            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



ALAN DRAKE,                                                        UNPUBLISHED
                                                                   September 10, 2019
               Plaintiff-Appellee,

v                                                                  No. 340975
                                                                   Oakland Circuit Court
CITY OF OAK PARK,                                                  LC No. 2017-158907-NO

               Defendant-Appellant.


Before: K. F. KELLY, P.J., and RIORDAN and GADOLA, JJ.

PER CURIAM.

       Defendant, City of Oak Park, appeals as of right the trial court order denying its motion
for summary disposition premised on governmental immunity. We reverse and remand.

                      I. BASIC FACTS AND PROCEDURAL HISTORY

        On November 15, 2016, plaintiff was jogging on defendant’s sidewalk in front of a home
located at 1407 Ludlow. He asserted that he “was . . . suddenly and violently caused to trip and
fall” by a 3 ½ inch vertical discontinuity in the sidewalk. Plaintiff contended that he suffered
severe injuries as a result. He filed a complaint on May 23, 2017, alleging negligence,
specifically challenging defendant’s failure to maintain the sidewalk in a safe condition and
asserting that the defect existed for more than 30 days before his injury such that defendant knew
or should have known of the condition. The complaint acknowledged that the statute governing
municipal liability for maintenance of sidewalks was recently amended on January 4, 2017, but
claimed that the amendment had no application because it did not apply retroactively.

        On June 20, 2017, defendant filed a motion to dismiss pursuant to MCR 2.116(C)(7), (8),
and (10), alleging that MCL 691.1402a was amended to allow it to raise a defense that the
condition was open and obvious. Defendant asserted that it was entitled to summary disposition
because the condition was open and obvious where an average user with ordinary intelligence
would have discovered the danger and the risk upon casual inspection. It offered the
photographs of the area purportedly to demonstrate that the sidewalk’s condition was clearly
visible to an ordinary user upon casual inspection. Further, defendant contended that there were
no special aspects to the open and obvious condition that made the risk unreasonably dangerous.


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        On August 24, 2017, plaintiff filed an answer in opposition to the dispositive motion.
Plaintiff asserted that his claim arose on November 15, 2016, but the statutory amendment did
not take effect until January 4, 2017. Because the statute did not contain any reference to
retroactivity, plaintiff alleged that any amendment should be applied prospectively only.
Plaintiff further contended that the defect was in excess of two inches, the defect was in
existence for more than 30 days, and therefore, plaintiff was entitled to summary disposition
pursuant to MCR 2.116(I)(2) with a trial necessary to address damages only.

        In reply, defendant asserted that MCL 691.1402a was entitled to retroactive application
because the statute did not impact vested rights, and plaintiff failed to challenge the open and
obvious nature of the condition of the sidewalk. Following oral argument, the trial court denied
defendant’s motion for summary disposition, holding that the statutory amendment was
presumed to apply prospectively and there was no clear manifestation of the intent to grant
retroactive application by the Legislature. In light of the holding that the statute was given
prospective application only, the court did not address whether the condition of the sidewalk was
open and obvious. The trial court also denied summary disposition to plaintiff pursuant to MCR
2.116(I)(2), concluding that there were factual issues regarding defendant’s knowledge of the
defect and any possible comparative negligence by the plaintiff. From this ruling, defendant
appeals.

                       II. LEGAL STANDARDS AND APPLICATION

       Appellate courts review a trial court’s decision on a motion for summary disposition de
novo. Magley v M & W Inc, 325 Mich 307, 402; 926 NW2d 1 (2018). The application of
governmental immunity and a statutory exemption to governmental immunity also present
questions of law subject to review de novo. Petersen Fin LLC v City of Kentwood, 326 Mich
App 433, 441; 928 NW2d 245 (2018). Summary disposition is proper pursuant to MCR
2.116(C)(7) when a claim is barred premised on “immunity granted by law.” When there is no
pertinent factual dispute, the issue of whether a claim is barred by MCR 2.116(C)(7) presents a
question of law for the court to decide. Snead v John Carlo, Inc, 294 Mich App 343, 354; 813
NW2d 294 (2011). “If, however, a pertinent factual dispute exists, summary disposition is not
appropriate.” Id.

       The government tort liability act (GTLA), MCL 691.1401 et seq., entitles a governmental
agency to immunity from tort liability if the agency was engaged in a governmental function
unless an exception applies. Johnson-McIntosh v City of Detroit, 266 Mich App 318, 322; 701
NW2d 179 (2005). The highway exception to governmental immunity, MCL 691.1402(1)
provides, in pertinent 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.


                                               -2-
The term “highway” is defined to “include[] a bridge, sidewalk, trailway, crosswalk, or culvert
on the highway.” MCL 691.1401(c). Pursuant to MCL 691.1402a, municipalities have a duty to
maintain sidewalks in reasonable repair and states:

       (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 subjection (3) has been rebutted is a question of
       law for the court.

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

       (6) A municipal corporation’s liability under subsection (1) is limited by section
       81131 of the natural resources and environmental protection act, 1994 PA 451,
       MCL 324.91131.

MCL 691.1402a was amended effective January 4, 2017, following the passage of 2016 PA 419,
with the substantive change to the statute being the allowance of the open and obvious defense to
municipalities.

       In the present case, the parties acknowledge that plaintiff’s alleged injury occurred on
November 15, 2016, before the statutory amendment to MCL 691.1402a became effective on
January 4, 2017. However, the complaint was filed after the amendment that permits a
municipality to advance an open and obvious defense to a claim for breach of duty to maintain a
sidewalk. Thus, the parties dispute the applicability of the open and obvious defense to this case.
However, the dispute regarding the retroactive or prospective applicability of the statutory
amendment was recently resolved in Buhl v City of Oak Park, ___ Mich App ___, ___; ___
                                                -3-
NW2d ___ (2019) (Docket No. 340359). The Buhl majority held that “the Legislature’s
enactment of 2016 PA 419 . . . overcomes the presumption for prospective application and thus
has retroactive effect to events which preceded its enactment,” and therefore, a municipality was
entitled to utilize the open and obvious defense. Id. at ___; slip op at 17. We must follow the
precedent established by Buhl. MCR 7.215(C)(2), (J)(1). Accordingly, we reverse the trial
court’s holding that MCL 691.1402a applies prospectively only and remand for the trial court to
address the application of the open and obvious defense.

        Reversed and remanded for proceedings consistent with this opinion. We do not retain
jurisdiction. Defendant, the prevailing party, may tax costs.

                                                           /s/ Kirsten Frank Kelly
                                                           /s/ Michael J. Riordan
                                                           /s/ Michael F. Gadola




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