Weakley v. City of Dearborn Heights , 240 Mich. App. 382 ( 2000 )

612 N.W.2d 428 (2000) 240 Mich. App. 382

Terrence M. WEAKLEY, Plaintiff-Appellant,
v.
CITY OF DEARBORN HEIGHTS, Darron Duncan, and Rosemary Duncan, Defendants-Appellees.

Docket No. 212008.

Court of Appeals of Michigan.

Submitted January 18, 2000, at Detroit. Decided March 28, 2000, at 9:10 a.m. Released for Publication June 22, 2000.

Thomas A. Herzog, Union Lake, for Terrence M. Weakley.

Kitch, Drutchas, Wagner & Kenney, P.C. (by Linda M. Garbarino and Michael J. Watza), Detroit, for city of Dearborn Heights.

Becker, Lanctot, McCutcheon, Schoolmaster, Taylor & Hom (by Onjel L. Benson), Detroit, (John A. Lydick, of Counsel), Detroit, for Darron and Rosemary Duncan.

Before: BANDSTRA, C.J., and HOLBROOK, JR., and FITZGERALD, JJ.

FITZGERALD, J.

Plaintiff appeals as of right an order granting summary disposition in favor of defendants pursuant to MCR 2.116(C)(10). We affirm in part and reverse in part.

Plaintiff tripped and fell on a removed portion of a public sidewalk maintained by defendant city of Dearborn Heights and adjacent to property owned by defendants Darron and Rosemary Duncan. The city had removed the entire section of the sidewalk for the purpose of repair, but did not erect a blockade or other warning device to alert pedestrians to the missing sidewalk. At the time of the fall, plaintiff, who was visiting his girlfriend at the residence next door to the Duncan residence, was chasing his girlfriend's dog. According to plaintiff, the sun was shining, but some leaves had fallen into the eight-inch deep hole created by the missing section of sidewalk. As a result of the fall, plaintiff injured his left knee and his back. Plaintiff filed a common-law negligence action against the Duncans and the city. Plaintiff also alleged that the city breached its statutory obligation to keep the sidewalk in good repair so as to be reasonably safe for public travel. The trial court granted summary disposition in favor of the Duncans and the city on the ground that the danger was "open and obvious."

On appeal, plaintiff argues that the trial court erred in holding as a matter of law that the missing section of sidewalk was open and obvious. A motion for summary disposition relying on MCR 2.116(C)(10) tests whether there is factual support for a claim. Spiek v. Dep't of Transportation, 456 Mich. 331, 338, 572 N.W.2d 201 (1998). A court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence available to it. Id. The party opposing the motion has the burden of showing that a genuine issue of material fact exists. Skinner v. Square D Co., 445 Mich. 153, 160, 516 N.W.2d 475 (1994). All inferences will be drawn in favor of the nonmovant. Dagen v. Hastings Mut. Ins. Co., 166 Mich.App. 225, 229, 420 N.W.2d 111 (1987). A court must determine whether a record could be developed that would leave open an issue upon which reasonable minds could differ. Bertrand v. Alan Ford, Inc., 449 Mich. 606, 617-618, 537 N.W.2d 185 (1995).

The duty of care owed to an invitee does not extend to conditions from which an unreasonable risk cannot be anticipated or to dangers so obvious that an invitee can be expected to discover them himself. Ellsworth v. Hotel Corp. of America, 236 Mich.App. 185, 195, 600 N.W.2d 129 (1999). An invitor must warn of hidden defects, but is not required to eliminate or warn of open and obvious dangers unless the invitor should anticipate the harm despite the invitee's knowledge of it. Riddle v. McLouth Steel Products Corp., 440 Mich. 85, 90-95, 485 N.W.2d 676 (1992); Millikin v. Walton Manor Mobile Home Park, Inc., 234 Mich.App. 490, 495, 595 N.W.2d 152 (1999); Hughes v. PMG Building, Inc., 227 Mich.App. 1, 10, 574 N.W.2d 691 (1997). Whether a danger is open and obvious depends on whether it is reasonable to expect an average user of ordinary intelligence to discover the danger upon casual inspection. Eason v. Coggins Memorial Christian Methodist Episcopal Church, 210 Mich.App. 261, 264, 532 N.W.2d 882 (1995).

Having reviewed the picture of the sidewalk and plaintiff's deposition testimony that he would have seen the missing slab if he had been watching where he was walking, we conclude that the trial court properly concluded that there was insufficient evidence to present a factual question for the jury with respect to the open and obvious nature of the condition of the sidewalk.

Indeed, steps and differing floor levels, such as the uneven pavement that resulted when the section of sidewalk was removed, are "not ordinarily actionable unless unique circumstances surrounding the area in issue made the situation unreasonably dangerous." Bertrand, supra at 614, 537 N.W.2d 185 (emphasis in original). As stated in Bertrand:

[T]he rule generated is that if the particular activity or condition creates a risk of harm only because the invitee does not discover the condition or realize its danger, then the open and obvious doctrine will cut off liability if the invitee should have discovered the condition and realized its danger. On the other hand, if the risk of harm remains unreasonable, despite its obviousness or despite knowledge of it by the invitee, then the circumstances may be such that the invitor is required to undertake reasonable precautions. [Id. at 611, 537 N.W.2d 185 (emphasis in original).]

In the companion case to Bertrand, Maurer v. Oakland Co. Parks & Recreation Dep't, the plaintiff tripped on a cement step and sued, claiming failure to maintain a reasonably safe premises by not painting the step a different color or failure to warn of the step. Id. at 618, 537 N.W.2d 185. As in the present case, the plaintiff's fall occurred during the daytime and her failure to see the step was her basis for finding the step dangerous or not open and obvious. Id. at 621, 537 N.W.2d 185. The Supreme Court upheld the grant of summary disposition on the ground that the plaintiff had not shown that the step was unreasonably dangerous. Id.

Here, plaintiff has come forward with no evidence upon which a rational factfinder could conclude that, notwithstanding the open and obvious nature, the missing cement slab presented an unreasonable risk of harm. Instead, as in the Maurer case, plaintiff's only asserted basis for finding that the sidewalk was dangerous was that he did not notice that a section of the sidewalk was missing. Because plaintiff has failed to present any facts that the sidewalk posed an unreasonable risk of harm, notwithstanding its open and obvious nature, the trial court properly granted summary disposition of plaintiff's negligence claims that were premised on a failure to warn.

Plaintiff also argues that it was error for the trial court to dismiss his cause of action against the city under the open and obvious doctrine because the city has a statutory obligation to keep the sidewalk in good repair so as to be reasonably safe for public travel. MCL 691.1402(1); MSA 3.996(102)(1). We agree. The defense of open and obvious danger does not apply where liability is premised on a statutory duty to maintain and repair a sidewalk. Haas v. Ionia, 214 Mich.App. 361, 364, 543 N.W.2d 21 (1995); Walker v. Flint, 213 Mich.App. 18, 22-23, 539 N.W.2d 535 (1995). Here, plaintiff alleged that the duty to maintain and repair a sidewalk "so as to be reasonably safe" includes the duty to place warning signs or barriers at points of special hazard.

In the context of vehicular traffic, the duty of maintenance under § 2 includes the duty to erect adequate warning signs or traffic control devices at a point of hazard or special danger. Pick v. Szymczak, 451 Mich. 607, 624, 548 N.W.2d 603 (1996). We can discern no reason to construe § 2 differently with respect to a municipality's duty to repair and maintain a sidewalk. Thus, we conclude that a municipality has a duty to provide barriers or warning signs at, or in regard to, points of hazard affecting a sidewalk.^[1]

Our Supreme Court has defined a "point of hazard" as a condition that directly affects travel along the improved portion of the roadway (including a sidewalk, M.C.L. § 691.1401[e]; MSA 3.996[101][e]) so that it is "not reasonably safe." Pick, supra at 623, 548 N.W.2d 603. Defendant city has argued that the sidewalk here was reasonably safe, notwithstanding the missing sidewalk section, because any reasonably observant pedestrian could have stepped down into and up out of the area from which it was removed in a manner similar to traversing steps. The question whether the sidewalk was "reasonably safe" is a factual determination that must be made before imposing a duty on defendant city to "provide traffic control devices or warning signs." Id. at 624, 548 N.W.2d 603.^[2]

In sum, we conclude that the trial court properly granted summary disposition in favor of defendants on plaintiff's negligence claims. Thus, the Duncans, against whom only negligence claims were made, were properly dismissed as defendants. However, the trial court erred as a matter of law in granting summary disposition in favor of the city on plaintiff's claim that the city breached its statutory duty to repair and maintain sidewalks under § 2.

Affirmed in part and reversed in part.

NOTES

[1] The existence of any duty is strictly subject to the notice requirement of the act, M.C.L. § 691.1403; MSA 3.996(103).

[2] In addition, defendant city "may argue that the openness and obviousness of the danger establishes comparative negligence on plaintiff's part." Haas, supra at 364, 543 N.W.2d 21.