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Michigan’s New Two-Inch Rule Related to Sidewalk Defects
and Trip and Falls

June 28, 2012 / in Written by Mike Salhaney

Municipalities can breathe a sigh of relief from trip and fall claims and lawsuits now that the Michigan Legislature has brought the “two-inch rule” back to life. The rule gives local units of government the ability to rely upon a presumption that a sidewalk is in a reasonable state of repair if a defect in the sidewalk causing the injury is less than two inches in size.

The “two inch rule,” as it is known, existed in Michigan as merely a rebuttable inference under the statute related to defective public highways.   Municipalities were able to use this statutory inference in lawsuits filed against them related to defective sidewalks that were adjacent to any highway.  That is, until April of 2010 when the Michigan Supreme Court issued its ruling in Robinson v City of Lansing that the statutory inference of reasonable repair applied only to those sidewalks that were adjacent to county highways, not state or local public roads.

The decision in Robinson forced municipalities dealing with claims concerning sidewalks adjacent to non-county highways (i.e. city-owned streets) to spend precious governmental funds to litigate the question of whether the sidewalk was in “reasonable repair” without the benefit of any inference.  Cities were finding themselves without any protection and having to litigate claims from a plaintiff who tripped on a sidewalk heave of an eighth of an inch.

With the legislative action, the “two-inch rule” is back, and stronger than the previous statutory language.  Effective March 13, 2012, the legislature amended the Governmental Tort Liability Act, strengthening the statutory inference by changing it to a much stronger statutory presumption.  This change to a presumption now requires plaintiffs/claimants to carry the burden of proof to avoid governmental immunity. It has also been broadened to include sidewalks adjacent to municipal and state highways in addition to county highways.  A plaintiff/claimant must now prove that the defect in the sidewalk has a vertical defect greater than 2 inches in height. If not, then the sidewalk is presumed to be in reasonable repair, and no liability.

Not only does the amended statute presume a sidewalk to be in reasonable repair, even if it has a defect less than two inches, but it also provides clarity to the issue of how you measure the defect.  For instance, many plaintiffs would measure the defect horizontally (i.e., horizontal pot-hole width), yet the actual vertical discontinuity would only be half an inch.  The statute states, in pertinent part:

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 or a particular character other than solely a vertical discontinuity.

MCL §691.1402a(3)

This language means the presumption may only be rebutted by evidence showing that an injury was caused by a vertical discontinuity of at least two inches or by a particularly dangerous condition existing in the sidewalk. The question of whether or not the plaintiff has rebutted the presumption is now a question of law for the court to decide, not a question of fact for the jury.


News From The Courtroom

April 20, 2012 / in

Shareholder Claims
Victor Veprauskas and Frank Galgan, partners in the business law group, recently structured a $3 million client settlement in Oakland County Circuit Court. The remaining shareholder claims involved a publicly-traded company and included witnesses from China, Hong Kong, India, New York and Michigan over a two-week period.

Wrongful Discharge Claim
Keith Jablonski and Michael Gibbons, partners in the business law group, prevailed in a wrongful discharge claim heard in the Michigan Court of Appeals. The attorneys had previously obtained a dismissal of the claim in the Wayne County Circuit Court.

Beier Howlett successfully argued, both at the trial court and in the Court of Appeals, that the employer had acted lawfully and within its rights in terminating the employment of a former employee. The employee had alleged he was terminated in violation of public policy, an argument neither Court was willing to accept. This type of employment claim is regularly litigated by Beier Howlett’s business attorneys.

Garnishment Claim
Peter Gojcaj and Michael Gibbons prevailed over an objection to a garnishment that a judgment debtor filed, alleging that the judgment debtor’s bank had an older, perfected security interest.


Trade Secrets Protected by Michigan Court of Appeals

April 10, 2012 / in

By Peter Gojcaj

In a decision reinforcing the strength of the Michigan Uniform Trade Secrets Act (MUTSA), the Michigan Court of Appeals recently upheld a trial court decision enjoining an individual for three years from being employed by his former employer’s competitor, despite the absence of a “non-compete” agreement.

Enacted in 1999, MUTSA gives trial courts authority to enjoin “actual or threatened misappropriation” of company trade secrets. The enjoined employee, according to the Michigan Court of Appeals, showed some “warning flags” that he would disclose certain trade secrets of his former employer.

As has become all too common, during the employee’s resignation, the employee had used his former employer’s computer to access many confidential computer files that the employee had no reason to access. Moreover, despite the employee knowing that a temporary restraining order (TRO) was issued, the employee claimed that “he did not think” that a certain USB drive that he copied his former employer’s files was covered by the TRO.

Worse, the employee copied his former employer’s form, replaced the letterhead with his new employer’s name, and sent it to a customer of his former employer.

Notably, the Michigan Court of Appeals cited PepsiCo v Redmond, 54 F3d 1262 (CA 7, 1995), a seminal Seventh Circuit case.  PepsiCo provides that a “plaintiff may prove a claim of trade secret misappropriation by demonstrating that defendant’s new employment will inevitably lead him to rely on the plaintiff’s trade secrets.”

Although the PepsiCo court indicated that “despite the lack of evidence” that the employee “used or planned to use any trade secrets” of his former employer’s, the Court opined that the employee demonstrated a lack of trustworthiness beyond his decision to work for a competitor.  This “lack of trustworthiness” was enough for the PepsiCo court to enjoin the employee for joining his new employer for a period of six months.

MUTSA defines a trade secret broadly as information, including a formula, pattern, compilation, program, device, method, technique, or process, that 1) derives independent economic value from not being generally known, and 2) is reasonably protected as confidential.   Under the Act, actual or threatened misappropriation may be enjoined.

To protect trade secrets or proprietary information in advance, companies should consider the use of a covenant not to compete. Under this contract provision, one party agrees not to pursue a similar profession or trade in competition against another party for a reasonable period of time. However, where a non-compete is not in place, there is ow precedent for imposing similar restrictions under MUTSA.

For more information on the Michigan Trade Secrets Act or non-compete clauses, email Peter Gojcaj, attorney with the Beier Howlett Business Practice Group.


News From The Courtroom

April 10, 2012 / in Uncategorized

Commercial Insurance Benefits Rewarded

Mike Gibbons and Peter Gojcaj recently won a six figure judgment on behalf of a business client against its insurance company. The insurer refused to pay the benefit due after a loss covered by the client’s commercial liability insurance policy, requiring the client to pursue payment in court.

Unjust Enrichment Case Dismissed Before Trial

Keith Jablonski recently succeeded in having a case against a large manufacturing client dismissed by a Federal Court. The Plaintiff sought substantial damages, for which the Court ultimately found our client was not responsible.

Detroit Free Press – Guest Editorial
Comments by Beier Howlett attorney Joe Yamin, who represents clients in the firearms industry, were featured in the Detroit Free Press recently. Read full article here.


News From The Courtroom

March 23, 2012 / in Uncategorized,

School Law

Peter Gojcaj and Michael Gibbons prevailed for their client, a public employer, in an arbitration claim filed by an employee asserting violations of an employment agreement.

Commercial Property

Keith Jablonski recently succeeded in obtaining a dismissal with prejudice of a lawsuit brought by a contractor against our client, a commercial property owner. The contractor had performed work for a tenant of our client. When the tenant neglected to pay for the work, the contractor unsuccessfully attempted to collect from the building owner.