Amicus Brief

Diane Gadigian v City of Taylor

Case Year: 2010
Case Forum: Michigan Supreme Court
Keywords: sidewalks, governmental immunity, two-inch rule, proximate cause
Amicus Counsel:

Gerald A. Fisher (P13462) | 6745 Parke Lake Drive | Clarkston, MI 48346

CoAmicus Parties:

1. Michigan Townships Association (MTA)
2. Michigan State Bar Public Corporation Law Section (PCLS)
3. Michigan Municipal League Liability and Property Pool (Pool)


From a broad policy point of view, the prospect of injury is presented if sidewalks are not maintained in a condition of reasonable repair. Likewise, the prospect of injury exists if sidewalks are not provided at all due to an unreasonable standard of maintenance. Clearly willing to grant immunity with regard to sidewalks that are not in perfect condition, the legislature has established a compromise that recognizes that all defects that could cause accidents are not actionable, and that up to a certain point, there is a personal responsibility on the part of individuals to avoid injury. The compromise of the legislature expresses that “[a] discontinuity defect of less than 2 inches creates a rebuttable inference that the municipal corporation maintained the reasonable repair.” MCL 691.1402a(2). In facing summary disposition motions based on the rebuttable inference, plaintiffs in cases such as this may file an affidavit seeking to “lift the veil of immunity.” By application of MCR 2.116(G)(4), an affidavit containing only conclusions and generalities is insufficient. An affidavit must present specific facts showing a particular defect exactly where plaintiff fell, and that such defect proximately caused plaintiff’s injury. In this case, Plaintiff filed an affidavit presenting only conclusions and generalities–it fails to articulate specific facts demonstrating that, in spite of a discontinuity that was less than two inches, there was a dangerous condition of a particular character in a specified location that was a proximate cause of injury. Essentially, the Court of Appeals, in a published decision, simply glossed over the overarching principle that immunity conferred upon government agencies is broad, and that statutory exceptions are to be narrowly construed. Likewise, the Court of Appeals neglected to require a presentation of specific facts identifying a particular defect in a specified location that was the proximate cause of Plaintiff’s injury, the showing required in order to rebut the inference of reasonable repair. The decision subjects municipalities to trials on the merits based upon the general reasonableness standard with regard to substantially all sidewalk defects. This is contrary to the fundamental intent of Michigan law and contrary to the underlying public policy established in the Michigan Government Tort Liability Act.


By order of November 19, 2009, the application for leave to appeal the January 27, 2009 judgment of the Court of Appeals was granted. On order of the Court, leave to appeal having been granted and the briefs of the parties having been considered, we VACATE our order of November 19,
2009. Pursuant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we AFFIRM the result reached by the Court of Appeals in light of our decision in Robinson v City of Lansing, 486 Mich ___ (Docket No. 138669, decided April 8, 2010), which held that the “two-inch rule” of MCL 691.1402a applies only to “county” highways. The parties to this case did not dispute that the road at issue is not a “county” highway. Therefore, in light of our
decision in Robinson, the two-inch rule does not apply to this case. We thus VACATE the opinion of the Court of Appeals because its analysis is dictum given our determination in Robinson that MCL 691.1402a applies only to “county” highways. We REMAND this case to the Wayne Circuit
Court for further proceedings consistent with this order and Robinson.
We do not retain jurisdiction.

MSC requested LDF amicus brief? No

The Plaintiff tripped and fell on a city sidewalk while en route to a 4th of July fireworks display. Plaintiff testified that the sidewalk flag was raised “possibly half an inch” where it joined the adjacent slab, causing her to trip. Her husband testified that the deviation was about an inch. There was a similarly-sized deviation, or dip, on the other end of the slab which, the Plaintiff argued, created a “teeter-tauter” effect. To be clear, the slab indisputably did not move at all (like a teeter tauter); it merely had a slight elevation on one side and a slight dip on the other which, irrefutably, was easily traversed by Plaintiff’s husband and did not contribute to Plaintiff’s fall. The Plaintiff sustained a knee injury which required surgical repair. She then sued the City under the highway/sidewalk exception to
governmental immunity, arguing that the alleged defect created an unreasonable trip hazard.

Case Number: 2008-10
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