Mary Massaron Ross | Hilary A. Ballentine | Plunkett Cooney | 535 Griswold St, Suite 2400 | Detroit, MI 48226 | 313-983-4801

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

Plaintiff brought suit, as a personal representative of the deceased, after the deceased drove his motorized scooter along the new sidewalk in question, crashed into the guy wire, and died. Amicus counsel argues that the City is entitled to governmental immunity under the Governmental Tort Liability Act (GTLA). First, the City did not breach its duty to keep the sidewalk in “reasonable repair” under MCL 691.1402 by allowing the presence of the anchored guy wire because to duty to repair and maintain imposed by the highway exception does not include claims of defective design. Reasonable repair must be construed narrowly, and juries are ill equipped to challenge polycentric design issues, like the one at issue here. Second, because utility poles are excluded from the definition of highway, and the guy wire at issue is a necessary structural component of a utility pole, it is thus outside of the scope of the narrow highway exception. The guy wire is not, as the plaintiff suggests, part of the sidewalk. Third, this sidewalk was not open to the public; in fact, the City barricaded the sidewalk to deter public use. The fact that the area surrounding the guy wire was filled with temporary asphalt does not mean that it was open to the public, but only demonstrates that the City was acting with caution. Third parties moved the barricades, and the City should not be liable for the actions of third parties. Additionally, amicus counsel argues that the individual defendants are also entitled to governmental immunity because their conduct was not grossly negligent, nor was it the proximate cause of the injury. Gross negligence requires a showing of a substantial lack of concern for whether an injury results, and the conduct of the individuals in question does not amount to such negligence. Neither Assistant Engineer Warju, nor City Engineer Danielson can be said to have met the high burden required to show a substantial lack of concern for whether an injury results, as seen by the measures taken to ensure the safety of the public. Lastly, the conduct of the individual public defendants was not “the” proximate cause of the injury because this Court has defined the term to mean the only cause of the injury, and the decedent’s conduct was more directly and causally linked to the injury, as was DTE’s failure to remove the guy wire.

On October 5, 2011, the Court heard oral argument on the application for leave to appeal the July 13, 2010 judgment of the Court of Appeals. On order of the Court, the application is again considered. MCR 7.302(H)(1). In lieu of granting leave to appeal, we REVERSE the judgment of the Court of Appeals, for the reasons stated in the Court of Appeals dissenting opinion, and we REMAND this case to the Oakland Circuit Court for entry of an order granting summary disposition to the public defendants.
On order of the Court, the motion for reconsideration of this Court’s December 21,2011 order is considered, and it is DENIED, because it does not appear that the order was
entered erroneously.