Broken Pavement Could Not Matter Under New Law

When you trip on broken pavement sometimes it’s just a scraped knee. But other times a poorly maintained sidewalk can cause serious injuries. When that happens you need to know there is somewhere you can turn to recover your damages. But a new law could stand between personal injury plaintiffs and government defendants.

The Michigan legislature passed House Bill 4686 at the eleventh hour, on December 14, 2016. The bill went to the Governor’s desk even as Lansing shut down for the holidays. The bill, if signed by the Governor will make one seemingly small change to the law requiring Michigan cities to maintain their streets and sidewalks. Once signed, the law will allow the government to use traditional premises liability defenses to personal injury claims.

But that seemingly small change creates a “Catch 22” for pedestrian injured by a government agency’s negligence. The existing “governmental immunity” law says that pedestrians can only sue if the “vertical discontinuity defect” is 2 inches or more or if there is a dangerous condition in the sidewalk itself other than a crack. This keeps the government from paying for every chip and crack in the thousands of miles of city sidewalks.

By adding premises liability defenses, the government can also defeat sidewalk injury claims by proving that the danger was “open and obvious” – that anyone should have been able to see or avoid it. Existing case law says that cracks larger than 2 inches are generally “open and obvious”.
That’s why the Michigan Association for Justice has been fighting against HB 4686 and pushing Governor Snyder to veto it. President Tom Waun says:

“This particular bill essentially grants municipalities immunity from being sued for having defective sidewalks.”

And the legislature knew it was creating this trap for premises liability plaintiffs, too. The analysis for the bill completed as early as December 9, 2015, acknowledged the effect of the “open and obvious” doctrine on personal injury cases related to municipal sidewalks. The report says:

“Consequently, opponents argue that House Bill 4686 would, for all practical purposes, make municipalities completely immune from lawsuits made by people injured by defective sidewalks.”

Personal injury plaintiffs have enough obstacles when the defendant is a government entity. Governmental immunity creates huge roadblocks to many injured residents. But this new law could close the door to what cases still exist and cut many injured plaintiffs off from recovery they need after a serious sidewalk fall.

Dani K. Liblang is a personal injury attorney at The Liblang Law Firm, P.C., in Birmingham, Michigan. If you have been seriously injured in a trip and fall case, contact The Liblang Law Firm, P.C. for a free consultation.