Kerrie Nyenhuis v. Kroger Company of Michigan ( 2020 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
KERRIE NYENHUIS and JOSHUA NYENHUIS, UNPUBLISHED
February 25, 2020
Plaintiffs-Appellees,
v No. 346589
Wayne Circuit Court
KROGER COMPANY OF MICHIGAN, LC No. 17-013350-NO
Defendant,
and
CITY OF GROSSE POINTE,
Defendant-Appellant.
Before: REDFORD, P.J., and CAVANAGH and SERVITTO, JJ.
PER CURIAM.
In this trip and fall case, defendant, City of Grosse Pointe, appeals as of right the trial
court’s order denying its motion for summary disposition under MCR 2.116(C)(7) and (C)(10) on
governmental immunity grounds. We affirm.
I. FACTUAL BACKGROUND
On May 4, 2017, plaintiff, Kerrie Nyenhuis, parked her car in the parking lot at the rear of
defendant Kroger Company of Michigan’s (Kroger) store located at 16919 Kercheval Avenue in
Grosse Pointe, Michigan. A one-way pavement on which motor vehicles may travel runs the entire
length of the rear of the Kroger store and adjacent businesses. As Kerrie left the store, her shopping
cart stopped suddenly causing her to fall over it and then the cart landed on top of her causing her
injury. Plaintiffs sued Kroger for premises liability and later amended their complaint to add
defendant Grosse Pointe to state a claim under MCL 691.1402(1), the “highway exception” to
governmental immunity, for failure to maintain an alleged defective roadway. Grosse Pointe
moved for summary disposition on the ground that Kerrie fell in an alley, and not a “highway” as
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defined by the governmental immunity statute, such that the highway exception did not apply. The
trial court denied Grosse Pointe’s motion.
II. STANDARDS OF REVIEW
We review de novo the applicability of government immunity. Plunkett v Dept of
Transportation, 286 Mich. App. 168, 180; 779 NW2d 263 (2009). Whether the highway exception
applied to a case is a question of law we review de novo. Id. We also review de novo a trial
court’s interpretation of a statute. Id. “MCR 2.116(C)(7) provides that a motion for summary
disposition may be raised on the ground that a claim is barred because of immunity granted by
law.” Dextrom v Wexford Co, 287 Mich. App. 406, 428-429; 789 NW2d 211 (2010). We review
de novo a trial court’s grant or denial of summary disposition under MCR 2.116(C)(7). Poppen v
Tovey, 256 Mich. App. 351, 353; 664 NW2d 269 (2003). In analyzing a motion for summary
disposition under MCR 2.116(C)(7), the trial court must accept as true the contents of the
complaint unless contradicted by affidavits, depositions, admissions, or other documentary
evidence submitted to the trial court by the movant. Maiden v Rozwood, 461 Mich. 109, 119; 597
NW2d 817 (1999). “The substance or content of the supporting proofs must be admissible in
evidence.” Id. “A motion brought pursuant to MCR 2.116(C)(7) should be granted only if no
factual development could provide a basis for recovery.” Cole v Ladbroke Racing Michigan, Inc,
241 Mich. App. 1, 6-7; 614 NW2d 169 (2000) (citation omitted); Dextrom, 287 Mich. App. at 429.
“A motion under MCR 2.116(C)(10), on the other hand, tests the factual sufficiency of a
claim.” El-Khalil v Oakwood Healthcare, Inc, 504 Mich. 152, 160; 934 NW2d 665 (2019) (citation
omitted). “When considering such a motion, a trial court must consider all evidence submitted by
the parties in the light most favorable to the party opposing the motion.” Id. (citation omitted).
“A motion under MCR 2.116(C)(10) may only be granted when there is no genuine issue of
material fact. A genuine issue of material fact exists when the record leaves open an issue upon
which reasonable minds might differ.” Id. (quotation marks and citations omitted).
III. ANALYSIS
Grosse Pointe argues that the trial court erred by denying its motion for summary
disposition because the area where plaintiff fell did not constitute a “highway” under MCL
691.1401(c), and therefore, was not subject to the highway exception to governmental immunity,
MCL 691.1402. We disagree.
Under MCL 691.1407(1), “a governmental agency is immune from tort liability if the
governmental agency is engaged in the exercise or discharge of a governmental function.”
However, exceptions exist to governmental immunity, including the “highway exception” under
which a person “who sustains bodily injury . . . 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.”
MCL 691.1402(1). MCL 691.1401(c) provides:
“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.
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There is no statutory definition of the term “alley.” “Undefined statutory terms must be
given their plain and ordinary meanings, and it is proper to consult a dictionary for definitions.”
Halloran v Bhan, 470 Mich. 572, 578; 683 NW2d 129 (2004). The relevant dictionary definition
of “alley” is:
1. a narrow street; esp: a thoroughfare through the middle of a block giving access
to the rear of lots or buildings. [Merriam-Webster’s Collegiate Dictionary (11th
ed).]
On appeal, Grosse Pointe argues that the area where plaintiff fell does not constitute a
“highway” for purposes of the highway exception, but rather an “alley,” which is excluded from
the highway exception. This Court addressed the distinction between a “highway” and an “alley”
in Stamatakis v Kroger Co, 121 Mich. App. 281; 328 NW2d 554 (1982). In Stamatakis, this Court
opined that the plaintiff might be entitled to claim avoidance of governmental immunity if she
could prove that the physical characteristics and pattern of use of the place where she claimed her
injury occurred were those of a highway, and not those of an alley. Id. at 285.
In Ward v Frank’s Nursery & Crafts, Inc, 186 Mich. App. 120; 463 NW2d 442 (1990), this
Court held that a plaintiff failed to demonstrate that an “area of public access” was not an alley for
purposes of governmental immunity. In Ward, the plaintiff’s accident occurred “in an area of
public access characterized, alternatively, as an alley or a walkway” . . . that “served as a means
of access for vehicles and pedestrians to adjacent business premises and parking lots operated by
defendants Frank’s Nursery & Crafts, Inc., and Pete & Franks Fruit Ranch.” Id. at 123. This Court
noted that the plaintiff offered vague allegations and failed to establish that the alley served as a
road traveled by the public or as a passage to places not in close proximity to the two businesses.
Id. at 126. In the absence of evidence showing that people used the passageway in a manner
inconsistent with an alley, the passageway fit the statutory definition of a highway in MCL
691.1401(e). Id.
In Collins v City of Ferndale, 234 Mich. App. 625, 626-627; 599 NW2d 757 (1999), the
plaintiff slipped and fell in a municipal parking lot behind a row of businesses where a one-way
alley ran the entire distance between the parking lot and the shops. This Court concluded that
“[a]lthough the alley runs from side street to side street, there is no evidence that the alley is
intended for use as a regular means of access between those two streets. The alley is used for
access to the parking lot and for delivery trucks unloading cargo.” Id. at 627. This Court held that
the alley did not meet the definition of a highway, because the plaintiff failed to present evidence
that the passageway had characteristics inconsistent with ordinary uses of alleys or that the custom
and use of the area where she fell served as anything other than an alley. Id. at 630.
In this case, Grosse Pointe moved for summary disposition on governmental immunity
grounds because plaintiff fell in an alley and not a highway. The record reflects that Grosse Pointe
presented evidence that the one-way passageway ran the length of the rear of the Kroger store and
adjoining businesses and served as a means of ingress and egress from a parking lot and businesses
used it for unloading trucks. It contended that it was not a highway as defined under MCL
691.1401(c) but merely an alley. The record reflects that the passageway is not designated as a
street or roadway but functions as a 20-foot-wide public passageway between businesses and an
adjacent parking lot.
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Plaintiffs presented evidence of the physical description of the passageway and
photographs of it. She also provided to the trial court an affidavit supported by exhibits that
supported her contention that it customarily serves as a publicly used passageway between two
city roads with specifically dedicated painted loading zones like control painted zones on city
streets. She presented evidence of storm sewers for management of surface waters. Further, the
photos she submitted established that the passageway, like a city street, had designated angular
parking spots governed by parking meters. The passageway also features control signage and
directional signals painted on the surface directing traffic onto the adjacent city street. Plaintiff
also presented evidence of the area where she fell that had features triers of fact could find
inconsistent with an alley.
Plaintiff presented evidence that established the existence of a genuine issue of fact whether
the area in question served “any broader function consistent with the usage of a road travelled by
the public.” We do not believe that the evidence presented by the parties established that the
passageway, as a matter of law, consisted of features commonly associated with alleys rather than
highways. Accordingly, the trial court did not err by denying defendant Grosse Pointe’s motion
for summary disposition.
Affirmed.
/s/ James Robert Redford
/s/ Mark J. Cavanagh
/s/ Deborah A. Servitto
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