TERRENCE M WEAKLEY V CITY OF DEARBORN HEIGHTS

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STATE OF MICHIGAN COURT OF APPEALS TERRENCE M. WEAKLEY, FOR PUBLICATION June 8, 2001 9:00 a.m. Plaintiff-Appellant, v No. 212008 Wayne Circuit Court LC No. 97-722062-NI CITY OF DEARBORN HEIGHTS, DARRON DUNCAN and ROSEMARY DUNCAN, ON REMAND Updated Copy August 17, 2001 Defendants-Appellants. Before: Bandstra, C.J., and Holbrook, Jr., and Fitzgerald, JJ. PER CURIAM. This case is before us on remand from the Supreme Court for reconsideration of our previous decision, in which we affirmed the grant of summary disposition in favor of defendants with respect to plaintiff 's negligence claims, but reversed the grant of summary disposition of the claim of breach by the city of its statutory duty to keep sidewalks in reasonable repair. 463 Mich 979 (2001). On reconsideration, we affirm the trial court's order of summary disposition of all of plaintiff 's claims. The facts of this case, as stated in our earlier opinion in Weakley v Dearborn Heights, 240 Mich App 382, 383-384; 612 NW2d 428 (2000), are as follows: 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 back. Plaintiff filed a common-law negligence action against the Duncans and the city. Plaintiff also alleged that the city breached its statutory duty to keep the sidewalk in good repair so as to be reasonably safe for public -1- 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." This Court affirmed the grant of summary disposition with respect to the negligence claims, but reversed the grant of summary disposition of the claim of breach by the city of its statutory duty to keep the sidewalk in reasonable repair. Citing Pick v Szymczak, 451 Mich 607, 624; 548 NW2d 603 (1996), we noted that, in the context of vehicular traffic, the duty of maintenance under MCL 691.1402(1) includes the duty to erect adequate warning signs or traffic control devices at a point of hazard or special danger. Finding no reason to construe § 2 differently with respect to a municipality's duty to repair and maintain a sidewalk, we concluded that a municipality has a duty to provide barriers or warnings signs at, or in regard to, points of hazard affecting a sidewalk. We stated: 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, MCL 691.1401[e]; MSA 3.996[101][e]) so that it is "not reasonably safe." Pick, supra at 623. 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. [Weakley, supra at 387-388.] The Supreme Court, in lieu of granting defendant city's application for leave to appeal, remanded the case to us for reconsideration in light of Nawrocki v Macomb Co Rd Comm, 463 Mich 143; 615 NW2d 702 (2000), which overruled Pick, supra. The Court directed that we "shall determine the scope of defendant's duty to maintain the sidewalk in reasonable repair under the provisions of the governmental immunity act applicable to municipalities." Generally, all governmental agencies are immune from tort liability for actions taken in furtherance of a governmental function. MCL 691.1407; Collins v Ferndale, 234 Mich App 625, 628; 599 NW2d 757 (1999). The term "governmental agency" is defined to include municipal corporations such as defendant city. Cox v Dearborn Heights, 210 Mich App 389, 392; 534 NW2d 135 (1995). The immunity conferred on governmental agencies is broad. Robinson v Detroit, 462 Mich 439, 455; 613 NW2d 307 (2000). However, there are several narrowly drawn exceptions to governmental immunity, including the highway exception set forth in MCL 691.1402(1), which at the time pertinent to this case read in pertinent part: Each governmental agency having jurisdiction over any highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. A person sustaining bodily injury or damage to his or her property by reason of failure of any governmental agency to keep any highway under its jurisdiction in reasonable repair, and in condition reasonably -2- safe and fit for travel, may recover the damages suffered by him or her from the governmental agency. No action may be maintained under the highway exception unless it is clearly within the scope and meaning of the statute. Scheurman v Dep't of Transportation, 434 Mich 619, 630; 456 NW2d 66 (1990). Because the city of Dearborn Heights is a municipality, its duty with regard to a highway extends to the sidewalk. MCL 691.1401(e);1 Ali v Detroit, 218 Mich App 581, 588; 554 NW2d 384 (1996) Thus, defendant has a statutory obligation to keep a sidewalk in "reasonable repair so that it is reasonably safe and convenient for public travel." MCL 691.1402(1). With regard to this quoted language, our Supreme Court has stated: The plain language of this phrase thus states the desired outcome of reasonably repairing and maintaining the highway; it does not establish a second duty to keep the highway "reasonably safe." [Nawrocki, supra at 160.] The Court explained: The plain language of the second sentence [of MCL 691.1402(1) merely establishes the liability for breach of the duty created by the first sentence, that being the duty "to maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel." Subsection 2(1) (emphasis added). The statutory clause creates only one exception to governmental tort immunity, that being the breach of the duty to repair and maintain the public highway. [Id. at 160, n 18.] Plaintiff argues that the duty to maintain and repair a sidewalk includes the duty to place warning signs or barriers at points of special hazard so as to make the sidewalk "reasonably safe." However, as noted above, our Supreme Court has held that the duty to repair and maintain does not include a separate duty to keep a highway "reasonably safe."2 Further, in our previous opinion, we stated: In the context of vehicular travel, 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 NW2d 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. [Weakley, supra at 387.] 1 A "highway" is defined as "a public highway, road, or street that is open for public travel and includes bridges, sidewalks, trailways, crosswalks, and culverts on the highway. The term highway does not include alleys, trees, and utility poles." MCL 691.1401(e). 2 There is no dispute that the city had removed the section of sidewalk for the purpose of repair. -3- After our opinion was released, the Supreme Court overruled Pick, supra, to the extent that it held that it interpreted the highway exception to impose "upon state and county road commissions a duty under the highway exception to install, maintain, repair, or improve traffic control devices, including traffic signs." Nawrocki, supra at 180. The Court also stated that the duty of state and county road commissions is limited only to the improved portion of the highway designed for vehicular travel and "[n]owhere in this language, or anywhere else in the statutory clause, do phrases such as 'known points of hazard,' 'points of special danger,' 'integral parts of the highway,' or 'traffic sign maintenance' appear." Id. at 176. Reading the exception narrowly as we are required to do, Robinson, supra, and in consideration of Nawrocki, supra, we hold that defendant did not have a duty to make the sidewalk reasonably safe by placing a barrier or warning device around the portion of the sidewalk that was under repair. Consequently, we conclude that summary disposition of plaintiff 's claim of breach of statutory duty was appropriate under MCR 2.116(C)(7).3 Affirmed. /s/ Richard A. Bandstra /s/ Donald E. Holbrook, Jr. /s/ E. Thomas Fitzgerald 3 In all other respects we adhere to our previous opinion. -4-

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