Rosalind Rochkind (P23504) | Garan Lucow Miller, P.C. | 1000 Woodbridge Street | Detroit, MI 48207-3108 | 313-446-5522 | [email protected]

Michigan Municipal League Liability and Property Pool (Pool)

The Legislature intended that §1402a(2) apply to discontinuities in sidewalks that are adjacent to state, county and city roads. The immunity available to governmental entities is broad
and the exceptions to that immunity are to be narrowly
construed. The plain language of §1402a(2) compels the conclusion that the Court of Appeals properly construed that
subsection to apply to sidewalks adjacent to state, county,
and city highways. The interpretation advanced by plaintiff would render the two-inch rule inapplicable to sidewalks adjacent to city highways and there is no indication of such legislative intent. The procedures adopted on remand should facilitate the early dtermination of the city’s immunity, including consideration of a re-filed motion for summary disposition.

The Michigan Supreme Court unanimously concluded that an individual who trips and is injured on a sidewalk adjacent to a’ county highway must, in order to establish that the municipality is liable, overcome a rebuttable inference. The rebuttable inference, known as the “two-inch rule,” is the presumption that the sidewalk was properly maintained if the “discontinuity defect” in the sidewalk is ‘less than two inches.’

Plaintiff Robinson tripped on a sidewalk adjacent to Michigan Avenue, a state trunkline highway, in Lansing and filed suit. Plaintiff alleged that the city breached its duty under MCL 691.1402(1) to maintain the sidewalk in reasonable repair and in a condition reasonably safe for public travel. The city answered and moved for summary disposition under MCR 2.116(C)(7) (the
defense of governmental immunity), arguing that Robinson had not shown that the sidewalk was not in reasonable repair, and relying on the “two-inch” rule set forth in MCL 691.1402a(2).
MCL 691.1402a(2) provides a rebuttable inference of reasonable repair by a municipal corporation where a discontinuity defect of a sidewalk is less than two inches. Robinson then brought a motion to strike the city’s defense to the extent it relied on the two-inch rule, arguing that MCL 691.1402a only applied to sidewalks next to county highways, not state trunk line highways like Michigan Avenue. The city responded, arguing that legislative history andsubsequent caselaw supported its claim that the statute provided a rebuttable inference of reasonable repair for a discontinuity defect of less than two inches in favor of all municipal
corporations for sidewalks adjacent to any public roadway, including state trunk line highways, city streets, and county roads. The trial court granted the motion to strike.
Thereafter, the trial court heard the city’s motion for summary disposition. Although in its brief in support of the motion the city argued that, regardless of the two-inch rule, Robinson
had not sufficiently pleaded that the sidewalk was not in reasonable repair and not reasonably safe for public travel, the city at the motion hearing argued only that the two-inch rule should apply. The trial court denied the motion “in view of the court’s granting [Robinson’s motion regarding the two-inch rule].” The trial court made no other finding that the sidewalk was not in reasonable repair and was unsafe for public travel.