VanStrien v. City of Grand Rapids , 200 Mich. App. 56 ( 1993 )

200 Mich. App. 56 (1993) 504 N.W.2d 13

VanSTRIEN
v.
CITY OF GRAND RAPIDS

Docket No. 145930.

Michigan Court of Appeals.

Submitted April 1, 1993, at Grand Rapids. Decided June 7, 1993, at 9:45 A.M.

Linsey, Strain & Worsfold, P.C. (by William D. Howard), for the plaintiffs.

Philip A. Balkema, City Attorney, and James L. Moore, Assistant City Attorney, for the defendant.

Before: MICHAEL J. KELLY, P.J., and WEAVER and D.E. SHELTON,^[*] JJ.

MICHAEL J. KELLY, P.J.

On January 11, 1990, plaintiff Lorraine VanStrien stepped on a manhole while walking on a public sidewalk located in the City of Grand Rapids. As she put her foot on the cover of the manhole, the cover tipped back and slipped out from underneath her. Plaintiff's right leg went inside the hole and she sustained serious injuries. This particular manhole had been abandoned by the City of Grand Rapids for over thirty years. Subsequently, plaintiffs initiated the present action, alleging, among other things, negligence on the part of defendant, the City of Grand Rapids.

Thereafter, defendant, claiming that it did not have either actual or constructive notice of the alleged defective condition of the manhole, moved for summary disposition. The trial court, in granting defendant's motion under MCR 2.116(C)(10), stated as follows:

I'm convinced here that given the representations factually as presented by the parties, there is no genuine issue of a material fact which would justify deviation from liability under the theory that the City had actual or constructive notice or that the defect had existed for over 30 days.

It's not in dispute there was no actual notice. No one knows what it was that caused this cover to give way under the Plaintiff and, again, assuming that it is abandoned, all the Court knows and the only conclusion to be drawn is that on this regrettable and tragic day Plaintiff, minding her own business, stepped on an abandoned manhole cover which was defective at that time.

I cannot presume from anything presented that defect existed over 30 days, nor can I presume from the City's policy, which they implemented and followed, that they [sic] said to have constructive notice.

Plaintiffs appeal as of right, claiming that the trial court erred in holding that defendant did not have actual or constructive notice of a defect pursuant to the terms of MCL 691.1403; MSA 3.996(103). We disagree.

MCL 691.1403; MSA 3.996(103) provides:

No governmental agency is liable for injuries or damages caused by defective highways unless the governmental agency knew, or in the exercise of reasonable diligence should have known, of the existence of the defect and had a reasonable time to repair the defect before the injury took place. Knowledge of the defect in time to repair the same shall be conclusively presumed when the defect existed so as to be readily apparent to an ordinary observant person for a period of 30 days or longer before the injury took place.

For purposes of the statute, the term "highways" includes public sidewalks. MCL 691.1401(e); MSA 3.996(101)(e). In order to hold the city liable under MCL 691.1403; MSA 3.996(103), plaintiffs were required to show that defendant knew, or in the exercise of reasonable diligence should have known, of the alleged defective condition of the manhole cover and had a reasonable time to repair it before the injury occurred. Peters v Hwy Dep't, 400 Mich. 50, 57; 252 NW2d 799 (1977). Having reviewed the record in this matter, we conclude that the trial court properly granted summary disposition in favor of defendant. The record is devoid of evidence that defendant knew or should have known of the alleged defect in the abandoned manhole. Under the facts of this case, we believe that summary disposition was properly granted in favor of defendant. See Beamon v Highland Park, 85 Mich. App. 242; 271 NW2d 187 (1978).

Affirmed.

WEAVER, J., concurred.

D.E. SHELTON, J. (dissenting).

I respectfully dissent. A motion for summary disposition pursuant to MCR 2.116(C)(10) may be granted only where there is no genuine issue regarding any material fact. The test is whether the record that might be developed, giving the benefit of any doubt to the opposing party, would leave open an issue upon which reasonable minds could differ. Courts must be liberal in finding that a genuine issue of material fact exists and cannot grant the motion unless satisfied that it would be impossible for the claim to be supported at trial because of a deficiency that cannot be overcome. Adas v Ames Color-File, 160 Mich. App. 297; 407 NW2d 640 (1987). When reviewing such a motion, a court must consider the pleadings, affidavits, depositions, admissions, and any other documentary evidence available and cannot grant the motion unless it concludes that it is impossible for the claim to be supported by evidence at trial. Nichols v Clare Community Hosp, 190 Mich. App. 679; 476 NW2d 493 (1991); Peterfish v Frantz, 168 Mich. App. 43; 424 NW2d 25 (1988).

The available evidence in this case clearly posed an issue of material fact regarding defendant's constructive notice of the danger posed by the manhole. The facts, when taken most favorably to plaintiffs, show that defendant knew of the dangers posed to pedestrians by abandoned manholes because there was no routine maintenance performed on such manholes. Defendant was especially aware of the risk that a pedestrian might fall through a manhole as a result of precisely the "tipping" action alleged to have caused severe injury here. Defendant also knew that this particular manhole had been abandoned for over thirty years and that it had not been filled and welded shut as is the normal procedure. I believe that this evidence is sufficient to pose a question of fact for the jury.

Plaintiffs did not allege that defendant had actual notice of the fact that this manhole had accumulated enough debris to tip and cause injury. Nor are plaintiffs required to do so. MCL 691.1403; MSA 3.996(103) provides for liability where the municipality "should have known of the existence of the defect and had a reasonable time to repair the defect before the injury took place." Plaintiffs alleged, and the evidence at trial may well establish, such constructive notice. There is no requirement of knowledge of the exact defect that causes the injury.

Peters v Hwy Dep't, 400 Mich. 50; 252 NW2d 799 (1977), relied upon by the majority, is in fact the leading authority for the proposition that the government has sufficient constructive knowledge of a defect if there was knowledge of the type of danger posed by the condition that was actually known to exist at the site where the injury occurred. Whether thirty years is a reasonable time to repair the manhole is, at the very least, an issue for the jury. In fact, case law is clear that issues of constructive notice of highway and sidewalk defects are questions of fact. Peters, supra; Cruz v Saginaw, 370 Mich. 476; 122 NW2d 670 (1963); Hendershott v Grand Rapids, 142 Mich. 140; 105 N.W. 140 (1905); Beamon v Highland Park, 85 Mich. App. 242; 271 NW2d 187 (1978).

I believe that the trial court improperly assumed the role of factfinder with respect to this motion for summary disposition and that the majority does likewise in its review of the record. The majority's statement that "the record is devoid of evidence that defendant ... should have known of the alleged defect in the abandoned manhole" ignores the evidence that defendant was aware of the risks posed by abandoned manholes and that this manhole was abandoned and thus posed just such a risk.

I would reverse the order granting defendant's motion for summary disposition and remand for a trial.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.