall. By
definition, no one expects to slip and fall; thus, the “familiar considerations of fair notice,
reasonable reliance, and settled expectations,” Landgraf, 511 US at 270, have significantly less
force. In other words, because the statute at issue relates to acts which necessarily are
unplanned, it is not unreasonable, at least in the abstract, to expect that 2016 PA 419 would apply
to antecedent events or transactions which would not have been changed even if the participants
had been aware that a different legal regime might attach.

        As our Supreme Court has stated in a different context, “[T]o have reliance[,] the
knowledge must be of the sort that causes a person or entity to attempt to conform his conduct to
a certain norm before the triggering event.” Robinson v Detroit, 462 Mich 439, 467; 613 NW2d
307 (2000). However, as noted, a slip and fall is not something which is planned, and thus there
could not have been any reliance interest in avoiding a particular application of the law to such
an occurrence. “ ‘An act of the Legislature, though it have retrospective effect, is not necessarily
invalid, and does not, for that reason, come into conflict with any constitutional provision, unless
vested, not potential, rights are disturbed.’ ” Lahti, 357 Mich. at 594 (citation omitted). Rights
regarding a slip and fall which has not yet occurred are of course potential only. On the morning
of May 16, 2016, the date of plaintiff’s injury, it is inconceivable that she would have acted
differently if she had known that eight months later the Legislature would make the open and
obvious doctrine applicable to any slip and fall which might occur that day; in other words, in no
way could she have reasonably relied on the existing state of the law, i.e., the inapplicability of
the open and obvious doctrine, in going about her business and conducting her affairs.

        The dissent cites Vartelas v Holder, 566 US 257, 272; 132 S Ct 1479; 182 L Ed 2d 473
(2012), for the proposition that plaintiff “need not demonstrate reliance on the prior law in
structuring her conduct. Landgraf contains no such requirement.” The dissent misreads both
Landgraf and our majority opinion.

       While the presumption against retroactive application of statutes does not require
       a showing of detrimental reliance, reasonable reliance has been noted among the
       ‘familiar considerations’ animating the presumption, see Landgraf, 511 US at
       270 (presumption reflects “familiar considerations of fair notice, reasonable
       reliance, and settled expectations”). Although not a necessary predicate for
       invoking the antiretroactivity principle, the likelihood of reliance on prior law
       strengthens the case for reading a newly enacted law prospectively.” [Vartelas,
       566 US at 273-274 (some citations omitted; emphasis added).]



rule four. For present purposes, it is sufficient to note that the legislation in Brewer upset
reliance interests.


                                                -9-
For the reasons stated, plaintiff could not have reasonably relied on prior law, thereby failing to
“strengthen[] the case for reading [2016 PA 219] prospectively.” Id.

  3. A REMEDIAL OR PROCEDURAL ACT WHICH DOES NOT DESTROY A VESTED
        RIGHT; LEGISLATIVE OVERRULING OF PRIOR JUDICIAL DECISIONS

                  a. REINSTATING THE PREVIOUS STATE OF THE LAW

        Finally, under rule four, a remedial or procedural act which does not destroy a vested
right will be given retroactive effect even in instances in which the injury or claim is antecedent
to the enactment of the statute. In re Certified Questions, 416 Mich at 571. “A statute is
remedial or procedural in character if it is designed to correct an existing oversight in the law or
redress an existing grievance.” Davis v State Employees’ Ret Bd, 272 Mich App 151, 158-159;
725 NW2d 56 (2006). On the other hand, if the legislation enacts a substantive change to the
law, it is to be given prospective application. Johnson, 491 Mich at 430. Under this analysis,
“An amendment may apply retroactively where the Legislature enacts an amendment to clarify
an existing statute and to resolve a controversy regarding its meaning.” Mortgage Electronic
Registration Sys, Inc v Pickrell, 271 Mich App 119, 126; 721 NW2d 276 (2006). Thus, our
Supreme Court recognizes that if the Legislature adopts an amendment directed at a particular
judicial decision, and through that amendment not only overrules the judicial decision but also
reinstates the state of the law as it existed prior to the judicial decision, then the amendment is
considered remedial and will be applied retroactively. This is so because legislatively reversing
an erroneous judicial decision and reinstating the status quo ante corrects “an existing oversight
in the law” and “redress[es] an existing grievance,” Davis, 272 Mich App at 158-159, and also
“clarif[ies] an existing statute” and “resolve[s] a controversy regarding its meaning,” Mortgage
Electronic Registration Sys, 271 Mich App at 126.

        Brewer provides an example of this principle. An earlier decision, Karaczewski v
Farbman Stein & Co, 478 Mich 28; 732 NW2d 56 (2007), had held that the previous statute
provided for application of workers’ compensation coverage regarding out-of-state injuries only
if the contract of hire had been made in Michigan. As previously noted, the amendment “created
an entirely new jurisdictional standard, granting jurisdiction over out-of-state injuries of
Michigan employees whose contracts of hire were not made in Michigan,” Brewer, 486 Mich at
57, and thus was plainly a substantive change in the law which could not be applied
retroactively. Id. at 56-57. Continuing its analysis, the Brewer Court noted:

       Further undermining any notion of a legislative intent to apply the amendment of
       MCL 418.845 retroactively is the fact that, although the Legislature adopted the
       amendment after our decision in Karaczewski, it did not reinstate the pre-
       Karaczewski state of the law. On the contrary, the amendment enacted by 2008
       PA 499 created an entirely new jurisdictional standard, granting jurisdiction over
       out-of-state injuries of Michigan employees whose contracts of hire were not
       made in Michigan. That is, this amendment did not restore the status quo before
       Karaczewski, which required a Michigan contract of hire for jurisdiction, but
       instead created a new rule under which either a Michigan contract of hire or
       Michigan residency would suffice. [Id. at 57 (emphasis added, emphasis in
       original removed).]

                                               -10-
The obvious teaching of this aspect of Brewer is that if the legislation which overruled
Karaczewski also had restored the pre-Karaczewski status quo, then the new enactment would
have applied retroactively.

        The rationale of Brewer regarding the reinstating of a prior doctrine is clear. By
overturning a particular judicial decision, the Legislature states that the decision was erroneous.
However, that fact alone is insufficient for retroactive application because, as Brewer shows,
even when a previous decision is repudiated, if the legislation rejecting it imposes new burdens
not previously extant or enlarges existing rights, it unsettles legitimate expectations. See also Bd
of Trustees of City of Pontiac Police v City of Pontiac, 502 Mich 868, 872 (2018) (ZAHRA, J.,
dissenting) (quotation marks and citations omitted) (“Retroactive application of legislation
presents problems of unfairness . . . because it can deprive citizens of legitimate expectations and
upset settled transactions.”). But so long as no vested right is affected, as is the case here,
retroactive application is warranted. This conclusion is reinforced by the fact that by limiting
that aspect of Brewer to legislative changes which restore the prior state of the law, the rule
vitiates the unfairness which could result from retroactive application, as “ ‘no right is destroyed
when the law restores a remedy which had been lost.’ ” Lahti, 357 Mich at 589 (citation
omitted). Thus, the Legislature’s reinstatement of a prior doctrine, which “had been lost
through” judicial decision and which, according to the Legislature, should have applied all along,
works no unfairness because it is “designed to correct an existing oversight in the law or redress
an existing grievance.” Davis, 272 Mich App at 158-159. It is also a permissible mechanism by
which “the Legislature enacts an amendment to clarify an existing statute and to resolve a
controversy regarding its meaning.” Mortgage Electronic Registration Sys, 271 Mich App at
126.

        The Brewer restoration rule applies to 2016 PA 419. In this case, the statutory
amendment overturned legal doctrine which had made the open and obvious doctrine
inapplicable to claims against a municipality involving a statutory duty to maintain a sidewalk,
and as explained in detail below, the act also restored the status quo ante of the repudiated legal
doctrine.

           b. THE CHANGES BROUGHT ABOUT BY 2016 PA 419, INCLUDING
                       REINSTATEMENT OF THE 1964 ACT


        At common law, municipalities such as defendant were not subject to liability at all.
Rather, they were cloaked with “governmental immunity.” See Pohutski v City of Allen Park,
465 Mich 675, 682; 641 NW2d 219 (2002). In 1964, the Legislature enacted the GTLA. See
1964 PA 170. That act generally preserved governmental immunity involving sidewalks,
providing that “[t]he duty of the state and the county road commissions to repair and maintain
highways, and the liability therefor, shall extend only to the improved portion of the highway
designed for vehicular travel and shall not include sidewalks, crosswalks or any other installation
outside of the improved portion of the highway designed for vehicular travel.” Id., § 2.

        In 1999 PA 205, the Legislature enacted the first version of § 2a, the provision at issue
here. The 1999 act generally maintained immunity for municipal corporations for “injuries
arising from[] a portion of a county highway outside of the improved portion of the highway

                                               -11-
designed for vehicular travel, including a sidewalk.” 1999 PA 205, § 2a(1). However, the 1999
act also provided that there would be liability if, “[a]t 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[.]” Id.,
§ 2a(1)(a). And the act provided that “[a] discontinuity defect of less than 2 inches creates a
rebuttable inference that the municipal corporation maintained the sidewalk . . . in reasonable
repair.” Id., § 2a(2).

        Importantly, § 12 of the GTLA provides that “[c]laims under this act are subject to all of
the defenses available to claims sounding in tort brought against private persons.” MCL
691.1412. In fact, that provision has never been modified or repealed and has remained in force
as enacted since the GTLA’s inception in 1964. We interpret statutory language regarding the
Legislature’s intent as of the time of enactment. Oole v Oosting, 82 Mich App 291, 295; 266
NW2d 795 (1978). By using the word “available,” the Legislature preserved defenses which, as
of the date of passage of § 12, were legally recognized. As of 1964, when § 12 was enacted, it
was well established that “claims sounding in tort brought against private persons” were subject
to a common-law defense that the risk of a dangerous condition was open and obvious, and thus
that a person who was injured under such circumstances was barred from recovering, see, e.g.,
Kaukola v Oliver Iron Min Co, 159 Mich 689; 124 NW 591 (1910).

        In Jones v Enertel, Inc, 467 Mich 266; 650 NW2d 334 (2002), in light of the statutory
enactments, our Supreme Court addressed the availability of the “open and obvious” doctrine to
a municipality which allegedly failed to maintain a sidewalk in reasonable repair. “The basic
duty owed to an invitee by a premises possessor is ‘to exercise reasonable care to protect the
invitee from an unreasonable risk of harm caused by a dangerous condition on the land.’ ” Id. at
269 (citation omitted). The Court noted that “this duty does not generally require a premises
possessor to remove open and obvious conditions because, absent special aspects, such
conditions are not unreasonably dangerous precisely because they are open and obvious.” Id.
The Court concluded:

       However, such reasoning cannot be applied to the statutory duty of a municipality
       to maintain sidewalks on public highways because the statute requires the
       sidewalks to be kept in “reasonable repair.” The statutory language does not
       allow a municipality to forego such repairs because the defective condition of a
       sidewalk is open and obvious. Accordingly, we conclude that the open and
       obvious doctrine of common-law premises liability cannot bar a claim against a
       municipality under MCL 691.1402(1). [Id.6]

The Court also held that municipal corporations could not rely on the statutory language of § 12
of 1964 PA 170, providing that “[c]laims under this act are subject to all of the defenses
available to claims sounding in tort brought against private persons,” to invoke the open and


6
 This Court had reached the same result in other cases. See, e.g., Walker v City of Flint, 213
Mich App 18, 23; 539 NW2d 535 (1995). For ease of reference, this opinion uses the term “the
Jones doctrine” to refer to all such cases, whether decided by our Supreme Court or this Court.


                                               -12-
obvious doctrine. The Supreme Court explained that because the open and obvious defense has
no application to the statutory duty of a municipality for the reasons already explained in its
opinion and discussed above, that defense simply did not apply, regardless of the general rule in
§ 12. Jones, 467 Mich at 270-271.

        Thus, as a matter of law under the Jones doctrine, the defense of open and obvious was
not available to a municipality sued for injuries caused by a sidewalk which it had a statutory
duty to maintain. And there things stood until the Legislature passed 2016 PA 419.

        As noted, the language of 2016 PA 419, § 2a(5) provides, “In a civil action, a municipal
corporation that has a duty to maintain a sidewalk under subsection (1) may assert, in addition to
any other defense available to it, any defense available under the common law with respect to a
premises liability claim, including, but not limited to, a defense that the condition was open and
obvious.” Given the development of the law culminating in the Jones doctrine, it is readily
apparent that the Legislature intended to abrogate that doctrine. “[A] general rule of statutory
construction is that the Legislature is presumed to know of and legislate in harmony with
existing laws.” O’Connell v Dir of Elections, 316 Mich App 91, 99; 891 NW2d 240 (2016)
(quotation marks and citation omitted). The 1964 Act provided that “all defenses available to
private parties” were available under it; those defenses included the open and obvious doctrine;
nevertheless, and as a matter of law under the Jones doctrine a hazard being open and obvious
was inapplicable as a defense to claims involving a municipal corporation’s statutory duty to
maintain a sidewalk in reasonable repair; and the Legislature then passed 2016 PA 419,
providing that a municipal corporation “may assert any defense available under the common
law,” and even though “any defense” necessarily includes the open and obvious doctrine, and to
further ensure that there were no ambiguities, the Legislature added the words “including, but not
limited to, a defense that the condition was open and obvious.” 2016 PA 419, § 2a(5) (emphasis
added).

           c. THE BREWER RETROACTIVITY RULE APPLIED TO 2016 PA 419

       The sequence of events recited above shows that the Legislature abrogated the Jones
doctrine, the first part of the Brewer retroactivity test. It would be difficult to think of words
which more precisely reject the rationale of the Jones doctrine than do the words of § 5 of 2016
PA 419. The 1964 Act had afforded municipalities sued under the act “all of the defenses
available to claims sounding in tort brought against private persons,” 1964 PA 170, § 12
(emphasis added); in the aftermath of Jones, the 2016 act afforded those same municipalities
“any defense available under the common law with respect to a premises liability claim,”
(emphasis added). There is no material distinction in meaning between “all” and “any”; our
Supreme Court has noted that the word “ ‘[a]ny’ is defined as ‘every; all.’ ” City of South Haven
v Van Buren Co Bd of Comm’rs, 478 Mich 518, 527; 734 NW2d 533 (2007). Moreover, making
“any” defenses applicable to claims against a municipality, expressly including the open and
obvious doctrine, was the only substantive change the amendment wrought. Indeed, if 2016 PA
419 was not intended to overrule Jones, the Legislature had no discernable purpose in enacting
it. “When construing a statute, the court should presume that every word has some meaning and
should avoid any construction that would render the statute, or any part of it, surplusage or
nugatory,” Karpinsky v St John Hosp-Macomb Ctr Corp, 238 Mich App 539, 543; 606 NW2d 45
(1999). Based on the language employed by the Legislature as well as the rule of statutory

                                              -13-
construction against surplusage, we find that the 2016 Act directly repudiated and overruled the
Jones doctrine by making clear that the open and obvious doctrine was to be available to
municipal corporations which had a statutory duty to maintain a sidewalk.7

       For retroactivity to apply, the second prong of the exception to the Brewer test requires
not only that a statutory amendment overrule a prior judicial decision, but also mandates that in
overruling the decision the Legislature return the state of the law to the pre-decision status quo.
For the same reasons, 2016 PA 219 did so, by reinstating for municipal corporations all
common-law defenses, as had been provided for in the initial, 1964 Act.

        Thus, by enacting 2016 PA 219, the Legislature has stated that the Jones doctrine was not
what it had intended for the law to be; rather, the amendment shows that it was the Legislature’s
intent for defenses available to private parties, as provided for by the 1964 Act, to have applied
all along. In essence, the amendment states, “The Jones doctrine is overruled,” thereby
satisfying the first prong of Brewer. In addition, the remainder of the statute essentially states,
“And we never intended for the Jones doctrine to be the law, so we are reinstating the law as we
set forth in the 1964 Act,” thereby satisfying the second prong of Brewer. By so acting, the
legislation also clarified the Legislature’s intent regarding the previous law and settled the




7
  The dissent cites Adrian Sch Dist v Mich Pub Sch Employees Retirement Sys, 458 Mich 326,
337; 582 NW2d 767 (1998) (quotation marks and citations; emphasis added), for the proposition
that the 2016 act cannot be construed to clarify the Legislature’s intent because only “when a
legislative amendment is enacted soon after a controversy arises regarding the meaning of an
act” is it “logical to regard the amendment as a legislative interpretation of the original act . . . .”
The dissent states that the 14 years which passed between the Supreme Court’s decision in Jones
and the 2016 enactment is too lengthy a period of time to inform our analysis. However, Adrian
Sch Dist involves a different point than did Brewer. In Adrian Sch Dist, the Legislature amended
a statute “as a ratification of the position of the retirement board,” id. at 337; see also id. at 326 n
11 (“We do not give the 1996 amendment retroactive effect. Rather, we give effect to the
retirement board’s 1993 declaratory ruling.”), which did not necessarily reflect the position
originally set forth by the Legislature. In Brewer and here, by contrast, the Legislature acted to
conclusively reaffirm the position it had previously taken. The dissent cites no authority, and we
have found none, to the effect that there is a temporal limit on the Legislature’s authority to
overrule a precedent with which it disagrees and to thereby reinstate its previous exposition of
the law; and 14 years is not a particularly lengthy period preceding a legislature’s decision to
statutorily reverse a court decision. See Eskridge, Overriding Supreme Court Statutory
Interpretation Decisions, 101 Yale LJ 331, 424 (Appendix I), citing the following: PL 100-703,
§ 201; 102 Stat 4674, 4676 (1988), overruling United States v Morton Salt Co, 338 US 632; 70 S
Ct 357; 94 L Ed 401 (1950), after 38 years; PL 99-654, § 2; 100 Stat 3660, 3660-3663 (1986),
overruling Williams v United States, 327 US 711; 66 S Ct 778; 90 L Ed 962 (1946), after 40
years; PL 99-628, § 5(b)(1); 100 Stat 3510-3511 (1986), overruling Caminetti v United States,
242 US 470; 37 S Ct 192; 61 L Ed 442 (1917), and Cleveland v United States, 329 US 14; 67 S
Ct 13; 91 L Ed 12 (1946), after 59 and 40 years respectively.


                                                 -14-
controversy created by the Jones doctrine regarding its meaning, which is to be applied
retroactively.

        It is this second aspect of the amendment, in which the Legislature clarified that it never
had intended for the Jones doctrine to be the law, which the dissent rejects, stating that “applying
2016 PA 419 retroactively eliminates the city’s duty,” and thereby impairs plaintiff’s vested
rights. The dissent states that Brewer stands for the rule that “[e]ven if the Legislature acts to
invalidate a prior decision of this Court, the amendment is limited to prospective application if it
enacts a substantive change in the law.” Brewer, 486 Mich at 56, citing Hurd v Ford Motor Co,
423 Mich 531, 533; 377 NW2d 300 (1985) (emphasis added). That is of course true but not
relevant—the point of the reinstatement doctrine is that if the Legislature overrules a judicial
decision by restoring the status quo ante, it demonstrates what it intended the law to be all along;
under such circumstances, the new legislation does not enact a substantive change in the law.

        This point demonstrates the fundamental disagreement between the majority and the
dissent. The majority’s view is that the Legislature, through the 1964 act and 2016 PA 219,
clearly manifested what its intention was for the law to have been all along, i.e., the availability
of the open and obvious doctrine to municipalities, and thus properly understood, the 2016 act
did not effect a change in the law. The dissent’s view is that the Jones doctrine was the law prior
to the enactment of 2016 PA 219, notwithstanding that the Legislature has now clearly
manifested its view that the Jones doctrine was erroneous all along. Thus, the dissent views
retroactive application of 2016 PA 219 as improperly denying plaintiff a right because the act
constituted a substantive change in the law; the majority’s view is that allowing plaintiff to reap
the benefits of a repudiated rule, which the Legislature has conclusively stated was incorrect and
never should have applied, does not constitute “a substantive change in the law,” would
constitute an unwarranted windfall for plaintiff, and therefore cannot constitute “a vested right.”8

        Thus, while it might be true in some sense that the amendment changed the city’s duty, as
the dissent argues, that change only came about because of the Legislature’s determination that
courts had been misapplying that duty all along. Therefore, this change did not affect a vested
right because “ ‘no right is destroyed when the law restores a remedy which had been lost.’ ”
Lahti, 357 Mich at 589 (citation omitted). Thus, the Legislature’s reinstatement of the prior legal
standard, which “had been lost through” application of the Jones doctrine and which, according
to the Legislature in 2016 PA 419, should have applied all along, works no unfairness and may



8
  The dissent also states that the discussion in Brewer of the reinstatement rule is dicta.
“[S]tatements concerning a principle of law not essential to determination of the case are obiter
dictum and lack the force of an adjudication.” Griswold Props, LLC v Lexington Ins Co, 276
Mich App 551, 557-558; 741 NW2d 549 (2007) (quotation marks and citations omitted). The
discussion in Brewer is not dicta, given that it begins with the words “Further undermining” and
then continues the analysis, demonstrating that it was part of the Supreme Court’s rationale. The
dissent’s citation to Hurd also is unavailing, because Hurd did not discuss the four-part test of
the In re Certified Questions line of cases, but merely relied on a lack of expressed legislative
intent for retroactive application. See Hurd, 423 Mich at 535.


                                               -15-
be applied retroactively because it was “designed to correct an existing oversight in the law or
redress an existing grievance.” Davis, 272 Mich App at 158-159, citing Lahti, 357 Mich at 589.
Our analysis thus fully complies with the requirement that we look beyond the label of
“remedial” to the substance of whether an amendment affects substantive rights. “[W]e have
rejected the notion that a statute significantly affecting a party’s substantive rights should be
applied retroactively merely because it can also be characterized in a sense as “remedial”:

       “In that regard, we agree with Chief Justice RILEY’s plurality opinion in White v
       General Motors Corp, [431 Mich 387; 429 NW2d 576 (1988),] that the term
       “remedial” in this context should only be employed to describe legislation that
       does not affect substantive rights. Otherwise, the mere fact that a statute is
       characterized as remedial is of little value in statutory construction. Again, the
       question is one of legislative intent.” [Johnson, 491 Mich at 433 (citation
       omitted).]

        No one has a substantive right to litigate based on an erroneous legal rule; quite the
contrary is true. The Legislature’s action in repudiating and clarifying the correct interpretation
of the Jones doctrine is thus remedial and plainly cannot violate any substantive right of plaintiff.

        Because the Legislature has told us that the Jones doctrine never should have applied, it
is not the case that 2016 PA 219 enacted a substantive change in the law. The dissent cannot
explain how an abrogated doctrine, coupled with a legislative determination to instead impose
the intended status quo ante and allow a defense which should have been applicable all along,
can result in a duty and thus a vested right in plaintiff’s favor, except by assuming that the Jones
doctrine was the law all along. But by doing so, the dissent simply reiterates the rationale of
Jones, implicitly rejecting the Legislature’s authority to determine the propriety of Jones with
regard to plaintiff under the circumstances applicable here.9

        Moreover, to reach its conclusion, the dissent disputes that the open and obvious doctrine
is a “defense” within the meaning of 2016 PA 219, by reading it in a technical manner as
affecting the duty of a municipal corporation. However, “[a]ll words and phrases shall be
construed and understood according to the common and approved usage of the language; but
technical words and phrases, and such as may have acquired a peculiar and appropriate meaning
in the law, shall be construed and understood according to such peculiar and appropriate


9
  The dissent relies heavily on this Court’s unpublished opinion in Schilling v Lincoln Park,
unpublished per curiam opinion of the Court of Appeals, issued May 16, 2019 (Docket No.
342448). Few rules are as clearly established as that “[a]n unpublished opinion is not
precedentially binding under the rule of stare decisis.” MCR 7.215(C)(1). Thus, it is beyond
dispute that Schilling is not controlling. However, unpublished opinions may be cited for their
persuasive value. See Cox v Hartman, 322 Mich App 292, 307; 911 NW2d 219 (2017).
However, Schilling is not persuasive because it did not address the Legislature’s overruling of
the Jones doctrine, the reinstatement of the status quo ante, and the application of the Brewer
rule, which are the major bases for the majority opinion here. Thus, it is not clear what value the
dissent properly ascribes to Schilling.


                                                -16-
meaning.” MCL 8.3a. While the term “affirmative defense” has a technical legal meaning, the
term “defense” does not. “An affirmative defense is a defense that does not controvert the
establishment of a prima facie case, but that otherwise denies relief to the plaintiff.”
Chmielewski v Xermac, Inc, 216 Mich App 707, 712; 550 NW2d 797 (1996) (citation omitted),
aff’d 457 Mich 593; 580 NW2d 817 (1998). “An affirmative defense presumes liability by
definition.” Rasheed v Chrysler Corp, 445 Mich 109, 132; 517 NW2d 19 (1994). A “defense,”
by contrast, is “[t]hat which is offered and alleged by the party proceeded against in an action or
suit . . . to diminish plaintiff’s cause of action or defeat recovery,” Roberson Builders, Inc v
Larson, 482 Mich 1138, 758 NW2d 284 (2008) (MARKMAN, J., dissenting), or “that which is
alleged by the party proceeded against in a suit as a reason why plaintiff should not recover or
establish what he seeks,” Gelman Sciences, Inc v Fireman’s Fund Ins Cos, 183 Mich App 445,
448; 455 NW2d 328 (1990). A defense, therefore, is a non-technical concept which can be either
factual, legal, or a combination. And because it is a non-technical concept, it is construed
through “common and approved usage of the language.” MCL 8.3a.

        Here, the Legislature created a statutory hybrid, under which municipalities are obligated
to maintain sidewalks, but under which an injured party has no private right of recovery if a
sidewalk nevertheless has an open and obvious defect because such an open and obvious defect
is a “defense” to liability. 2016 PA 419, § 5. The Legislature is permitted to define terms and
causes of action in such a manner, and by restoring the right to invoke as a “defense” the
doctrine of open and obvious, which had been lost through the Jones doctrine, the Legislature in
no way impaired any substantive right of plaintiff. See Lahti, 357 Mich at 589 (“ ‘[N]o right is
destroyed when the law restores a remedy which had been lost.’ ”).

        Simply put, we find that the Legislature’s enactment of 2016 PA 419, which did not
legally bar plaintiff’s cause of action, and through which the Legislature overruled the Jones
doctrine and reinstated the pre-Jones state of the law, overcomes the presumption for prospective
application and thus has retroactive effect to events which preceded its enactment, including
plaintiff’s injury. Therefore, defendant can avail itself of the open and obvious defense, and we
next turn to an analysis of how the open and obvious doctrine applies to the facts of this case.



                                   II. OPEN AND OBVIOUS

        Because the amendment has retroactive effect, we must determine whether there is a
genuine issue of material fact on the question of whether the condition was open and obvious.
Plaintiff argues that the trial court erred when it determined that the condition was open and
obvious. We disagree.

       This Court reviews de novo a lower court decision on a motion for summary disposition.
Moraccini, 296 Mich App at 391. Summary disposition is appropriate under MCR 2.116(C)(10)
when “there is no genuine issue as to any material fact, and the moving party is entitled to
judgment or partial judgment as a matter of law.” In deciding a motion for summary disposition
under this subrule, the moving party must “identify the issues as to which the moving party
believes there is no genuine issue as to any material fact.” MCR 2.116(G)(4). If the moving
party meets the required burden, the burden then shifts to the party opposing the motion to

                                               -17-
provide “specific facts” that show that there is “a genuine issue of disputed fact.” Quinto v Cross
& Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996). The court evaluates all evidence “in
the light most favorable to the party opposing the motion.” Id.

        A condition is open and obvious when “an average person of ordinary intelligence
[would] discover the danger and the risk it presented on casual inspection.” Price v Kroger Co
of Mich, 284 Mich App 496, 501; 773 NW2d 739 (2009). This is an objective test. Id. Thus,
because the test is objective, a court is to focus on “whether a reasonable person in the plaintiff’s
position would have foreseen the danger, not whether the particular plaintiff knew or should
have known that the condition was hazardous.” Slaughter v Blarney Castle Oil Co, 281 Mich
App 474, 478-479; 760 NW2d 287 (2008).

        In Price, the plaintiff was injured when she fell after walking into a “one-inch-long
broken wire or ‘barb’ protruding from [a] bin at ankle level” at a grocery store. Price, 284 Mich
App at 498-499. This Court held that there was a genuine issue of material fact regarding
whether “an ordinary user upon casual inspection” could have discovered the wire because “[a]
jury could reasonably infer that a casual inspection of the premises in which plaintiff shopped
would not have revealed the barb, in light of its small size, its location at close to floor level, the
impediment to visibility posed by the bulk of the candy-filled bin, and [an employee’s] failure to
detect the anomaly.” Id. at 501-502.

        In this case, plaintiff argues that the defect was not open and obvious because she saw
only the crack in the sidewalk, not the height difference in the cement slabs after the crack.
Defendant argues that the defect was open and obvious because plaintiff testified that she was
not looking at the ground as she walked towards the store and because she admitted that she was
able to see the defect.

       While defendant supplied photographs of the area where plaintiff fell, these photographs
were taken at some point after the area had changed because a tree which had been there at the
time of plaintiff’s injury was cut down by the time defendant’s photo was taken. Plaintiff
provided a screenshot from Google maps that showed that there was still a tree in that location
on September 2016, several months after her injury. Plaintiff also provided a photograph in
which the shade from the tree shows that the tree was still intact at the time of the photograph.
However, plaintiff does not claim that the tree obscured her view of the defect at the time of her
fall.

        While plaintiff had been to Trend Express in the past, she testified that she had never
entered the store through the front entrance prior to the date of her injury. It was raining and
“darker” on the day of her injury, which could have obscured the dip in the sidewalk. However,
plaintiff’s photographs clearly show that the sidewalk was sloping at an upward angle (which
was a different angle than the surrounding slabs of sidewalk) where she testified she tripped.
Notably, plaintiff also testified that nothing was obscuring her view and that she did not discern
the differing heights only because she was looking at the store rather than the ground, but not
because the condition precluded her from being able to see the condition if she had looked.
Indeed, plaintiff admitted that she would have seen the condition of the sidewalk if she had been
looking. Thus, plaintiff would have “discover[ed] the danger and the risk it presented on casual


                                                 -18-
inspection.” Id. at 501. As such, the condition was open and obvious, and the trial court
properly granted defendant’s motion for summary disposition on this ground.

      Affirmed. Defendant, as the prevailing party, may tax costs pursuant to MCR 7.219.


                                                        /s/ Colleen A. O'Brien
                                                        /s/ Jonathan Tukel




                                           -19-
