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).
3
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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