If you trip and fall on a broken sidewalk, who pays for your injuries? If Governor Snyder signs a bill sent to his desk over the holidays, the answer could be you.
Michigan cities are responsible for the maintenance of thousands of miles of sidewalks and pedestrian pathways. But when those sidewalks fall into disrepair it can cause serious, sometimes life-changing injuries. Now, a small change to existing governmental injury laws could leave injured pedestrians with nowhere to turn for their sidewalk injury lawsuits.
Governmental immunity says that, in general, an injured person cannot sue a governmental entity or agent – from the Governor to a local city road commissioner – for injuries suffered because of negligence in doing a government job. The law is designed to protect public funds from the draw of private lawsuits. But it can also be used to cut injured parties off from the recovery they need after a serious injury accident.
There are exceptions to governmental immunity when it comes to maintaining public roads and sidewalks. If the city or state is informed of potholes or broken pavement, or if the condition exists for over a month, and it doesn’t fix the condition, anyone injured because of that negligence is still allowed to sue.
At least, that was true until Governor Snyder came back from the holiday break. Late in last year’s legislative session (on December 14, 2016), Michigan lawmakers approved House Bill 4686. Presented to the Governor on December 21, 2016, the law makes a small change to the law controling sidewalk liability lawsuits. Specifically, it gave the government access to traditional premises liability defenses that property owners use in similar lawsuits.
This seemingly minor change will cause big problems for injured plaintiffs. That’s because of how the new amendment interacts with existing limits on the government’s liability for sidewalk damage. MCL 691.1402a says that a a city (called a municipal corporation) is assumed to have reasonably maintained a sidewalk unless there is:
- A Vertical Discontinuity Defect Of 2 Inches Or More In The Sidewalk; Or
- A Dangerous Condition In The Sidewalk Itself Of A Particular Character Other Than Solely A Vertical Discontinuity.
So before the government can be sued, the broken pavement has to have at least a 2 inch break or have something else that makes it particularly dangerous (for example, a broken sign post cemented into the sidewalk). But traditional premises liability says that a break in the sidewalk over 2 inches is “open and obvious” – something anyone should have been able to notice and avoid.
Together this means that cities are essentially forgiven for any failure to maintain their sidewalks. If a crack is smaller than 2 inches, governmental immunity applies. If it’s bigger, the premises liability defense of “open and obvious” kicks in. This seemingly small change will leave seriously injured citizens without anywhere to turn for their injuries.
David Christensen is a pedestrian accident attorney at Christensen Law in Southfield, Michigan. If you have been seriously injured in a pedestrian accident, contact Christensen Law for a free consultation.