Michigan Sidewalk Injury Lawyers
In June 2015, the Michigan state house introduced HB 4686, a blatant attempt by the City of Detroit to rid itself of its mandated responsibility to take care of city sidewalks on behalf of its citizens.
The bill, which was just voted out of committee in the state house, is actually an amendment to the liability for municipal corporations for injuries sustained by people while using a city sidewalk. Currently under Michigan law, cities, townships and all municipalities have a duty to maintain their sidewalks in reasonable repair.
Under the law, there is a presumption that municipalities do maintain sidewalks in reasonable repair. The main way to rebut this presumption is by demonstrating a vertical discontinuity defect of 2 inches.
This is known at the 2-inch rule. In effect it means a person has to show the sidewalk slab that caused the fall was 2 inches or higher than the adjacent slab. Anything smaller and the case will automatically be dismissed.
The 2 inch rule makes bringing sidewalk cases against townships and cities very difficult. Yet despite this, the State House of Representatives through HB 4686 now seeks to make it virtually impossible to hold cities and townships responsible for their sidewalks.
House Bill 4686 adds a new Section to MCL 691.1402a, the sidewalk liability law. The new section states the following:
(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.
This new section allows cities and towns to use the “open an obvious” defense, which municipalities cannot currently use. This defense states that a premises owner, like a grocery store or homeowner, is not responsible for defects in the land that are open and obvious and there to be seen. If a condition of the land that causes injury is “open and obvious”, the case must be dismissed.
Never before has the open and obvious defense – which is a common law defense – been allowed to be used by cities and municipalities to rebut statutory protections. In reality, if HB 4686 becomes the law, municipalities will be completely immune from any and all lawsuits due to injuries caused by a sidewalk.
The reason is simple. Cities and towns are already protected by the 2-inch rule. One sidewalk slab must be at least 2 inches higher than the adjacent sidewalk slab to even bring a sidewalk defect case. This 2-inch variation is inherently open and obvious. A 2-inch vertical difference is there to be seen by the average person. Therefore, it would be impossible to prove both a 2-inch differential, yet claim the differential is not open and obvious.
HB 4686 has a number of co-sponsors. Oddly enough many of them are not conservative Republicans – the typical sponsors of most legislative bills that seek to limit a person’s ability to seek compensation for personal injury. Instead many of this bill’s co-sponsors are representatives from the City of Detroit.
It appears Mayor Duggan and his confidant, city attorney Butch Hollowell, are desperate to limit payments on liability claims stemming from sidewalk falls. They claim millions are awarded each year and its draining the city’s finances. However, no actual figures have been provided by the city to back up this claim. Even more appalling is that almost all the money paid out to claimants who have been injured due to city sidewalks falls are Detroit residents themselves.
Instead of paying out good claims, the city seeks to hoard the money. This law will force injured persons to get their medical bills paid by other insurance carriers – namely Medicare and Medicaid – a further drain on Michigan taxpayers.
Perhaps most importantly, HB 4686 provides zero incentive for cities and township across the state of Michigan to ever fix and repair decaying and defective sidewalks. Let’s face it, cities don’t fix most things – whether it be roads or sidewalks – out of the goodness of their hearts. They fix things so they don’t have to pay make expensive liability payments in the future.
HB 4686 provides total and complete immunity for cities and municipalities. It gives cities carte blanche to do nothing to fix our city’s crumbling sidewalks. It rewards the City of Detroit for its incompetence in not having a city sidewalk repair plan and punishes citizens.
Simply put HB 4686 is a sham. Let’s hope it’s rejected by the state Senate and our governor in the days and weeks ahead.