MSC drops Gadigian “presumption/inference” issue based on Robinson

In the April 19 issue of Michigan Lawyers Weekly, I wrote a case analysis of the recent Michigan Supreme Court decision in Robinson v City of Lansing. The holding is that the statutory two-inch rule only applies to “county roads.”

The injury in Robinson took place on Michigan Avenue in Lansing, a state highway.

However, the court didn’t define what a county road was, thus, left in question whether the statute still applied to city streets and sidewalks.

Wonder no longer.

In an order published today in the case of Gadigian v City of Taylor, the Court ruled that, based on Robinson, the statute doesn’t apply to that case. (In that case, Gadigian fell on a sidewalk in a residential neighborhood.)

Of course, the decision to drop the case leaves unsettled the question of what evidence is required to rebut the so-called “rebuttable inference” that the sidewalk is in reasonable repair, which was the reason the court took up the Gadigian case in the first place, and was acknowledged in the Robinson opinion at footnote 11.

11 The statutory two-inch rule’s “rebuttable inference” of reasonable repair is distinct from the common-law rule’s irrebutable presumption of reasonable repair. As the Court of Appeals explained in Gadigian v City of Taylor, 282 Mich App 179, 183-184; 774 NW2d 352 (2009), [i]n crafting [MCL 691.1402a(2)], the Legislature could have adopted the former common-law rule, which flatly prohibited claims involving discontinuity defects of less than two inches. . . .
But rather than eliminating all sidewalk-injury claims arising from defects of less than two inches, . . . the Legislature used the
term “rebuttable inference.”

This Court has granted leave to appeal in Gadigian to address the meaning of “rebuttable inference” in MCL 691.1402a(2). In the order granting leave, the parties have been directed to address “what evidence a plaintiff must present to rebut the inference of reasonable repair.” Gadigian v City of Taylor, 485 Mich ___ (2009). Given our conclusion that the two-inch rule does not apply in the instant case, there is no need to hold this case in abeyance for Gadigian.

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