Sign In

160355 - Jennifer Buhl v City of Oak Park

Jennifer Buhl,

 

Christopher Schneider

 

Plaintiff-Appellant,

 

v

(Appeal from Ct of Appeals)

 

 

(Oakland – McMillen, P.)

 

City of Oak Park,

 

Christian Huffman

 

Defendant-Appellee.

 

Summary

After twisting her ankle on the defendant city’s sidewalk, the plaintiff sued, claiming that the defendant failed to observe its duty to maintain its sidewalk in reasonable repair under the defective sidewalk exception to governmental immunity, MCL 691.1402a.  By the time the plaintiff brought her suit, but after she had fallen, the Legislature had amended MCL 691.1402a to add a revised subsection (5), allowing municipalities to assert “open and obvious” as a defense in sidewalk defect cases.  The defendant moved for summary disposition under MCR 2.116(C)(10), arguing that the defect in the sidewalk was open and obvious.  The trial court determined that the statutory amendment applied retroactively, barring the plaintiff’s claim.  The Court of Appeals, in a 2-1 published opinion, affirmed the trial court, holding that the statutory amendment applied retroactively.  The Supreme Court has granted leave to appeal to address:  (1) whether the Court of Appeals erred in concluding that the January 2017 amendment to MCL 691.1402a(5), see 2016 PA 419, applies retroactively; (2) whether 2016 PA 419 “attaches a new disability with respect to transactions or considerations already past,” In re Certified Questions from US Court of Appeals for the Sixth Circuit, 416 Mich 558, 571 (1982); (3) whether the Court of Appeals erred in creating and applying a “Brewer restoration rule,” in determining that 2016 PA 419 applies retroactively, see Brewer v A D Transp Express, Inc, 486 Mich 50 (2010); and (4) whether it makes a difference that the amendment was enacted before the plaintiff filed her complaint when the amended statute states, “In a civil action, a municipal corporation . . . may assert . . . a defense that the condition was open and obvious.”  MCL 691.1402a(5).​