            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



RHONDA SCHILLING,                                                  UNPUBLISHED
                                                                   May 16, 2019
               Plaintiff-Appellee,

v                                                                  No. 342448
                                                                   Wayne Circuit Court
CITY OF LINCOLN PARK,                                              LC No. 17-004104-NO

               Defendant-Appellant.


Before: SAWYER, P.J., and CAVANAGH and SERVITTO, JJ.

PER CURIAM.

        Defendant, the City of Lincoln Park (the City), appeals as of right an order denying its
motion for summary disposition in this negligence action stemming from plaintiff’s trip and fall
on a city sidewalk. We affirm and remand for further proceedings.

               I. PERTINENT FACTS AND PROCEDURAL BACKGROUND

         On February 15, 2016, plaintiff was walking on the sidewalk near her home when she
tripped and fell. Plaintiff testified in her deposition that she did not see any issues with the
condition of the sidewalk before she tripped and fell. She was looking towards her house, not
down at the sidewalk, when she suddenly “caught [her] right foot” on the sidewalk and tripped,
causing her to fall. After she fell, she heard two “snaps” and believed she had broken her foot.
Plaintiff could not walk and her neighbors carried her home. She did not look at the sidewalk to
see what caused her to trip, but assumed her toe came in contact with the sidewalk, causing her
to fall. Plaintiff went to the hospital where she underwent surgery for a fractured ankle. At some
point after her cast was removed, she returned to the sidewalk where she tripped and took
photographs, which depicted a slab of sidewalk raised about two inches higher than the adjacent
slab.

        On March 9, 2017, plaintiff filed this negligence case asserting that the vertical
discontinuity in the sidewalk caused her to trip and fall, and claiming that the City breached its
statutory duty under MCL 691.1402a(1) to maintain the sidewalk in reasonable repair. The City
asserted governmental immunity as an affirmative defense and filed a motion for summary
disposition under MCR 2.116(C)(7) and (10), arguing that plaintiff could not establish that the


                                               -1-
vertical discontinuity defect in the sidewalk was two inches or more, necessary to rebut the
presumption under MCL 691.1402a(3) that the City maintained the sidewalk in reasonable
repair. The City relied on a series of photographs showing the raised sidewalk slab in the area
where plaintiff purportedly tripped and fell, i.e., a vertical discontinuity, measuring slightly less
than two inches. The City also relied on the deposition testimony of John Kozuh, a civil
engineer employed by the City as the Director of the Department of Public Services, that he
“speculated” from review of the photographs of the subject sidewalk that the “raise” was an inch
and seven-eighths in one photograph and an inch and a half in another photograph, albeit it was not
clear to which photographs he was referring. From his inspection of the sidewalk, Kozuh, who was
familiar with how vertical discontinuities in sidewalks form, testified that he believed the sidewalk
was likely raised by tree roots, which could take years to occur. Alternatively, the City asserted that
it was entitled to assert an open and obvious defense under MCL 691.1402a(5), as recently
amended by 2016 PA 419, and plaintiff’s claim was barred because of the open and obvious
nature of the defective sidewalk that was not unreasonably dangerous.

        In response, plaintiff argued that the evidence established, or minimally was sufficient to
survive summary disposition, that the vertical discontinuity was at least two inches and therefore
she rebutted the statutory presumption under MCL 692.1402a(3) that the City maintained the
sidewalk in reasonable repair. She ultimately relied on a photograph purportedly depicting the
area of the sidewalk where she tripped and fell, showing the vertical discontinuity in the area
measuring at slightly less than or, at best, just at two inches. Plaintiff also argued that the City
could not assert an open and obvious defense under MCL 691.1402a(5), as amended by 2016 PA
419, because the amendment took effect after her cause of action accrued. Plaintiff argued that
the amendment, adding subsection (5) to allow the City to assert an open and obvious defense,
affected her substantive right to bring her accrued action against the City and thus should not be
retroactively applied. Even so, plaintiff maintained that the open and obvious doctrine would not
bar her claim because the sidewalk’s hazardous condition presented an unreasonable risk of
harm.

        At the hearing on the City’s motion for summary disposition, the trial court reviewed the
photographs of the subject sidewalk and expressed its belief that the vertical discontinuity
appeared to be less than two inches, but ultimately found that it presented an issue of fact for the
jury to decide, and thus denied the motion. After hearing argument regarding the applicability of
the open and obvious defense, the trial court agreed that the amendment to MCL 691.1402a was
substantive in nature and declined to grant summary disposition on that issue as well. After the
trial court entered its order denying the City’s motions for summary disposition and
reconsideration, the City appealed.

                       II. TWO-INCH RULE UNDER MCL 691.1402a(3)

        The City first claims that the trial court erred in denying its motion for summary
disposition because plaintiff failed to establish a vertical discontinuity defect in the sidewalk of
two or more inches at the point where she tripped and fell, necessary to rebut the statutory
presumption under MCL 691.1402a(3) that the City maintained the sidewalk in reasonable
repair. We disagree.



                                                 -2-
       The City brought its motion for summary disposition under MCR 2.116(C)(7) and
(C)(10). This Court in Moraccini v City of Sterling Heights, 296 Mich App 387, 391; 822 NW2d
799 (2012), set forth the standard to review a (C)(7) motion as follows:
       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, 294
       Mich App 343, 354; 813 NW2d 294 (2011). MCR 2.116(C)(7) provides for
       summary disposition when a claim is “barred because of . . . immunity granted by
       law. . . .” The moving party may submit affidavits, depositions, admissions, or
       other documentary evidence in support of the motion if substantively admissible.
       Odom v Wayne Co, 482 Mich 459, 466; 760 NW2d 217 (2008). 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 set forth in MCR 2.116(C)(7) is a question of law for the court to
       decide.” Id. But when a relevant factual dispute does exist, summary disposition
       is not appropriate. Id.

         “A motion for summary disposition brought pursuant to MCR 2.116(C)(10) tests the
factual support for a claim.” Innovative Adult Foster Care, Inc v Ragin, 285 Mich App 466,
474-475; 776 NW2d 398 (2009). In evaluating a motion brought under (C)(10), “the court views
the evidence in the light most favorable to the party opposing the motion.” West v Gen Motors
Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). “Summary disposition is appropriate under
MCR 2.116(C)(10) if there is no genuine issue regarding any material fact and the moving party
is entitled to judgment as a matter of law.” Id. “A genuine issue of material fact exists when the
record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon
which reasonable minds might differ.” Id. (citations omitted). A trial court must not “weigh the
evidence or make determinations of credibility when deciding a motion for summary
disposition.” Innovative Adult Foster Care, 285 Mich App at 480.

      The governmental tort liability act (GTLA), MCL 691.1401 et seq., generally grants
governmental agencies immunity from tort liability but there are several exceptions. Moraccini,
296 Mich App at 391-392. Relevant to this case is the highway exception, which is set forth at
MCL 691.1402(1), and provides, in relevant part:
              Each governmental agency having jurisdiction over a highway shall
       maintain the highway in reasonable repair so that it is reasonably safe and
       convenient for public travel. A person who sustains bodily injury or damage to
       his or her property by reason of failure of a governmental agency to keep a
       highway under its jurisdiction in reasonable repair and in a condition reasonably
       safe and fit for travel may recover the damages suffered by him or her from the
       governmental agency.



                                               -3-
More specifically, under MCL 691.1402a, municipalities have a statutory duty to maintain
sidewalks in reasonable repair, and an individual who sustains injury due to the failure of a
municipality to maintain its sidewalks in reasonable repair may recover damages from the
municipality. Walker v City of Flint, 213 Mich App 18, 21-23; 539 NW2d 535 (1995). At the
time of plaintiff’s trip and fall accident, MCL 691.1402a provided, in pertinent part:
               (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.1

Accordingly, to invoke the sidewalk exception to governmental immunity, plaintiff must
overcome the presumption under MCL 691.1402a(3) that the City maintained the sidewalk in
reasonable repair by showing that a proximate cause of her injury was a vertical discontinuity
defect of at least two inches and/or a dangerous condition in the sidewalk itself of a character
other than solely a vertical discontinuity.2



1
  As we discuss later, effective January 4, 2017, MCL 691.1402a was amended to add subsection
(5), which permits a municipality to assert any defense available under the common law with
respect to a premises liability claim, including a defense that the condition was open and
obvious. 2016 PA 419.
2
   Plaintiff did not allege a dangerous condition in the sidewalk other than the vertical
discontinuity, nor does she argue such on appeal. At the motion hearing, the City also argued
that it was entitled to summary disposition on the basis that plaintiff did not trip and fall as a
result of the vertical discontinuity, given her deposition testimony that she did not see what
caused her to fall at the time of the accident and the EMS and medical records indicating that she


                                                -4-
        There is no dispute that the photographs of the area of the subject sidewalk where
plaintiff identified with an “X” the point where she tripped and fell—at the very right-hand edge
of the sidewalk slightly left of a weed protruding out of the crack in the slab—depicts an area of
the sidewalk that is clearly uneven and raised higher than the adjacent slab, i.e., “a vertical
discontinuity.” The parties dispute whether the evidence was sufficient to create a question of
fact as to whether the vertical discontinuity defect in the sidewalk was two or more inches,
required to rebut the presumption under MCL 691.1402a(3) that the City maintained the
sidewalk in reasonable repair.

        As proof that the vertical discontinuity in the sidewalk failed to meet the two-inch
threshold, the City relied primarily on a photograph showing a ruler placed at a point that
appears to be within the area plaintiff purportedly tripped and fell, at a point slightly left of the
protruding weed on the right-hand edge of the sidewalk. While the photograph is black and
white and somewhat blurry, the ruler in that photograph shows a measurement of the vertical
discontinuity of the sidewalk at that point of slightly less than two inches.3 Defendant also refers
to the deposition testimony of Kozuh, the City’s DPS director and a civil engineer, who viewed
photographs and testified that he believed the vertical discontinuity was less than two inches,
speculating that the “raise” was “an inch and seven-eight[h]s” on one photograph and
“approximately an inch and a half” on a second photograph, albeit it is not clear from the record
which photographs he viewed.

        To establish that the vertical discontinuity defect met the two-inch threshold necessary to
rebut the statutory presumption of reasonable repair, MCL 692.1402a(3), plaintiff directs this
Court to a photograph that appears to depict the same general area of the sidewalk where she
purportedly tripped and fell—on the right-hand edge of the raised sidewalk slab near a
protruding weed.4 This photograph measures the vertical discontinuity with a measuring tape,



slipped on ice, causing her to fall. However, plaintiff testified unequivocally that she tripped,
and did not slip, the sidewalk was not snow covered or icy, and she did not recall telling the
medical personnel who treated her that she slipped but believed she told them that she tripped.
Further, although plaintiff testified that she did not know what caused her to trip at the time of
the accident as she did not look, it could be reasonably inferred from the location of her accident,
at a point where the sidewalk was clearly raised and uneven, that she fell as a result of tripping
on the raised sidewalk. Minimally, the evidence presents a question of fact regarding the
proximate cause of her injury.
3
 Apparently, these are the photographs of the location of her trip and fall that plaintiff initially
provided to the City.
4
  As plaintiff pointed out on appeal, it is apparent that the series of photographs measuring the
vertical discontinuity she originally submitted with her initial response to the City’s motion for
summary disposition depicts the opposite side of the sidewalk slab from where she tripped and
fell. Thus, those photographs did not accurately reflect the vertical discontinuity defect at the
point where she tripped and fell. Accordingly, we do not consider those photographs for
purposes of this appeal.


                                                -5-
which appears to be placed at a point farther left from, but still in the same general area, of the
“X” identifying where plaintiff tripped and fell. Specifically, the “X” plaintiff identified as the
spot she tripped is at, or slightly left, of the large weed protruding out of the crack of the raised
slab at the right-hand edge of the sidewalk and the measuring tape in plaintiff’s photograph
appears to be at a point further left from the large protruding weed.5 Nevertheless, the
measurement in plaintiff’s photograph, while not exactly at the point of the “X”, appears to be in
the same general three-to-four inch area surrounding the point where she purportedly tripped and
fell. The photograph shows one end of the measuring tape, at the point of the bend of the
shadow, measuring the vertical discontinuity at slightly less than two inches. At the other end of
the measuring tape, the discontinuity appears to be very close to or just at the two-inch mark on
the tape, but the position of the measuring tape is tilted at a slight angle, is not directly
perpendicular to the raised sidewalk, and appears to be sitting on leaf debris, making it difficult
to definitively discern if the vertical discontinuity is at least two inches. At best, the photograph
shows a measurement of the vertical discontinuity in the sidewalk just at two inches.

        While we agree, after carefully reviewing the photographs relied on by the parties, that it
appears that the vertical discontinuity in the area where plaintiff tripped and fell may be just
short of the two inches necessary to rebut the statutory presumption that the City maintained the
sidewalk in reasonable repair, MCL 691.1402a(3), the photographic evidence is not definite. In
considering a motion for summary disposition brought under MCR 2.116(C)(7) or (C)(10), we
must view the evidence in the light most favorable to the nonmoving party, Moraccini, 296 Mich
App at 391, and not “weigh the evidence or make determinations of credibility,” Innovative
Adult Foster Care, 285 Mich App at 480. Viewing the photograph presented and relied on by
plaintiff, in a light most favorable to plaintiff, we cannot say that the vertical discontinuity of the
sidewalk in the area where she tripped and fell measured below two inches as a matter of law.
Instead, giving the benefit of reasonable doubt to plaintiff, reasonable minds could differ
regarding whether the raised slab in plaintiff’s photograph measured below or just at the two-
inch threshold. See West, 469 Mich at 183; Dextrom v Wexford Co, 287 Mich App 406, 429;
789 NW2d 211 (2010). Thus, although a close question, we conclude that the photographic
evidence was sufficient to establish a question of fact regarding whether the vertical
discontinuity was at least two inches, necessary to rebut the presumption of reasonable repair
under MCL 691.1402a(3), and to survive summary dismissal under MCR 2.116(C)(7) and (10).6


5
  The measuring tape in the photograph presented by plaintiff appears to be measuring a point
farther left from the “X” than the measurement of the ruler in the photograph the City relied on
to support its motion for summary disposition, albeit both measurements appear to be in the same
general area.
6
  While the deposition testimony indicates that the photographs presented by the parties were
taken months after plaintiff tripped and fell, Kozuh, the City’s DPS director and a civil engineer
familiar with vertical discontinuities, testified that he believed the vertical discontinuity in the
instant case was caused by tree roots, which would take years to develop. From this testimony,
as well as the photographs of sidewalk where plaintiff purportedly tripped and fell, showing a
large tree abutting the sidewalk with roots protruding, it is reasonable to infer that the
discontinuity took a significant amount of time, i.e., years, to develop. Thus, although the


                                                 -6-
See Moraccini, 296 Mich App at 391; Dextrom, 287 Mich App at 429. Accordingly, the trial
court did not err in denying the City’s motion for summary disposition on the issue.

        However, contrary to the trial court’s ruling, the question whether the vertical
discontinuity met the two-inch threshold necessary to rebut the presumption under MCL
691.1402a(3) is not a question of fact for a jury. MCL 691.1402a(4) expressly provides that
“[w]hether a presumption under subsection (3) has been rebutted is a question of law for the
court.” Furthermore, this Court in Dextrom, 287 Mich App at 430, has held that “trial is not the
proper remedial avenue to take in resolving the factual questions under MCR 2.116(C)(7).” As
in Dextrom, 287 Mich App at 430-433, we instruct the trial court, on remand, to conduct an
evidentiary hearing to determine whether further factual development can establish that the
vertical discontinuity in the sidewalk was at least the two inches necessary to overcome the
presumption under MCL 691.1402a(3) that the City maintained the sidewalk in reasonable
repair. If the trial court determines that the vertical discontinuity in the area of the sidewalk
where plaintiff tripped and fell met the two-inch threshold, then plaintiff has rebutted the
presumption of reasonable repair and her claim should not be summarily dismissed under MCR
2.116(C)(7) on that basis. See Dextrom, 287 Mich App at 433. However, if the trial court
determines that the vertical discontinuity defect is less than two inches, then plaintiff cannot
overcome the presumption that the City maintained the sidewalk in reasonable repair as a matter
of law and the City would be entitled to governmental immunity, in which case the court should
grant the City’s motion for summary disposition under MCR 2.116(C)(7). See id.

                          III. APPLICATION OF MCL 691.1402a(5)

        Next, the City claims that MCL 691.1402a, as amended by 2016 PA 419, to add
subsection (5), which permits a municipality to assert the common law defense that the condition
of the sidewalk was open and obvious, applies retroactively in this case and the trial court erred
in deciding otherwise. We disagree and conclude that the amended version of MCL
691.1402a(5) does not apply to this case because plaintiff’s cause of action accrued before the
amendment took effect and there is no evidence that the Legislature intended the amendment to
be retroactively applied.

        We review de novo a trial court’s ruling on a motion for summary disposition. Johnson v
Pastoriza, 491 Mich 417, 428; 818 NW2d 279 (2012). Whether a statutory amendment applies
retroactively presents a question of statutory interpretation which is also subject to de novo
review. Id. at 428-429.

       The sidewalk exception, under MCL 691.1402a, imposes a statutory duty on
municipalities to maintain their sidewalks in reasonable repair. MCL 691.1402a(1); Jones v
Enertel, Inc, 467 Mich 266, 268; 650 NW2d 334 (2002); Walker, 213 Mich App at 21-23. An
individual who sustains injury due to the failure of a municipality to maintain its sidewalks in
reasonable repair has a right to bring a cause of action to recover from the municipality under


photographs were taken months after she tripped and fell, they arguably accurately depicted the
vertical discontinuity existing at the time of the accident.


                                               -7-
MCL 691.1402a. Id. However, a municipality’s liability is limited under MCL 691.1402a.
Moraccini, 296 Mich App at 396 (MCL 691.1402a “was enacted to limit municipal liability
relative to injuries occurring caused by defective sidewalks.”).

        Plaintiff’s cause of action, premised on the City’s violation of its statutory duty under
MCL 691.1402a to maintain the sidewalk in reasonable repair, accrued on February 5, 2016,
when she tripped on the raised sidewalk slab causing her to fall to the ground and suffer injuries.
When all of the elements of a cause of action can be alleged in a complaint, a cause of action for
tortious injury accrues. Stephens v Dixon, 449 Mich 531, 539; 536 NW2d 755 (1995). At the
time her cause of action accrued, for the City to be liable under the sidewalk exception for the
injuries she sustained due to the defective condition of the sidewalk, plaintiff was required to
prove that, at least 30 days before the occurrence of her injury, the City knew or should have
known of the existence of the defect in the sidewalk. See MCL 691.1402a(2). Further, for the
City to be liable, it was necessary for plaintiff to rebut the presumption under MCL 691.1402a(3)
that the City maintained the sidewalk in reasonable repair with evidence that the proximate cause
of her injury was a vertical discontinuity defect in the sidewalk of two inches or more and/or a
dangerous condition in the sidewalk itself other than solely a vertical discontinuity. MCL
691.1402a(3).

       Effective January 4, 2017, the Legislature, in 2016 PA 419, amended the sidewalk
exception under MCL 691.1402a by adding subsection (5) to allow a municipality to assert an
open and obvious defense, providing:
              (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.7



7
   In premises liability cases in the private sector, the open and obvious defense is well
established. Under the doctrine, “a premises possessor owes a duty to use reasonable care to
protect invitees from an unreasonable risk of harm caused by dangerous conditions on the
premises. . . . However, liability does not arise for open and obvious dangers unless special
aspects of a condition make even an open and obvious risk unreasonably dangerous.” Hoffner v
Lanctoe, 492 Mich 450, 455; 821 NW2d 88 (2012) (emphasis omitted). “The possessor of land
‘owes no duty to protect or warn’ of dangers that are open and obvious because such dangers, by
their nature, apprise an invitee of the potential hazard, which the invitee may then take
reasonable measures to avoid.” Id. at 460-461, quoting Riddle v McLouth Steel Prods Corp, 440
Mich 85, 96; 485 NW2d 676 (1992). “Whether a danger is open and obvious depends on
whether it is reasonable to expect that an average person with ordinary intelligence would have
discovered [the condition] upon casual inspection.” Hoffner, 492 Mich at 460-461. There is an
exception where “the special aspects of an open and obvious hazard could give rise to liability:
when the danger is unreasonably dangerous or when the danger is effectively unavoidable.” Id.
at 463 (emphasis omitted).


                                                -8-
Prior to the amendment under 2016 PA 419, under the prevailing common law, a municipality
was limited in the defenses it could assert in cases brought under the sidewalk exception to
governmental immunity, MCL 691.1402a. Pertinent here, our Courts held that the open and
obvious doctrine did not apply to a cause of action premised on the statutory duty under MCL
691.1402a to maintain the sidewalk in reasonable repair. Jones, 467 Mich at 269-270; Walker,
213 Mich App at 22-23.

        The parties dispute whether the amendment to MCL 691.1402a applies in this case to
permit the City to assert an open and obvious defense. The City argues that the amendment
applies retroactively, and thus it is permitted to assert an open and obvious defense under MCL
691.1402a(5). Plaintiff asserts that the amendment applies prospectively only, and thus the City
cannot assert an open and obvious defense because her cause of action accrued before the
effective date of the amendment. “In determining whether a statute applies retroactively or
prospectively, the intent of the Legislature governs.” Johnson, 491 Mich at 429, citing Frank W
Lynch & Co v Flex Technologies, Inc, 463 Mich 578, 583; 624 NW2d 180 (2001). “Statutes are
presumed to apply prospectively unless the Legislature clearly manifests the intent for retroactive
application.” Johnson, 491 Mich at 429, citing Brewer v A D Transp Express, Inc, 486 Mich 50,
55-56; 782 NW2d 475 (2010). “This is ‘especially true when giving a statute retroactive
operation will . . . create a new liability in connection with a past transaction, or invalidate a
defense which was good when the statute was passed.’ ” Johnson, 491 Mich at 429-430, quoting
Hansen-Snyder Co v Gen Motors Corp, 371 Mich 480, 484; 124 NW2d 286 (1963). Further,
when an amendment enacts a substantive change in the law, it is limited to prospective
application. Johnson, 491 Mich at 430, quoting Brewer, 486 Mich at 56.

        There is an exception to the presumption that statutes apply prospectively where a statute
is remedial or procedural in nature, which the City relies on here. See Johnson, 491 Mich at
432-433; Lynch, 463 Mich at 584. The exception provides that “ ‘statutes which operate in
furtherance of a remedy or mode of procedure and which neither create new rights nor destroy,
enlarge, or diminish existing rights are generally held to operate retrospectively unless a contrary
legislative intent is manifested.’ ” Johnson, 491 Mich at 432-433, quoting Lynch, 463 Mich at
584. “Simply calling a statute ‘remedial,’ however, is not enough for retroactive application, as
explained in Lynch:
       [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, . . . 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, quoting Lynch, 463 Mich at 585
       (internal citations and emphasis in Lynch omitted).]

Thus, the “exception to the presumption of prospective application for remedial statutes” does
not apply if the “statutory amendment affects substantive rights.” Johnson, 491 Mich at 433.

      In In re Certified Questions, 416 Mich 558, 570; 331 NW2d 456 (1982), our Supreme
Court identified four principles in determining whether a new statute should be applied

                                                -9-
retroactively. First, a court should determine whether there is “specific language in the new act
which states that it should be given retrospective or prospective application.” Id. “Second, ‘[a]
statute is not regarded as operating retrospectively [solely] because it relates to an antecedent
event.’ ” Id. at 570-571, quoting Hughes v Judges’ Retirement Bd, 407 Mich 75, 86; 282 NW2d
160 (1979). Third, a new law should not be retroactivity applied “ ‘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.’ ” In re
Certified Questions, 416 Mich at 572, quoting Hughes, 407 Mich at 85. “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.” In re Certified Questions, 416 Mich at 571.

         Regarding the first principle, 2016 PA 419 contains no specific language indicating either
retroactive or prospective only application. MCL 691.1402a; In re Certified Questions, 416
Mich at 570-571. The Legislature gave 2016 PA 419 immediate effect on January 4, 2017, the
date it was filed, but did not include any language in 2016 PA 419 indicating retroactive
application. MCL 691.1402a; House Legislative Analysis, HB 4686, December 9, 2015. Our
Supreme Court has recognized that “ ‘the Legislature has shown . . . that it knows how to make
clear its intention that a statute apply retroactively.’ ” Johnson, 491 Mich at 430, quoting Lynch,
463 Mich at 584. Accordingly, the Legislature is “cognizant of the operative language necessary
to apply any particular provision in the amendatory act retroactively, but did not include such
language in” 2016 PA 419. Johnson, 491 Mich at 431. Further, the 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.’ ” Id. at
432, quoting Brewer, 486 Mich at 56. This is “akin” to what the amendment to MCL 691.1402a
does: “it provides a specific effective date, that being the date of filing with the Secretary of
State, without the slightest hint of retroactive application.” Id. The absence of any language
expressing a legislative intent to apply the amendment to MCL 691.1402a(5) retroactively
weighs in favor of prospective only application. See id.

        The second principle—that a statute does not operate retroactively solely because it
relates to an antecedent event—does not appear relevant to this case. See In re Certified
Questions, 416 Mich at 570-571. These types of cases “relate to measuring the amount of
entitlement provided by a subsequent statute in part by services rendered pursuant to a prior
statute,” such as “measuring the amount of a judicial pension not only by years served
subsequent to enactment but also by years served under a previous act.” Id. at 571. In contrast,
this case “relates to what if any changes may be made with respect to a cause of action begun
under one rule of law by a subsequent statute.” Id.

        “The third rule states that retrospective application of a law is improper where the law
‘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.’ ” Id. at 572, quoting Hughes, 407 Mich at 85; see also Johnson,
491 Mich at 429-430; Lynch, 463 Mich at 583. A statutory “amendment is limited to prospective
application if it enacts a substantive change in the law.” Johnson, 491 Mich at 430. “The
general rule against retrospective application has been applied in cases where a new statute
abolishes an existing cause of action.” In re Certified Questions, 416 Mich at 573. “It is clear
that once a cause of action accrues,—i.e., all the facts become operative and are known—it

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becomes a ‘vested right.’ ” Id. The general rule against retroactive application is “triggered
when a plaintiff’s accrued cause of action would be totally barred or taken away by a new act.”
Id. at 577.

        Here, plaintiff had a vested right in her cause of action that accrued when her trip and fall
accident occurred before the effective date of the statutory amendment under 2016 PA 419.
Under the applicable version of MCL 691.1402a, at the time her action accrued, the City was
liable for a breach of its statutory duty to maintain its sidewalk in reasonable repair, so long as
plaintiff could prove that the City had the requisite knowledge of the defect and could rebut the
statutory presumption that the sidewalk was in reasonable repair. MCL 691.1402a(1)-(3).
Before the amendment under 2016 PA 419, the municipality could not assert an open and
obvious defense to claims brought pursuant to its statutory duty under MCL 691.1402a. Jones,
467 Mich at 269-270; Walker, 213 Mich App at 22-23.

         The amendment, adding subsection (5) to permit a municipality to assert the open and
obvious defense, in effect, now additionally absolves a municipality of liability stemming from a
dangerous condition that is open and obvious, i.e., where “it is reasonable to expect that an
average person with ordinary intelligence would have discovered [the condition] upon casual
inspection.”8 Hoffner v Lanctoe, 492 Mich 450, 460-461; 821 NW2d 88 (2012); Novotney v
Burger King Corp (On Remand), 198 Mich App 470, 474-475; 499 NW2d 379 (1993).
Accordingly, the amended version of MCL 691.1402a not only shields a municipality from
liability for injuries caused by a vertical discontinuity defect of less than two inches, MCL
691.1402a(3), but additionally shields a municipality from liability if the dangerous condition of
the sidewalk was open and obvious. MCL 691.1402a(5). Thus, the amendment clearly further
limits a municipality’s liability for injuries arising from a defective sidewalk, and conversely,
effectively precludes an injured party from bringing a claim, where he or she previously could, if
the dangerous condition of the sidewalk was open and obvious. The amendment under 2016 PA
419, thus, would impair and effectively destroy any claim resulting from a condition of the
sidewalk that is open and obvious and not unreasonably dangerous. Hoffner, 492 Mich at 461-
463.

         Thus, contrary to the City’s argument, retroactive application of the amendment under
2016 PA 419 would affect the substantive rights of a party who, as here, had a vested right in her
cause of action before the amendment but was injured by a dangerous condition of a sidewalk
that is open and obvious. In such cases, retroactive application of the amendment would, in
effect, legally bar or “take away” plaintiff’s accrued cause of action against the City because the
open and obvious nature of the sidewalk’s condition would cut off the City’s liability for her
injuries. See In re Certified Questions, 416 Mich at 573-577. Generally, the rule is against the
retroactive application of a statute that takes away vested rights and “[a] new statute which
abolishes an existing cause of action brings the statute with the general proscription of rule



8
  “[S]uch dangers, by their nature, apprise an invitee of the potential hazard, which the invitee
may then take reasonable precautions to avoid[,]” and thus, the premises owner has no duty to
protect or warn of the dangers. Hoffner, 492 Mich at 460-461.


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three.” Id. at 573-578. Thus, the third principle weighs in favor of prospective application of
2016 PA 419.

       Finally, the fourth principle considers whether the nature of the amendment is remedial or
procedural. In re Certified Questions, 416 Mich at 571, 578. “This Court has recognized that
new remedial or procedural statutes which do not destroy vested rights should be given
retrospective application.” Id. at 578. But, “the term ‘remedial’ in this context should only be
employed to describe legislation that does not affect substantive rights.” Johnson, 491 Mich at
433 (emphasis in original), quoting Lynch, 463 Mich at 585. While the legislative history of
2016 PA 419 may suggest that the amendment to MCL 691.1402a was designed to address an
oversight in the existing law, and thus could be characterized as remedial in nature, see House
Legislative Analysis, HB 4686, December 9, 2015, the remedial nature of the amendment would
not support retroactive application because the amendment affected substantive rights. Lynch,
463 Mich at 584-585 (“[T]he term ‘remedial’ in this context should only be employed to
describe legislation that does not affect substantive rights.”).

         Considering these relevant principles, we conclude that MCL 691.1402a, as amended by
2016 PA 417, should not be given retroactive effect. The intent of the Legislature governs a
determination whether a statute is applied prospectively or retroactively. Johnson, 491 Mich at
429. “Statutes are presumed to apply prospectively unless the Legislature clearly manifests the
intent for retroactive application.” Id.; Lynch, 463 Mich at 583. There is nothing in the language
of the amendment to MCL 691.1402a suggesting that the Legislature intended retroactive
application of the amendment. The Legislature specified a future effective date of January 4,
2017, without reference to retroactive application, and thus it is evident that the Legislature
intended that the amendment apply prospectively. “ ‘[P]roviding a specific, future effective date
and omitting any reference to retroactivity supports a conclusion that the statute should be
applied prospectively only.’ ” Johnson, 491 Mich at 432, quoting Brewer, 486 Mich at 56.
Further, to now allow a municipality to assert an open and obvious defense under MCL
619.1402a(5), which it could not do before, substantively alters a municipality’s potential
liability and, conversely, an injured plaintiff’s existing right to recovery with regard to sidewalk
defects by effectively absolving a municipality from liability in cases where the sidewalk’s
dangerous condition from which a plaintiff’s injury arose was open and obvious. The
amendment to MCL 691.1402a, if applied retroactively, would substantively affect plaintiff’s
vested or substantive rights in her cause of action which accrued before the amendment took
effect, and thus, should be given prospective application only. See Johnson, 491 Mich at 430.

       Because plaintiff’s trip and fall accident, from which her cause of action arose, occurred
before the effective date of the amendment, the amended version, MCL 691.1402a(5), does not
apply and the City cannot assert an open and obvious defense in this case. Nevertheless, the City
argues that the amendment applies to plaintiff’s lawsuit because it was filed after the
amendment’s effective date. However, in Moraccini, 296 Mich App at 389 n 1, involving a 2012
amendment to MCL 691.1402a, this Court recognized that the amended version applies
prospectively, stating, “MCL 691.1402a was amended by 2012 PA 50, effective March 13, 2012.
The amended version of the statute . . . is not applicable here, considering the effective date of
the amendment and the earlier date of the incident.” Here, plaintiff filed her lawsuit on March 9,
2017, after the effective date of the amendment to MCL 691.1402a on January 4, 2017, but her
cause of action accrued earlier than the effective date of the amendment, on February 15, 2016,

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when she tripped and fell on the sidewalk. Accordingly, as in Moraccini, the amendment to
MCL 691.1402a applies prospectively and is not applicable in this case. The trial court did not
err in denying defendant’s motion for summary disposition on this basis.

        In light of our decision that the amendment to MCL 691.1402a does not govern this case,
we need not address whether plaintiff can establish an issue of fact regarding whether the
condition of the sidewalk was open and obvious or unreasonably dangerous. We note, however,
that it appears from the photographs that the condition was open and obvious, i.e., there is no
dispute that an average person with ordinary intelligence would have discovered the vertical
discontinuity defect upon casual inspection. Nor do we believe that a raised sidewalk slab, a
typical hazard that is commonly experienced, presented an unreasonable risk of harm. Instead, it
is apparent from the photographs and plaintiff’s testimony that the condition of the sidewalk had
no special aspects that would make the open and obvious risk unreasonably dangerous or
effectively unavoidable.

      We affirm the trial court’s denial of defendant’s motion for summary disposition and
remand for proceedings consistent with this opinion. We do not retain jurisdiction.



                                                           /s/ David H. Sawyer
                                                           /s/ Mark J. Cavanagh
                                                           /s/ Deborah A. Servitto




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