Kenneth Mann v. City of Detroit ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
KENNETH MANN, UNPUBLISHED
November 2, 2023
Plaintiff-Appellee,
v No. 361637
Wayne Circuit Court
CITY OF DETROIT, LC No. 21-003705-NO
Defendant-Appellant.
Before: SHAPIRO, P.J., and M. J. KELLY and CAMERON, JJ.
PER CURIAM.
In this suit to recover damages for injuries caused by an allegedly defective sidewalk,
defendant, the City of Detroit (the City), appeals as of right the trial court order denying its motion
for summary disposition under MCR 2.116(C)(7) of plaintiff Kenneth Mann’s claim for damages
under the sidewalk exception to the governmental tort liability act (GTLA), MCL 691.1401, et.
seq. Because the trial court erred by determining that the City was not entitled to summary
disposition, we reverse and remand for entry of an order granting summary disposition to the City.
I. BASIC FACTS
Mann was walking on a sidewalk near the intersection of Greenfield Road and Puritan
Avenue in Detroit, Michigan, when he tripped over what he described as a “pole that was sticking
out of the sidewalk.” Mann fell and was injured as a result of his fall. The metal pole, also referred
to in this opinion as a metal stub, is the remains of a signpost that was partially removed, and it is
embedded in the middle of the sidewalk. The pole is over 5 inches higher than surface of the
sidewalk.
In March 2021, Mann filed a complaint against the City of Detroit, alleging that it breached
its statutory duty under MCL 691.1402a(1). In response, the City filed a motion for summary
disposition under MCR 2.116(C)(7), arguing that (1) the danger posed by the signpost stub was
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open and obvious and (2) the defect was not part of the sidewalk.1 Following argument on the
motion, the trial court determined that the “protrusion from the walkway sidewalk is an
imperfection in the walkway itself,” that “a sidewalk defect of a vertical discontinuity of two inches
or more as stated in the statute, is always open and obvious, thus, [the defense of open and obvious]
is a violation of public policy,” and that there was a question of fact as to whether the danger was
open and obvious or had special aspects.
II. SUMMARY DISPOSITION
A. STANDARD OF REVIEW
The City argues that the trial court erred by denying its motion for summary disposition.
The court’s denial of a motion for summary disposition is reviewed de novo. Barnard Mfg Co,
Inc v Gates Performance Engineering, Inc, 285 Mich App 362, 369; 775 NW2d 618 (2009). We
also review de novo questions of government immunity. Petersen Fin LLC v Kentwood, 326 Mich
App 433, 441; 928 NW2d 245 (2018). This Court also reviews de novo the proper interpretation
of statutes. State Farm Fire & Cas Co v Corby Energy Servs, Inc, 271 Mich App 480, 483; 722
NW2d 906 (2006). Summary disposition under MCR 2.116(C)(7) is appropriate when immunity
is granted by law. When reviewing a (C)(7) motion, this Court considers the documentary
evidence submitted by the parties. Estate of Miller v Angels’ Place, Inc, 334 Mich App 325, 329;
964 NW2d 839 (2020). The contents of the complaint are accepted as true unless contradicted by
documentation submitted by the nonmoving party. Id. at 330. “If no facts are in dispute, and if
reasonable minds could not differ regarding the legal effect of those facts, whether summary
disposition is proper is a question of law for the Court.” Id.
B. ANALYSIS
“Under the GTLA, governmental agencies and their employees are generally immune from
tort liability when they are engaged in the exercise or discharge of a governmental function.” Roy
v Swager, 501 Mich 52, 62; 903 NW2d 366 (2017); MCL 691.1407(1). The immunity conferred
by the GTLA is broad, and, although there are several exceptions, the exceptions are “narrowly
construed.” Plunkett v Dept’ of Transp, 286 Mich App 168, 181; 779 NW2d 263 (2009). At issue
in this case is the “highway exception” under MCL 691.1402, which provides that a plaintiff may
recover damages “resulting from a municipalities failure to keep highways—including
sidewalks—in reasonable repair and in a condition reasonably safe and fit for travel . . . .”
Bernardoni v City of Saginaw, 499 Mich 470, 473; 886 NW2d 109 (2016) (quotation marks and
citation omitted). More specifically, a municipality “in which a sidewalk is installed adjacent to a
municipal, county, or state highway” has a duty to maintain such a sidewalk “in reasonable repair.”
MCL 691.1402a(1). For a plaintiff to successfully argue a claim of this nature, he or she must
show that at least 30 days before the occurrence of the injury, the municipality knew, or should
have known, of the existence of the defect in the sidewalk. MCL 691.1402a(2). Moreover, the
1
The City also argued lack of notice; however, it withdrew that part of its argument from
consideration during oral argument on its motion. Therefore, we will not address that argument in
this opinion.
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plaintiff must rebut the statutory presumption that the municipality maintained the sidewalk in
reasonable repair. MCL 691.1402a(3). The presumption may be rebutted if the plaintiff shows
that a proximate cause of the injury was one or both of the following:
(a) A vertical discontinuity defect of 2 inches or more in the sidewalk.
(b) A dangerous condition in the sidewalk itself of a particular character
other than solely a vertical discontinuity. [MCL 691.1402a(3).]
Finally, our Legislature has provided that municipalities may assert “any defense available under
the common law with respect to a premises liability claim, including, but not limited to, a defense
that the condition was open and obvious.” MCL 691.1402a(5).
1. OPEN AND OBVIOUS
We first address the City’s argument that it is not liable for Mann’s injuries because the
metal stub that he tripped over was open and obvious. The trial court found that applying the open
and obvious defense to a claim brought under MCL 691.1402a violated public policy. As indicated
above, however, our Legislature has expressly stated that the common-law defense of open and
obvious is expressly available to municipalities. MCL 691.1402a(5). “[W]here the language of
the statute is clear, it is not the role of the judiciary to second-guess a legislative policy choice; a
court’s constitutional obligation is to interpret, not rewrite, the law.” Ambs v Kalamazoo Co Rd
Comm, 255 Mich App 637, 650; 662 NW2d 424 (2003). Thus, whether a statute is “fair” or
“unfair” is not a proper consideration for this Court. Id. Instead, “it is for the Legislature, not this
Court, to address the policymaking considerations that are inherent in statutory lawmaking.”
Brickey v McCarver, 323 Mich App 639, 647; 919 NW2d 412 (2018).
The court also found that there was a question of fact as to whether the danger was open
and obvious. “Whether a danger is open and obvious depends on whether it is reasonable to expect
that an average person with ordinary intelligence would have discovered it upon casual
inspection.” Hoffner v Lanctoe, 492 Mich 450, 461; 821 NW2d 88 (2012). The test requires an
inquiry of “the objective nature of the condition of the premises at issue.” Id. (quotation marks
and citation omitted). Until recently, our Supreme Court held that whether a danger is open and
obvious must be analyzed under the element of duty, and that, in cases where the danger was open
and obvious, a premises possessor would only be liable if the plaintiff provided “evidence of
special aspects of the condition.” Lugo v Ameritch Corp, Inc, 464 Mich 512, 514, 516-517; 629
NW2d 384 (2001). However, our Supreme Court overruled that precedent in Kandil-Elsayed v F
& E Oil, Inc, ___ Mich ___, ___; ___ NW2d ___ (2023) (Docket Nos 162907 & 163430); slip op
at 2. In Kandil-Elsayed, the Court explained that, under the common law, “the open and obvious
nature of a condition is relevant to breach and the parties’ comparative fault.” Id. Moreover, the
Court expressly overruled the special-aspects doctrine, explaining that “when a land possessor
should anticipate the harm that results from an open and obvious condition, despite its obviousness,
the possessor is not relieved of the duty of reasonable care.” Id. The Kandil-Elsayed summarized
the current state of the law as follows:
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a land possessor owes a duty to exercise reasonable care to protect invitees from an
unreasonable risk of harm caused by a dangerous condition of the land. If the
plaintiff establishes that the land possessor owed plaintiff a duty, the next step in
the inquiry is whether there was a breach of that duty. Our decision does not alter
the standard of reasonable care owed to an invitee, . . . Rather, as has always been
true, a land possessor need only exercise reasonable care under the circumstances.
As part of the breach inquiry, the fact-finder may consider, among other things,
whether the condition was open and obvious and whether, despite its open and
obvious nature, the land possessor should have anticipated harm to the invitee. If
breach is shown, as well as causation and harm, then the jury should consider the
plaintiff's comparative fault and reduce the plaintiff's damages accordingly. A
determination of the plaintiff's comparative fault may also require consideration of
the open and obvious nature of the hazard and the plaintiff's choice to confront it.
[Id. at ___; slip op at 43-44.]
Under the Kandil-Elsayed framework, questions of material fact remain as to whether the
City breached its duty and whether Mann was comparatively at fault. The dangerous condition
was a metal stub that was over 5 inches high. It was in the middle of the sidewalk near a bus stop.
The height and placement of the metal stub are relevant to whether the condition was open and
obvious, i.e., whether “it is reasonable to expect that an average person with ordinary intelligence
would have discovered it upon casual inspection.” See Hoffner, 492 Mich at 461. There is some
evidence to suggest that the City did not exercise reasonable care under the circumstances;
specifically, the defect has existed for at least 13 years. Yet, there is also some evidence to suggest
that, even if the City breached its duty, a jury may find that Mann was comparatively negligent
because he tripped over the metal stub without seeing it because he was looking backward while
he was walking. Because factual questions remain, notwithstanding that the court applied the now-
overruled framework set forth by Lugo and its progeny, we conclude that the trial court did not err
by denying summary disposition on the question of whether the hazardous condition was open and
obvious.
2. NATURE OF DEFECT
Next, we consider the City’s argument that the highway exception does not apply because
the metal stub is not part of the sidewalk. Under MCL 691.1402a(1), the City has a duty to
“maintain the sidewalk in reasonable repair.” (Emphasis added). It is not liable for a breach of
that duty unless Mann proves that at least 30 days before his injury, the City “knew or, in the
exercise of reasonable diligence, should have known of the existence of the defect in the sidewalk.”
MCL 691.1402a(2). The term “sidewalk” is defined as “a paved public sidewalk intended for
pedestrian use situated outside of and adjacent to the improved portion of a highway designed for
vehicular travel.” MCL 691.1401(f).2
2
The dissent claims that the question to be answered is “whether an object embedded in the
concrete sidewalk and creating a five-inch vertical discontinuity in the middle of the sidewalk is
‘in the sidewalk.’ ” Respectfully, we disagree. The question is whether the sidewalk is defective,
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Mann argues that the signpost is part of the sidewalk because it is embedded in the
sidewalk. He points to no language in the GTLA to support that position. Further, he does not
point to any caselaw supporting his interpretation. In contrast, the City identifies two cases which
it contends support its position that the sign post is not part of the sidewalk. We address each case
in turn.
First, in LaMeau v Royal Oak, 289 Mich App 153, 169; 796 NW2d 106 (2010), overruled
by 490 Mich 949 (2011), the Court considered whether the City of Royal Oak was liable for
injuries caused by a “guy wire” that was anchored in the sidewalk at one end. The majority
concluded, in relevant part, that the embedded anchor and guy wire “were part of the sidewalk”
because they did not involve external conditions, such as ice, snow, or oil, and because the anchor
and guy wire were not fixtures attached to the sidewalk after its construction. Id. at 170-171. The
Court concluded that liability for defects in the sidewalk existed “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.” Id. at 171. The Supreme Court, however, overruled the majority,
and adopted the dissenting opinion. LaMeau v Royal Oak, 490 Mich 949 (2011). Unlike the
majority, the dissent expressly found that the pole and the guy wire extending from it were not
“part of the sidewalk.” LaMeau, 289 Mich App at 187 (TALBOT, J., dissenting). Moreover, the
dissent noted that “sidewalk defects [were limited] to imperfections occurring in the walkway
itself.” Id. at 188, citing Buckner Estate, 480 Mich 1243, 1244; 747 NW2d 231 (2008). Although
Mann argues on appeal that this case is distinguishable from LaMeau because the defect is
“embedded in the middle concrete,” the LaMeau dissent adopted by the Supreme Court found no
liability despite the fact that the anchor for the guy wire was embedded in the sidewalk. Mann
offers no rationale for why an external object embedded in concrete results in liability when it is
in the center of the sidewalk as opposed to the sidewalk’s edge, and we can discern no meaningful
distinction between the defect in this case and the defect in LaMeau.
We recognize that Mann tripped over the protruding portion of the defect, whereas the
plaintiff in LaMeau was killed when he came into contact with the guy wire extending over the
sidewalk. The LaMeau plaintiff, however, would not have been injured but for the fact that the
guy wire was anchored in the sidewalk on one side and on a utility pole on the other side. See
LaMeau, 289 Mich App at 169. Thus, like the sign post in this case, the guy wire was, in fact,
which requires an analysis of whether the sign post is considered to be part of the sidewalk. As
noted above, “sidewalk” is statutorily defined as “a paved public sidewalk intended for pedestrian
use situated outside of and adjacent to the improved portion of a highway designed for vehicular
travel.” MCL 691.1401(f). The definition, notably, does not indicate that a sidewalk consists of
both the paved portion of the sidewalk and any object embedded in that paved portion. In prior
cases, this Court has determined that objects—such as the accumulation of ice and snow—on the
sidewalk are not part of the sidewalk. See LaMeau, 289 Mich App at 170-171. Likewise, we
conclude that the statutory definition does not include distinct objects—such as sign posts—
embedded in the sidewalk.
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attached to the sidewalk, and it would be disingenuous to argue that the LaMeau plaintiff was
killed by a defect that was not, in any way, connected to the sidewalk.3
Next, in Weaver v City of Detroit, 252 Mich App 239, 246; 651 NW2d 482 (2002), the
Court concluded that a streetlight pole was not part of a “highway.”4 In that case, the Court held
that “the plain language of the statute does not support the conclusion that streetlight poles are
included within the definition of the term ‘highway.’ ” Id. Weaver, therefore, stands for the
proposition that in order for a defect to be considered part of the sidewalk, it must first satisfy the
statutory definition of sidewalk. In this case, Mann suggests that the sign post is part of the
sidewalk because it is embedded in the middle of the sidewalk. However, “the immunity conferred
upon governmental agencies is broad, and the statutory exceptions thereto are to be narrowly
construed.” Nawrocki v Macomb Co Rd Comm, 463 Mich 143, 158; 615 NW2d 702 (2000). As
noted above, the relevant statutory definition of sidewalk refers, generally, to “a paved public
sidewalk intended for pedestrian use . . .” MCL 691.1401(f). A sign post, regardless of whether
it is maintained in pristine condition or—as in this case—is cut down so that only a metal stub
remains—is not a paved public sidewalk intended for pedestrian use.
Finally, we find persuasive the decision in Ali v City of Detroit, 218 Mich App 581; 554
NW2d 384 (1996). In Ali, a bus passenger shelter collapsed on the plaintiff. Id. at 584. One of
the issues involved in the appeal was whether plaintiff’s claim fell within the highway exception
to governmental immunity. MCL 691.1402(1). This Court held that the highway exception did
not “include fixtures attached to the sidewalk.” Ali, 218 Mich App at 588. This Court reasoned
that the “Legislature’s exclusion of light poles and trees from the scope of the highway exception
evinces its intent that the exception not include fixtures.” Id. at 589 (citation omitted). Moreover,
the bus passenger shelter was “a freestanding structure” that was “linked with the sidewalk solely
3
The dissent attempts to distinguish LaMeau by asserting that the plaintiff was injured by a guy
wire that was “several feet” above the sidewalk rather than by an object “in” or “on” the sidewalk.
Yet, the guy wire in LaMeau was not just an object existing several feet above the sidewalk.
Rather, it was anchored to (i.e. imbedded in) the sidewalk itself. LaMeau, 289 Mich App at 160.
The fact that the injury was not caused by the plaintiff tripping over the anchored part of the wire
as opposed to the part of the wire that was stretched above the sidewalk is, therefore, a distinction
without meaning. Indeed, if we were to apply the dissent’s logic to this case, we would have to
conclude that the portion of the sign post that is connected to, but nevertheless above, the sidewalk
is not part of the sidewalk and, therefore, Mann was not injured by what the dissent believes is a
sidewalk defect. Further, it is unclear under the dissent’s logic the exact point at which an object
that is embedded into the sidewalk- but also extends above the sidewalk-would be akin to the stub
in this case and at which point it would be similar to the guy wire in LaMeau. For instance, if the
sign post had not been cut and Mann was injured by a fully functional sign post and sign, would
the dissent still claim that Mann’s injuries were caused by a defect in the sidewalk, notwithstanding
that he would have collided with an object separate and distinct from the sidewalk, albeit one that
was embedded in the concrete? Because we see no meaningful distinction between an anchored
guy wire and an embedded sign post, we cannot ascribe to the dissent’s strained analysis of
LaMeau.
4
The term “highway” as used in the GTLA, by definition, includes sidewalks. MCL 691.1401(c).
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by its placement.” Id. Considering that the highway exception must be narrowly construed, the
Court concluded “that it does not encompass bus passenger shelters that are attached to the
sidewalk.” Id. We conclude that a sign post—even one that is cut down—is a separate fixture that
is attached to the sidewalk. It does not become part of the sidewalk merely by being embedded in
the concrete of the sidewalk.
In light of the statutory definition of sidewalk and the above caselaw, we are constrained
to rule that a sign post is not part of the sidewalk. Regardless of how irresponsible the City may
be for allowing a metal stub that is over five inches high to exist in the middle of its sidewalk (and
near a bus stop), the Legislature has determined that no liability exists under the present
circumstances.
Reversed and remanded for entry of an order granting summary disposition to the City. We
do not retain jurisdiction. No taxable costs are awarded. MCR 7.219(A).
/s/ Michael J. Kelly
/s/ Thomas C. Cameron
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