Eggenberger v. Twp. of W. Bloomfield

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DEAN EGGENBERGER, Plaintiff-Appellee, v. TOWNSHIP OF WEST BLOOMFIELD, Defendant-Appellant.

No. 368247

Court of Appeals of Michigan

September 24, 2024

UNPUBLISHED

Oakland Circuit Court LC No. 2022-194802-NO

Before: LETICA, P.J., and BOONSTRA and MARIANI, JJ.

PER CURIAM.

Plaintiff filed a claim to recover damages under the highway exception to the governmental tort liability act (GTLA), MCL 691.1401 et seq., for injuries he sustained after he crashed his bicycle while riding on a sidewalk maintained by defendant, the Township of West Bloomfield (the township). Defendant now appeals by right the trial court's order denying its motion for summary disposition under MCR 2.116(C)(7) (immunity granted by law) and (C)(10) (no genuine issue of material fact with the moving party entitled to judgment as a matter of law). We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

At approximately 3:20 p.m. on April 27, 2021, plaintiff was riding his bike on a sidewalk in the township when he suddenly crashed and fell off of his bike. Plaintiff testified that he had "this feeling of . . . very suddenly falling" on the portion of the sidewalk "across from 6188 Willow Road." Plaintiff's GPS-enabled mobile application that was active during his ride similarly reflected that he came to a sudden stop near 6188 Willow Road. There was a large upheaval in the sidewalk at this same location. Plaintiff had ridden past this particular stretch of sidewalk two or three times within the last year without issue. He recalled there were "quite a few trees" along the path and believed that the tree roots "brought up the pavement." A woman walking on the path subsequently discovered plaintiff, who appeared "confused" and unsure of what had happened, standing on the path and "bleeding from his head." The woman called 911 for assistance, which arrived shortly thereafter and transported plaintiff to the hospital. As a result of his fall, plaintiff suffered a severe concussion and extensive injuries to his forehead and the right side of his face, as well as recurring headaches, significant back pain, and increased anxiety.

Plaintiff testified that, several hours after the accident, his brother returned to the site of the accident using location data from his GPS and recovered his broken glasses "right on the [right] side of the pavement" near 6188 Willow Road. The police had also discovered plaintiff's broken bike-the front tire had come off of the bike during the accident-near 6188 Willow Road. Based on his "feeling of falling," his "GPS stopping point," where the police found his bike, and "where [his] brother found [his] glasses," plaintiff determined that the large upheaval in the pavement at the location of his fall was what had caused him to lose control of his bike.

Plaintiff returned to that location approximately two weeks after the accident, and he and his mother took photos of the sidewalk. The photos showed a portion of the sidewalk containing an upheaval that ran across the entire width of the sidewalk and created a slope resembling a speedbump approximately 11 or 12 inches wide, with a height of approximately three inches at its peak. The upheaval contained a split within the center of it that was approximately two inches wide and had collected various pieces of debris, including pine needles, leaves, small bits of twigs, and broken pieces of asphalt. A very large tree sat directly next to the upheaval. Defendant's engineering manager testified that the upheaval was consistent with "tree root upheaval," and according to a report completed by the director of defendant's Development Services Department, upheavals in asphalt caused by tree roots "pose a safety risk to the public" and "can completely inhibit the use of the pathway to bicyclists."^[1]

On July 20, 2021, plaintiff sent a timely notice letter to defendant, explaining that, on April 27, 2021, he had struck a large upheaval in the sidewalk located "across the street from 6188 Willow Road." Plaintiff described the upheaval as a "vertical discontinuity" of "approximately three inches" that "effectively formed a ramp," and he provided a color photo of the entire upheaval as well as a color photo depicting a measuring tape showing that the upheaval spanned the entire width of the sidewalk. Plaintiff stated that striking the upheaval caused him to lose control of his bike and crash, and he had "sustained injuries to his head, face, neck, back, shoulder, wrists, and hands" as a result. Plaintiff further stated that he was unaware of "any witnesses to the occurrence" but provided the name of the woman who assisted him after his fall and indicated that first responders came to the scene of the accident within minutes.

In June 2022, plaintiff filed a claim of negligence against defendant, seeking damages under the sidewalk provision of the highway exception of the GTLA, MCL 691.1402a, for his injuries resulting from the crash. After discovery, defendant moved for summary disposition under MCR 2.116(C)(7) and (C)(10), arguing that it was entitled to governmental immunity under the GTLA because plaintiff failed to establish his highway-exception claim to governmental immunity. Specifically, defendant argued that (1) plaintiff's vague description of his injuries in his pre-suit notice did not comply with the notice requirement of MCL 691.1404(1); (2) the upheaval in the sidewalk was an open and obvious condition without special aspects that barred plaintiff's claim pursuant to MCL 691.1402a(5); and (3) plaintiff's theory of causation was based on "speculation and conjecture" rather than any direct or circumstantial evidence that the sidewalk defect had caused his injuries. Plaintiff responded and, after a hearing, the trial court rejected defendant's arguments regarding statutory notice and causation but agreed that the sidewalk upheaval was open and obvious with no special aspects and, as a result, granted defendant's motion for summary disposition on the basis of governmental immunity.

Plaintiff moved for reconsideration in July 2023, but in the midst of the trial court's review of plaintiff's motion, the Michigan Supreme Court released its decision in Kandil-Elsayed v F &E Oil, Inc, 512 Mich. 95, 104; 1 NW3d 44 (2023), which substantially altered the open-and-obvious analysis originally set forth in Lugo v Ameritech Corp Inc, 464 Mich. 512; 629 N.W.2d 384 (2001). The trial court then ordered the parties to file supplemental briefs addressing the effect of Kandil-Elsayed on this case. Plaintiff argued that, because the trial court "relied on the open and obvious doctrine in granting summary disposition" and the doctrine "can no longer be applied to remove a premises possessor's duty of care," the trial court's order granting defendant's motion for summary disposition should be reversed. Defendant argued that the trial court properly granted its motion for summary disposition because the new rule set forth in Kandil-Elsayed did not apply retroactively to this case and summary disposition was warranted under the doctrine in place at the time of plaintiff's injuries. The trial court ordered further briefing from plaintiff on the issue of retroactivity, and plaintiff argued that the Michigan Supreme Court clearly intended for Kandil-Elsayed to apply retroactively in cases such as this, noting that it had already applied the new doctrine retroactively in a substantially similar highway-exception case in which the plaintiff's injuries predated his injuries by three years.

In October 2023, the trial court issued a written opinion and order granting plaintiff's motion for reconsideration and reversing its order of summary disposition in defendant's favor. The trial court noted that the holding in Kandil-Elsayed had "substantially altered the landscape of premises liability law in Michigan" and found that the Michigan Supreme Court, through its treatment of other cases, had clearly "demonstrated its intention that Kandil-Elsayed applies retroactively." The trial court therefore applied the new framework set forth in Kandil-Elsayed and concluded that, despite the open and obvious condition of the sidewalk upheaval, defendant "was [not] absolved of any legal duty in this case" and that "there exist[ed] genuine issues of material fact concerning breach of duty and comparative fault." The trial court also noted that it had "already held that all other asserted grounds for summary disposition in favor of [d]efendant were without merit," and it reopened the case "so that it may proceed to trial." This appeal followed.

II. STANDARDS OF REVIEW AND GENERAL LEGAL PRINCIPLES

We review de novo a trial court's decision on a motion for summary disposition as well as questions of statutory interpretation involving the application of governmental immunity under the GTLA. Jones v Bitner, 300 Mich.App. 65, 71-72; 832 N.W.2d 426 (2013).

"MCR 2.116(C)(7) tests whether a claim is barred because of immunity granted by law[.]" Burise v City of Pontiac, 282 Mich.App. 646, 650; 766 N.W.2d 311 (2009) (quotation marks and citation omitted). "A plaintiff can overcome such a motion . . . by alleging facts that support the application of an exception to governmental immunity." Id. When deciding a motion brought under MCR 2.116(C)(7), "a trial court should examine all documentary evidence submitted by the parties, accept all well-pleaded allegations as true, and construe all evidence and pleadings in the light most favorable to the nonmoving party." Clay v Doe, 311 Mich.App. 359, 362; 876 N.W.2d 248 (2015) (quotation marks and citation omitted). "If the pleadings or documentary evidence reveal no genuine issues of material fact, the court must decide as a matter of law whether the claim is statutorily barred." McLean v...