HB-4589, As Passed Senate, February 21, 2012

SENATE SUBSTITUTE FOR

HOUSE BILL NO. 4589

     A bill to amend 1964 PA 170, entitled

"An act to make uniform the liability of municipal corporations,

political subdivisions, and the state, its agencies and

departments, officers, employees, and volunteers thereof, and

members of certain boards, councils, and task forces when engaged

in the exercise or discharge of a governmental function, for

injuries to property and persons; to define and limit this

liability; to define and limit the liability of the state when

engaged in a proprietary function; to authorize the purchase of

liability insurance to protect against loss arising out of this

liability; to provide for defending certain claims made against

public officers, employees, and volunteers and for paying damages

sought or awarded against them; to provide for the legal defense of

public officers, employees, and volunteers; to provide for

reimbursement of public officers and employees for certain legal

expenses; and to repeal acts and parts of acts,"

by amending sections 1, 2, and 2a (MCL 691.1401, 691.1402, and

691.1402a), section 1 as amended by 2001 PA 131 and section 2 as

amended and section 2a as added by 1999 PA 205.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 1. As used in this act:

     (a) "Governmental agency" means this state or a political

subdivision.

     (b) "Governmental function" means an activity that is

expressly or impliedly mandated or authorized by constitution,

statute, local charter or ordinance, or other law. Governmental

function includes an activity performed on public or private

property by a sworn law enforcement officer within the scope of the

law enforcement officer's authority, as directed or assigned by his

or her public employer for the purpose of public safety.

     (c) "Highway" means a public highway, road, or street that is

open for public travel. Highway includes a bridge, sidewalk,

trailway, crosswalk, or culvert on the highway. Highway does not

include an alley, tree, or utility pole.

(d) (a) "Municipal corporation" means a city, village, or

township or a combination of 2 or more of these when acting

jointly.

(e) (b) "Political subdivision" means a municipal corporation,

county, county road commission, school district, community college

district, port district, metropolitan district, or transportation

authority or a combination of 2 or more of these when acting

jointly; a district or authority authorized by law or formed by 1

or more political subdivisions; or an agency, department, court,

board, or council of a political subdivision.

     (f) "Sidewalk", except as used in subdivision (c), means a

paved public sidewalk intended for pedestrian use situated outside

of and adjacent to the improved portion of a highway designed for

vehicular travel.

(g) (c) "State" means the this state of Michigan and its

agencies, departments, commissions, courts, boards, councils, and

statutorily created task forces. and State includes every a public

university and or college of the this state, whether established as

a constitutional corporation or otherwise.

     (d) "Governmental agency" means the state or a political

subdivision.

     (e) "Highway" means a public highway, road, or street that is

open for public travel and includes bridges, sidewalks, trailways,

crosswalks, and culverts on the highway. The term highway does not

include alleys, trees, and utility poles.

     (f) "Governmental function" is an activity that is expressly

or impliedly mandated or authorized by constitution, statute, local

charter or ordinance, or other law. Governmental function includes

an activity, as directed or assigned by his or her public employer

for the purpose of public safety, performed on public or private

property by a sworn law enforcement officer within the scope of the

law enforcement officer's authority.

(h) (g) "Township" includes means a general law township or a

charter township.

(i) (h) "Volunteer" means an individual who is specifically

designated as a volunteer and who is acting solely on behalf of a

governmental agency.

     Sec. 2. (1) Except as otherwise provided in section 2a, each

Each governmental agency having jurisdiction over a highway shall

maintain the highway in reasonable repair so that it is reasonably

safe and convenient for public travel. A person who sustains bodily

injury or damage to his or her property by reason of failure of a

governmental agency to keep a highway under its jurisdiction in

reasonable repair and in a condition reasonably safe and fit for

travel may recover the damages suffered by him or her from the

governmental agency. The liability, procedure, and remedy as to

county roads under the jurisdiction of a county road commission

shall be as provided in section 21 of chapter IV of 1909 PA 283,

MCL 224.21. The Except as provided in section 2a, the duty of the

state and the county road commissions a governmental agency to

repair and maintain highways, and the liability for that duty,

extends only to the improved portion of the highway designed for

vehicular travel and does not include sidewalks, trailways,

crosswalks, or any other installation outside of the improved

portion of the highway designed for vehicular travel. A judgment

against the state based on a claim arising under this section from

acts or omissions of the state transportation department is payable

only from restricted funds appropriated to the state transportation

department or funds provided by its insurer.

     (2) A municipal corporation has no duty to repair or maintain,

and is not liable for injuries or damages arising from, a portion

of a county or state highway.

(3) (2) If the state transportation department contracts with

another governmental agency to perform work on a state trunk line

highway, an action brought under this section for tort liability

arising out of the performance of that work shall be brought only

against the state transportation department under the same

circumstances and to the same extent as if the work had been

performed by employees of the state transportation department. The

state transportation department has the same defenses to the action

as it would have had if the work had been performed by its own

employees. If an action described in this subsection could have

been maintained against the state transportation department, it

shall not be maintained against the governmental agency that

performed the work for the state transportation department. The

governmental agency also has the same defenses that could have been

asserted by the state transportation department had the action been

brought against the state transportation department.

(4) (3) The contractual undertaking of a governmental agency

to maintain a state trunk line highway confers contractual rights

only on the state transportation department and does not confer

third party beneficiary or other contractual rights in any other

person to recover damages to person or property from that

governmental agency. This subsection does not relieve the state

transportation department of liability it may have, under this

section, regarding that highway.

(5) (4) The duty imposed by this section on a governmental

agency is limited by sections 81131 and 82124 of the natural

resources and environmental protection act, 1994 PA 451, MCL

324.81131 and 324.82124.

     Sec. 2a. (1) Except as otherwise provided by this section, a

municipal corporation has no duty to repair or maintain, and is not

liable for injuries arising from, a portion of a county highway

outside of the improved portion of the highway designed for

vehicular travel, including a sidewalk, trailway, crosswalk, or

other installation. This subsection does not prevent or limit a

municipal corporation's liability if both of the following are

true:

     (a) At least 30 days before the occurrence of the relevant

injury, death, or damage, the municipal corporation knew or, in the

exercise of reasonable diligence, should have known of the

existence of a defect in a sidewalk, trailway, crosswalk, or other

installation outside of the improved portion of the highway

designed for vehicular travel.

     (b) The defect described in subdivision (a) is a proximate

cause of the injury, death, or damage.

     (2) A discontinuity defect of less than 2 inches creates a

rebuttable inference that the municipal corporation maintained the

sidewalk, trailway, crosswalk, or other installation outside of the

improved portion of the highway designed for vehicular travel in

reasonable repair.

     (1) A municipal corporation in which a sidewalk is installed

adjacent to a municipal, county, or state highway shall maintain

the sidewalk in reasonable repair.

     (2) A municipal corporation is not liable for breach of a duty

to maintain a sidewalk unless the plaintiff proves that at least 30

days before the occurrence of the relevant injury, death, or

damage, the municipal corporation knew or, in the exercise of

reasonable diligence, should have known of the existence of the

defect in the sidewalk.

     (3) In a civil action, a municipal corporation that has a duty

to maintain a sidewalk under subsection (1) is presumed to have

maintained the sidewalk in reasonable repair. This presumption may

only be rebutted by evidence of facts showing that a proximate

cause of the injury was 1 or both of the following:

     (a) A vertical discontinuity defect of 2 inches or more in the

sidewalk.

     (b) A dangerous condition in the sidewalk itself of a

particular character other than solely a vertical discontinuity.

     (4) Whether a presumption under subsection (3) has been

rebutted is a question of law for the court.

(5) (3) A municipal corporation's liability under subsection

(1) is limited by section 81131 of the natural resources and

environmental protection act, 1994 PA 451, MCL 324.81131.