MSC neuters COA’s Gadigian decision, two-inch rule ‘reasonable inference’ holding is only dicta

In the 2009 Gadigian v City of Taylor decision, the Court of Appeals held that the highway exception to the governmental immunity statute allowed only a “rebuttable inference,” i.e. a lower standard that plaintiff’s must overcome to prevail in a sidewalk personal injury case.

The case was originally taken up by the Michigan Supreme Court. However the court revoked leave once it decided Robinson v City of Lansing, which determined that the exception only applied to county highways. Gadigian fell on a city sidewalk, which the MSC determined was decidedly not a county highway.

But left pending was the Court of Appeals’ precedent regarding the “rebuttable inference” and whether the lower court properly decided that issue.

On Friday, May 28, the Supreme Court responded by amending its leave revocation order to effectively neuter the Court of Appeals’ decision to officially render the court’s analysis as dicta and remanded the case back to the lower court.

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MSC decides not to deal with sidewalk notice to cities after all

In the April 12 issue of Michigan Lawyers Weekly, I previewed oral arguments in Mawri v City of Dearborn, a case which dealt with requirements of a claimant’s notice to a city of an injury caused by a sidewalk defect.

In the case, the plaintiff sent a letter to the city in which he gave the wrong address (using the address next door) and did not describe the defect in the sidewalk.

The court heard arguments on April 13, and were apparently unmoved by Mawri’s case, vacating its order for leave affirming the Court of Appeals’ decision.

Justices Diane M. Hathaway and Chief Justice Marilyn Kelly dissented, citing the court’s 2009 decision in Bush v Shabahang:

The primary purpose of any notice statute is to provide timely notice to a defendant prior to suit. That objective was met in this case. The opinion of the Court of Appeals focuses on form rather than on the meaningful substantive requirements of MCL
691.1404(1). We recently addressed a similar pre-suit notice requirement in Bush v Shabahang, 484 Mich 156 (2009), and held that defects in a statutorily mandated pre-suit notice of intent in medical malpractice cases can be disregarded or cured by amendment under MCL 600.2301 as long as the plaintiff makes a good-faith attempt to comply with the notice provision.

MCL 600.2301 provides:

The court in which any action or proceeding is pending, has power
to amend any process, pleading or proceeding in such action or proceeding, either in form or substance, for the furtherance of justice, on such terms as are just, at any time before judgment rendered therein. The court at every stage of the action or proceeding shall disregard any error or defect in the
proceedings which do not affect the substantial rights of the parties.
[Emphasis added.]

I see no reason why MCL 600.2301 should not apply to the notice requirement in the present case for the same reasons expressed in Bush. Here the plaintiff made a good faith attempt to notify the defendant in a timely manner but the notice contained an ostensible defect. The defendant, however, had actual notice of the defect on a timely basis and accordingly no substantial right of any party was affected. Because § 2301 mandates that the court “shall disregard any error or defect in the proceedings which do not affect the substantial rights of the parties,” the Court of Appeals was required to disregard this minor technical defect.

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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.