ROBINSON v. Geneva Hogan and Dke Homes, Ltd., Defendants. (1998)

ON REMAND

The Supreme Court remanded this case for reconsideration, 457 Mich. 874, 586 N.W.2d 920 (1998), because the trial court granted summary disposition for defendant city of Detroit on the basis of the “half-inch rule” adopted in Zielinski v. Szokola, 167 Mich.App. 611, 621-622, 423 N.W.2d 289 (1988), not the “two-inch rule.”   We reverse and remand.

 We conclude that the half-inch rule does not survive our Supreme Court's recent decision in Glancy v. Roseville, 457 Mich. 580, 577 N.W.2d 897 (1998).   In Glancy, the Court recognized that under the separation of powers courts may not adopt arbitrary rules, such as the two-inch rule, to circumvent the Legislature's decision to abolish governmental immunity for the failure to keep municipal sidewalks in “reasonable repair.”  Id. at 590-591, 577 N.W.2d 897.   The Court also reaffirmed its decision in Rule v. Bay City, 387 Mich. 281, 195 N.W.2d 849 (1972), abolishing the two-inch rule.   Glancy, supra at 587-589, 577 N.W.2d 897.   In Rule, the Court adopted Justice Adams' dissent in Harris v. Detroit, 367 Mich. 526, 531, 535-536, 117 N.W.2d 32 (1962), in which he reasoned that courts may not determine “actionable negligence” by an arbitrary measurement, but, rather, must consider the circumstances of each case to determine whether a question of fact exists regarding the defendant's negligence.   The half-inch rule of Zielinski is precisely such a rule of arbitrary measurement.

 We expressly overrule Zielinski because this Court's adoption of the half-inch rule constituted both the improper adoption of a bright-line rule to change a statute on the basis of policy arguments and improper interference with the trier of fact's evaluation of factual issues.  Glancy, supra.   Although the trial court cannot be faulted for following controlling precedent, Hackett v. Ferndale City Clerk, 1 Mich.App. 6, 11, 133 N.W.2d 221 (1965), it erred in granting summary disposition on the basis of the half-inch rule.   Further, even if the half-inch rule was valid, a question of fact existed whether it applied in this case.   Plaintiffs submitted two affidavits by a registered professional engineer indicating that the sidewalk defect was either 11/161116ths or 15/161516ths of an inch.   The trial court should not have resolved this factual issue on a motion for summary disposition.  Spectrum Mfg. Corp. v. Bank of Lansing, 118 Mich.App. 25, 32, 324 N.W.2d 523 (1982).

Reversed and remanded.   We do not retain jurisdiction.

PER CURIAM.