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Buhl v. City of Oak Park

Court of Appeals of Michigan

August 29, 2019

JENNIFER BUHL, Plaintiff-Appellant,
CITY OF OAK PARK, Defendant-Appellee.

          Oakland Circuit Court LC No. 2017-157097-NI

          Before O'Brien, P.J., and Tukel and Letica, JJ.

          Tukel, J.

         This case involves the question of whether a legislative act, 2016 PA 419, which makes the "open and obvious" doctrine applicable to suits against municipalities, applies retroactively-that is, whether it applies "to events antedating its enactment." Frank W Lynch & Co v Flex Tech, Inc, 463 Mich. 578, 585; 624 N.W.2d 180 (2001), citing Landgraf v USI Film Products, 511 U.S. 244, 283; 114 S.Ct. 1483; 128 L.Ed.2d 229 (1994). The retroactivity question turns on whether the act impaired a "vested right," and our Supreme Court has long noted that "[t]he question of determining what is a vested right has always been a source of much difficulty to all courts." Lahti v Fosterling, 357 Mich. 578, 588-589; 99 N.W.2d 490 (1959). The trial court found that the statutory amendment applied retroactively and, applying the open and obvious doctrine, granted summary disposition to defendant. We hold that because no vested right of plaintiff was impaired by the Legislature's actions and because the Legislature's actions were remedial in nature, the resulting grant of summary disposition to defendant on the basis of the open and obvious doctrine was correct; we therefore affirm the trial court's judgment.

         Plaintiff was injured on May 4, 2016, when she twisted her ankle on a sidewalk outside of a store called Trend Express in Oak Park, Michigan. The sidewalk was under defendant's exclusive jurisdiction. On the date of the injury, it was raining. Plaintiff's husband dropped her off in front of the building, and plaintiff walked toward the front door. Plaintiff noticed a crack in the sidewalk and attempted to step over it. However, plaintiff was looking at the store and failed to notice the uneven cement slabs on the far side of the crack from where she was walking. Plaintiff testified that she did not see the drop-off because she was not looking at the sidewalk but admitted that she would have seen it if she had been watching where she was walking instead of looking at the store.

         Plaintiff filed suit under the defective sidewalk exception to governmental immunity, MCL 691.1402a. Defendant moved for summary disposition under MCR 2.116(C)(10), arguing that the defect was open and obvious.[1] Plaintiff argued that it did not matter whether the defect was open and obvious because MCL 691.1402a(5), which permitted defendant to assert the open and obvious defense, was not enacted until after she was injured.[2] Plaintiff also argued that irrespective of the applicability of this statutory amendment, the condition was not open and obvious because the drop-off was not clearly visible from the direction from which plaintiff approached the store. The trial court held that the statutory amendment was retroactive because it affected only the availability of a possible defense, not plaintiff's ability to bring a claim. Further, the trial court held that the condition was open and obvious because plaintiff's photographs clearly showed that the corner of the concrete slab where plaintiff claimed to have tripped was raised.


         On appeal, plaintiff first argues that the trial court erred when it determined that the amendment to MCL 691.1402a had retroactive effect. We disagree. This Court reviews de novo whether a statute applies retroactively. Johnson v Pastoriza, 491 Mich. 417, 428-429; 818 N.W.2d 279 (2012).


         The governmental tort liability act (GTLA), MCL 691.1401 et seq., provides immunity from tort liability to governmental agencies when they are engaged in the exercise or discharge of a governmental function. MCL 691.1407(1); Moraccini v Sterling Heights, 296 Mich.App. 387, 391; 822 N.W.2d 799 (2012). The GTLA waives immunity and allows suit against a governmental agency only if the suit falls within one of the statutory exceptions. Moraccini, 296 Mich.App. at 392. MCL 691.1402a allows a plaintiff to sue a municipal corporation under some circumstances when the municipal corporation fails to maintain a sidewalk, and provides:

(1) A municipal corporation in which a sidewalk is installed adjacent to a municipal, county, or state highway shall maintain the sidewalk in reasonable repair.
(2) A municipal corporation is not liable for breach of a duty to maintain a sidewalk unless the plaintiff proves that at least 30 days before the occurrence of the relevant injury, death, or damage, the municipal corporation knew or, in the exercise of reasonable diligence, should have known of the existence of the defect in the sidewalk.
(3) In a civil action, a municipal corporation that has a duty to maintain a sidewalk under subsection (1) is presumed to have maintained the sidewalk in reasonable repair. This presumption may only be rebutted by evidence of facts showing that a proximate cause of the injury was 1 or both of the following:
(a) A vertical discontinuity defect of 2 inches or more in the sidewalk.
(b) A dangerous condition in the sidewalk itself of a particular character other than solely a vertical discontinuity.
(4)Whether a presumption under subsection (3) has been rebutted is a question of law for the court.
(5) In a civil action, a municipal corporation that has a duty to maintain a sidewalk under subsection (1) may assert, in addition to any other defense available to it, any defense available under the common law with respect to a premises liability claim, including, but not limited to, a defense that the condition was open and obvious.
(6) A municipal corporation's liability under subsection (1) is limited by section 81131 of the natural resources and environmental protection act, 1994 PA 451, MCL 324.81131.

         This current version of the statute was enacted on January 3, 2017, with the passage of 2016 PA 419, becoming effective on January 4, 2017. The only changes brought about by 2016 PA 419 were to add subsection (5) above, and, although not relevant for purposes of this case, to renumber the previous subsection (5) to subsection (6).


         The United States Supreme Court has noted that "courts have labored to reconcile two seemingly contradictory statements found in our decisions concerning the effect of intervening changes in the law. Each statement is framed as a generally applicable rule for interpreting statutes that do not specify their temporal reach." Landgraf, 511 U.S. at 263-264 (citations omitted).

The first is the rule that "a court is to apply the law in effect at the time it renders its decision[.]" The second is the axiom that "[r]etroactivity is not favored in the law," and its interpretive corollary that "congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result." [Id. at 264 (citations omitted).]

         "A statute does not operate 'retrospectively' merely because it is applied in a case arising from conduct antedating the statute's enactment or upsets expectations based in prior law," id. at 269 (citations omitted), nor is it" 'made retroactive merely because it draws upon antecedent facts for its operation, '" id. at 269 n 24 (citations omitted). "[C]ourts should apply the law in effect at the time that they decide a case unless that law would have an impermissible retroactive effect as that concept is defined by the Supreme Court." BellSouth Telecom, Inc v Southeast Tel, Inc, 462 F.3d 650, 657 (CA 6, 2006) (citation omitted).

         "[T]he court must ask whether the new provision attaches new legal consequences to events completed before its enactment." Landgraf, 511 U.S. at 269-270. "The conclusion that a particular rule operates 'retroactively' comes at the end of a process of judgment concerning the nature and extent of the change in the law and the degree of connection between the operation of the new rule and a relevant past event." Id. at 270. "Any test of retroactivity will leave room for disagreement in hard cases, and is unlikely to classify the enormous variety of legal changes with perfect philosophical clarity. However, retroactivity is a matter on which judges tend to have 'sound instincts,' and familiar considerations of fair notice, reasonable reliance, and settled expectations offer sound guidance." Id. (citation and brackets omitted).

         There are four rules that a court must consider when determining whether a new statute applies retrospectively. In re Certified Questions from U.S. Court of Appeals for the Sixth Circuit, 416 Mich. 558, 570; 331 N.W.2d 456');">331 N.W.2d 456 (1982):

First, is there specific language in the new act which states that it should be given retrospective or prospective application. Second, a statute is not regarded as operating retrospectively solely because it relates to an antecedent event. Third, a retrospective law is one which takes away or impairs vested rights acquired under existing laws, or creates a new obligation and imposes a new duty, or attaches a new disability with respect to transactions or considerations already past. Fourth, a remedial or procedural act which does not destroy a vested right will be given effect where the injury or claim is antecedent to the enactment of the statute. [Id. at 570-571 (quotation marks, citations, and brackets omitted).]

         Under rule one, the intent of the Legislature governs the question of whether a statute applies retroactively. Johnson, 491 Mich. at 429. Indeed, our Supreme Court has stated that" '[t]he primary and overriding rule is that legislative intent governs. All other rules of construction and operation are subservient to this principle.'" Lynch, 463 Mich. at 583 (citation omitted). Absent such clear indication that the Legislature intended retroactive application, it is presumed that a statute applies only prospectively. Brewer v A D Transp Express, Inc, 486 Mich. 50, 55-56; 782 N.W.2d 475 (2010); Franks v White Pine Copper Div, 422 Mich. 636, 670; 375 N.W.2d 715 (1985).

          "Second rule cases relate to measuring the amount of entitlement provided by a subsequent statute in part by services rendered pursuant to a prior statute," id. at 571, which is not applicable here. "The third rule and the cases thereunder define those retrospective situations that are not legally acceptable, whereas the fourth rule defines those that are acceptable." Id. at 572 (emphasis added). Because the retroactivity analysis is based in part on reasonable reliance, the proper analysis is whether a new statute "would impair rights a party possessed when he acted[.]" Landgraf, 511 U.S. at 280.


         1. STATUTORY TEXT

         The first factor to consider is whether the text of the statute at issue provides that it is to be given retroactive or prospective effect. In re Certified Questions, 416 Mich. at 570; see also Johnson, 491 Mich. at 429. Our Supreme Court "has recognized that 'providing a specific, future effective date and omitting any reference to retroactivity supports a conclusion that a statute should be applied prospectively only.'" Johnson, 491 Mich. at 432 (citation omitted). In the present case, the statute did not include a future effective date, but rather was given immediate effect. "Use of the phrase 'immediate effect' does not at all suggest that a public act applies retroactively." Id. at 430. Rather, "immediate effect" means only "that the Legislature by a ⅔ vote expressed an intention that the amendatory act take effect on the date it was filed." Id. at 431 n 30. Thus, the lack of any language here regarding retroactivity weighs in favor of prospective application only.


         "A cause of action becomes a vested right when it accrues and all the facts become operative and known." Doe v Dep't of Corrections, 249 Mich.App. 49, 61-62; 641 N.W.2d 269 (2001), citing In re Certified Questions, 416 Mich. at 572-573. If the retroactive application of a law would take away or impair vested rights, then its retroactive application is prohibited by rule three; rule four provides the mirror image, providing that "a remedial or procedural act which does not destroy a vested right will be given effect where the injury or claim is antecedent to the enactment of the statute." In re Certified Questions, 416 Mich. at 572. As far as a plaintiff asserting a claim is concerned, retroactive application is prohibited if an "accrued cause of action would be totally barred or taken away by a new act."

         Here, the statute at issue did not totally bar or take away a cause of action; rather it made available to municipal corporations common-law defenses, including the open and obvious doctrine. Importantly, even after the enactment of the amended statute, plaintiff could still assert the identical cause of action against defendant, and the full range of damages previously available to a prevailing plaintiff is unchanged by the statutory amendment. Cf. Johnson, 491 Mich. at 433-434 (holding that an amendment which created a new right of prevailing plaintiffs to receive damages for loss of consortium and other damages not previously available creates a new legal burden on defendants, which may not be applied retrospectively). By the plain language of In re Certified Questions, only the abolition of an existing or accrued cause of action takes away or impairs a plaintiff's vested rights. Moreover, In re Certified Questions, 416 Mich. at 577, specifically noted that only a "legal bar" would implicate the "totally barred or taken away by the new act" language. The question in that case was whether the adoption of a comparative negligence statute would apply to a cause of action for products liability, and if so, whether the comparative negligence statute would be applied retroactively. See id. at 561. In analyzing the issue, our Supreme Court stated:

While the total damages which plaintiff could have received were significantly reduced by § 2949, plaintiff's cause of action was not legally barred or taken a way.
Section 2949 does not bar any claim, legal or equitable, but it states that "damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff." Section 2949 is not a legal bar, but is a principle established by the Legislature which mitigates damages in products liability actions.
In short, we hold that the applicability of the products liability statute in the instant case did not offend Michigan's general rule against the retrospective application of a statute which "take[s] away vested rights." [Id. at 577-578 (citations omitted; emphasis added).]

         The Supreme Court's analysis was based on the plaintiff's cause of action not being "legally barred or taken away"; because the act at issue in that case was not "a legal bar," it did not deprive the plaintiff of a vested right.

         Thus, under In re Certified Questions, a cause of action can be "totally barred or taken away by the new act" only if the act extinguishes it as a matter of law. For example, causes of action for alienation of affection which previously existed were "totally barred by a new act" when the Legislature repealed them because the legislative action rendered such causes of action extinct. See former MCL 551.301-551.311, repealed by 1980 PA 180. The cause of action against a municipality for a defective sidewalk was not rendered extinct by the enactment of 2016 PA 419-the cause of action still exists.

         The dissent seemingly understands this point when it cites the In re Certified Questions test that rule three is implicated when an "accrued cause of action would be totally barred or taken away by a new act," but then goes on to argue for the misapplication of the test. The dissent argues that if the open and obvious doctrine is applied, plaintiff will lose her case; this, the dissent states, constitutes plaintiff's cause of action being" 'totally barred or taken away by [the] new act.'" (Emphasis added). The dissent asserts, contrary to In re Certified Questions, that "[w]hether the statutory amendment at issue abolishes Buhl's cause of action outright or its application results in dismissal of her lawsuit, albeit after a judicial finding on the question of whether the danger was open and obvious, makes no difference. Either way, Buhl's 'accrued cause of action [is] totally barred or taken away by a new act.' "

         However, to the extent that that plaintiff's case is subject to dismissal under the open and obvious doctrine, it is not "totally barred or taken away" "by a new act," but because in this particular case, the hazard was readily apparent and thus the facts preclude recovery. In other words, plaintiff's cause of action is barred not "by a new act," but rather by a new act plus the particular facts relating to her injury. A dismissal based on factual infirmities is not a "legal bar" but a "factual bar." As such, rule three is inapplicable because a cause of action being barred by application of a new act plus particular facts simply cannot be squared with the language used by our Supreme Court, or by its discussion of rule three, in In re Certified Questions.

         Even setting aside the dissent's misreading of the "by a new act" language from In re Certified Questions, its position here is curious-it would decide a legal issue (the retroactive availability of the open and obvious doctrine to municipalities) on the basis of a purely factual determination (whether there is merit to a defense claim that a particular hazard was open and obvious). However, because it involves a legal doctrine, the question of whether or not the statute is to be applied retroactively must apply equally in all cases; the statute either is retroactive or it is not. However, as a question of fact, the open and obvious doctrine surely will not apply in every case in which it is invoked. Some defendants will argue that a particular plaintiff is barred from recovery because a hazard was open and obvious, but a jury nevertheless will find factually that the hazard was not so readily apparent. Applying the dissent's position, then, courts would have to decide on a case-by-case basis whether a particular plaintiff's case would be defeated by application of open and obvious doctrine; if the answer is that it would be, that would mean, according to the dissent, that the cause of action would be "totally barred or taken away by the new act" and thus the act could not be applied retroactively to such a case. This approach never would settle the question presented here but instead would require the legal determination of the retroactivity question to be made in each lawsuit, on a case-by-case basis. The dissent cites no authority for the proposition that the retroactivity decision must be decided anew in each case, and that the decision will turn on the factual vagaries of a particular case.

         The distinction between a cause of action failing for legal reasons as opposed to factual reasons is so common that the Michigan Court Rules distinguish between them. See MCR 2.116(C)(8) (governing motions for summary disposition based on a legal failure to state a claim upon which relief can be granted) and MCR 2.116(C)(10) (governing motions for summary disposition based on failure of proof). The In re Certified Questions analysis under rule three applies the same distinction. Applying that analysis here, the cause of action for injuries sustained on a municipal sidewalk remains extant; no one would say, in light of the statutory amendment at issue, that plaintiff's complaint fails to state a claim upon which relief can be granted in that the cause of action no longer exists. Consequently, for purposes of applying the test of In re Certified Questions, plaintiff's cause of action has not been "totally barred or taken away by a new act." And of course, as noted above, reading "totally barred or taken away by a new act" in this manner means the retroactivity question will be decided by a single legal standard, and will not vary from case to case based on the facts.

         Moreover, as noted, a relevant consideration for determining whether a party had a vested right is whether the new statute "would impair rights a party possessed when he acted[.]" Landgraf, 511 U.S. at 280. As one federal court of appeals has noted, a strong consideration in determining whether a plaintiff's rights have been impaired is whether the plaintiff relied on the state of the law prior to the statutory amendment. Southwest Ctr for Biological Diversity v U.S. Dep't of Agriculture, 314 F.3d 1060, 1062 (CA 9, 2002). However, as the Southwest Ctr court noted, "Surely the [plaintiff's] expectation of success in its litigation is not the kind of settled expectation protected by Landgraf's presumption against retroactivity. As the [defendant] points out, if that expectation were sufficient then no statute would ever apply to a pending case unless Congress expressly made it so applicable. The Landgraf inquiry would become pointless." Id. at 1062 n 1.[3] The dissent here commits exactly that error, by stating that "[t]he legal question before us is whether the Legislature clearly ...

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