The MML Review March-April 2022

Legal Spotlight Sue Jeffers is a legal consultant to the League. You may contact her at sjeffers1@me.com. Michigan Supreme Court Clarifies Factors

for Retroactivity of Statute Jennifer Buhl fell and broke her left ankle after stepping over a crack in the sidewalk, not noticing, however, that the sidewalk was uneven on the other side of the crack. She sued the City of Oak Park for damages, alleging that the city failed to maintain its sidewalks in reasonable repair under MCL 691.1402a of the Governmental Tort Liability Act (the GTLA). After she was injured, but before she filed the complaint, the Michigan Legislature in 2017 amended the GTLA by adding a provision which allows a municipality to assert any defense with respect to a premises-liability claim, including a defense that the condition was open and obvious. The city moved to have the case dismissed on the basis that the condition of the sidewalk was open and obvious and that the amendment to the GTLA applied retroactively to Buhl’s claim. The Trial Court dismissed the case holding that the amendment did apply retroactively and that the condition of the sidewalk was open and obvious. The Court of Appeals affirmed. Buhl appealed to the Michigan Supreme Court which reversed, holding that the amendment to the GTLA did not apply retroactively to plaintiff’s claim. The Court began its analysis by examining the GTLA, which provides that municipalities have a duty to maintain sidewalks in reasonable repair. The amendment which was added to the GTLA permits a municipality to raise the open and obvious danger doctrine as a defense. To determine whether the amendment applies retroactively to Buhl’s claim, the Court noted that legislative intent governs the application and that the framework for such an analysis is set forth in LaFontaine Saline, Inc v Chrysler Group , 496 Mich 26 (2014). The Court in LaFontaine set out four considerations in determining whether legislation should be applied retroactively: 1. Was there specific language in the legislation providing for retroactive application? 2. A statute cannot be regarded as operating retroactively merely because it relates to an antecedent event. 3. Applying laws retroactively impairs vested rights acquired under existing laws or creates new obligations with respect to transactions already past. 4. A remedial act not affecting vested rights may be given retroactive effect where the claim is antecedent to the enactment of the statute.

The Court initially noted that the second factor does not apply since the amendment does not pertain to a specific antecedent event and then found that there was no specific language in the legislation providing for retroactive application (first factor). As to the third factor outlined in LaFontaine, the Court noted that it is an affirmative duty of a municipality to maintain the sidewalks in reasonable repair without regard to the openness or obviousness of any defects. Retroactive application would “effectively rewrite history” as to the duty owed Buhl by absolving the city of its duty to maintain public sidewalks in reasonable repair. Addressing the fourth factor, the Court held that a newly enacted statute should not be retroactively applied if doing so would relieve a party of a substantive duty. The Supreme Court also dismissed the Court of Appeals’ creation and application of its so-called “ Brewer restoration rule” (based on a prior Supreme Court’s ruling in Brewer v A D Transp ) and held “[W]e decline to alter or abandon the LaFontaine factors in favor of the Brewer restoration rule.”

Buhl v City of Oak Park, No. 160355 (June 9, 2021)

This column highlights a recent judicial decision or Michigan Municipal League Legal Defense Fund case that impacts municipalities. The information in this column should not be considered a legal opinion or constitute legal advice.

MARCH / APRIL 2022

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