                                                                        Michigan Supreme Court
                                                                        Lansing, Michigan 48909
_____________________________________________________________________________________________
                                                                C hief Just ice                   Justices
                                                                Maura D . Corrigan	               Michael F. Cavanagh




Opinion
                                                                                                  Elizabeth A. Weaver
                                                                                                  Marilyn Kelly
                                                                                                  Clifford W. Taylor
                                                                                                  Robert P. Young, Jr.
                                                                                                  Stephen J. Markman

____________________________________________________________________________________________________________________________

                                                                                       FILED JUNE 12, 2001





                VALERIA HALIW and

                ILKO HALIW,


                        Plaintiffs-Appellees,

                v	                                                                        No.     115686

                THE CITY OF STERLING HEIGHTS,

                     Defendant-Appellant.

                ___________________________________________

                BEFORE THE ENTIRE BENCH


                MARKMAN, J.


                        We     granted         defendant         city             of   Sterling        Heights’


                application for leave to appeal in this case to decide the


                proper application of the “natural accumulation” doctrine to


                municipal liability.                 Because we conclude that the natural


                accumulation of ice or snow on the sidewalk at issue does not


                give rise to an actionable breach of defendant’s duty, and the


                claimed depression in the sidewalk was not an independent


                defect,       plaintiff        cannot       prove          the     elements     required       to

establish a negligence claim against a governmental agency.1


Accordingly, we reverse the judgment of the Court of Appeals,


and remand to the Macomb Circuit Court for entry of an order


granting summary disposition in favor of defendant.


                      I. FACTS   AND PROCEEDINGS



     On January 29, 1996, plaintiff was walking on a snow­

covered sidewalk located in her neighborhood.                   Plaintiff


claims that she slipped and fell on a patch of ice that had


formed on the sidewalk.2    Apparently, the ice had formed in a


depressed portion where two sections of the sidewalk met.


According to plaintiff, it had snowed before the incident, and


the sidewalk had not yet been shoveled.


     Anna   Marson,   plaintiff’s      neighbor     and   the   homeowner


nearest the portion of sidewalk at issue here, stated that,


although the depression at the joint of the two cement slabs


allowed water to settle, there was no raised edge or gap


between the two slabs, and neither slab was actually broken.


According to Marson, even in the winter, when “it just snows


it would melt and there would be nothing [i.e., no ice] there.




     1
       Throughout this opinion, "plaintiff" refers to Valeria

Haliw. The loss of consortium claim of Ilko Haliw, plaintiff's

husband, is derivative in nature.

     2
       At her deposition, plaintiff admitted that she slipped

on the ice patch; she did not trip on, or over, anything

relating to the actual physical condition of the sidewalk

itself. 


                                  2

But this [time], it happened to rain [before plaintiff’s slip


and fall] and there was ice . . . .”            Marson, who provided aid


to plaintiff just after her fall, stated that plaintiff told


her that she had slipped on the ice that had formed on the


sidewalk.


     Plaintiff     retained     an   engineering      expert,        Theodore


Dziurman, who performed an inspection of the portion of


sidewalk   upon    which   plaintiff       claimed    ice      had   formed.3


According to Dziurman, there was a “depression” where two


slabs of the concrete sidewalk met, although he stated that


there was no separation between the two slabs, and that “it


[was] not any different than [a] normal joint, not unusual.”


It was Dziurman’s opinion that, because of the presence of the


depression,   water      was   allowed     to   “pond”    at    that    point


resulting in the formation of ice under the proper weather


conditions.       When   Dziurman    was    asked    if   the    depression


presented a dangerous or defective condition in the sidewalk


in the absence of ice, the following colloquy ensued:


          Q. When there is no rain and no freezing, is

     there anything particularly defective or dangerous

     about that condition in and of itself?


          A.   It could be dangerous to someone that

     wasn’t expecting a depression there that could

     throw them off stride when they are walking causing

     them to stumble or fall.      Someone riding on a



     3

       We note that Theodore Dziurman’s inspection of the

sidewalk occurred on July 2, 1997.


                                     3

     bicycle if they are going real fast, they could hit

     the bottom of that thing and cause the bike to go

     out of control. There are possibilities of other

     accident   potential   because   of   that   sunken

     condition.


          Q. Do you have any information any of those

     things ever happened to that sidewalk slab?


            A.    No, I don’t.


          Q.   Your statements about what could happen

     are theoretical; correct?


            A.    I think you asked me that.


        As a result of her fall, plaintiff suffered a broken


ankle    that    required    surgical      intervention   and   thereafter


initiated a lawsuit against defendant. In response, defendant


filed a motion for summary disposition, brought pursuant to


MCR 2.116(C)(7) and (10).         The trial court denied defendant’s


motion, and the Court of Appeals, in an unpublished opinion,


affirmed, stating that 


     [i]n addition to the presence of snow and ice,

     plaintiffs allege there was a defect in the

     sidewalk itself, and therefore their claim is not

     barred by the natural accumulation doctrine . . . .

     Here, plaintiffs presented evidence creating a

     genuine issue of material fact regarding whether

     the sidewalk where [plaintiff] fell was reasonably

     safe for public travel. [Issued October 5, 1999

     (Docket No. 206886), slip op at 1-2.]


                            II. STANDARD   OF REVIEW



        We review the grant or denial of summary disposition de


novo.     Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817


(1999).     “MCR 2.116(C)(7) tests whether a claim is barred



                                     4

because of immunity granted by law, and requires consideration


of    all    documentary        evidence        filed    or    submitted      by    the


parties.”          Glancy v Roseville , 457 Mich 580, 583; 577 NW2d


897 (1998). 


       In reviewing a motion for summary disposition brought


under MCR 2.116(C)(10), we must consider the affidavits,


pleadings, depositions, admissions, and documentary evidence


filed in the action or submitted by the parties in the light


most favorable to the party opposing the motion.                            Quinto v


Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996).


Summary       disposition        may     be      granted       if    the    evidence


demonstrates that there is no genuine issue with respect to


any   material        fact,    and   the      moving    party       is   entitled    to


judgment as a matter of law.               Id.    As with motions for summary


disposition,          we      also     review      questions         of    statutory


construction de novo as questions of law.                            Donajkowski v


Alpena Power Co, 460 Mich 243, 248; 596 NW2d 574 (1999).


                           III. GOVERNMENTAL       IMMUNITY



       The governmental tort liability act, MCL 691.1401 et


seq., provides immunity for governmental agencies, including


municipalities like defendant.                   It is well settled in this


state       that    governmental        agencies        are    immune      from    tort


liability while engaging in a governmental function unless an





                                           5

exception applies.4      MCL 691.1407; Nawrocki v Macomb Co Rd


Comm, 463 Mich 143, 156; 615 NW2d 702 (2000); Suttles v Dep’t


of Transportation, 457 Mich 635, 641; 578 NW2d 295 (1998);


Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 591;


363 NW2d 641 (1984).     The immunity conferred on governmental


agencies   is   broad,   and   the    exceptions   narrowly   drawn.5


Nawrocki, supra at 149; Ross, supra at 618. 


     The only exception implicated in the present case is the


so-called “highway exception” to governmental immunity, which


is set forth in MCL 691.1402, and provides in part:


          Each governmental agency having jurisdiction

     over a highway shall maintain the highway in

     reasonable repair so that it is reasonably safe and

     convenient for public travel. A person who sustains

     bodily injury or damage to his or her property by

     reason of failure of a governmental agency to keep

     a highway under its jurisdiction in reasonable

     repair and in a condition reasonably safe and fit

     for travel may recover the damages suffered by him

     or her from the governmental agency.[6]



     4
       The five statutory exceptions to governmental immunity

are: the “highway exception,” MCL 691.1402, the “motor vehicle

exception,” MCL 691.1405, the “public building exception,” MCL

691.1406, the “proprietary function exception,” MCL 691.1413,

and the “governmental hospital exception,” MCL 691.1407(4).

     5

       Although governmental agencies may be under a wide

variety of duties, with regard to services that they provide

to the public, only those enumerated within the statutorily

created exceptions are legally compensable if breached. MCL

691.1407; Nawrocki, supra at 157.

     6

       Plaintiff’s accident occurred on January 29, 1996.

Accordingly, the statutory language applicable in this case is

that found in 1990 PA 278, § 1, effective December 11, 1990,

rather than the current statutory language, which was enacted

                                               (continued...)


                                 6

Pursuant to subsection 1402(1), the duty to maintain public


sidewalks in “reasonable repair” falls on local governments,


including cities, villages, and townships. See Chaney v Dep’t


of Transportation, 447 Mich 145, 172, n 2; 523 NW2d 762


(1994); Mason v Wayne Co Bd of Comm'rs, 447 Mich 130, 136, n


6;   523   NW2d   791   (1994).   Accordingly,     a   municipality’s


maintenance and repair of its sidewalks is the performance of


a governmental function.      MCL 691.1401(f).7


      However, as we noted in Suttles, simply asserting that an


action falls within the “highway exception” to governmental


immunity is not the end of the analysis:


           In every instance where a plaintiff alleges a

      cause of action based on the highway exception to

      governmental   immunity,   MCL  691.1402(1);   MSA

      3.996(102)(1), the court must engage in a two-step

      analysis. [Id. at 651, n 10.]


First, it must be determined whether the plaintiff has pleaded




      6
      (...continued)

by 1999 PA 205, and which became effective regarding causes of

action arising on or after December 21, 1999.

      7
      For purposes of application of the highway exception to

a municipality, MCL 691.1401 provides: (1) “governmental

agency” means the state or a “political subdivision”; (2)

“political subdivision” means a “municipal corporation”; and

(3) “municipal corporation” means a “city, village, or

township.” Subsection 1401(a),(b),(d). Moreover, “highway”

means a public highway, road, or street that is open for

public travel and includes bridges, sidewalks, trailways,

crosswalks, and culverts on the highway. Subsection 1401(e).

“Governmental function,” as used in the governmental immunity

act, is “an activity that is expressly or impliedly mandated

or authorized by constitution, statute, local     charter or

ordinance, or other law.” Subsection 1401(f).


                                  7

a cause of action in avoidance of governmental immunity.


Second, where a plaintiff successfully pleads in avoidance of


governmental immunity, i.e., that the alleged injury occurred


in a location encompassed by MCL 691.1402(1), the plaintiff


must       still   prove,      consistent     with    traditional      negligence


principles, the remaining elements of breach, causation, and


damages contained within the statute. Id., see also Nawrocki,


supra at 172, n 29.             The statute at issue contains the duty


element       of       these   principles;      namely,    the      duty      of   a


municipality to “maintain” the sidewalk “in reasonable repair


so that it is reasonably safe and convenient for public


travel.” MCL 691.1402(1).8              See Johnson v Pontiac, 276 Mich


103, 105; 267 NW 795 (1936), explaining that “[t]he liability


of cities for this class of cases is statutory . . . and it is


the    duty       of   defendant   to   keep    its    sidewalk     in   repair.”


Concepts such as the “natural accumulation” doctrine, see


below, are pertinent to this second step of the analysis. See


Johnson, supra, stating that a plaintiff cannot recover if an


injury       is    due   “solely   to   the    presence    of    ice     or   snow”


(emphasis added).





       8
       “Courts should take care not to confuse their separate

inquiries into [governmental] immunity and negligence.” Canon

v Thumudo, 430 Mich 326, 335; 422 NW2d 688 (1988).


                                         8

                 IV.    THE   NATURAL   ACCUMULATION DOCTRINE



     “It has long been the law in this state . . . that a


governmental     agency’s        failure       to    remove      the    natural


accumulations of ice and snow on a public highway does not


signal     negligence    of     that      public    authority.”        Stord   v


Transportation Dep’t, 186 Mich App 693, 694; 465 NW2d 54


(1991).     The following cases present an overview of the


“natural    accumulation”       doctrine      as    it   relates   to    public


sidewalks, and municipal defendants.


     In Mayo v Village of Baraga, 178 Mich 171; 144 NW 517


(1913), the plaintiff brought an action to recover damages for


injuries sustained as a result of falling on ice and snow on


a sidewalk.    This Court determined that


     [i]f a liability exists, it is because of a defect

     in the [sidewalk]; and, if ice frozen upon a

     sidewalk is a defect when it is caused by water

     flowing from a roof, why should it not be when it

     flows from a vacant lot, or when it falls upon the

     [side]walk, or is caused by the melting of snow

     upon or adjoining such a walk? If the liability of

     a city for damages resulting from a failure to keep

     its highways in a reasonably safe condition for

     travel extends to cases where such condition is not

     ascribable to defects in the construction and

     maintenance of the way, or to the action of the

     officers to the city or their negligence in the

     performance of a duty, it may be contended that

     cities must cause the streets to be patrolled, in

     search of bricks or coals that fall from wagons,

     for the treacherous banana peel, upon which the

     unwary are sure to slip, and for tacks or bits of

     glass or other rubbish, which puncture the tires of

     bicycles. [S]uch are not defects in the highway.

     [Id. at 173-174.]



                                        9

     In Hopson v Detroit, 235 Mich 248; 209 NW 161 (1926), a


case involving facts similar to the instant one, the plaintiff


was walking on a public sidewalk.      There was a depression in


the sidewalk where the concrete had settled and disintegrated;


this condition made the sidewalk lower in the center. In this


depression, water from natural causes had settled, with ice at


the bottom and a thin layer of water on top.          The plaintiff


slipped on the ice that had formed in the depression, fell and


was injured.     The plaintiff’s theory of liability was that


when two causes combine to produce an injury to a traveler


upon a public sidewalk, both of which are in their nature


proximate–the one being a defect in the sidewalk, and the


other     some   occurrence   for    which   neither     party   is


responsible–the municipality is liable, provided the injury


would not have been sustained but for the defect.       Id. at 250.


This Court concluded that the defendant was not liable for the


plaintiff’s injury.


        Stating that “[i]n order to employ the doctrine of a


slippery place precipitating into an unsafe place, there must


be an unsafe place to slip into,” this Court held that the


rule obtaining in Michigan places no liability upon the


municipality for ice forming in this way.       Id.     Rather, the


rule under which a plaintiff could recover is that where two


causes combine to produce an injury to a pedestrian using a



                               10

sidewalk, one of the causes at least must be a defect in the


sidewalk rendering the sidewalk not reasonably safe for public


travel at any time.    “Ice on a sidewalk, whether on level


places or in depressions, constitutes no defect entailing


liability.” Id. at 250-251 (emphasis added). The depression,


no matter what caused it, did not render the sidewalk out of


repair “within the meaning of our statute relative to the duty


of defendant to keep the walk in repair and reasonably safe


for public travel.”   Id. at 251.


     In determining that the plaintiff in Hopson could not


prevail, this Court stated that


     wherever ice or snow is the sole proximate cause of

     the accident, there shall be no liability, but

     where at the time of the accident there is any

     other defect to which, as a proximate cause, the

     accident is in part attributable, there may be a

     liability notwithstanding the fact that it also may

     be attributable in part to ice or snow. This other

     defect, however, is not a proximate cause within

     the meaning of this rule, simply because it causes

     the accumulation of the ice or snow.             In

     considering whether, “at the time of the accident,

     the   way   is   otherwise   reasonably    safe and

     convenient,” the attention is to be directed to the

     actual physical condition of the way for the

     purpose of ascertaining whether there is at that

     time any other danger to the steps of the traveler

     than that arising from the presence of ice or snow;

     if there be no other danger, then for the time

     being the way is “otherwise reasonably safe and

     convenient.” [Id. at 252, quoting Newton v

     Worcester,   174   Mass   181,   187;   54   NE 521

     (1899)(emphasis added).]


     In Johnson, supra, the plaintiff suffered injuries as the




                             11

result of a fall sustained while walking over or around a


piece of defective sidewalk. There was an accumulation of ice


and snow upon the sidewalk.                 The claimed defect in the


sidewalk, an upheaval, was likely caused by the roots of a


nearby tree.   Applying 1929 CL 4223, which established a duty


within the defendant to keep its sidewalks in reasonable


repair, this Court determined that where the plaintiff’s slip


and fall was due solely to the presence of the ice and snow,


she could not prevail in her cause of action against the


governmental agency.       Id. at 105 (emphasis added).


     Accordingly, the natural accumulation doctrine provides


that a governmental agency’s failure to remove ice or snow


from a highway does not, by itself, constitute negligence.


Pursuant to this doctrine, plaintiff must prove that there was


an existing defect in the sidewalk rendering it not reasonably


safe for public travel.


                      V.   ANALYSIS   AND APPLICATION



     Turning to the present case, we apply this longstanding


rule and conclude that the natural accumulation of ice on the


sidewalk,   without    more,   did      not   constitute       a   breach   of


defendant’s    statutory    duty      to    maintain     the   sidewalk     in


reasonable repair.     Further, plaintiff cannot prove that her


injuries resulted from a defect on the sidewalk, as distinct





                                      12

from    the   accumulation   of   ice.9   Although   plaintiff   has



       9

        The dissent’s dominant theme is that we have invaded

the province of the finder of fact by concluding that the

accumulation of ice at this location was natural. In support

of this, the dissent asserts that “[a] determination whether

the sidewalk was in ‘reasonable repair’ is a precursor to the

issue whether the accumulation was natural, which is a

precursor to application of the natural accumulation

doctrine.”   Slip op at 5.      The dissent also sets forth

plaintiff’s expert’s reference to the accumulation of ice that

occurred here as an “unnatural accumulation,” and further

asserts that whether the claimed depression was a defect

rendering the sidewalk not reasonably safe was a question of

fact. Slip op at 6-7. This, in our judgment, is an incorrect

analysis of the law.


     In Hopson this Court rejected the dissent’s argument that

a depression that allows water to accumulate and freeze is an

underlying defect precluding application of the natural

accumulation doctrine. “Ice on a sidewalk, whether on level

places or in depressions, constitutes no defect entailing

liability.”   Id. at 250-251 (emphasis added).      The Court

continued: “[t]he rule, and the only rule, under which

plaintiff could recover is that, where two causes combine to

produce an injury to a pedestrian using a sidewalk, one of the

causes at least must be a defect in the walk, rendering the

walk not reasonably safe for public travel at any time.” Id.

at 250 (emphasis added).         As the Supreme Court of

Massachusetts observed in Newton, supra at 187, a case upon

which Hopson relied:


            [T]he real question is not simply whether the

       way, with no ice or snow upon it, is defective, but

       whether, if there be such a defect, it was

       operative as such at the time of the accident, and

       was in part the proximate cause of it. If there be

       such an operative defect, then there may be a

       liability, even although the accident be due in

       part to ice or snow; otherwise, there is no such

       liability, even if the defect was the cause of the

       accumulation of ice or snow.


Therefore, an independent defect, other than the accumulation

of ice or snow, must be at least a proximate cause of a

plaintiff’s injury in order for the plaintiff to recover under

the statute. It is clear from the testimony of plaintiff,

                                                (continued...)


                                  13

properly pleaded that her claim falls within the “highway


exception” to governmental immunity found in MCL 691.1402(1),


she cannot establish an injury caused by a defect in the


sidewalk     under     traditional         negligence     principles.


Specifically, plaintiff cannot demonstrate that the claimed


depression was a proximate cause of her slip and fall for


purposes of the highway exception under the rule set forth in


Hopson, supra. 


     To    establish   a   prima   facie    case   of   negligence,   a


plaintiff must be able to prove four elements: (1) a duty owed


by the defendant to the plaintiff, (2) a breach of that duty,


(3) causation, and (4) damages. Schultz v Consumers Power Co,


443 Mich 445, 449; 506 NW2d 175 (1993).            Proof of causation


requires both cause in fact and legal, or proximate, cause.


Skinner v Square D Co, 445 Mich 153, 162-163; 516 NW2d 475


(1994); Davis v Thornton, 384 Mich 138, 145; 180 NW2d 11


(1970).    Cause in fact requires that the harmful result would


not have come about but for the defendant's negligent conduct.


Skinner, supra at 163, citing Prosser & Keeton, Torts (5th


ed), § 41, p 266).         “On the other hand, legal cause or



     9
      (...continued)

plaintiff’s expert, and the eyewitness, that there was no such

defect that proximately caused plaintiff’s fall in the instant

case. Thus, we conclude in accord with Hopson, that plaintiff

failed to establish a genuine issue of material fact whether

a defect, rather than the accumulated ice alone, caused her

injury.


                                   14

‘proximate        cause’      normally    involves      examining     the


foreseeability of consequences, and whether a defendant should


be held legally responsible for such consequences.”            Skinner,


supra      at   163.   Here,   in   our   judgment,    plaintiff    cannot


demonstrate that her injury was caused by a breach of the duty


set forth in MCL 691.1402(1).


      As in Hopson, plaintiff cannot demonstrate that it was


the combination of ice and a defect in the sidewalk that


caused her to slip and fall.          See id. at 250-252.     Plaintiff


admitted,       with   Anna    Marson’s    testimony    supporting     the


admission, that she slipped on the ice that was present on the


sidewalk; she did not trip over, or lose her balance in any


way     because of the claimed depression in the sidewalk.             The


sole proximate cause of plaintiff’s slip and fall was the ice;


there was no persistent defect in the sidewalk rendering it


unsafe for public travel at all times that, in combination


with the ice, caused the incident.10


      10
       Even if we were to assume that the claimed depression

here represented a condition that rendered the sidewalk not

“reasonably safe for public travel” at all times, under the

facts of the present case the natural accumulation of ice in

the depression effectively vitiated the unsafe condition

presented by the depression itself.


     This point, perhaps, is better illustrated by way of

example.   Under the first scenario, a six-foot deep hole

exists in the middle of a sidewalk.           Water naturally

accumulates in the top of the hole and, because of the weather

conditions, freezes so that, in effect, the hole no longer

exists. While walking upon the sidewalk, an individual steps

                                                (continued...)


                                    15

         Simply put, a plaintiff cannot recover in a claim against


a governmental agency where the sole proximate cause of the


slip and fall is the natural accumulation of ice or snow.


This is true even where the ice or snow naturally accumulates


in   a        portion   of   the   highway    (i.e.,   sidewalk)    that   was


otherwise not “reasonably safe and convenient for public


travel . . . .” Hopson, supra at 250.                   Rather, there must


exist the combination of the ice or snow and the defect that,


in tandem, proximately causes the slip and fall.                   Thus, even


if we accept plaintiff’s claim, in the present case, that a


depression in the sidewalk allowed the ice to form and be


present, we conclude that such a depression, under the facts


here, did not render the sidewalk out of repair within the


meaning of subsection 1402(1).11



         10
      (...continued)

on the ice, slips, and falls, thereby incurring injury. Under

this scenario, it can only be said that the sole proximate

cause of the slip and fall was the presence of the natural

accumulation of ice.    A different outcome, however, would

present under a scenario where the same six-foot hole in the

sidewalk is present, but the ice forms several inches below

the top of the hole.     While walking upon the sidewalk, an

individual steps on the edge of the hole, which causes him to

momentarily lose his balance.     While attempting to remain

upright, this individual slips on the ice that had naturally

accumulated in the hole. Under this scenario, it must be said

that, in tandem, the defect and the natural accumulation of

ice combined to proximately cause the slip and fall.

         11
        The prevailing rule from Hopson, supra at 250-51,and

Johnson, supra at 105, is that a plaintiff cannot recover if

an injury is due solely to the presence of ice on the

sidewalk, even if a depression in the sidewalk caused the

                                              (continued...)


                                        16

                          VI.   CONCLUSION



     The claimed sidewalk depression in the present case


merely allowed the natural accumulation of ice to form, and


factually presented no “other danger to the steps of the


traveler than that arising from the presence of the ice . . .


.”   Hopson, supra at 252.         As in Hopson, we reject the


proposition that the presence of ice alone, which naturally


accumulates and which is the sole proximate cause of a slip


and fall, satisfies the remaining elements of the negligence


analysis employed in actions against governmental agencies.


In the absence of a persistent defect in the highway (i.e., a


sidewalk), rendering it unsafe for public travel at all times,


and which combines with the natural accumulation of ice or


snow to proximately cause injury, a plaintiff cannot prevail


against an otherwise immune municipality.


     The judgment of the Court of Appeals is reversed, and we


remand this case to the Macomb Circuit Court for entry of an


order granting defendant’s motion for summary disposition.


     CORRIGAN , C.J., and WEAVER , TAYLOR , and YOUNG , JJ., concurred




     11
      (...continued)

accumulation.    In such cases, the depression is not a

proximate cause of the plaintiff’s injury. Hopson, supra at

250-251. Our law has developed this test specifically in the

context of the natural accumulation doctrine and the highway

exception to governmental immunity.        MCL 691.1401(e).

Hopson’s formulation of proximate cause is limited to those

cases that have arisen in this specific context. 


                                 17

with MARKMAN , J.





                     18
                 S T A T E    O F   M I C H I G A N


                             SUPREME COURT





VALERIA HALIW and

ILKO HALIW,


     Plaintiffs-Appellees,


v                                                              No. 115686


THE CITY OF STERLING HEIGHTS,


     Defendant-Appellant.

___________________________________

KELLY, J. (dissenting).


     I believe that plaintiffs established questions of fact


about whether (1) the claimed depression in the sidewalk


rendered the sidewalk no longer reasonably safe, (2) the ice


or   snow   on   which   Valeria    Haliw     fell   was   a    "natural


accumulation," and (3) her injuries were proximately caused by


the sidewalk's condition. 


     The majority's resolution of these factual disputes is an


impermissible invasion into the province of the finder of


fact. Because the issues should be left for the finder of


fact, I would affirm the Court of Appeals decision that upheld

the trial court's denial of defendant's motion for summary


disposition.


                              I


     In the proceedings below, defendant moved for summary


disposition under MCR 2.116(C)(7) and (C)(10). It argued that


summary   disposition   was   proper   because    the   natural


accumulation doctrine barred plaintiffs' claim, and there was


no defect in the sidewalk in question. Plaintiffs retorted


that there were questions of fact whether the sidewalk was


defective because the depression in it created an unnatural


accumulation of ice and snow. Therefore, they    contended, the


natural accumulation doctrine has nothing to do with the case.


     In denying defendant's motion, the trial court stated:


          The Court: It seems [plaintiff] does have

     someone who seems to have expertise–a great deal of

     expertise who is saying it is a year-around defect,

     not just an accumulation of ice and no defect if it

     is a constant problem and he is going to testify to

     that, and if that–from that this Court's specific

     perspective raises an issue of fact, you are saying

     that by a preponderance that doesn't meet the

     standard?


          I am not disposed to agree with your position

     on that, so you have something else you would like

     to make me aware of regarding why this isn't

     something that a jury must listen to?


          [Defendant's counsel]: I have nothing else

     with regard to the expert, your honor. . . .


          The Court: . . . [T]his Court does believe

     that plaintiff has shown–this fact issue has been

     raised by provisions raised by the expert and his

     credentials and you [defendant] may provide your


                              2

        own expert, but if a finder of fact should have the

        opportunity, then, to weigh the issues in this

        case, and I will deny the motion for summary

        disposition.


        In affirming, the Court of Appeals rejected defendant's


claim     that   the   natural    accumulation      doctrine   barred


plaintiffs' claim.1 It reasoned:


             Defendant's argument fails, however, because

        plaintiffs do not allege that Valeria Haliw fell

        because of a natural accumulation of ice and snow.

        Rather, plaintiffs claim that the fall was caused

        by an unnatural accumulation of ice and snow

        resulting from a depression in the sidewalk. Thus,

        in addition to the presence of snow and ice,

        plaintiffs allege that there was a defect in the

        sidewalk itself, and therefore their claim is not

        barred by the natural accumulation doctrine. [Slip

        op, pp 1-2 (citation omitted).]


        The appellate court disagreed, also, with defendant's


position that the alleged defect was insufficient to support


the imposition of liability. It reasoned that a factual


dispute existed whether the sidewalk where Valeria Haliw fell


was   reasonably   safe   for    public   travel.   It   rejected   as


unpersuasive     defendant's     argument   disputing    plaintiffs'


evidence, explaining that a court "may not assess credibility


or determine facts when considering a motion for summary


disposition." Id. at 2.


                                  II


        This Court reviews a trial court's decision concerning a



      1
      Unpublished opinion per curiam, issued October 5, 1999,

(Docket No. 206886).


                                  3

summary disposition motion de novo. Maiden v Rozwood, 461 Mich


109, 118; 597 NW2d 817 (1999). Summary disposition is proper


under MCR 2.116(C)(7) where a claim is barred because of


immunity granted by law.


     A motion under MCR 2.116(C)(10) tests the factual support


of a plaintiff's claim. See Smith v Globe Life Ins Co, 460


Mich 446, 454; 597 NW2d 28 (1999). In reviewing it, the court


considers the pleadings, affidavits, and other documentary


evidence filed or submitted by the parties in the light most


favorable to the nonmoving party. The motion is granted if the


documentary evidence shows that no genuine issue of material


fact exists, and the moving party is entitled to judgment as


a matter of law. See Spiek v Dep't of Transportation, 456 Mich


331, 337; 572 NW2d 201 (1998). Courts may not determine facts


on a motion for summary disposition. Questions of fact must be


settled by the finder of fact. See Zamler v Smith, 375 Mich


675, 679; 135 NW2d 349 (1965); Miller v Miller, 373 Mich 519,


526; 129 NW2d 885 (1964).


                               III


     A government agency has a statutory duty to keep highways


under its jurisdiction in reasonable repair so that they are


reasonably   safe   and   convenient   for   public   travel.   MCL


691.1402(1). At least in a municipal setting, a "highway" is


defined to include sidewalks. MCL 691.1401(e).



                                4

     Here, it is undisputed that plaintiffs' claim falls


within the "highway exception" to governmental immunity found


in MCL 691.1402(1). Nevertheless, the majority determines that


summary disposition in favor of defendant is proper. It


reasons that the "claimed depression in the sidewalk was not


an independent defect . . . ." It asserts, also, that the


natural accumulation of ice or snow on the sidewalk does not


give rise to an actionable breach of defendant's duty. Slip op


at 1. 


     I agree that the presence of a natural accumulation of


ice or snow does not, itself, constitute a breach of the


municipality's    statutory   duty.   However,   it   is   debatable


whether the accumulation in the present case can be deemed


"natural."   A   determination   whether   the   sidewalk    was   in


"reasonable repair" is a precursor to the issue whether the


accumulation was natural, which is a precursor to application


of the natural accumulation doctrine.2 Therefore, a proper


resolution of this case must begin with a decision whether, as


a question of fact, the sidewalk was in "reasonable repair."


     In opposition to defendant's summary disposition motion,


plaintiffs introduced a report from their expert, Theodore



     2
      See Whinnen v 231 Corporation, 49 Mich App 371, 376-377;

212 NW2d 297 (1973), discussing the relevance of photographs

to the issue of "the combination of defective construction,

inadequate maintenance [of a sidewalk], and a consequent

unnatural or artificial accumulation of ice or snow."


                                 5

Dziurman. Dziurman noted that his inspection of the sidewalk


revealed the following:


          The second and third slabs north of the

     driveway [the site where plaintiff fell3] had

     settled about 2 inches. Water would accumulate in

     this depression.


He then recited what he thought transpired in this case:


          Based on [plaintiff's] deposition transcript,

     she   most  likely   slipped  on   an  "unnatural"

     accumulation of ice which caused her to fall.

     However, on the date of the accident, there was

     also a trip hazard at the same location . . . .


                            * * *


          . . . I believe that [plaintiff's] apparent

     slip and fall occurred due primarily to "defects in

     the walking surface." Due to either poor compaction

     of the "base" material beneath the sidewalk and/or

     due to past tree root growth, at least 2 of the

     sidewalk slabs at this location had settled

     resulting in an unnatural depression in the

     sidewalk.


     Finally, Dziurman summarized his findings as follows:


          There were several defects in the sidewalk in

     front of 36225 Arlene, Sterling Heights, Michigan,

     in January of 1996. These defects had existed for

     several years. The most significant defect was a

     settlement of two slabs resulting in a depression

     that would pond water or ice in a 2 or 3 square

     foot area. This depression was not normal and if

     the sidewalk sections had been properly constructed

     and maintained, there would not have been a

     depression in the sidewalk sections noted on



     3
      In the complaint, plaintiffs claimed that Valeria fell

because of a depression in the sidewalk, among other things.

Anna Marson, the homeowner nearest the sidewalk, testified

that she helped Valeria to her feet after she fell and thought

that she had gone down where the depression existed in the

sidewalk.


                              6

     January 29, 1996 which             created    an    unnatural

     accumulation of ice. 


          Based on weather data for January of 1996,

     there was a source and proper temperatures to allow

     ice to form. In the a.m. of January 29, light snow

     had obscured the ice. As [plaintiff] walked along

     the public sidewalk in front of 36225 Arlene, her

     foot   accidentally   landed   on   the   unnatural

     accumulation of unseen ice causing her to slip and

     fall. . . . 


          The defects in the walking surface allowed ice

     to form and these defects were the proximate cause

     of [plaintiff's] accident. [Emphasis added.]


     In support of its motion, defendant argued that the


report was insufficient to create a factual dispute regarding


the sidewalk's condition. Also, it introduced testimony from


the homeowner nearest the sidewalk, who stated that there was


nothing dangerous about the sidewalk absent snow or ice.


Plaintiffs    countered   with     Dziurman's     testimony   that    the


sidewalk,    without   snow   or   ice,   "could    be   dangerous"    to


pedestrians or bicyclists who were not expecting a depression.


     Construing the evidence in the light most favorable to


plaintiffs, the nonmoving parties below, a jury could infer


that the sidewalk's depression rendered it out of "reasonable


repair."4    Thus, a question of fact existed whether defendant



     4
      See Cornell v City of Ypsilanti, 212 Mich 540, 547; 180

NW 405 (1920), recognizing that "while a municipality is not

liable, as matter of law, for slight depressions in its

sidewalks, such depressions may be of such size, shape and

character as to make the question one of fact" for the jury to

determine. See also Williams v Bay City, 126 Mich 156, 156­
                                                (continued...)


                                   7

breached its statutory duty under MCL 691.1402. See Miller,


supra at 525 (Souris, J., concurring), citing Grand Trunk R Co


v Ives, 144 US 408, 417; 12 S Ct 679; 36 L Ed 485 (1892),


stating that "[u]nless a judge can properly say that all


reasonable men would agree from the undisputed evidentiary


facts that there was or was not negligence, the issue must be


submitted for jury determination . . . ."5


     The factual dispute regarding whether the sidewalk was in


reasonable repair consequently creates a question of fact


whether there was a "natural accumulation" in this case. See


Navarre v Benton Harbor, 126 Mich 618, 619-620; 86 NW 138


(1901), holding that whether the defendant city breached its


statutory duty to keep its sidewalks in reasonable repair must




     4
      (...continued)

157; 85 NW 458 (1901).

     5
      See Pappas v Bay City, 17 Mich App 745, 752-753; 170

NW2d 306 (1969), where the plaintiff introduced evidence that

she stepped on ice covered by snow that had accumulated in a

depression of a sidewalk of at least 2-3/8 inches. The court

held that this evidence created a question for the jury (1)

whether the defendant city breached its statutory duty to keep

the sidewalk in reasonable repair, (2) whether the defect, if

it existed, caused the accumulation of ice, and (3) whether

this was the proximate cause of the plaintiff's injury. Cf.

Hopson v Detroit, 235 Mich 248, 251; 209 NW 161 (1926), where

the plaintiff slipped and fell on ice that had accumulated in

a depression in a public sidewalk. The plaintiff sued the

defendant city, claiming that it was liable for breaching its

duty to keep its sidewalk in reasonable repair. We held that

a directed verdict in favor of the defendant city was proper

because the plaintiff had failed to establish a "culpable

defect in the [side]walk."


                              8

be left for the jury. In that case, the evidence justified the


jury's inference that the sidewalk's "depressed condition . .


. was such as to induce the formation of ice in unusual


quantities . . . ."6 Therefore, by determining that the


sidewalk was not defective and that this case concerns a


"natural accumulation" of ice or snow, the majority has


impermissibly invaded the province of the factfinder. See


Zamler, supra at 679; Miller, supra at 524.


      Alternatively,      the    majority   asserts,        even   if   the


depression in the sidewalk rendered it no longer reasonably


safe,     the   natural    accumulation     of   ice    or     snow     here


"effectively vitiated the unsafe condition." Slip op at 15, n


10. This assertion is flawed because it is based on a premise


that the accumulation here was "natural." Again, the question


of   fact   regarding     the   defective   nature     of   the    sidewalk


precludes making such a determination. See Zamler, supra at


679. 


      Finally, the majority states that summary disposition for


defendant is appropriate because plaintiffs cannot demonstrate




      6
      See also Whinnen, supra at 377, "[i]n almost every case

whether the condition was due to a natural accumulation or an

artificial or unnatural accumulation or condition is one of

fact for the jury." Cf. Woodworth v Brenner, 69 Mich App 277,

281; 244 NW2d 446 (1976), summary disposition in favor of the

defendant city was proper where the only defect that the

plaintiff alleged in the sidewalk was the presence of ice; the

plaintiff failed to allege some defect in the sidewalk itself.


                                    9

that the claimed depression was the proximate cause of the


fall under Hopson, supra. The trial court made no findings


regarding proximate cause. The parties never argued this


issue. Instead, their arguments concerned whether the sidewalk


was in reasonable repair and whether the natural accumulation


doctrine applied. Therefore, I believe it improper to decide


the instant matter on proximate cause grounds. See Miller,


supra.7


     Nevertheless,   given   the       evidence   presented   below,


particularly although not exclusively Dziurman's report, a


factual dispute exists whether Valeria Haliw's injuries were


proximately caused by the condition of the sidewalk. Thus,


defendant is not entitled to summary disposition on this


basis, either.8


                                 IV


     Plaintiffs    established     a    genuine   factual     dispute




     7
      Moreover, the majority's reliance on Hopson is

misplaced. Hopson held that there was no evidence of an actual

defect in the sidewalk. See id. at 251; see also Pappas, supra

at 752, stating that, to reconcile Hopson with other cases

from this Court, it should be read as holding that no actual

defect was shown. Hence, Hopson does not control where, as

here, there is evidence of an actual defect in the sidewalk.

     8
      See Johnson v Marquette, 154 Mich 50, 53-54; 117 NW 658

(1908), finding whether a sidewalk's condition was the

proximate cause of the plaintiff's injury was a question

properly left for the jury. The record showed that the

sidewalk contained an unnatural accumulation of ice or snow.

See also Pappas, supra at 752-753.


                                 10

regarding whether the sidewalk at issue was in reasonable


repair.   Consequently, there is also a question of fact


whether Valeria Haliw slipped on a "natural accumulation" of


ice or snow and whether her injuries were proximately caused


by the sidewalk's condition. Accordingly, I would affirm the


Court of Appeals decision to uphold the trial court's denial


of defendant's summary disposition motion.


     CAVANAGH , J., concurred with KELLY , J.





                               11

