RAPHAEL EVANOFF V CITY OF PONTIAC
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STATE OF MICHIGAN
COURT OF APPEALS
RAPHAEL EVANOFF,
UNPUBLISHED
May 24, 2002
Plaintiff-Appellant,
No. 229162
Oakland Circuit Court
LC No. 00-030121-GC
v
CITY OF PONTIAC and CHRISTOPHER M.
REDDING, d/b/a EMPIRE/OAKLAND
INVESTMENTS,
Defendants-Appellees.
Before: Markey, P.J., and Talbot and Zahra, JJ.
PER CURIAM.
Plaintiff appeals by right the trial court’s order granting summary disposition in favor of
defendants. We affirm.
Plaintiff argues that the trial court erred in granting summary disposition in favor of
defendant city on the basis on governmental immunity. Plaintiff claims that the highway
exception to governmental immunity, MCL 691.1402, is applicable. We disagree. This Court
reviews de novo the trial court’s decision on a motion for summary disposition. Citizens Ins Co
v Bloomfield Twp, 209 Mich App 484, 486; 532 NW2d 183 (1995).
At the time of plaintiff’s slip and fall, the highway exception set forth in MCL 691.1402
provided in pertinent part:
Each governmental agency having jurisdiction over a highway shall maintain the
highway in reasonable repair so that it is reasonably safe and convenient for
public travel. Any person sustaining bodily injury or damage to his or her
property 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). 1]
1
Plaintiff’s accident occurred in December 1997. The statutory language applicable in this case
is that found in 1996 PA 150, § 1, effective March 25, 1996, rather than the current statutory
(continued…)
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In addition, MCL 691.1401(e)2 provides a definition of “highway,” which expressly excludes
alleys from its scope. The highway definition in effect at the time plaintiff fell provided:
‘Highway’ means every public highway, road, and street which is open for public
travel and shall include bridges, sidewalks, crosswalks, and culverts on any
highway. The term highway does not include alleys, trees, and utility poles.
The highway exception to immunity is to be narrowly construed, and no action can be
maintained under the highway exception unless it clearly falls within the meaning of the statute.
Scheurman v Dep’t of Transpotation, 434 Mich 619, 630 (Riley, C.J.), 637 (Boyle, J.); 456
NW2d 66 (1990); Richardson v Warren Consolidated School Dist, 197 Mich App 697, 702; 496
NW2d 380 (1992); see, also, Nawrocki v Macomb Co Rd Comm, 463 Mich 143, 150, 158; 615
NW2d 702 (2000).
We agree with the trial court’s conclusion that the area in question where plaintiff fell
was an alley; therefore, defendant city was governmentally immune. The evidence submitted in
this matter, including descriptions and pictures of the area, is more consistent with “the generally
understood notions of an alley” rather than those of a public street, road, or highway. MCL
691.1401(e); Richardson, supra at 704; Ward v Frank’s Nursery & Crafts, Inc, 186 Mich App
120, 126; 463 NW2d 442 (1990). Even though the area may have some streetlike qualities and,
perhaps, sometimes used for public travel, we cannot say that the area was a “street which is
open for public travel.” MCL 691.1401(e); Richardson, supra at 704-705. As stated by the trial
court, plaintiff may be able to show that the area in question was not strictly an alley, but was
also used as a parking lot; however, because the highway exception specifically states that the
definition of highway does not include alleys, plaintiff’s action cannot be maintained because it
does not “clearly” come within the scope and meaning of the statute. Scheurman, supra;
Richardson, supra at 702, 704. Further, to the extent that plaintiff argues that defendant city is
responsible for the parking area in question, the trial court, relying on Bunch v City of Monroe,
186 Mich App 347; 463 NW2d 275 (1990), correctly concluded that a municipality is not liable
for a public parking lot under the highway exception.
Plaintiff also argues that the trial court erred in granting summary disposition in favor of
defendant Redding. We disagree. On this issue, the court found that plaintiff fell in the alley
and not in the parking area or on the property that defendant owned. The court then opined that
the danger was open and obvious and that plaintiff could have used an alternative route.
Viewing the evidence in a light most favorable to plaintiff as the nonmoving party, we
conclude that the trial court did not err in granting summary disposition to defendant Redding.
Ritchie-Gamester v City of Berkley, 461 Mich 73, 76; 597 NW2d 517 (1999). As the trial court
(…continued)
language, which was enacted by 1999 PA 205, effective December 21, 1999.
2
The statutory language applicable in this case is that found in 1986 PA 175, § 1, effective July
7, 1986, rather than the current statutory language, which was enacted by 1999 PA 205, effective
December 21, 1999.
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in this case properly determined, plaintiff fell in the alley that defendant city owned, not on the
property that defendant Redding owned. Defendant Redding is not responsible for a condition
not on his property. Stevens v Drekich, 178 Mich App 273, 276; 443 NW2d 401 (1989).
Moreover, even if the fall did occur in the area over which defendant Redding had a
responsibility to maintain under the snow removal provision of the lease between Redding and
plaintiff’s employer, there was no evidence to establish that two or more inches of snow had
fallen which Redding had a contractual duty to remove. Thus, this assertion is without merit.
Joyce v Rubin, 249 Mich App 231, 244-246; 642 NW2d 360 (2002).
We further note that if the fall had occurred on defendant Redding’s property, plaintiff’s
action still would be barred because of the open and obvious danger doctrine. Plaintiff had
successfully crossed the alley several hours before the fall occurred and was aware of the ice on
which he fell. Thus, the danger was known to plaintiff, and defendant Redding had no duty to
warn plaintiff of the open and obvious danger unless “special aspects” of the condition made it
unreasonably dangerous. Lugo v Ameritech Corp, Inc., 464 Mich 512, 516-517; 629 NW2d 384
(2001). Special aspects that serve to remove a condition from the open and obvious doctrine are
those conditions that “give rise to a uniquely high likelihood of harm or severity of harm if the
risk is not avoided . . . .” Id. at 519. The illustrations of special aspect conditions discussed in
Lugo were (1) “an unguarded thirty foot deep pit in the middle of a parking lot” resulting in a fall
of an extended distance and (2) standing water at the only exit of a commercial building resulting
in the condition being unavoidable because no alternative route is available. Id. at 518, 520.
Plaintiff’s reliance on Corey v Davenport College of Business, unpublished per curiam
opinion of the Court of Appeals, issued July 6, 1999 (Docket No. 206185), is misplaced. Our
Supreme Court recently remanded Corey to this Court for reconsideration in light of Lugo,
supra. Corey v Davenport College of Business, 465 Mich 885 (2001). Upon reconsideration,
this Court vacated the opinion upon which plaintiff relies and ultimately affirmed the trial court’s
grant of summary disposition in favor of the defendant. Corey v Davenport College of Business
(On Remand), ___ Mich App ___; ____ NW2d ___ (Docket No. 206185, issued April ___,
2002).
In the present case, we conclude that the ice at issue here was not only an open and
obvious condition, but there also was no “special aspect” that created a “uniquely high likelihood
of harm or severity of harm” if the risk were not avoided. Plaintiff was aware of the ice and
knew that there was an alternate route that he could use to avoid the ice. Although the icy
pavement had “some potential for severe harm,” Lugo, supra at 518, n 2, we conclude that the
circumstances in this case are not the type of special aspects that Lugo contemplated. Lugo,
supra; Corey (On Remand), supra.
We affirm.
/s/ Jane E. Markey
/s/ Michael J. Talbot
/s/ Brian K. Zahra
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