Author(s): John J. Gillooly, Jennifer Bruening

From the Editor

by John J. Gillooly

Complimentary Seminars and Continuing Education

For more than 60 years, Garan Lucow Miller has been providing its clients with what we call “continuing client education”. By teaming up with you and keeping track of current legal issues, many legal expenses are often reduced.

Whether its presenting a GLM seminar or speaking at a seminar sponsored by another organization, members of Garan Lucow Miller are on the road nearly every month educating leaders in government, business and the insurance industry about current trends in the law. Our complimentary seminars are widely known as an important tool in recognizing legal trends. Garan Lucow is offering two free seminars in October:

Garan Lucow Miller’s Second Annual Gateway Breakfast Seminars On Michigan No-Fault and Premises Liability
October 24, 2007 in St. Louis
October 25, 2007 in Kansas City

These seminars are intended to provide the most current updates to those who presently handle claims in these complicated and ever-changing areas. We will also outline the important basics of handling such claims effectively for those who are new to Michigan law or seeking to expand their lines of business.

I will be speaking at two upcoming seminars in October which are sponsored by the MML. On October 12, 2007 in Grand Rapids I will discuss the FOIA and the OMA in two lectures entitled “Understanding FOIA and Making the Proper Responses” and “Open Meetings Act“. I will be presenting similar lectures on October 18, 2007 in Frankenmuth. To register for either of these programs, please visit www.mml.org.

Garan Lucow Miller can also tailor a seminar to meet your specific needs. Please feel free to call me for further details at 313.446.5501. All our best.

Municipal Law Update

by Jennifer Bruening

Highway Exception – Sidewalks

Plaintiff slipped and fell on a sidewalk near her home, injuring her knee. On the night of her fall, her street was closed for construction, so her friend dropped her off in front of a neighbor’s home instead and plaintiff traversed the sidewalk adjacent to the closed road to get to her home. On the walk to her own home, plaintiff fell. The trial court denied defendant’s motion for summary disposition, finding that the highway exception applied to the sidewalk, even though the road itself was closed for repairs. The Court of Appeals reversed, holding that the highway exception applies to sidewalks laying adjacent to public highways. A municipality can suspend its duty to maintain a highway by erecting barricades and closing the road to through traffic. Closing a road to public traffic suspends liability under the highway exception for the road, as well as the adjacent sidewalk. In this case, the road had been closed for construction. Plaintiff fell on the sidewalk next to the closed road. The highway exception does not apply in such a case, therefore summary disposition on behalf of the defendant was appropriate. Marshall v Bay City, unpublished opinion per curiam of the Court of Appeals, issued April 19, 2007 (Docket No. 272139).

Plaintiff lost control of his bike when the bike slid on a slippery surface under a puddle of standing water on the municipal sidewalk. Plaintiff’s expert testified that the sidewalk had an incorrect pitch and a depression in the walkway that caused water and muck to accumulate. The trial court ruled that whether the sidewalk was defective was a question of fact.

The Court of Appeals reversed, citing Haliw v Sterling Heights, 464 Mich 297 (2001), and ruling that plaintiff must show that his injuries resulted directly, not indirectly, from a persistent defect in the sidewalk. In this case, like Haliw, plaintiff showed only that an accumulation of water and other substances caused the accident leading to injury. It is not sufficient to show the presence of an accumulation leading to an accident, regardless of whether a defect caused the accumulation. Plaintiff could not show any sidewalk defect that directly caused his injuries, therefore the municipality was entitled to summary disposition. Burton v Waterford Township, unpublished opinion per curiam of the Court of Appeals, issued April 26, 2007 (Docket No. 274332).

Denial of summary disposition in favor of the municipality was improper in this action involving a dispute about the height differential in a sidewalk plaintiff claimed caused her to fall. MCL 691.1402(a)(2) states that a “discontinuity defect of less than 2 inches creates a rebuttable presumption” that the city maintained the highway, or sidewalk, at issue. In this case, photographs showed a sidewalk differential less than two inches. Plaintiff presented different photographs purporting to show a differential greater than two inches, but her photos did not contradict defendant’s measurements showing that the defect was less than two inches. Other alleged defects in the sidewalk were not relevant to the analysis, because those defects did not cause plaintiff’s fall. Because she could not present any evidence rebutting the presumption that the sidewalk was maintained, defendant was entitled to summary disposition. Baine v City of Inkster, unpublished opinion per curiam of the Court of Appeals, issued April 26, 2007 (Docket No. 274261).

Motor Vehicle Exception
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Plaintiff went to Lincoln High School to watch a football game when Defendant Howard, an athletic trainer for the school district, ran over plaintiff’s foot with a golf cart. Plaintiff’s complaint alleged the defendants negligently operated the golf cart, causing injury to her foot. She argued that immunity was not available pursuant to the motor vehicle exception. The governmental immunity act does not define “motor vehicle,” nor does it reference the vehicle code.

Consequently, the Court defined the term according to its plain meaning. Using this ordinary definition, the Court found that the golf cart constituted a motor vehicle, for which the motor vehicle exception to immunity applied. The defendant school district, therefore, was not entitled to immunity. Defendant Howard, however, was entitled to immunity. The motor vehicle exception acts to modify provisions arising under MCL 691.1405, which only addresses a governmental agency’s immunity. The agency, therefore, was not entitled to immunity pursuant to the motor vehicle exception. Government employees, however, are treated differently than the agencies for which they work, so the Court looked to MCL 691.1407(2) to address whether Howard was entitled to immunity. MCL 691.1407 grants immunity to government employees except when their conduct amounts to gross negligence. Plaintiff admitted in the lower proceedings and on appeal that she was not alleging gross negligence against Howard. Because no gross negligence had been asserted, plaintiff’s action against Howard could not stand, and Howard was entitled to immunity. Overall v Howard, unpublished opinion per curiam of the Court of Appeals, issued April 26, 2007 (Docket No. 274588).