Harris v. City of Detroit ( 1962 )

Kavanagh, J.

Plaintiff filed a declaration in the circuit court for the county of Wayne against defendant city of Detroit seeking to recover for damages growing out of injuries suffered when she allegedly tripped on a depressed sidewalk. Plaintiff alleged one of the slabs had settled into the ground approximately 1 inch below the preceding slab. Plaintiff based this action on the general highway law, as amended,^* which provides for recovery of damages for injuries suffered upon any of the highways or streets in this State by reason of failure to keep such highway or street in reasonable repair.

Defendant city of Detroit appeared and filed a motion to dismiss stating:

1. That the declaration failed to state a cause of action upon which plaintiff could recover from defendant city.

2. That on the face of plaintiff’s declaration it appears the alleged defective sidewalk was approximately 1 inch below the other squares.

3. That no liability was imposed on the city, a municipal corporation, within the meaning of the statute, where anyone trips over a depression of less than 2 inches in depth.

The trial judge granted the motion to dismiss, apparently relying upon Berry v. City of Detroit, 341 Mich 702.

Plaintiff appeals, presenting one question:

Under CLS 1956, § 242.1 (Stat Ann 1958 Rev § 9.591), is a defect in a sidewalk wherein there is less than a 2-inch difference in levels, as a matter of law, nonactionable 1

Plaintiff, both in her brief and in oral argument, admits that the rule in Michigan, supported by a long list of cases beginning with Bennett v. City of St. Joseph, 146 Mich 382, and culminating with Berry v. City of Detroit, supra, is that a depression in a walk which does not exceed 2 inches in depth will not render a municipality liable for damages incident to an accident caused by such depression. It is to be noted that most of these cases are unanimous opinions of this Court. Plaintiff would have us abolish this long-established rule of law without citing any reason or authority for the change in position. We find no reason for doing so.

The trial court was correct in granting the motion to dismiss. The order granting the motion to dismiss is affirmed, with costs in favor of defendant.

Carr, C. J., and Dethmers, Kelly, and Black, JJ., concurred with Kavanagh, J.

* PA 1909, No 283, eh 22, § 1, as amended (CLS 1956, § 242.1 [Stat Ann 1958 Rev § 9.591]), reads as follows:

“Any person or persons sustaining bodily injury upon any of the public highways or streets in this State, by reason of neglect to keep such public highways or streets, and all bridges, sidewalks, crosswalks and culverts on the same in reasonable repair, and in condition reasonably safe and fit for travel by the township, village, city or corporation whose corporate authority extends over such public highway, street, bridge, sidewalk, crosswalk or culvert, and whose duty it is to keep the same in reasonable repair, such township, village, city or corporation shall be liable to and shall pay to the person or persons so injured or disabled, and to any person suffering damages by reason of such injury, just damages, to be recovered in an action of trespass on the case before any court of competent jurisdiction.”