We granted defendant city of Sterling Heights' application for leave to appeal in this case to decide the proper application of the "natural accumulation" doctrine to
I. FACTS AND PROCEEDINGS
On January 29, 1996, plaintiff was walking on a snow-covered sidewalk located in her neighborhood. Plaintiff claims that she slipped and fell on a patch of ice that had formed on the sidewalk.
Anna Marson, plaintiff's neighbor and the homeowner nearest the portion of sidewalk at issue here, stated that, although the depression at the joint of the two cement slabs allowed water to settle, there was no raised edge or gap between the two slabs, and neither slab was actually broken. According to Marson, even in the winter, when "it just snows it would melt and there would be nothing [i.e., no ice] there. But this [time], it happened to rain [before plaintiff's slip and fall] and there was ice...." Marson, who provided aid to plaintiff just after her fall, stated that plaintiff told her that she had slipped on the ice that had formed on the sidewalk.
Plaintiff retained an engineering expert, Theodore Dziurman, who performed an inspection of the portion of sidewalk upon which plaintiff claimed ice had formed.
A. I think you asked me that.
As a result of her fall, plaintiff suffered a broken ankle that required surgical intervention and thereafter initiated a lawsuit against defendant. In response, defendant filed a motion for summary disposition, brought pursuant to MCR 2.116(C)(7) and (10). The trial court denied defendant's motion, and the Court of Appeals, in an unpublished opinion, affirmed, stating that
II. STANDARD OF REVIEW
We review the grant or denial of summary disposition de novo. Maiden v. Rozwood, 461 Mich. 109, 118, 597 N.W.2d 817 (1999). "MCR 2.116(C)(7) tests whether a claim is barred because of immunity granted by law, and requires consideration of all documentary evidence filed or submitted by the parties." Glancy v. Roseville, 457 Mich. 580, 583, 577 N.W.2d 897 (1998).
In reviewing a motion for summary disposition brought under MCR 2.116(C)(10), we must consider the affidavits, pleadings, depositions, admissions, and documentary evidence filed in the action or submitted by the parties in the light most favorable to the party opposing the motion. Quinto v. Cross & Peters Co., 451 Mich. 358, 362, 547 N.W.2d 314 (1996). Summary disposition may be granted if the evidence demonstrates that there is no genuine issue with respect to any material fact, and the moving party is entitled to judgment as a matter of law. Id. As with motions for summary disposition, we also review questions of statutory construction de novo as questions of law. Donajkowski v. Alpena Power Co., 460 Mich. 243, 248, 596 N.W.2d 574 (1999).
III. GOVERNMENTAL IMMUNITY
The governmental tort liability act, M.C.L. § 691.1401 et seq., provides immunity for governmental agencies, including municipalities like defendant. It is well settled in this state that governmental agencies are immune from tort liability while engaging in a governmental function unless an exception applies.
The only exception implicated in the present case is the so-called "highway exception" to governmental immunity, which is set forth in M.C.L. § 691.1402, and provides in part:
Pursuant to subsection 1402(1), the duty to maintain public sidewalks in "reasonable repair" falls on local governments, including cities, villages, and townships. See Chaney v. Dep't of Transportation, 447 Mich. 145, 172, n. 2, 523 N.W.2d 762 (1994); Mason v. Wayne Co. Bd. of Comm'rs, 447 Mich. 130, 136, n. 6, 523 N.W.2d 791 (1994). Accordingly, a municipality's maintenance and repair of its sidewalks is the performance of a governmental function. MCL 691.1401(f).
However, as we noted in Suttles, simply asserting that an action falls within the "highway exception" to governmental immunity is not the end of the analysis:
First, it must be determined whether the plaintiff has pleaded a cause of action in avoidance of governmental immunity. Second, where a plaintiff successfully pleads in avoidance of governmental immunity, i.e., that the alleged injury occurred in a location encompassed by M.C.L. § 691.1402(1), the plaintiff must still prove, consistent with traditional negligence principles, the remaining elements of breach, causation, and damages contained within the statute. Id., see also Nawrocki, supra at 172, n. 29, 615 N.W.2d 702. The statute at issue contains the duty element of these principles; namely, the duty of a municipality to "maintain" the sidewalk "in reasonable repair so that it is reasonably safe and convenient for public travel." MCL 691.1402(1).
IV. THE NATURAL ACCUMULATION DOCTRINE
"It has long been the law in this state ... that a governmental agency's failure to remove the natural accumulations of ice and snow on a public highway does not signal negligence of that public authority." Stord v. Transportation Dep't, 186 Mich.App. 693, 694, 465 N.W.2d 54 (1991). The following cases present an overview of the "natural accumulation" doctrine as it relates to public sidewalks, and municipal defendants.
In Mayo v. Village of Baraga, 178 Mich. 171, 144 N.W. 517 (1913), the plaintiff brought an action to recover damages for injuries sustained as a result of falling on ice and snow on a sidewalk. This Court determined that
In Hopson v. Detroit, 235 Mich. 248, 209 N.W. 161 (1926), a case involving facts similar to the instant one, the plaintiff was walking on a public sidewalk. There was a depression in the sidewalk where the concrete had settled and disintegrated; this condition made the sidewalk lower in the center. In this depression, water from natural causes had settled, with ice at the bottom and a thin layer of water on top. The plaintiff slipped on the ice that had formed in the depression, fell and was injured. The plaintiff's theory of liability was that when two causes combine to produce an injury to a traveler upon a public sidewalk, both of which are in their nature proximate—the one being a defect in the sidewalk, and the other some occurrence for which neither party is responsible—the municipality is liable, provided the injury would not have been sustained but for the defect. Id. at 250, 209 N.W. 161. This Court concluded that the defendant was not liable for the plaintiff's injury.
Stating that "[i]n order to employ the doctrine of a slippery place precipitating into an unsafe place, there must be an unsafe place to slip into," this Court held that the rule obtaining in Michigan places no liability upon the municipality for ice forming in this way. Id. Rather, the rule under which a plaintiff could recover is that where two causes combine to produce an injury to a pedestrian using a sidewalk, one of the causes at least must be a defect in the sidewalk rendering the sidewalk not reasonably safe for public travel at any time. "Ice on a sidewalk, whether on level places or in depressions,
In determining that the plaintiff in Hopson could not prevail, this Court stated that
In Johnson, supra, the plaintiff suffered injuries as the result of a fall sustained while walking over or around a piece of defective sidewalk. There was an accumulation of ice and snow upon the sidewalk. The claimed defect in the sidewalk, an upheaval, was likely caused by the roots of a nearby tree. Applying 1929 CL 4223, which established a duty within the defendant to keep its sidewalks in reasonable repair, this Court determined that where the plaintiff's slip and fall was due solely to the presence of the ice and snow, she could not prevail in her cause of action against the governmental agency. Id. at 105, 267 N.W. 795 (emphasis added).
Accordingly, the natural accumulation doctrine provides that a governmental agency's failure to remove ice or snow from a highway does not, by itself, constitute negligence. Pursuant to this doctrine, plaintiff must prove that there was an existing defect in the sidewalk rendering it not reasonably safe for public travel.
V. ANALYSIS AND APPLICATION
Turning to the present case, we apply this longstanding rule and conclude that the natural accumulation of ice on the sidewalk, without more, did not constitute a breach of defendant's statutory duty to maintain the sidewalk in reasonable repair. Further, plaintiff cannot prove that her injuries resulted from a defect on the sidewalk, as distinct from the accumulation of ice.
To establish a prima facie case of negligence, a plaintiff must be able to prove four elements: (1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty, (3) causation, and (4) damages. Schultz v. Consumers Power Co., 443 Mich. 445, 449, 506 N.W.2d 175 (1993). Proof of causation requires both cause in fact and legal, or proximate, cause. Skinner v. Square D Co., 445 Mich. 153, 162-163, 516 N.W.2d 475 (1994); Davis v. Thornton, 384 Mich. 138, 145, 180 N.W.2d 11 (1970). Cause in fact requires that the harmful result would not have come about but for the defendant's negligent conduct. Skinner, supra at 163, 516 N.W.2d 475, (citing Prosser & Keeton, Torts (5th ed), § 41, p. 266). "On the other hand, legal cause or `proximate cause' normally involves examining the foreseeability of consequences, and whether a defendant should be held legally responsible for such consequences." Skinner, supra at 163, 516 N.W.2d 475. Here, in our judgment, plaintiff cannot demonstrate that her injury was caused by a breach of the duty set forth in M.C.L. § 691.1402(1).
As in Hopson, plaintiff cannot demonstrate that it was the combination of ice and a defect in the sidewalk that caused her to slip and fall. See id. at 250-252, 209 N.W. 161. Plaintiff admitted, with Anna Marson's testimony supporting the admission, that she slipped on the ice that was present on the sidewalk; she did not trip over, or lose her balance in any way because of the claimed depression in the sidewalk. The sole proximate cause of plaintiff's slip and fall was the ice; there was no persistent defect in the sidewalk rendering it unsafe for public travel at all times that, in combination with the ice, caused the incident.
The claimed sidewalk depression in the present case merely allowed the natural accumulation of ice to form, and factually presented no "other danger to the steps of the traveler than that arising from the presence of the ice...." Hopson, supra at 252, 209 N.W. 161. As in Hopson, we reject the proposition that the presence of ice alone, which naturally accumulates and which is the sole proximate cause of a slip and fall, satisfies the remaining elements of the negligence analysis employed in actions against governmental agencies. In the absence of a persistent defect in the highway (i.e., a sidewalk), rendering it unsafe for public travel at all times, and which combines with the natural accumulation of ice or snow to proximately cause injury, a plaintiff cannot prevail against an otherwise immune municipality.
The judgment of the Court of Appeals is reversed, and we remand this case to the Macomb Circuit Court for entry of an order granting defendant's motion for summary disposition.
CORRIGAN, C.J., and WEAVER, TAYLOR, and YOUNG, JJ., concurred with MARKMAN, J.
MARILYN J. KELLY, J. (dissenting).
I believe that plaintiffs established questions of fact about whether (1) the claimed depression in the sidewalk rendered the
The majority's resolution of these factual disputes is an impermissible invasion into the province of the finder of fact. Because the issues should be left for the finder of fact, I would affirm the Court of Appeals decision that upheld the trial court's denial of defendant's motion for summary disposition.
In the proceedings below, defendant moved for summary disposition under MCR 2.116(C)(7) and (C)(10). It argued that summary disposition was proper because the natural accumulation doctrine barred plaintiffs' claim, and there was no defect in the sidewalk in question. Plaintiffs retorted that there were questions of fact whether the sidewalk was defective because the depression in it created an unnatural accumulation of ice and snow. Therefore, they contended, the natural accumulation doctrine has nothing to do with the case.
In denying defendant's motion, the trial court stated:
In affirming, the Court of Appeals rejected defendant's claim that the natural accumulation doctrine barred plaintiffs' claim.
The appellate court disagreed, also, with defendant's position that the alleged defect was insufficient to support the imposition of liability. It reasoned that a factual dispute existed whether the sidewalk where Valeria Haliw fell was reasonably safe for public travel. It rejected as unpersuasive defendant's argument disputing plaintiffs' evidence, explaining that a court "may not assess credibility or determine
This Court reviews a trial court's decision concerning a summary disposition motion de novo. Maiden v. Rozwood, 461 Mich. 109, 118, 597 N.W.2d 817 (1999). Summary disposition is proper under MCR 2.116(C)(7) where a claim is barred because of immunity granted by law.
A motion under MCR 2.116(C)(10) tests the factual support of a plaintiff's claim. See Smith v. Globe Life Ins. Co., 460 Mich. 446, 454, 597 N.W.2d 28 (1999). In reviewing it, the court considers the pleadings, affidavits, and other documentary evidence filed or submitted by the parties in the light most favorable to the nonmoving party. The motion is granted if the documentary evidence shows that no genuine issue of material fact exists, and the moving party is entitled to judgment as a matter of law. See Spiek v. Dep't of Transportation, 456 Mich. 331, 337, 572 N.W.2d 201 (1998). Courts may not determine facts on a motion for summary disposition. Questions of fact must be settled by the finder of fact. See Zamler v. Smith, 375 Mich. 675, 679, 135 N.W.2d 349 (1965); Miller v. Miller, 373 Mich. 519, 526, 129 N.W.2d 885 (1964).
A government agency has a statutory duty to keep highways under its jurisdiction in reasonable repair so that they are reasonably safe and convenient for public travel. MCL 691.1402(1). At least in a municipal setting, a "highway" is defined to include sidewalks. MCL 691.1401(e).
Here, it is undisputed that plaintiffs' claim falls within the "highway exception" to governmental immunity found in M.C.L. § 691.1402(1). Nevertheless, the majority determines that summary disposition in favor of defendant is proper. It reasons that the "claimed depression in the sidewalk was not an independent defect...." It asserts, also, that the natural accumulation of ice or snow on the sidewalk does not give rise to an actionable breach of defendant's duty. Op. at 583.
I agree that the presence of a natural accumulation of ice or snow does not, itself, constitute a breach of the municipality's statutory duty. However, it is debatable whether the accumulation in the present case can be deemed "natural." A determination whether the sidewalk was in "reasonable repair" is a precursor to the issue whether the accumulation was natural, which is a precursor to application of the natural accumulation doctrine.
In opposition to defendant's summary disposition motion, plaintiffs introduced a report from their expert, Theodore Dziurman. Dziurman noted that his inspection of the sidewalk revealed the following:
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Finally, Dziurman summarized his findings as follows:
In support of its motion, defendant argued that the report was insufficient to create a factual dispute regarding the sidewalk's condition. Also, it introduced testimony from the homeowner nearest the sidewalk, who stated that there was nothing dangerous about the sidewalk absent snow or ice. Plaintiffs countered with Dziurman's testimony that the sidewalk, without snow or ice, "could be dangerous" to pedestrians or bicyclists who were not expecting a depression.
Construing the evidence in the light most favorable to plaintiffs, the nonmoving parties below, a jury could infer that the sidewalk's depression rendered it out of "reasonable repair."
Alternatively, the majority asserts, even if the depression in the sidewalk rendered it no longer reasonably safe, the natural accumulation of ice or snow here "effectively vitiated the unsafe condition." Op. at 589, n. 10. This assertion is flawed because it is based on a premise that the accumulation here was "natural." Again, the question of fact regarding the defective nature of the sidewalk precludes making such a determination. See Zamler, supra at 679, 135 N.W.2d 349.
Finally, the majority states that summary disposition for defendant is appropriate because plaintiffs cannot demonstrate that the claimed depression was the proximate cause of the fall under Hopson, supra. The trial court made no findings regarding proximate cause. The parties never argued this issue. Instead, their arguments concerned whether the sidewalk was in reasonable repair and whether the natural accumulation doctrine applied. Therefore, I believe it improper to decide the instant matter on proximate cause grounds. See Miller, supra.
Nevertheless, given the evidence presented below, particularly although not exclusively Dziurman's report, a factual dispute exists whether Valeria Haliw's injuries were proximately caused by the condition of the sidewalk. Thus, defendant is not entitled to summary disposition on this basis, either.
Plaintiffs established a genuine factual dispute regarding whether the sidewalk at issue was in reasonable repair. Consequently, there is also a question of fact whether Valeria Haliw slipped on a "natural accumulation" of ice or snow and whether her injuries were proximately caused by the sidewalk's condition. Accordingly, I would affirm the Court of Appeals decision to uphold the trial court's denial of defendant's summary disposition motion.
MICHAEL F. CAVANAGH, J., concurred with MARILYN J. KELLY, J.
Therefore, an independent defect, other than the accumulation of ice or snow, must be at least a proximate cause of a plaintiff's injury in order for the plaintiff to recover under the statute. It is clear from the testimony of plaintiff, plaintiff's expert, and the eyewitness, that there was no such defect that proximately caused plaintiff's fall in the instant case. Thus, we conclude in accord with Hopson, that plaintiff failed to establish a genuine issue of material fact whether a defect, rather than the accumulated ice alone, caused her injury.