On April 17, 2020, the Michigan Supreme Court granted an application for leave to appeal in the case of Buhl v City of Oak Park, Michigan Supreme Court Case No. 160355, to address the relatively new statutory “open and obvious” provision, MCL 691.1402a(5), which is in the municipal “sidewalk” exception to governmental immunity in Michigan’s Governmental Tort Liability Act (GTLA), MCL 691.1401, et seq. (The statutory incorporation of the common law defense was written into the statute by the legislature in 2016 and became effective in 2017, Public Acts 2016, No. 419, effective January 4, 2017).
The “open and obvious” doctrine has a long history as a defense to a premises liability action against landowners in Michigan “common law” jurisprudence. It’s incorporation as a “statutory defense” in the GTLA comes with an entirely new interpretive paradigm, because provisions within the GTLA are to be construed broadly in favor of the government on the generally accepted (and correct) theory that governmental immunity is broad and the statutory exceptions that the Legislature passed in the 1964 GTLA lifting the otherwise protective veil of immunity (and allowing courts to exercise jurisdiction over the merits of the claimant’s case) are to be narrowly construed. Interestingly, the 1964 Legislature had already incorporated the ability of governmental entity defendants to raise common law defenses in suits filed under the GTLA, but the right had been called into doubt in a 2002 Supreme Court decision, which judicially abrogated the right of municipalities to raise the defense in an action under the “sidewalk” exception to immunity.
In the published Court of Appeals opinion, Buhl v. City of Oak Park, Slip Opinion of the Court of Appeals, issued August 29, 2019, the Court held that the newly enacted subsection allowing the municipality to raise the common law defense of the “open and obvious” doctrine, applied retroactively to an incident that occurred before the provision became effective. Thus, the municipal defendant could raise it as a bar to the claimant’s suit. The Court of Appeals therefore affirmed the Circuit Court’s holding granting summary disposition on immunity grounds to the government.
Regarding the dissent’s rationale that a vested right had been extinguished by virtue of the amendment and therefore retroactivity should not apply, the majority panel reasoned: “[T]he 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.” Slip Op. at 7.
Importantly, as it relates to governmental immunity and the 1964 GTLA, the Court of Appeals recognized that the original intent of the Legislature in enacting the GTLA was to provide limited exceptions to the broad grant of immunity from suit and liability usually enjoyed by all governmental entities. The original act therefore provided that “all defenses available to private parties” were available to the government in actions brought against it. However, the Michigan Supreme Court held in 2002 that the “open and obvious” doctrine was not available to municipalities under the “sidewalk exception” in MCL 691.1402(1). Jones v Enertel Inc, 467 Mich 266; 650 NW2d 334 (2002). The Court of Appeals noted that the 2016 amendment intended to restore the defense that had traditionally been available to governmental entities.
The Court concluded that by “enacting 2016 PA 219, the Legislature has stated that the Jones doctrine was not what it had intended for the law to be; rather, the amendment shows that it was the Legislature’s intent for defenses available to private parties, as provided for by the 1964 Act, to have applied all along.” Slip Op. at 14. “[I]f the Legislature overrules a judicial decision by restoring the status quo ante, it demonstrates what it intended the law to be all along; under such circumstances, the new legislation does not enact a substantive change in the law.” Id. at 15.
“The majority’s view is that the Legislature, through the 1964 act and 2016 PA 219, clearly manifested what its intention was for the law to have been all along, i.e., the availability of the open and obvious doctrine to municipalities, and thus properly understood, the 2016 act did not effect a change in the law. The dissent’s view is that the Jones doctrine was the law prior to the enactment of 2016 PA 219, notwithstanding that the Legislature has now clearly manifested its view that the Jones doctrine was erroneous all along. Thus, the dissent views retroactive application of 2016 PA 219 as improperly denying plaintiff a right because the act constituted a substantive change in the law; the majority’s view is that allowing plaintiff to reap the benefits of a repudiated rule, which the Legislature has conclusively stated was incorrect and never should have applied, does not constitute ‘a substantive change in the law,’ would constitute an unwarranted windfall for plaintiff, and therefore cannot constitute ‘a vested right.'” Slip Op. at 15.
The majority panel concluded that the Legislature’s enactment of 2016 PA 419, which did not legally bar plaintiff’s cause of action, and through which the Legislature overruled the Jones doctrine and reinstated the pre-Jones state of the law, overcame the presumption for prospective application and thus has retroactive effect to events which preceded its enactment, including the claimant’s injury in this case. Slip Op. at 17.
The majority’s well-reasoned opinion appears to be exactly right. The onus is on the claimant pleading in actions against the government to both plead and prove his or her case. This was expressly stated in Mack v City of Detroit, but it has always been the case that in order to access the courts in an action against a governmental entity, one has to carry the burden, and it does not shift to the government because, as the Court said in Mack immunity is an inherent characteristic of the government’s functioning. It is always immune unless the claimant can plead and prove all elements of his or her case. As opposed to ordinary civilian defendants in ordinary civil litigation, the claimant in a suit against the government always carries this burden. Litigation against the government is not governed by the same standards of review. In this case, these principles of immunity, although strong in the undercurrents of this case’s rationale, have been muted a bit because the claimant presumably satisfied the initial burdens – the preconditions to suit; she successfully pleaded in avoidance of immunity. (The Court here does not even address an immunity claim lodged by motion for summary disposition under Michigan Court Rule MCR 2.116(C)(7) (the plaintiff’s claim is subject to immunity provided by law), but rather addressed the government’s motion under MCR 2.116(C)(8) (failure to state a claim) and (C)(10) (there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law). However, it is clear that because the Legislature, and only the Legislature can lift immunity and allow suits to proceed, as this one has, it can express whatever limitations it wishes in the exercise of this right. This is because the principle of governmental immunity is jurisdictional and only the Legislature is presumed to be able to allow suits to proceed. The Jones case represented a judicial usurpation of the Legislature which, at least in actions under the GTLA, cannot occur. All of the defenses that were available at common law remained available to the government after the limited exceptions to immunity were passed in 1964. Jones was an anomaly and thus, the majority is correct that the Legislature restored what the law was and should always have been as it relates to the government’s right to raise the “open and obvious” doctrine as a defense.
One of the reasons the application to appeal in this case has been granted most likely has to do with the fact that there is at least one other Court of Appeals opinion that came to an opposition conclusion in Schilling v City of Lincoln Park, Unpublished Opinion Per Curiam of the Michigan Court of Appeals, issued May 16, 2019 (holding that MCL 691.1402a(5) should not be given retroactive effect).
On balance, however, the majority opinion written in this case by Judges Tukel and Colleen O’Brien, the latter of whom has significant governmental immunity law experience, appears to be solid and the correct result.
Attorney Carson J. Tucker has participated in and argued some of the most significant governmental immunity cases in Michigan during the past decade. Mr. Tucker presented direct representation to the governmental defendants and prosecuted the entire appeal, including all appellate briefings and oral arguments before the Court of Appeals and Supreme Court in the following cases, inter alia:
- Menard v Imig, et al., (Michigan Court of Appeals 2018), briefed and argued by Carson J. Tucker (2018), application pending in Michigan Supreme Court.
- Richko v Wayne County (6th Cir. 2016), United States Supreme Court (2017), petition for certiorari settled before disposition, briefed by Carson J. Tucker for Wayne County
- Estate of Truett v. Wayne County, Unpublished Opinion of the Michigan Court of Appeals, dated May 6, 2014 (Docket No. 313638), briefed and argued by Carson J. Tucker for Wayne County
- Atkins v. SMART, 492 Mich. 707 (August 20, 2012), application granted, and briefed and argued by Carson J. Tucker for SMART in the Supreme Court
- Gentry v. Wayne County Deputy Sheriff Daniel Carmona, unpublished opinion of hte Michigan Court of Appeals, dated October 11, 2011 (Docket No. 296580), briefed and argued by Carson J. Tucker for Wayne County in the Court of Appeals
- Hamed v. Wayne County, 490 Mich. 1 (July 29, 2011), briefed and argued by Carson J. Tucker for Wayne County in the Court of Appeals and Supreme Court
- Odom v. Wayne County, 482 Mich. 459 (December 30, 2008), application for leave to appeal granted, and briefed and argued by Carson J. Tucker for Wayne County in the Supreme Court
In addition, Mr. Tucker has provided direct support to governmental entities in filing “friend of the court”, i.e., amicus curiae briefs in support of the governmental defendants in the following cases, inter alia:
- Yono v. MDOT, ___ Mich. App. ___ (2014), after remand order, amicus curiae brief filed for Michigan Municipal League and Michigan Townships Association on June 16, 2014, after remand by Carson J. Tucker
- State Farm v. MMRMA, amicus curiae in Supreme Court for Oakland County, Wayne County, Macomb County, and Wayne County in support of MMRMA’s application, by Carson J. Tucker
- Hannay v MDOT, ___ Mich ___ (2014), application granted and consolidated with Hunter v. Sisco, amicus curiae filed for Michigan Townships Association, Macomb County, Oakland County and Wayne County, et al., by Carson J. Tucker
- Hagerty v Manistee, 493 Mich 933 (2013), amicus curiae in Michigan Supreme Court for Michigan Municipal League, et al., by Carson J. Tucker