Levendoski v. Geisenhaver

375 Mich. 225 (1965) 134 N.W.2d 228

LEVENDOSKI
v.
GEISENHAVER.

Calendar No. 53, Docket No. 50,644.

Supreme Court of Michigan.

Decided April 9, 1965.

L. Edwin Wenger (Ray H. Boman, of counsel), for plaintiffs.

Eggenberger, Eggenberger & Ashton, for defendants.

PER CURIAM:

Plaintiff Myrtle Levendoski sustained injuries from a fall allegedly resulting from a defective sidewalk adjoining property owned by the defendants. Plaintiffs brought suit on the theory that defendants breached a duty to them imposed by Ordinance No 34, § 3, of the city of Warren. It provides:

"No person shall permit any sidewalk which adjoins property owned by him to fall into a state of disrepair or be unsafe."

Defendants were granted summary judgment on the ground that the ordinance does not create a cause of action against an abutting property owner in favor of one injured by a defective sidewalk.

In the absence of a statute or ordinance to the contrary, the general rule is that there is no duty on an adjoining owner to keep a sidewalk in repair. City of Detroit v. Chaffee, 70 Mich 80, 85; annotation 88 ALR2d 331, 340. Grooms v. Union Guardian Trust Co., 309 Mich 437, held that an ordinance of the type involved here does not change the general rule. In that case the ordinance read (p 438):

"No person * * * shall permit any snow or ice to remain on the sidewalks in the front, rear or sides of any house * * * owned * * * by him * * * longer than 24 hours after it has fallen or formed."

The Court approved the rule announced in Taylor v. Lake Shore & M.S.R. Co., 45 Mich 74 (40 Am Rep 457):

"An ordinance requiring all persons to keep their sidewalks free from ice imposes a purely public duty, and persons injured by slipping on the ice cannot bring private actions against the owners of the premises."

This is in accord with the weight of American law. 88 ALR2d 331, 354. An ordinance of the type involved here does result in liability when it expressly provides for such liability. 88 ALR2d 331, 358.

The rule is stated in 63 CJS, Municipal Corporations, § 861, p 227, as follows:

"Liability of an abutting owner or occupant for injuries to a traveler through failure to maintain a sidewalk in repair ordinarily will not grow out of statutes or ordinances requiring him to construct or repair sidewalks or merely declaring that a sidewalk in dangerous condition is a nuisance and unlawful; but such liability may be imposed by express statutory provision."

It is of some significance that in this case the ordinance permits immediate repair of a sidewalk by the city "to prevent the possibility of city liability for personal injury or property damage"; and does not provide that the city may sue the abutting property owner to recoup a claim it may have had to pay.

Since the duty here imposed upon a property owner is to the city which has the primary responsibility for the maintenance and control of its sidewalks as well as a liability to those injured by defective sidewalks, by virtue of CL 1948, § 242.1 (Stat Ann 1958 Rev § 9.591), in the absence of an express provision imposing liability on the property owner, there is none.

The trial court did not err. Affirmed. Costs to appellees.

T.M. KAVANAGH, C.J., and DETHMERS, KELLY, BLACK, SOURIS, SMITH, O'HARA, and ADAMS, JJ., concurred.