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On April 25, 2008, the Michigan Supreme Court issued its opinion in Estate of Chantell Buckner v. City of Lansing.  In it, Chief Justice Clifford Taylor and his conservative “Gang of Four” apply an astonishing brand of so-called statutory interpretation to further narrow an important exception to governmental immunity.  As a result, cities can now ignore their municipal responsibilities – even create perilous hazards – with impunity and innocent, taxpaying citizens have no recourse.

The facts of the case are as simple as they are heartbreaking.  Three young girls (ages 7, 13, and 14) were walking to a fast food restaurant from their house nearby.  The sidewalk on which they were traveling became impassible due to an accumulation of ice and snow that had been deposited there by a plow operated by the City of Lansing.  Incredibly, it was the policy of the City not to plow that stretch of sidewalk.  The three girls, faced with this city-created obstacle, ventured along the curb.  Tragically, two of the girls were struck by a car. Both were very severely injured, and the youngest of the three died from her injuries.

In Michigan, governmental agencies such as cities enjoy immunity from tort liability except for six specific scenarios.  One such exception is known as the “Highway Exception” and is explained by MCL 691.1402(1), which states that a governmental agency “shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel.”  The section goes on to explain that an individual who is injured “by reason of failure of a governmental agency to keep a highway … in reasonable repair and in a condition reasonably safe and fit for travel” may recover from the governmental agency for those injuries.  Importantly, MCL 691.1401 expressly includes sidewalks in the definition of “highway.”

The City of Lansing brought a motion to dismiss the case based on the argument that no actual structural defect existed in the sidewalk’s construction.  The trial court denied the motion, and the Court of Appeals affirmed that decision.  Both courts noted that while a structural defect requirement might be appropriate for natural accumulations of snow, this particular case differed because the city had placed the snow on the sidewalk deliberately.

A slim majority of the Michigan Supreme Court reversed the decisions of the lower courts, further narrowing an exception that it had already narrowed in previous cases.  A casual observer would notice that the language of the statute contains no mention of a structural defect, only that the city must keep the highway or sidewalk in “reasonable repair” and “reasonably safe and fit for travel.”  Chief Justice Taylor and his conservative colleagues, on the other hand, chose to ignore the Legislature’s choice of words.  Instead, they rewrote the statute from the bench: “reasonable repair” now means “correcting a structural defect” and there is no requirement that the highway be safe and fit for travel.  This is plainly judicial activism under the guise of textualism – four justices undoing the work of the entire Michigan Legislature.  When the dust settles, the innocent victims of the city’s wrongdoing are left uncompensated for their catastrophic injuries. 

The three dissenting Justices, led by the sharp dissent of Justice Weaver, would have affirmed the lower courts and protected the rights of injured people.  Justice Weaver concludes that this expansion of governmental immunity “in a one-page order, instead of a full opinion, appears to be an attempt by the majority to conceal its latest example of judicial activism by unrestrained statutory interpretation.”

Fortunately, there is hope for change.  Chief Justice Taylor is up for re-election in November.  He and his majority “Gang of Four” have consistently extended privilege and immunity to corporations and insurance companies while narrowing the rights of their victims.  If you disagree with their priorities and think it is time for change, be sure to vote on the non-partisan portion of your ballot this fall for the person running against the current Chief Justice and restore fairness for everyday citizens.

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