Michigan Appellate Court Holds City Entitled to Governmental Immunity for Injury from Cracked Street

In February 2012, Chris Penzak was crossing Parent Street in Royal Oak to her car after leaving an appointment. She tripped and fell when her toe hit a one-half inch rise in the road. Penzak suffered injuries to her pelvis, rib, and knees. She had been attending appointments in the same building twice a week for several years, but she had never had issues crossing the road or noticed the defect in the road. Pensak sued the City of Royal Oak.The city moved for summary disposition based on governmental immunity. Following a hearing, the trial court granted the defendant’s motion, holding that the plaintiff failed to raise a genuine issue of fact that the highway exception to governmental immunity applied to this case. On appeal, the plaintiff argued that the trial court erred when it granted summary disposition to the defendant. The appellate court upheld the grant of summary judgment, but for slightly different reasons than the trial court.

In affirming the decision, the appeals court first briefly outlined the relevant law. Pursuant to Michigan’s governmental immunity act, government agencies have the benefit of extensive immunity from tort liability while they are “engaged in the exercise or discharge of a governmental function.”

The appeals court held that the City of Royal Oak was given governmental immunity under the statute because municipal corporations qualify as governmental agencies. The act includes several narrow exceptions to immunity. Notably, the statute provides that a governmental agency having jurisdiction over a highway shall maintain the highway so that it is reasonably safe and convenient for travel. A person who sustains an injury or property damage as a result of a government agency’s failure to keep a highway in reasonable repair may recover damages from the agency. The parties here did not dispute that the plaintiff was injured on a “highway” as defined by the statute.

The appeals court noted that the Michigan Supreme Court has cautioned that the immunity conferred upon governmental agencies is broad and that the statutory exceptions should be construed narrowly. The state high court has also held that in order to show that a governmental agency (including a municipality) failed to maintain a highway in reasonable repair, a plaintiff must demonstrate that a defect exists in the highway. An imperfection in the roadway is only considered  a “defect” when it renders the highway not “reasonably safe and convenient for public travel,” and the government agency is on notice.

Here, Penzak tripped while walking across the street. The Michigan Supreme Court has held that the highway exception includes a duty to protect pedestrians from dangerous conditions, even when the injury does not result from a car accident.

The trial court focused its analysis on whether the plaintiff had established constructive notice of the defect by the defendant, and it found summary judgment appropriate because the plaintiff had not raised a genuine factual dispute regarding notice. While reaching the same ultimate conclusion that summary judgment should be awarded to the defendant, the appeals court found to the contrary that summary judgment was appropriate as a matter of law because the alleged defect did not rise to a level that rendered the highway unsafe and inconvenient for public travel.

To support her position, the plaintiff pointed to photos of the defect and her deposition testimony, in which she contended that the area where she tripped was “really, really broken up.” The photographs, however, show a minor defect — a small crack with rubber filling inside. The asphalt’s rise on one side of the crack, the court noted, was hardly one-half of an inch. And in most photographs there was no discernible rise at all. At her disposition, the plaintiff admitted that she did not notice the defect — which she described as a “ridge” — before she tripped because it appeared to be smooth.

The court concluded that a one-half inch vertical discontinuity and a small gap do not render a road unsafe for public travel, as required by the statute. Thus, it was not unreasonable that the defendant failed to repair it. The trial court therefore properly granted summary disposition to the defendant because the highway exception did not apply. The appeals court affirmed.

Personal injury lawyer Kelly Neumann at the Neumann Law Group represents victims of accidents throughout Michigan from offices in Traverse City and Grand Rapids. Call us at (231) 463-0122 or at (616) 717-5666 for a free consultation.

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