THOMAS LAMEAU V CITY OF ROYAL OAK
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STATE OF MICHIGAN
COURT OF APPEALS
THOMAS LAMEAU, Personal Representative of
the ESTATE OF JOHN M. CRNKOVICH,
deceased,
FOR PUBLICATION
July 13, 2010
9:00 a.m.
Plaintiff-Appellee,
v
No. 290059
Oakland Circuit Court
LC No. 2007-083761-NO
CITY OF ROYAL OAK,
Defendant-Appellant,
and
DETROIT EDISON COMPANY,
Defendant-Appellee,
and
GAGLIO PR CEMENT CORPORATION, ELDEN
DANIELSON, and BRIAN WARJU,
Defendants.
THOMAS LAMEAU, Personal Representative of
the ESTATE OF JOHN M. CRNKOVICH,
deceased,
Plaintiff-Appellee,
v
No. 292006
Oakland Circuit Court
LC No. 2007-083761-NO
CITY OF ROYAL OAK and GAGLIO PR
CEMENT CORPORATION,
Defendants,
and
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DETROIT EDISON,
Defendant-Appellee,
and
ELDEN DANIELSON and BRIAN WARJU,
Defendants-Appellants.
Before: TALBOT, P.J., and FITZGERALD and M. J. KELLY, JJ.
M. J. KELLY, J.
In this suit to recover damages for wrongful death allegedly caused by a defective
sidewalk, defendants City of Royal Oak, Elden Danielson, and Brian Warju appeal as of right the
trial court’s denial of their motions for summary disposition premised on governmental
immunity. Because the trial court correctly determined that Royal Oak, Danielson and Warju
were not entitled to governmental immunity, we affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
A. THE SIDEWALK AND ACCIDENT AT ISSUE
Bryan Warju1 testified at his deposition that he was an engineering assistant under the
supervision of Royal Oak’s City Engineer, Elden Danielson. Warju stated that he served as the
field manger for Royal Oak’s sidewalk improvement project in the summer of 2005. Warju said
he walked the area on the south side of Normandy Street where a new sidewalk was to be
constructed and noticed a telephone pole’s guy wire anchored into the soil that crossed the path
of the proposed sidewalk.
Skylan McBeth, who is a service planner with Detroit Edison, testified that a guy wire is
a steel cable that runs from a telephone pole to an anchor in the ground. The wire pulls the pole
in the opposite direction as the weight on the pole. McBeth said that a “down guy” is a guy wire
that runs in a direct line from the pole to the ground. However, a “sidewalk guy” is a wire that
runs along a three-inch steel bar that juts out from the telephone pole and then proceeds straight
down from the end of the bar to the anchor in the ground.
In May 2005, Warju informed various parties, including defendant Gaglio PR Cement
Corp (Gaglio Cement) and defendant Detroit Edison Company (Detroit Edison), about a preconstruction conference to discuss the details of the 2005 summer sidewalk construction project.
1
At his deposition, Warju clarified that he spells his first name Bryan.
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The letter indicated that the conference would include a discussion concerning any conflicts with
utilities. Danielson averred that Detroit Edison did not send a representative to this meeting and
Warju stated in his affidavit that he would have discussed the existence of the guy wire with the
representative from Detroit Edison had a representative gone to the meeting. Danielson also
averred that he spoke with various persons from Detroit Edison and orally requested them to
move the guy wire to a safe location. However, no one from Detroit Edison came to move the
wire.
Rosalino Gaglio (Rosalino) testified that he was a foreman with Gaglio Cement and that
he visited the site on Normandy where the sidewalk was to be constructed. He stated that he saw
the wire at issue and told Warju that the wire needed to be moved. Rosalino said that Warju told
him that he would contact Detroit Edison and have it moved.
Salvatore Gaglio (Salvatore) testified that he was a foreman with Gaglio Cement and that
he worked on the project to pour a new sidewalk on Normandy in 2005. He stated that Royal
Oak had set out the path of the new sidewalk using stakes and paint. As they approached the guy
wire, he notified Royal Oak’s inspector about the need to move the wire. He said that Warju told
them to just block it off, but he responded that they should either block it off further back or stop
the project until the guy wire could be moved. Rosalino stated that he wanted to leave 10
flags—which are 5 foot by 5 foot slabs of concrete—open on either side of the guy wire. Thus,
there would have been 50 feet of unpaved land on either side of the guy wire. However, Warju
disagreed with this approach: “he made us form it to the guy wire. He told me not to form it like
that. He told me go right up to the guy wire and just leave one flag out.” Rosalino said that he
did as Warju asked, but warned that it was not a good idea because “people could get hurt over
here, with this wire being here.” Salvatore also said he warned Warju many times about the
hazard of cementing up to the wire. At his deposition, Warju explained that he ordered Gaglio to
pave up to the guy wire because he was on a schedule: “Well, we are on a schedule to do the
sidewalk. We are coming down that street. We are not going to stop and wait for nine months in
this case for Detroit Edison to relocate their wire along with other objects which are in the way.”
Salvatore said they prepared the area around the guy wire for cementing, but left it
unpaved. Later Warju instructed them to fill the gap left at the point where the guy wire was
anchored to the ground with asphalt. Salvatore said he protested that the “wire still hasn’t been
moved,” but Warju said, “just put it there, and then next year when you guys come back, you
guys can fill it in with the concrete.” Salvatore said he warned Warju that if they put asphalt in
there, people are going to just “kick over our barricades and walk through.” He said that Warju
told him not to “worry about it, we’ll just keep an eye on it.” Danielson testified that the city
does not have a policy that construction should be halted because of a conflict with a utility;
rather, the proper procedure is to barricade the area.
According to an inspection report, Gaglio Cement paved the area between the cement
portions of the sidewalk with asphalt on July 22, 2005. Photos of the anchor for the guy wire
show that the anchor was actually in the asphalt and the wire crossed the path of the sidewalk at
an angle to the telephone pole.
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Rosalino said that Warju made them surround the area with barricades. He placed the
barricades in such a way that the sidewalk “wasn’t useable in between that area.” Unfortunately,
people kept taking the barricades and throwing them. For that reason, he reemphasized that
Warju had to move the wire because the barricades “are missing every day.” He said that Royal
Oak even sent others to barricade the location. Rosalino said that the problem persisted even
after they completed working for the summer and returned in the spring of 2006: “And I told
Bryan [Warju], it’s like that wire’s still there, it’s been eight months now. I was like why is that
wire still there. I was like you gotta move that wire, ‘cause they’re taking the barricades and we
just put more barricades there.”
Douglas Burg testified at his deposition that he was a lineman with Detroit Edison and
that he was dispatched to Normandy Street on April 24, 2006, regarding a bicyclist who had
struck a guy wire. When he arrived there were no emergency personnel and no injured person,
but he noticed that the plastic guard for the guy wire was on the ground some feet from the guy
wire. He reattached the guy guard after tightening some lines. After this he called his dispatch
and instructed them to have a service planner schedule a project to move the guy wire as soon as
possible. He wrote a note that stated: “At the lead south of Normandy, 10 poles east of Crooks a
guy ran into the down guy on his bike. We looked at it and it does need a sidewalk guy to stop
decapitating pedestrians. Needs service planning.” Burg said he was so concerned about the
wire that, if he had had the right crew with him, he would have asked for permission to move the
wire immediately.
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McBeth testified that he received a memo about a potential problem with a guy wire on
Normandy. He acknowledged that the memo stated that the area needed a sidewalk guy in order
to stop decapitating pedestrians. McBeth said he got the memo on May 4, 2006, and went to the
site on the same day. He said that he was concerned about the guy wire and let his supervisor
know that the guy wire needed to be moved as soon as possible. Indeed, McBeth said he turned
the job package in the same day and told his supervisor that he short dated it, meaning that it
should be done in two weeks rather than the normal six weeks, which he thought was warranted
by the seriousness of the situation.
David Colling testified at his deposition that his daughter Lara fell and injured herself
while riding her bike by the area of the guy wire at issue. He stated that Lara had her accident in
May 2006 before the accident at issue here and that the accident happened at around four or five
in the afternoon.
At approximately 11:00 pm on May 24, 2006, John Crnkovich rode a small scooter
equipped with a gas motor down the sidewalk on the south side of Normandy. A cyclist stated
that he rode past Crnkovich, who he thought was moving at a high rate of speed given the high
pitch sound of the engine, on the sidewalk going in the opposite direction. The cyclist said that,
when he got to the driveway of the adjacent school, he heard a crash. He turned around and went
back where he saw that Crnkovich had hit the guy wire. He said that Crnkovich was bleeding
from his neck and unresponsive. The cyclist stated that a motorist stopped and called for help.
Crnkovich died from his injuries.
The pathologist who autopsied Crnkovich indicated that Crnkovich, who was 35 years
old and 253 pounds at the time, died from blunt force trauma to his neck and head. The
pathologist specifically noted that Crnkovich had “Separation of C3 from C4 with transection of
the spinal cord.” The pathologist also noted that Crnkovich was under the influence of alcohol
and marijuana. According to a toxicology report, Crnkovich had 0.13 g/dL of Ethyl alcohol in
his femoral blood and 4 ng/mL of THC and 13 ng/mL of Carboxy THC in his heart blood.
B. PROCEDURAL HISTORY
In June 2007, Thomas LaMeau, who was acting as the personal representative of
Crnkovich’s estate, sued Royal Oak and Detroit Edison for damages arising out of Crnkovich’s
death. LaMeau amended the complaint to state new claims and eventually to state claims against
Gaglio Cement, Danielson, and Warju. For his first count of his third amended complaint,
LaMeau alleged that Detroit Edison negligently placed, maintained, and failed to move its utility
pole and guy wire and that this negligence caused Crnkovich’s death. In the second count,
LaMeau alleged that Royal Oak had a duty to maintain its sidewalks in reasonable repair and that
it breached that duty by imbedding the guy wire anchor in the sidewalk, which breach caused
Crnkovich’s death. LaMeau alleged in the third count that Gaglio Cement breached its duty to
perform its contract with Royal Oak in a proper and workmanlike manner by building an unsafe
sidewalk that ultimately caused Crnkovich’s death. LaMeau also alleged various nuisance
claims in counts four through nine. In counts ten and eleven respectively, LaMeau alleged that
Danielson and Warju were grossly negligent in planning and constructing the sidewalk at issue
and that their gross negligence caused Crnkovich’s death.
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Royal Oak moved for summary disposition of LaMeau’s claims in October 2008. Royal
Oak argued that it was entitled to summary disposition because LaMeau failed to plead claims in
avoidance of its governmental immunity. Specifically, Royal Oak argued that the guy wire and
anchor were part of the telephone pole and, therefore, were expressly excluded from the
definition of a highway for purposes of the highway exception to governmental immunity.
Gaglio Cement also moved for summary disposition in October 2008. Gaglio Cement
argued that LaMeau failed to allege that it breached a duty owed to Crnkovich beyond the duty
arising under its contract with Royal Oak. It also argued that LaMeau’s claims were barred
because Crnkovich was more than 50% at fault and under the influence of alcohol and marijuana.
In December 2008, Danielson and Warju moved for summary disposition, in part, on the
grounds that LaMeau’s claims against them were barred by governmental immunity.
Specifically, they argued that their actions with regard to the construction of the sidewalk did not
rise to the level of gross negligence and were not “the” proximate cause of Crnkovich’s injuries.
On January 5, 2009, the trial court signed an opinion and order in which it addressed the
motions by Royal Oak and Gaglio Cement. The trial court granted the motions with regard to
the nuisance claims, but denied the motions for the individual negligence claims against Royal
Oak and Gaglio Cement.
On January 7, 2009, Royal Oak again moved for summary disposition along with
Danielson and Warju. In this motion, Royal Oak and its employees argued that LaMeau failed to
establish that the sidewalk itself caused Crnkovich’s injuries. Rather, they argued, Crnkovich’s
own reckless behavior was the cause of his own injuries. They also argued that there were
superseding intervening causes that precluded LaMeau’s claims against them: “1) [Crnkovich’s]
careless and illegal behavior; 2) [Detroit Edison’s] failure to respond to [Royal Oak’s] request to
relocate the wire . . .; 3) The unknown person(s) removing the barricades, barrels, and yellow
safety tape and/or sleeve; and, 4) Gaglio’s alleged failure to determine if the barrels were in
place on May 24, 2006.” Finally, Royal Oak, Danielson, and Warju argued that Crnkovich’s
wrongful conduct and intoxication barred him from recovery as a matter of law.
Royal Oak appealed as of right the trial court’s denial of its motion for summary
disposition founded on governmental immunity on January 26, 2009. This Court assigned that
appeal docket no. 290059.2 Royal Oak’s appeal automatically stayed the proceedings below.
See MCR 2.614(D). On February 10, 2009, Royal Oak filed a motion asking this Court to
permit the trial court to conduct a hearing on the pending motions for rehearing and summary
disposition. This Court entered an order for remand on March 13, 2009.3
2
This Court granted leave to Gaglio Cement to appeal the trial court’s decision to deny its
motion for summary disposition. However, that appeal was later stayed pending bankruptcy.
See LaMeau v City of Royal Oak, unpublished order of the Court of Appeals, entered April 29,
2010 (Docket No. 289947).
3
LaMeau v City of Royal Oak, unpublished order of the Court of Appeals, entered March 13,
(continued…)
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On April 29, 2009, the trial court entered an opinion and order denying Danielson and
Warju’s motion for summary disposition premised on governmental immunity. In a separate
opinion and order entered on the same day, the trial court denied the motion for reconsideration
filed by Royal Oak, Danielson, and Warju.
Danielson and Warju appealed the trial court’s decision to deny their motion for
summary disposition on May 11, 2009. This Court assigned that appeal docket no. 292006.
II. GOVERNMENTAL IMMUNITY
A. STANDARDS OF REVIEW
On appeal, Royal Oak, Danielson, and Warju primarily argue that the trial court erred
when it determined that LaMeau’s claims against them were not barred by governmental
immunity and, for that reason, denied their motions for summary disposition under MCR
2.116(C)(7), (8), and (10). This Court reviews de novo a trial court’s decision on a motion for
summary disposition. Barnard Mfg, Inc v Gates Engineering Co, Inc, 285 Mich App 362, 369;
775 NW2d 618 (2009). This Court also reviews de novo the proper interpretation of statutes.
State Farm Fire & Casualty Co v Corby Energy Services, Inc, 271 Mich App 480, 483; 722
NW2d 906 (2006).
A trial court properly grants summary disposition under MCR 2.116(C)(7) where a claim
is barred by immunity granted by law. A party may support or defend a motion under MCR
2.116(C)(7) by affidavits, depositions, admissions, or other documentary evidence. Maiden v
Rozwood, 461 Mich 109, 119; 597 NW2d 817 (1999). This Court reviews the evidence in the
light most favorable to the nonmovant to determine whether a plaintiff’s claim is barred by
immunity. Zwiers v Growney, 286 Mich App 38, 42; 778 NW2d 81 (2009). If the submissions
demonstrate that there is a factual dispute as to whether immunity applies, summary disposition
is not appropriate. Id.
A motion for summary disposition brought under MCR 2.116(C)(8) tests the “legal
sufficiency of the complaint on the allegations of the pleadings alone.” Feyz v Mercy Mem
Hosp, 475 Mich 663, 672; 719 NW2d 1 (2006). When reviewing a motion under MCR
2.116(C)(8), this Court accepts all well-pleaded allegations as true and construes them in a light
most favorable to the nonmovant. Maiden, 461 Mich at 119. Summary disposition under MCR
2.116(C)(8) is appropriate only where the claims alleged are so clearly unenforceable that no
factual development could justify recovery. Id.
A motion brought under MCR 2.116(C)(10) tests the factual sufficiency of the complaint.
Id. at 120. A party may be entitled to summary disposition under MCR 2.116(C)(10) if,
“[e]xcept as to the amount of damages, there is no genuine issue as to any material fact . . . .”
This Court reviews a motion brought under this subsection by considering the affidavits,
pleadings, depositions, admissions and other evidence submitted by the parties in the light most
(…continued)
2009 (Docket No. 290059).
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favorable to the party opposing the motion to determine whether there are genuine issues of
material fact. Maiden, 461 Mich at 120.
B. THE HIGHWAY EXCEPTION
Under the governmental tort liability act (GTLA), MCL 691.1401 et seq., a governmental
agency is “immune from tort liability if the governmental agency is engaged in the exercise or
discharge of a governmental function.” MCL 691.1407(1). It is undisputed that Royal Oak is a
governmental agency, see MCL 691.1401(b) and (d), and that its construction of the sidewalk at
issue constituted the exercise of a governmental function. Thus, unless one of the statutory
exceptions to immunity applies to this case, Royal Oak is immune from tort liability arising from
its construction of the sidewalk.
One exception to the immunity provided by MCL 691.1407(1) is the highway exception
to governmental immunity. Under MCL 691.1402(1), every “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.” Further, a person “who sustains 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 condition reasonably safe and fit for
travel may recover the damages suffered by him or her from the governmental agency.” Id. The
Legislature defined highway to include “a public highway, road, or street that is open for public
travel and includes bridges, sidewalks, trailways, crosswalks, and culverts on the highway.”
MCL 691.1401(e). Hence, Royal Oak may be liable for breaching its duty under MCL
691.1402(1) to keep the sidewalk in reasonable repair.
Although Royal Oak concedes that it has a duty to maintain the sidewalk at issue in
reasonable repair, it argues that the sidewalk itself was not defective. Rather, the problem was
with the placement of the anchor for the guy wire and the guy wire that supported a nearby
telephone pole. Because the guy wire and its anchor are by definition not part of the highway,
Royal Oak argues that it cannot be held liable for the dangerous placement of the anchor and guy
wire. Royal Oak relies on MCL 691.1401(e) to support its contention that the improper
placement of the anchor and guy wire at issue cannot give rise to liability because those
structures are never part of a highway.
1. DEFINITION OF HIGHWAY
MCL 691.1401(e) defines the term highway to broadly include public highways, roads,
and streets that are “open for public travel.” It also clarifies that certain structures that are “on
the highway” are included within the definition: “bridges, sidewalks, trailways, crosswalks, and
culverts.” Id. It also defines highway to not include one type of thoroughfare—“alleys”—and to
not include “trees, and utility poles,” even though trees and utility poles will often be located
within the right-of-way of a highway. Id.
In this case, Crnkovich died when he struck a guy wire that was strung across Royal
Oak’s sidewalk and connected to an anchor imbedded in the sidewalk at one end and in a utility
pole at the other end. Thus, the question becomes whether the exclusion of utility poles from the
definition of highway insulates Royal Oak from liability for paving the sidewalk through the
anchor and under the guy wire with insufficient clearance for persons using the sidewalk.
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The definition of the term “highway” has no operative effect outside of the substantive
provisions of the GTLA—that is, the definition must be interpreted in light of the provisions of
the statute that impose liability. MCL 691.1402(1) imposes a duty on municipalities to maintain
its highways “in reasonable repair.” Therefore, the definition of highway is integral to
understanding what the municipality must maintain in reasonable repair; it must maintain its
public highways, roads, and streets in reasonable repair and it must maintain the bridges,
sidewalks, trailways, crosswalks, and culverts that are associated with those highways in
reasonable repair. In contrast, a municipality does not have a duty to maintain alleys in
reasonable repair and does not have a duty to maintain trees and utility poles that may be within
the highway right-of-way in reasonable repair. However, the fact that a municipality does not
have a duty to maintain utility poles in reasonable repair does not relieve a municipality of its
duty to maintain its sidewalks in reasonable repair even when a utility pole causes the sidewalk’s
state of disrepair. Thus, assuming—without actually deciding—that the anchor and guy wire
constitute “utility poles” within the meaning of MCL 691.1401(e), Royal Oak nevertheless had a
duty to make reasonable repairs to its sidewalk that were occasioned by the anchor and guy
wire.4
Under these facts,5 the anchor and guy wire were part of the sidewalk. This case does not
involve conditions that are external to the sidewalk such as snow, ice, or an oil spill. See Estate
of Buckner v Lansing, 480 Mich 1243, 1244; 747 NW2d 231 (2008) (explaining that “the
accumulation, by itself, of ice and snow on a sidewalk, regardless of whether it accumulated
through natural causes or otherwise, does not constitute a ‘defect’ in the sidewalk . . . .”). This
case involves a physical structure in the sidewalk itself. Further, the structure is not a fixture that
was attached to the sidewalk after the sidewalk’s construction. See Ali v City of Detroit, 218
Mich App 581, 589; 554 NW2d 384 (1996) (holding that the definition of highway does not
include fixtures, such as a bus passenger shelter, that are “linked with the sidewalk solely by its
placement.”). Rather, the anchor and guy wire were in place prior to the construction of the
sidewalk. And Royal Oak decided to construct the sidewalk in such a way as to incorporate the
guy wire and its anchor into the sidewalk. Once Royal Oak decided to pave through the guy
wire and anchor, the fact that the anchor and guy wire were also attached to a utility pole become
irrelevant because the anchor and guy wire were, at that point, part of the sidewalk.6
For these reasons, we reject Royal Oak’s argument that MCL 691.1402(1) must be
narrowly construed to exclude the defect at issue. Although this Court must construe the
4
For example, if a utility pole fell and seriously damaged a sidewalk, the fact that the defect in
the sidewalk was caused by a utility pole would not relieve the municipality of any liability
arising from its failure to remedy the defect.
5
At oral argument, the parties acknowledged that this case involved unique facts and was an
issue of first impression.
6
By way of example, if Royal Oak’s contractors had left a work boot in a freshly poured
concrete slab with one half submerged and the other half protruding above the level of the
concrete, the boot would be part of the sidewalk such that Royal Oak would be liable for harms
caused by the failure to remedy the defect.
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exceptions to governmental immunity narrowly, Nawrocki v Macomb Co Rd Comm’n, 463 Mich
143, 158; 615 NW2d 702 (2000), this Court is not at liberty to ignore the plain language of the
statute under the guise of interpreting it narrowly, see Echelon Homes, LLC v Carter Lumber Co,
472 Mich 192, 196; 694 NW2d 544 (2005); and MCL 691.1402(1) plainly and unequivocally
imposes liability on municipalities for defects in sidewalks—even if the defect in the sidewalk is
occasioned by the presence of a structure that the municipality would normally not have a duty to
maintain in reasonable repair.
2. JURISDICTION
Royal Oak also argues that it did not have jurisdiction over the anchor and guy wire at
issue. However, Royal Oak admitted that it has jurisdiction over the sidewalk and, once it chose
to incorporate the anchor and guy wire into its sidewalk, it necessarily acquired jurisdiction over
the anchor and guy wire to the extent that they were part of the sidewalk. See MCL
691.1401(1)(e); MCL 691.1402(1). Moreover, the fact that Royal Oak did not have the
equipment or expertise to relocate the anchor and guy wire did not relieve it of its duty to rectify
the defective condition; had Royal Oak wanted to avoid responsibility for the anchor and guy
wire, it could simply have elected not to incorporate those structures into its sidewalk. Indeed, if
Royal Oak had followed the advice of its own contractor and left several flags on either side of
the anchor and guy wire unpaved—or even left the flag at issue unpaved—Royal Oak would
have had no duty with regard to the anchor and guy wire. See MCL 691.1401(1)(e).
3. OPEN TO PUBLIC
Contrary to Royal Oak’s contention, the evidence does not demonstrate that the sidewalk
at issue was closed to the public. See Pusakulich v Ironwood, 247 Mich App 80, 85-86; 635
NW2d 323 (2001) (noting that a governmental agency can suspend its duty to keep its highways
in good repair by closing it to public traffic). Royal Oak presented evidence that it had Gaglio
Cement barricade the flag at issue to prevent the general public from using the sidewalk at the
point where it crossed under the guy wire. However, the evidence also shows that the remainder
of the new sidewalk was open to the public and that Royal Oak ordered Gaglio Cement to pave
the missing sidewalk flag with asphalt. Likewise, the evidence shows that the barricades were
routinely moved or stolen from the location and there is evidence from which reasonable persons
could conclude that there were no barriers in place on the date at issue. Under the totality of the
circumstances, whether Royal Oak had closed the sidewalk to the public is a question of fact.
4. THE TWO-INCH RULE
Royal Oak also argues that LaMeau’s claims are barred under MCL 691.1402a.
However, our Supreme Court recently explained that the limitations stated under MCL
691.1402a(2) apply only to sidewalks that are adjacent to a county highway. Robinson v
Lansing, 486 Mich 1, 21-22; ___ NW2d ___ (2010). In this case, there is no evidence that the
sidewalk at issue is adjacent to a county highway. Therefore, MCL 691.1402a(2) does not apply
to the street at issue. Further, even if MCL691.1402a(2) could be said to apply under the facts of
this case, the rebuttable inference provided under that statute applies only to “a discontinuity
defect” in a sidewalk. Because this case does not involve a discontinuity defect, that
presumption does not apply.
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5. NOTICE
Finally, Royal Oak argues that LaMeau’s claims are barred under MCL 691.1403
because it did not have the required 30-day notice of the defect. Specifically, Royal Oak
contends that LaMeau had to show that Royal Oak had notice that the barricades were missing
before the accident at issue. Royal Oak’s argument that it had to have notice that the barricades
were missing is unpersuasive. MCL 691.1403 requires notice of the defect in the highway—not
the absence of barricades warding travelers from the defect. The undisputed evidence in this
case shows that Royal Oak was not only aware of the defective condition, its employees actually
created the defective condition. See Wilson v Alpena Co Rd Comm’n, 263 Mich App 141, 149;
687 NW2d 380 (2004) (noting that governmental agency’s employee’s knowledge of a defect
will be imputed to the agency). Further, knowledge of the defect is “conclusively presumed
when the defect existed so as to be readily apparent to an ordinarily observant person for a period
of 30 days or longer before the injury took place.” MCL 691.1403. The evidence in this case
shows that the extreme danger posed by the defective condition of the sidewalk—that is, the
anchor and guy wire—was “readily apparent” for the requisite 30 days. And, in any event, there
is evidence that even after Royal Oak created the defective condition, its contractor repeatedly
warned it about the continuing hazard from the anchor and guy wire. Finally, there is clear
evidence that Royal Oak had notice that a cyclist fell after encountering the guy wire over the
sidewalk. Accordingly, there is no dispute that Royal Oak had adequate notice of the defect for
purposes of MCL 691.1403.
6. CONCLUSION
Royal Oak had a duty under the highway exception to rectify the defect that it created in
the sidewalk after it decided to pave the sidewalk through the anchor and, thereby, incorporate
the anchor and guy wire into the sidewalk. MCL 691.1402(1). Therefore, the trial court did not
err when it denied Royal Oak’s summary disposition on the ground that Royal Oak was immune
to suit. Given the conclusion that Royal Oak could be liable under MCL 691.1402(1) for the
actual defect at issue—the anchor and guy wire incorporated into the sidewalk, we decline to
consider whether Royal Oak could be liable under a failure to warn or negligent design theory.
C. IMMUNITY FOR GOVERNMENTAL EMPLOYEES
On appeal, Danielson and Warju argue that the trial court also erred when it refused to
dismiss LaMeau’s claims against them on the ground that they were entitled to governmental
immunity. Under MCL 691.1407(2), certain classes of persons working for governmental
agencies are immune from tort liability if all the following are true:
(a) The officer, employee, member, or volunteer is acting or reasonably believes
he or she is acting within the scope of his or her authority.
(b) The governmental agency is engaged in the exercise of a governmental
function.
(c) The officer’s, employee’s, member’s, or volunteer’s conduct does not amount
to gross negligence that is the proximate cause of the injury or damage.
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The first two criteria are not at issue. Rather, Danielson and Warju only argue that their actions
did not amount to gross negligence and, even if they did, their actions did not amount to “the”
proximate cause of Crnkovich’s injuries.
1. GROSS NEGLIGENCE
In order to survive a motion for summary disposition premised on the immunity afforded
to governmental employees, the plaintiff must present evidence sufficient for a reasonable finder
of fact to conclude that the employee was grossly negligent. If there is no question of fact as to
whether the allegedly negligent conduct rises to the level of gross negligence, the court may
decide the question as a matter of law. Evidence of ordinary negligence will not be sufficient to
survive summary disposition. Maiden, 461 Mich 122-123 (“[E]vidence of ordinary negligence
does not create a material question of fact concerning gross negligence.”); see also Costa v
Community Medical Services, 475 Mich 403, 411; 716 NW2d 236 (2006) (noting that the gross
negligence exception applies to situations “in which the contested conduct was substantially
more than negligent.”). Rather, there must be evidence that the employee engaged in “conduct
so reckless as to demonstrate a substantial lack of concern for whether an injury results.” MCL
691.1407(7)(a); see also Maiden, 461 Mich at 123.
On appeal, Danielson and Warju frame the issue in terms of their conduct after the
construction of the sidewalk at issue. That is, they argue that the evidence concerning the steps
they took to barricade the sidewalk and to get Detroit Edison to move the anchor and guy wire do
not rise to the level of gross negligence; instead, they contend: “If such a minor level of
negligence is sufficient to avoid immunity, immunity for individuals based upon gross
negligence would be undermined, if not abrogated.” However, the proper focus is not solely on
the evidence concerning the steps they took after creating the defect in the sidewalk. Rather, the
totality of their conduct—including their actions leading to the creation of the defect in the
sidewalk as well as the steps they took to remediate the defect—must be evaluated when
determining whether their actions could be found to amount to gross negligence. Indeed, if the
defect had not been created in the first instance, then there would have been no need to remediate
it.
Although the sidewalk project called for the placement of the sidewalk through the area
occupied by the anchor and guy wire, the decision to place the sidewalk along this path was not
inherently negligent—let alone grossly negligent—given that the anchor and guy wire could be
relocated.7 Indeed, there is evidence that another utility was able to timely move its own anchor
and guy wire. However, once Gaglio Cement began to prepare the area and pour concrete flags,
both Rosalino and Salvatore Gaglio noticed that the anchor and guy wire had not been relocated
7
By pointing out this fact, we do not mean to imply that the negligent design of a highway or
sidewalk might be actionable—it is now settled that design defects are not actionable. See
Hanson v Mecosta Co Rd Comm’rs, 465 Mich 492, 502-504; 638 NW2d 396 (2002). As already
noted, this case involves a physical defect in the surface of the sidewalk occasioned by the
incorporation of the guy anchor and wire into the sidewalk during construction; it does not
involve a defect in the design or layout of the sidewalk.
-12-
and informed Warju of the need to move it. Nevertheless, Warju ordered them to proceed with
the project and told them to just block the area off. Rosalino disagreed with this course and
urged Warju to leave a substantial distance—fifty feet in either direction—unpaved for safety.
Despite Rosalino’s protestation that people would get hurt, Warju told them to pave right up to
the anchor and guy wire and leave just one flag unpaved.
Sometime later, Warju asked Salvatore to fill the missing flag with asphalt. Salvatore
again warned Warju against paving the area before the guy wire was relocated, but Warju said,
“just put it there, and then next year when you guys come back, you guys can fill it in with the
concrete.” Salvatore said he also warned Warju that if they put asphalt in there, people were
going to just “kick over our barricades and walk through.” He said that Warju told him not to
“worry about it, we’ll just keep an eye on it.”
When asked whether Warju could have halted the project to await the relocation of the
anchor, Danielson admitted that he could have done so, but explained that there was no policy
requiring that. Instead, he said the proper procedure is to complete the project and barricade the
area. Similarly, when asked to explain why he did not leave the area unpaved, Warju explained:
“Well, we are on a schedule to do the sidewalk. We are coming down that street. We are not
going to stop and wait for nine months in this case for Detroit Edison to relocate their wire along
with other objects which are in the way.”
The testimony concerning the events leading up to the creation of the hazard strongly
suggests that Danielson and Warju were indifferent to the magnitude of the danger being created.
The anchor and guy wire posed a clear danger even to pedestrians traversing the paved portion of
the sidewalk. Yet, the danger increased dramatically for persons moving at any speed greater
than a walk—the location of the fence on one side and of wires and poles on the other made it
difficult for any person moving at a speed to avoid the hazard, and the height of the guy wire
rendered anyone who failed to avoid it in danger of sustaining a head or neck injury. Given this
evidence, Danielson and Warju should have realized the seriousness of the hazard they were
creating by ordering the sidewalk to be paved prior to moving the anchor and guy wire and, on
the basis of this evidence, a reasonable jury could conclude that the decision to incorporate the
anchor and guy wire into the sidewalk demonstrated “a substantial lack of concern for whether
an injury results.” MCL 691.1407(7)(a); Maiden, 461 Mich at 122-123 (stating that, in order to
survive a motion for summary disposition premised on governmental immunity for governmental
employees, a plaintiff must adduce proof of conduct so reckless that it demonstrates a substantial
lack of concern for whether an injury result). Even if Danielson and Warju did not fully
appreciate the danger, the evidence also shows that they were repeatedly warned about the
danger posed by paving up to the anchor and guy wire, yet ordered Gaglio Cement to proceed
anyway.
Further, although there was evidence that Danielson and Warju contacted Detroit Edison
about moving the anchor and guy wire, the evidence also suggests that Danielson and Warju’s
efforts in this regard were deficient. Neither Danielson nor Warju ever formally requested
Detroit Edison to relocate the anchor and guy wire. Warju did send a letter to Detroit Edison
advising it of a meeting concerning the project and in the letter he noted that any conflicts with
utilities would be discussed at the meeting, but he addressed the letter to a person who was not
located at the office to which the letter was addressed and who was not responsible for resolving
utility conflicts. Likewise, although Danielson testified that he contacted various Detroit Edison
-13-
personnel about moving the anchor and guy wire, he admitted that the requests were verbal and
evidence shows that some of these communications occurred during discussions about other
projects. In addition, there was evidence from which one could conclude that Detroit Edison did
not receive any requests—verbal or otherwise—to move the anchor and guy wire. Thus, there
was evidence from which a reasonable finder-of-fact could conclude that the efforts to have the
anchor and guy wire relocated were not just deficient, but grossly deficient.
The evidence also shows that Danielson and Warju’s efforts to safeguard the public from
the hazard they created were inadequate. Although there is evidence that the sidewalk was
barricaded at the point of the hazard, there is also evidence that the barricades were repeatedly
moved or stolen. Rosalino testified that he warned Warju over and over again about the problem
with the barricades and told him that the wire had to be moved; he even expressed exasperation
over the fact that the wire had not been moved after eight months. Moreover, the photos from
the accident at issue show no sign of any barricade within the general vicinity of the anchor and
guy wire. There was also evidence that the general public was using the sidewalk before the
accident at issue. The evidence shows that two cyclists were injured while encountering the
hazard and that Royal Oak clearly had notice of one of those accidents because its fire
department responded and generated a report about the guy wire at issue.
When the totality of the evidence and testimony concerning the events at issue are viewed
in light most favorable to LaMeau, there is a clear question of fact as to whether Danielson and
Warju were grossly negligent. The evidence shows that Danielson and Warju created the hazard
at issue by paving a path right up to and including the anchor and guy wire notwithstanding the
evident serious danger. The evidence also shows that their efforts to have the anchor and guy
wire moved were deficient and untimely, and that they ignored the fact that the barricades were
inadequate and that the general public was using the sidewalk. Taken together, this conduct
could be found to be “so reckless as to demonstrate a substantial lack of concern for whether an
injury results.” MCL 691.1407(7)(a). Accordingly, the trial court did not err when it concluded
that there was evidence from which a finder of fact could conclude that Danielson and Warju
were grossly negligent.
2. “THE” PROXIMATE CAUSE
Danielson and Warju also argue that, even assuming that there is a question of fact as to
whether their conduct rose to the level of gross negligence, they are nevertheless entitled to
immunity because there is no question of fact as to whether their conduct was “the” proximate
cause of Crnkovich’s injuries. The Legislature has provided that a governmental employee will
be immune from tort liability unless his or her conduct amounted “to gross negligence” and that
gross negligence was “the proximate cause of the injury or damage.” MCL 691.1407(2)(c)
(emphasis added). Our Supreme Court has held that the Legislature’s reference to “the
proximate cause”—as opposed to “a proximate cause”—means that the employee’s gross
negligence must be more than just a proximate cause of the injury in order to meet the
requirements of the exception to the governmental employee’s immunity. See Robinson v
Detroit, 462 Mich 439, 461-463; 613 NW2d 307 (2000). Instead, a governmental employee will
be immune from tort liability unless his or her conduct amounted to gross negligence that was
“the one most immediate, efficient, and direct cause of the injury or damage . . . .” Id. at 462.
-14-
On appeal, Danielson and Warju argue that Detroit Edison negligently failed to move the
anchor and guy wire after Warju and Danielson requested its removal and after receiving notice
of the accident with the cyclist. They also argue that Crnkovich himself was largely at fault for
his own accident. Specifically, they note that Crnkovich illegally rode the motor scooter on the
sidewalk, that he did so at night and without appropriate safety equipment, at a high rate of speed
and while under the influence of the alcohol and marijuana. They also fault Gaglio Cement for
not taking better steps to ensure that the area was properly barricaded, and fault unknown
persons for removing the barricades. On the basis of this evidence, Danielson and Warju
contend that—even if their conduct were deemed grossly negligent—their conduct was clearly
not the one most immediate, efficient, and direct cause of Crnkovich’s injuries.
In the present case, there is evidence from which a reasonable jury could conclude that
Crnkovich’s conduct was the one most immediate, efficient, and direct cause of his injuries. He
elected to ride the motor scooter at night, without protective gear, and after having ingested
alcohol and marijuana at some prior point. However, there was also evidence from which a
reasonable jury could conclude that Danielson and Warju’s conduct in creating the hazard at
issue and then failing to rectify or mitigate the hazard constituted the one most immediate,
efficient, and direct cause of Crnkovich’s injuries. Danielson and Warju were responsible for the
decision to pave the sidewalk directly up to and including the anchor and guy wire. And a
reasonable jury could conclude that, had Warju halted the project or followed Rosalino’s advice
to leave 50 feet of land unpaved on either side of the anchor and guy wire, Crnkovich could not
have operated his small motor scooter on the unpaved land or, if he had traversed the unpaved
land, that he could not have had a catastrophic collision with the anchor and guy wire. In
addition, a reasonable jury could conclude that it was Danielson and Warju’s failure to formally
request the relocation of the anchor and guy wire that caused Detroit Edison to be unable to
move the anchor and guy wire in time to prevent the accident. Indeed, the evidence supports an
inference that Detroit Edison was not aware of the changed circumstances involving the anchor
and guy wire—namely, that Danielson and Warju had paved through the anchor and under the
guy wire and, thereby, created a far more hazardous condition than previously existed; a
condition that only then urgently required Detroit Edison’s intervention. As for Gaglio Cement’s
alleged failure to properly barricade the site, the evidence shows that Gaglio Cement contracted
with Royal Oak under the supervision of Danielson and Warju. There is also evidence that
Salvatore warned Warju that barricading the site would not prevent injuries and that the
barricades would likely be removed. Rosalino also informed Warju about the problem with the
barrels and urged him to ensure that the guy wire got relocated. From this, a reasonable jury
could conclude that the failure to have barricades in place was attributable to Danielson and
Warju’s conduct or was not a significant cause of Crnkovich’s injuries.
In light of the evidence before the trial court, a question of fact clearly existed regarding
the one most immediate, efficient, and direct cause of Crnkovich’s injuries.
3. CONCLUSION
Considering the evidence presented to the trial court, a reasonable jury could conclude
that Danielson and Warju’s acts in ordering the paving of the area up to and including the anchor
and guy wire, as well as their failure to have the anchor and guy wire relocated and properly
barricaded, amounted to gross negligence. Likewise, a reasonable jury could conclude that the
one most immediate, efficient, and direct cause of the injuries at issue was Danielson and
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Warju’s grossly negligent conduct. MCL 691.1407(2)(c); MCL 691.1407(7)(a); Robinson, 462
Mich at 462. Accordingly, the trial court did not err when it denied Danielson and Warju’s
motion for summary disposition premised on governmental immunity.
III. GENERAL CONCLUSION
The trial court correctly determined that Royal Oak, Danielson and Warju were not
entitled to governmental immunity under the facts of this case. For that reason, it did not err
when it denied their motions for summary disposition on that basis.
Affirmed in both dockets.
/s/ Michael J. Kelly
/s/ E. Thomas Fitzgerald
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