                          STATE OF MICHIGAN

                            COURT OF APPEALS



DEBRA HARPER,                                                        UNPUBLISHED
                                                                     August 30, 2016
               Plaintiff-Appellee,

v                                                                    No. 327573
                                                                     Macomb Circuit Court
CITY OF FRASER,                                                      LC No. 14-002512-NO

               Defendant-Appellant/Third-Party
               Plaintiff,

v

DAN’S EXCAVATING, INC.,

               Third-Party Defendant.


Before: K. F. KELLY, P.J., and M. J. KELLY and RONAYNE KRAUSE, JJ.

PER CURIAM.

       Defendant City of Fraser made a motion for summary disposition in the trial court,
arguing that it was shielded by governmental immunity from liability for damages resulting from
a bicycle accident occurring on a city sidewalk. Defendant appeals as of right the trial court’s
order denying its motion for summary disposition. We affirm.

                          I. FACTS AND PROCEDURAL HISTORY

        On October 30, 2013, plaintiff Debra Harper was riding her bike on the sidewalk along
the western side of Groesbeck Highway, north of 13 Mile Road. Plaintiff alleges that she lost
control of her bicycle when she encountered a portion of the sidewalk that was unpaved, covered
in loose gravel, and had a drop in height from the surface of the rest of the paved sidewalk. As a
result of the incident, plaintiff incurred injuries, including but not limited to; physical pain and
suffering in her back, shoulder, and neck; disability and disfigurement; mental anguish; denial of
social pleasures and enjoyment of life.

       Plaintiff filed a Complaint on June 25, 2014, alleging that defendant did not fulfill their
duty to keep the sidewalk in reasonable repair. On January 16, 2015, defendant filed a Motion
for Summary Disposition pursuant to MCR 2.116(C)(7) and (10), arguing that it is entitled to
governmental immunity and that no issue of material fact exists in the case, and dismissal of
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plaintiff’s complaint is therefore warranted. Plaintiff responded on February 23, 2015, arguing
that an exception to governmental immunity had been satisfied and that summary disposition
would be improper, as issues of material fact exist and need to be decided by a fact finder. A
written opinion and order followed on May 4, 2015, denying defendant’s motion, which
defendant now appeals.

                                   II. STANDARD OF REVIEW

        “We review de novo the trial court’s denial of a defendant’s motion for summary
disposition under MCR 2.116(C)(7) and MCR 2.116(C)(10).” Oliver v Smith, 269 Mich App
560, 563; 715 NW2d 314 (2006). MCR 2.116(C)(7) permits summary disposition when a claim
is barred because of immunity granted by law. “To survive such a motion, the plaintiff must
allege facts justifying the application of an exception to governmental immunity.” Fane v
Detroit Library Com’n, 465 Mich 68, 74; 631 NW2d 678 (2001). MCR 2.116(C)(10) states that
“[e]xcept as to the amount of damages, there is no genuine issue as to any material fact, and the
moving party is entitled to judgment or partial judgment as a matter of law.” MCR
2.116(C)(10). A genuine issue of material fact exists when the record, viewed in the light most
favorable to the nonmoving party, leaves open an issue upon which reasonable minds could
differ. West v General Motors, 469 Mich 177, 183; 665 NW2d 468 (2003). “If the evidence
fails to demonstrate a genuine issue of material fact, the movant is entitled to judgment as a
matter of law.” Blue Harvest, Inc v Department of Transp, 288 Mich App 267, 276; 792 NW2d
798 (2010).

                               III. GOVERNMENTAL IMMUNITY

        Defendant first argues that the trial court erred in denying its motion for summary
disposition because plaintiff did not adequately satisfy a statutory exception to governmental
immunity, and secondly, that the defect in the sidewalk did not violate the statute, as any
discontinuity was under 2 inches. Michigan law states that “[a] municipal corporation in which a
sidewalk is installed adjacent to a municipal, county, or state highway shall maintain the
sidewalk in reasonable repair.” MCL 691.1402a(1). However, “a municipal corporation that has
a duty to maintain a sidewalk under subsection (1) is presumed to have maintained the sidewalk
in reasonable repair,” and in order to overcome that presumption, evidence must be put forth that
the “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 [or] (b) a dangerous condition in the sidewalk itself of
a particular character other than solely a vertical discontinuity.” MCL 691.1402a.

         Plaintiff testified at her deposition that the condition of the defect was as follows: a hole
of approximately five to seven inches deep, sloping down from the existing slab of pavement on
the north side of the hole, covered in loose gravel. This defect was clearly the result of a
construction project occurring on the sidewalk, and unless a highway area is effectively closed to
the public, the duty to keep the highway area in reasonable repair is not suspended despite
ongoing construction. Snead v John Carlo, Inc, 294 Mich App 343, 370; 813 NW2d 294 (2011).
While the discontinuity may not have been precisely vertical, it was alleged to have been well
over the 2 inch minimum needed to satisfy the first prong of the statute. However, even if the
first prong of the statute is not sufficiently evidenced in this case, it is clear that the second prong
of the statute has been met. The steep slope created by the removal of the pavement, covered in

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loose gravel, created a condition that was inherently dangerous to pedestrians, bicyclists, etc.
The sidewalk was not kept in reasonable repair, as the aforementioned status of the sidewalk
created a dangerous condition in the sidewalk itself, and therefore, plaintiff has rebutted the
city’s presumed governmental immunity.

       Additionally, under defendant’s arguments as to why an exception to governmental
immunity cannot be met in this case, it claims that the defect plaintiff fell and was injured upon
should not be considered “sidewalk” under the statute. Sidewalk, as defined by MCL
691.1401(k), and for the purposes of the governmental immunity statute, is “a paved sidewalk
intended for pedestrian use.” Due to the fact that at the time of the accident, the defective area
was not paved, defendant argues the defective area does not come within the scope of the statute.
To hold that the defective area, which was clearly once a part of the paved sidewalk, but was
under construction at the time plaintiff encountered it, should not be considered “sidewalk”
simply because it was not paved at the precise time of injury, would be nonsensical. The defect
on which plaintiff was injured falls well within the scope of the sidewalk statute, so if one or
both of the exceptions to governmental immunity are met, as they are in this case, the
presumption of reasonable repair regarding the defect has been rebutted.

                                IV. ORDINARY NEGLIGENCE

        Defendant also takes issue with several of the allegations contained within plaintiff’s
complaint and demand for jury trial. Paragraphs 9, 12, and 13 contain allegations of defendant
violating duties of ordinary care, failure to inspect, failure to warn, etc. and defendant contends
that because they exceed the limited exceptions to governmental immunity, they must be
precluded. Plaintiff included these allegations in her complaint for the purpose of suggesting an
absence of warning signs or barriers to a portion of sidewalk under construction. To reiterate
what the trial court said in its Opinion and Order denying defendant’s motion for summary
judgment, a governmental agency may suspend its duty to maintain a highway in reasonable
repair while the highway is being improved or repair by closing that portion to public traffic.
Grounds v Washtenaw County Road Com’n, 204 Mich App 453, 456: 516 NW2d 87 (1994).

         When the trial court decided the issues presented in the aforementioned allegations, it had
already concluded that plaintiff had satisfied the requirements of at least one of the exceptions to
governmental immunity, and it was then beginning to analyze whether or not defendant had
properly closed the sidewalk to pedestrian traffic. This is the issue of material fact and therefore
is the reason that summary disposition may not be granted under MCR 2.116(C)(10) at this time.
Any and all factual allegations in plaintiff’s complaint or other pleadings regarding defendant’s
actions, or lack thereof, to close the sidewalk are relevant to defendant’s liability. Defendant has
not provided any legal support for striking any of plaintiff’s allegations at this time and they
should all remain.




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                                      V. CONCLUSION

         The trial court properly denied defendant’s motion for summary disposition, as plaintiff
has rebutted the presumption that defendant kept the sidewalk in reasonable repair. We affirm
the trial court’s decision.

                                                           /s/ Kirsten Frank Kelly
                                                           /s/ Michael J. Kelly
                                                           /s/ Amy Ronayne Krause




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