Jones v. Enertel, Inc

Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan Michael F. Cavanagh

Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman

____________________________________________________________________________________________________________________________

FILED SEPTEMBER 17, 2002

BETTY J. JONES,

Plaintiff-Appellee,

v No. 119578

ENERTEL, INC., a Michigan

corporation,

Defendant,

and

CITY OF SOUTH LYON, a municipal

corporation,

Defendant-Appellant

____________________________________

PER CURIAM

In this case, plaintiff alleged that she suffered

injuries as a result of the failure of defendant city of South

Lyon to fulfill its statutory duty under MCL 691.1402(1) to

maintain a sidewalk in reasonable repair. The circuit court

denied South Lyon’s motion for summary disposition, which was

premised on the position that it should not be held liable

because the condition of the sidewalk was open and obvious.

The Court of Appeals denied South Lyon’s interlocutory

application for leave to appeal that decision. We affirm the

circuit court’s denial of the motion for summary disposition

because the open and obvious doctrine of common-law premises

liability is inapplicable to a claim that a municipality

violated its statutory duty to maintain a sidewalk on a public

highway in reasonable repair.

I

Plaintiff alleges that she fell on a sidewalk located

along a road in South Lyon “due to the hazardous nature of

said sidewalk, including broken cement [and] differences in

height between the cement slabs” and that she suffered a

fracture of her right arm and other injuries as a result. She

further asserts that South Lyon failed to properly maintain

the sidewalk.

South Lyon moved for summary disposition pursuant to MCR

2.116(C)(10) on the ground that it was not liable because the

condition of the sidewalk was open and obvious. The circuit

court denied that motion, ruling that it was bound to follow

the holding in Haas v Ionia, 214 Mich App 361; 543 NW2d 21

(1995), that the open and obvious doctrine cannot bar an

action for violation of a municipality’s statutory obligation

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under MCL 691.1402(1) to keep a sidewalk in reasonable repair.

Thereafter, South Lyon filed an interlocutory application for

leave to appeal the denial of its motion for summary

disposition with the Court of Appeals, which denied the

application.

II

We review the resolution of a summary disposition motion

de novo. Roberts v Mecosta Co General Hosp, 466 Mich 57, 62;

642 NW2d 663 (2002).

III

MCL 691.1402(1), part of the governmental tort liability

act (GTLA), imposes a general duty on municipalities to keep

“a highway,” including a sidewalk on the highway1, under its

jurisdiction in reasonable repair:

Except as otherwise provided in section 2a[2]

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. [Emphasis

added.]

1

The applicable statutory definition of “highway”

includes “sidewalks . . . on the highway.” MCL 691.1401(e).

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The emphasized language places a duty on municipalities to

maintain their sidewalks on public highways in reasonable

repair. This means that municipalities have an obligation, if

necessary, to actively perform repair work to keep such

sidewalks in reasonable repair. This is a greater duty than

the duty a premises possessor owes to invitees under common­

law premises liability principles. The basic duty owed to an

invitee by a premises possessor is “to exercise reasonable

care to protect the invitee from an unreasonable risk of harm

caused by a dangerous condition on the land.” Lugo v

Ameritech Corp, 464 Mich 512, 516; 629 NW2d 384 (2001).

Accordingly, as we discussed in Lugo, this duty does not

generally require a premises possessor to remove open and

obvious conditions because, absent special aspects, such

conditions are not unreasonably dangerous precisely because

they are open and obvious. However, such reasoning cannot be

applied to the statutory duty of a municipality to maintain

sidewalks on public highways because the statute requires the

sidewalks to be kept in “reasonable repair.” The statutory

language does not allow a municipality to forego such repairs

because the defective condition of a sidewalk is open and

obvious. Accordingly, we conclude that the open and obvious

doctrine of common-law premises liability cannot bar a claim

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against a municipality under MCL 691.1402(1).

Moreover, MCL 691.1403, in qualifying the general duty

imposed on municipalities to maintain highways, provides:

No governmental agency is liable for injuries

or damages caused by defective highways unless the

governmental agency knew, or in the exercise of

reasonable diligence should have known, of the

existence of the defect and had a reasonable time

to repair the defect before the injury took place.

Knowledge of the defect and time to repair the same

shall be conclusively presumed when the defect

existed so as to be readily apparent to an

ordinarily observant person for a period of 30 days

or longer before the injury took place.

This language contemplates that a city may, in appropriate

circumstances, be held liable for defects in a highway that

are “readily apparent to an ordinarily observant person”—or in

other words are open and obvious. Thus, MCL 691.1403 reflects

that the Legislature did not intend to allow a municipality to

invoke the open and obvious doctrine in this context.

Accordingly, MCL 691.1403 reinforces our conclusion that the

open and obvious doctrine is inapplicable to a claim that a

municipality has violated its duty to maintain a highway

(including a sidewalk on a highway).

IV

In arguing that it should be allowed to avail itself of

the open and obvious doctrine, South Lyon, in its application

for leave to appeal, cites MCL 691.1412, which provides:

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 Claims under this act are subject to all of

the defenses available to claims sounding in tort

brought against private persons.

South Lyon argues that, because the open and obvious “defense”

is available to private parties, MCL 691.1412 requires that it

be allowed to advance that doctrine in this case. We

disagree. Assuming for purposes of discussion that MCL

691.1412 read in isolation would allow South Lyon to use the

open and obvious doctrine as a defense in the present case, we

conclude that MCL 691.1412 would have to yield to the more

specific statutory duty to maintain highways in reasonable

repair under MCL 691.1402(1). “[W]here a statute contains a

general provision and a specific provision, the specific

provision controls.” Gebhardt v O’Rourke, 444 Mich 535, 542­

543; 510 NW2d 900 (1994). As discussed in the previous

section, MCL 691.1402(1) imposes a duty on municipalities

specific to maintaining highways (including sidewalks on

highways) in reasonable repair. In contrast, MCL 691.1412

applies generally to all claims under the GTLA. Thus, the

specific provisions of MCL 691.1402(1) prevail over any

arguable inconsistency with the more general rule of MCL

691.1412.

V

For these reasons, we affirm the circuit court denial of

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the motion for summary disposition.

CORRIGAN , C.J., and CAVANAGH , WEAVER , KELLY , TAYLOR , YOUNG , and

MARKMAN, JJ., concurred.

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