Kowalczyk v. Bailey , 1 Mich. App. 551 ( 1966 )

1 Mich. App. 551 (1965) 137 N.W.2d 285

KOWALCZYK
v.
BAILEY.

Docket No. 172.

Michigan Court of Appeals.

Decided October 18, 1965. Leave to appeal granted February 11, 1966.

Royal A. Oppenheim, for plaintiff.

Kelly, Oster, Tatham & Solner (Norman L. Zemke of counsel), for defendant City of St. Clair Shores.

Steve S. Michaels, for defendants Kachnowski and Taylor.

Leave to appeal granted by Supreme Court February 11, 1966. See 377 Mich. 701.

T.G. KAVANAGH, J.

This is an appeal from a summary judgment of dismissal entered upon motion of the defendant city of St. Clair Shores. The suit arose out of an accident occurring on January 12, 1963. Other defendants are not involved in this appeal.

Plaintiff was injured when the car in which she was a passenger collided with an illegally-parked car owned by defendant David Bailey. She alleges that the city was negligent in the following manner:

"(a) Permitting the motor vehicle of David Bailey to remain on the public highway illegally.

"(b) Permitting said illegally parked vehicle to remain as a dangerous menace and hazard to others then and there lawfully in the use of the highway, for an unreasonable length of time; and failing in their duty, after full knowledge thereof, to provide signals or other adequate warning devices of the presence of the vehicle in the highway after sundown and the danger thereof.

"(c) Failing in their duty to correct this dangerous condition after knowledge thereof, notwithstanding ample opportunity and facilities to tow away or otherwise remove the danger."

The motion of defendant city of St. Clair Shores was based upon the admitted failure of plaintiff to comply with the notice requirements of CL 1948, § 242.8 (Stat Ann 1958 Rev § 9.598).

Plaintiff maintains that her cause of action is not based upon the statute and consequently is not limited by its requirements. Plaintiff's theory is that her action is based upon the common-law liability of a city for the tortious act of its servant in negligently performing his duty. She claims the judicial doctrine of governmental immunity was the only bar to such an action at common law and argues that since Williams v. City of Detroit (1961), 364 Mich. 231, the court no longer will sustain this defense and hence plaintiff has the common-law action and need not comply with the notice requirement of the statute, because she does not rely on the statute for her cause of action.

The Michigan Supreme Court in the case of Boike v. City of Flint (1965), 374 Mich. 462, has unanimously rejected this argument.

There the court determined that all actions against a city for damages for bodily injury sustained by reason of neglect to keep city streets in repair and safe for public travel must be brought under the statute and in compliance with all of its provisions as to notice.

Affirmed, without costs as this case involves a question of public interest.

J.H. GILLIS, P.J., and QUINN, J., concurred.