MILOSLAV ROBERT HAJEK V BD OF TRUSTEES EASTERN MICHIGAN UNIV
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
MILOSLAV ROBERT HAJEK,
UNPUBLISHED
January 27, 2004
Plaintiff-Appellant,
v
EASTERN MICHIGAN UNIVERSITY BOARD
OF TRUSTEES,
No. 245574
Court of Claims
LC No. 02-000001-MZ
Defendant-Appellee.
Before: Zahra, P.J., and Cavanagh and Cooper, JJ.
PER CURIAM.
Plaintiff Miloslav Robert Hajek appeals as of right the court of claims’ order granting
defendant Eastern Michigan University Board of Trustees’ motion for summary disposition,
pursuant to MCR 2.116(C)(7). We affirm.
At issue is whether the condition of the sidewalk in this case could be considered a
nuisance per se. And if so whether nuisance per se is a recognized exception to governmental
immunity in Michigan. Because the facts in this case do not constitute a nuisance per se, we find
that summary disposition was proper.
I. Factual Background and Procedural History
On January 6, 1999, plaintiff was leaving an evening class at Eastern Michigan
University. While walking back to his car and talking with his professor, plaintiff slipped on the
sidewalk and hit his head on the ground. It was not snowing at the time plaintiff fell but there
was an inch of snow on the sidewalk. Upon further investigation, plaintiff also noticed a patch
of ice under the snow. His professor subsequently discovered that a piece of cardboard had been
between the snow and ice. Plaintiff immediately filled out an incident report at the department
of public safety but refused medical treatment at the time. Sometime later in the evening,
however, plaintiff drove himself to the emergency room.
Defendant filed a motion for summary disposition, pursuant to MCR 2.116(C)(7), (8),
and (10). Because a public university is a governmental agency, defendant asserted that
plaintiff’s claims were barred by governmental immunity. Defendant further argued that
plaintiff did not state a claim upon which relief could be granted because he failed to cite one of
the exceptions to governmental immunity.
-1-
Plaintiff responded to defendant’s motion by arguing that the highway exception applied
because the “sidewalk” in question was actually designed for vehicular travel. This claim was
based on the fact that snowplows would drive on the sidewalk. Plaintiff further asserted that the
negligent operation of a government vehicle by a government employee, which caused the
ineffective removal of snow, was an exception to governmental immunity. He next claimed that
a gross negligence action could be maintained against the individual trustees and that defendant
could be held liable under respondeat superior. Ultimately, plaintiff argued that the existence of
debris and the condition of the sidewalk amounted to nuisance per se.
After a hearing on defendant’s motion, the court of claims concluded that plaintiff’s
complaint was barred because the incident took place on a sidewalk. It noted that the
“[i]ncidental crossing of a sidewalk or a snowplowing tractor plowing a sidewalk is not normal
vehicular traffic.” The court of claims further asserted that having layers of snow, water, and ice
on a sidewalk in Michigan was not a nuisance per se.
II. Legal Analysis
On appeal, plaintiff challenges the court of claims’ holding that the instant facts do not
amount to nuisance per se. A court’s denial of a motion for summary disposition is reviewed de
novo on appeal.1 The applicability of governmental immunity is a question of law that we also
review de novo on appeal.2
While the court of claims failed to articulate the specific subsection it relied upon in
granting defendant’s motion, it noted that plaintiff could not maintain an action because the
injury occurred on a sidewalk and plaintiff failed to show nuisance per se. Accordingly, we find
that summary disposition was granted pursuant to MCR 2.116(C)(7). A motion under MCR
2.116(C)(7) “‘tests whether a claim is barred because of immunity granted by law, and requires
consideration of all documentary evidence filed or submitted by the parties.’”3
Governmental agencies, including public universities, are generally granted statutory
immunity from tort liability unless otherwise provided in the act.4 While there are several stated
exceptions to governmental immunity, it remains unclear whether a nuisance per se exception
exists in Michigan.5 Even assuming, arguendo, that it is a recognized exception, plaintiff has
nevertheless failed to establish facts amounting to a nuisance per se.
1
Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998).
2
Baker v Waste Mgt of Michigan, Inc, 208 Mich App 602, 605; 528 NW2d 835 (1995).
3
Maskery v Univ of Michigan Bd of Regents, 468 Mich 609, 613; 664 NW2d 165 (2003),
quoting Glancy v Roseville, 457 Mich 580, 583; 577 NW2d 897 (1998).
4
MCL 691.1401 et seq.; see also Haaksma v Grand Rapids, 247 Mich App 44, 52; 634 NW2d
390 (2001).
5
Haaksma, supra at 56.
-2-
A nuisance per se is defined as “an activity or condition which constitutes a nuisance at
all times and under all circumstances, without regard to the care with which it is conducted or
maintained.”6 A nuisance per se is unreasonable by its very nature and is not predicated on a
lack of care.7 Under this definition, our Supreme Court concluded that neither an improperly
timed traffic light nor the maintenance of a holding pond could be considered “an intrinsically
unreasonable or dangerous activity, without regard for care or circumstances . . . [because] both
activities serve obvious and beneficial public purposes and are clearly capable of being
conducted in such a way as not to pose any nuisance at all.”8
Here, plaintiff asserts that “the slanted cement—slick ice—loose cardboard—snow
layered combination, which created a hidden and treacherously slippery layer-cake type effect,
constitutes a nuisance per se.” However, in Haaksma this Court held that electrical wires
protruding from a lamppost on a public right of way did not constitute a nuisance per se.9 We
have also concluded that the act of salting a road and the icy condition of the road itself cannot
be considered a nuisance per se.10 Thus, the condition of the sidewalk, allegedly created by
defendant’s failure to properly clear the snow and debris, cannot be considered a nuisance per
se.11 Accordingly, summary disposition pursuant to MCR 2.116(C)(7) was appropriate in this
case.
Affirmed.
/s/ Brian K. Zahra
/s/ Mark J. Cavanagh
/s/ Jessica R. Cooper
6
Li v Feldt (After Second Remand), 439 Mich 457, 476-477; 487 NW2d 127 (1992).
7
Id. at 477.
8
Id.
9
Haaksma, supra at 47, 56.
10
Dykstra v Dep’t of Trans, 208 Mich App 390, 392; 528 NW2d 754 (1995).
11
See Haaksma, supra at 56; Dykstra, supra at 392.
-3-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
