Premises liability; Trip & fall on an uneven city sidewalk; A municipality’s duty to maintain the sidewalk in reasonable repair; MCL 691.1402a(5); The open & obvious doctrine; Special aspects; Kandil-Elsayed v F & E Oil, Inc

On remand from the Supreme Court for reconsideration in light of Kandil-Elsayed, the court held that the law no longer supported the trial court’s grant of summary disposition to defendant-city in this trip and fall on an uneven sidewalk case. The court previously affirmed the trial court’s ruling. But Kandil-Elsayed changed the applicable legal framework for premises liability claims. The trial court granted defendant summary disposition on the ground “the sidewalk defect was open and obvious and without special aspects, thereby negating the duty defendant owed under MCL 691.1402a.” However, pursuant to “Kandil-Elsayed, the open and obvious nature of the defect no longer precludes the existence of a duty. . . . To the contrary, defendant plainly had a statutory duty to ‘maintain the sidewalk in reasonable repair’ under MCL 691.1402a(1).” Thus, assuming the trial court granted defendant’s summary disposition motion due to lack of a material question of fact as to “the duty element, its reasoning is no longer supported by law. Moreover, even viewing defendant’s open-and-obvious argument in the context of the breach element, summary disposition was improper. As a municipal corporation, defendant is entitled to an initial presumption that it fulfilled its duty to maintain the sidewalk in reasonable” repair. But this presumption “may be rebutted with evidence described in MCL 691.1402a(3), including evidence showing that ‘[a] vertical discontinuity defect of 2 inches or more in the sidewalk’ was a proximate cause of the plaintiff’s injury.” In this case, photos showing “the uneven sidewalk on which plaintiff tripped, clearly demonstrated that the vertical discontinuity between the two slabs of sidewalk was more than 2 inches for the portion of the sidewalk nearest the road. As a matter of law, plaintiff sufficiently rebutted the presumption that defendant maintained the sidewalk in reasonable repair.” Thus, the court concluded that, “at minimum, a question of fact existed with respect to the breach element of plaintiff’s claim[.]” Reversed and remanded.