GERARD GRAHAM V CITY OF LIVONIA
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STATE OF MICHIGAN
COURT OF APPEALS
GERARD GRAHAM,
UNPUBLISHED
June 27, 1997
Plaintiff-Appellant,
v
No. 188629
Wayne Circuit Court
LC No. 94-420677
CITY OF LIVONIA,
ORCHARD, HILTZ & MCCLIMENT, INC.,
and RIC-MAN CONSTRUCTION, INC.,
Defendants-Appellees.
Before: Holbrook, Jr., P.J., and White and A. T. Davis, Jr.*, JJ.
PER CURIAM.
Plaintiff appeals the circuit court’s order granting summary disposition in favor of defendants
pursuant to MCR 2.116(C)(7) and (C)(10). We reverse.
I
On August 25, 1993, at approximately 7:30 a.m., plaintiff was out for his daily three to four mile
walk. Plaintiff was walking along Six Mile Road, in an area where Six Mile Road has service drives on
the north and south sides. Grassy berms separate the service drives from Six Mile Road and there are
sidewalks through the berms. Plaintiff walked west on the sidewalk of the south service drive of Six
Mile Road until he reached Levan, where he turned north to cross Six Mile Road. He crossed the
south service drive, crossed the grassy berm separating the south service drive from Six Mile, crossed
Six Mile Road, and then crossed the northern berm separating Six Mile from the north service drive.
After crossing the northern berm, plaintiff, now heading home, crossed the northern service drive at an
approximately forty-five degree angle, in a northeasterly direction. While crossing the service drive,
plaintiff’s foot was suddenly stopped by a protrusion of tar from a two- to four-inch expansion joint, the
tar protruding approximately one half inch above the concrete slabs on either side of it. Plaintiff fell
forward onto his right hand and wrist, and sustained a severe fracture requiring surgery.
* Circuit judge, sitting on the Court of Appeals by assignment.
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On July 8, 1994, plaintiff filed a complaint against the City of Livonia (City), alleging that it
breached its duty under MCL 691.1402; MSA 3.996(102) to repair and maintain the service drive so
that it was reasonably safe and convenient for public travel; negligence in failing to exercise due care and
caution in the maintenance and repair of the service drive; and failing to inspect, warn and advise plaintiff
of nuisances, defects, hazards, dangers and improper conditions in the service drive.
On May 5, 1995, defendant City filed a third-party complaint against Ric-Man, the contractor
of the sewer construction project that included reconstruction of the highway area in question, and
Orchard, Hiltz, the engineering firm that performed inspections of the area during and after the sewer
reconstruction project, seeking indemnification or contribution.
On June 28, 1995, plaintiff filed a first amended complaint adding Orchard, Hiltz and Ric-Man
as principal defendants and alleging negligent construction and inspection, and failure to warn.
Orchard, Hiltz moved for summary disposition, arguing that plaintiff failed to establish a causal
connection between his fall and the allegedly protruding tar expansion joint and that if the joint was the
cause of plaintiff’s fall, it had no duty warn or protect plaintiff because the joint was an open and
obvious danger. Orchard, Hiltz further argued that plaintiff was comparatively negligent for meandering
outside the crosswalk, and that, as a named insured under Ric-Man’s insurance policy, it should be held
harmless and Ric-Man should assume its defense.
Defendant City moved for summary disposition, incorporating Orchard, Hiltz’s arguments, and
further argued that it was entitled to governmental immunity because, since it did not have actual or
constructive notice of the alleged dangerous condition as required by MCL 691.1403; MSA
3.996(103), the public highway exception was inapplicable. The City attached to its motion an affidavit
of the Director of the City’s Public Service Department, which stated that the City had not received any
complaints regarding the protrusion of the tar expansion joint at issue and that the City did not have
actual notice of the alleged defect.
Ric-Man filed a joinder in part in the motions for summary disposition filed by the other
defendants, arguing that plaintiff could not establish a causal connection between the tar expansion joint
and his fall, and that no duty was owed to plaintiff because the expansion joint was open and obvious.
Ric-Man further argued that it would be fundamentally unfair to hold it to a greater duty than that owed
by defendant City, since Ric-Man was hired pursuant to the City’s duty to repair and maintain
roadways so as to keep them safe for vehicular traffic.
Plaintiff filed responses to defendants’ motions, arguing that his deposition testimony established
that he tripped and fell as a direct result of the protruding expansion joint, and that the average user with
ordinary intelligence, upon casual inspection, would not expect that a tar expansion joint would be
raised above the concrete level and would not inspect each expansion joint that he crossed to determine
if it was raised. Plaintiff attached eight color photographs of the joint at issue, some of which were
taken at an angle close to the road’s surface and showed the tar protrusion, and others taken from a
standing position, which did not show a protrusion. Plaintiff also attached an affidavit and report of his
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expert, Robert Kelly, a traffic engineer with experience in highway construction, who inspected the site
on November 24, 1993, and photographs of the site. The report stated in pertinent part:
This asphaltic substance [tar] is used to seal the construction between slabs of Porland
Cement concrete. This particular joint, although not very high, is undetectable by the
normal prudent pedestrian. One would not observe its raised edge in normal walking.
This joint was observed in 40 [degree] weather. This establishes that this tar seal did not
ooze out of the joint as a result of expansion due to hot weather.
The tar used on this joint is excessive, thereby creating a condition unsafe or unfit for
travel. The excessive tar should have been struck off level with the pavement
My knowledge of these street systems and fixtures is based on 40 years of Traffic
Engineering, 14 years as Cleveland’s Chief Traffic Engineer, directly in charge of the
Division of Streets in the City of Cleveland for three years.
Conclusion
It is my opinion that this raised joint, which was defective, was the proximate cause of
this fall and injury.
Plaintiff argued that comparative negligence was an issue for the trier of fact, and that indemnification
was not an issue properly directed to plaintiff.
Plaintiff argued in response to the City’s motion for summary disposition that the City had either
actual or constructive notice of the protruding expansion joint because the joint had been in existence for
two to three years, since the area had been reconstructed.
At the motion hearing, in the course of argument, counsel for the City asserted that “the duty
here is for reasonably safe for vehicular travel, not pedestrian travel.” Plaintiff’s counsel argued at the
motion hearing on the issue of notice to the City that plaintiff testified that the road had been
reconstructed within the last two or three years, that plaintiff’s expert testified that the protrusion was
due to improper construction, and that given that the protrusion existed from the date of construction to
the date of the injury, defendant should have known about it, and it had existed for more than thirty
days. Plaintiff’s counsel also argued that the City had not briefed any immunity issue other than that it
lacked actual or constructive notice of the defect under MCL 691.1403; MSA 3.996(103), and so
counsel would limit his argument to that issue.
The circuit court granted summary disposition to all defendants on the basis of the open and
obvious danger rule, and granted summary disposition to the City on what it characterized as “all 3 of
their theories [sic] that there is immunity, and that it is open and obvious, and that there was not any
evidence of notice to the City, that this defect, or allege [sic] defect had existed for more than 30 days.”
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II
Plaintiff first argues that the circuit court incorrectly dismissed plaintiff’s claims against all
defendants under the open and obvious danger rule. We agree.
Whether a danger is open and obvious depends on whether it is reasonable to expect an
average user with ordinary intelligence to discover the danger on casual inspection. Eason v Coggins
Memorial Church, 210 Mich App 261, 263; 532 NW2d 882 (1995).
Photographs plaintiff submitted below in support of his responses to defendants’ motions for
summary disposition raise a genuine issue of fact whether the tar protruding from the expansion joint
would have been discovered by an average user of ordinary intelligence on casual inspection. The
photographs of the expansion joint taken from a standing position reveal no obvious protrusion. In
contrast, the photographs taken from a much lower vantage point, close to the road’s surface, show a
tar protrusion. Based on these photographs, a reasonable fact-finder could conclude that the protruding
tar would not be apparent to a pedestrian of average intelligence on casual inspection. Accordingly, the
circuit court erred in concluding that the alleged defect constituted an open and obvious danger as a
matter of law and that defendants thus owed plaintiff no duty as a matter of law.
Regarding the City, we further observe that it was not entitled to summary disposition on the
basis of the open and obvious danger rule for the additional reason that the City is not entitled to assert
that rule as a defense to plaintiff’s statutory claim under MCL 691.1402; MSA 3.996(102). Haas v
Ionia, 214 Mich App 361, 364; 543 NW2d 21 (1995).
III
Plaintiff next argues that the circuit court improperly granted the City summary disposition under
MCL 691.1403; MSA 3.996(103) where the City in the exercise of reasonable diligence should have
known of the alleged defect because it was constructed improperly and had existed for approximately
two to three years, from the date of construction to the date of plaintiff’s accident. We agree that
plaintiff established a genuine issue of material fact.
Plaintiff testified that the portion of highway at issue had been reconstructed two to three years
before his accident.1 Plaintiff’s expert’s report stated that he observed the expansion joint in forty
degree weather, that he concluded that the tar seal did not ooze out of the joint as a result of expansion
due to hot weather, that the tar used on the joint was excessive, that the excessive tar should have been
struck off level with the pavement, and that it created a condition unsafe for travel. Although the City
submitted an affidavit below stating that it had no actual notice of the defect and had received no
complaints regarding the portion of highway at issue, it did not address the issue of constructive notice.
Plaintiff presented sufficient evidence to raise a genuine issue of fact whether the City, in the exercise of
reasonable diligence, should have known of the alleged defect and had a reasonable time to repair the
defect before the injury took place. MCL 691.1403; MSA 3.996(103).
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IV
Plaintiff lastly argues that the circuit court incorrectly granted the City summary disposition on
the basis of immunity on grounds separate from the notice issue when the City only briefed the notice
issue below. We agree.
As to governmental immunity, the City’s written motion for summary disposition argued only
that it did not have actual or constructive notice of the alleged defect under MCL 691.1403; MSA
3.996(103), and that the highway exception thus did not apply. 2 At the hearing, however, defense
counsel for the City additionally stated that “the duty here is for reasonably safe for vehicular travel, not
pedestrian travel.” In response, plaintiff’s counsel stated:
Going on to Defendant Lavonia’s [sic] brief, the only issue that they bring up is
the notice issue. There are mentions now at argument here about the proper care of a
crosswalk or street area for vehicular travel. That has not been argued in brief here,
and this is the first time I’m hearing about this now.
So, the only issue I’m addressing here is the notice issue, and under that, the
appropriate standard is . . . .
The court did not respond to counsel’s statement, and did not indicate to counsel that it would consider
the issue although not briefed and although raised for the first time at argument.
We reject the City’s argument that the issue was raised by the general assertion of governmental
immunity. While that assertion preserved the defense, it did not constitute adequate notice of the basis
for the motion, especially when a different theory of governmental immunity was argued in its brief. On
appeal, the City cites only Roux v Dep’t of Transportation, 169 Mich App 582; 426 NW2d 914
(1988), as authority for its position. However, Roux was disapproved in Gregg v State Hwy Dep’t,
435 Mich 307, 311 n3; 458 NW2d 619 (1990). In any event, we conclude that the court should not
have addressed the argument raised for the first time at oral argument over plaintiff’s objection. We
vacate the grant of summary disposition on this basis and remand for further proceedings.3 The City
may raise this issue below through a properly filed motion and brief.
Reversed and remanded for further proceedings as to all defendants.4 We do not retain
jurisdiction.
/s/ Helene N. White
/s/ Alton T. Davis, Jr.
1
Defendants did not dispute this, and provided no information regarding the date the area at issue was
reconstructed, apart from argument at the hearing by counsel for Ric-Man that by the time plaintiff’s
expert inspected the site (in November 1993) the highway had been reconstructed for one or 1 ½ years.
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2
Counsel for Ric-Man argued in its brief joining in part in the motions for summary disposition of
defendant City and Orchard, Hiltz, that defendant City “correctly observes that the traveled portions of
roadways are to be safe for vehicular travel.” However, we have reviewed the entire lower court
record and have not found that defendant City made that argument below.
Defendant City, in its motion for summary disposition did adopt and incorporate the arguments made by
Orchard, Hiltz in its motion for summary disposition. Orchard, Hiltz’s brief in support of its motion
argued, in a section addressed to plaintiff’s comparative negligence, that
For their own safety pedestrians should not be in the road outside the crosswalk, since
roads are constructed for automotive travel and not pedestrian travel. As such, Plaintiff
was comparatively negligent in walking outside of the designated crosswalk and, as
such, any award to Plaintiff should be appropriately reduced.
3
The dissent would decide the issue on the merits because the general defense of immunity was
pleaded, and the issue is one of law. Wechsler v Wayne County Road Comm’n, 215 Mich App 579,
585-586, n 3; 546 NW2d 690 (1996). We reject this approach because we conclude the issue is not
one of settled law and has not been properly presented for decision. The cases relied on by the dissent
in deciding the issue on the merits, Mason v Wayne Co Bd of Comm’rs, 447 Mich 130, 137; 523
NW2d 791 (1994) and Suttles v Dep’t of Transportation, 216 Mich App 166; 548 NW2d 671
(1996) are pertinent, but distinguishable. The language from Mason must be read in context. The issue
there was the county’s responsibility for crosswalks. By statute, the county’s responsibility is limited to
the improved portion of the highway designed for vehicular travel, and does not include crosswalks.
Here, the municipality’s liability is not so limited by statute. In Suttles, the Court determined that the
area near the curb was an installation outside of the improved portion of the highway designed for
vehicular travel, also in the context of applying the limitation applicable to counties and the state.
In identifying these distinctions, we express no opinion on the merits of the issue. We only conclude that
because the issue was not properly presented below, and the only authority cited by defendant on
appeal, Roux, supra, has been disapproved, plaintiff has not been accorded, but is entitled to, a full
opportunity to address the legal issue.
4
Ric-Man and Orchard, Hiltz’ other grounds for summary disposition, not addressed by the trial court
or by defendants on appeal, may be renewed on remand. We express no opinion on their merits.
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