Hooks v. City of Detroit

31 Mich. App. 662 (1971) 187 N.W.2d 901

HOOKS
v.
CITY OF DETROIT

Docket No. 9172.

Michigan Court of Appeals.

Decided March 25, 1971.

Rothe, Marston, Mazey, Sachs, O'Connell, Nunn & Freid, P.C., for plaintiffs.

Michael M. Glusac, Corporation Counsel, and Alfred Sawaya and David S. DeWitt, Assistants Corporation Counsel, for defendant.

Before: BRONSON, P.J., and R.B. BURNS and LEVIN, JJ.

BRONSON, P.J.

Plaintiffs, Harold Hooks, an eight-year-old boy, by his next friend, Donald Kadushin, and Frank Hooks, father of the minor plaintiff, brought this suit to recover damages for injuries sustained by the boy when he fell into a basement light and air vent of an abandoned police station. At the close of plaintiffs' opening statement to the jury, defendant, City of Detroit, moved for dismissal, and a judgment of no cause of action was entered. Plaintiffs appeal as of right.

The record shows that the trial court dismissed plaintiffs' compaint for failure to state a cause of action upon which relief could be granted. It is clear that what was intended was a summary judgment. GCR 1963, 117.2(1). The determinative issue on appeal is whether defendant was entitled to the judgment as a matter of law even if the facts alleged by plaintiffs are true. See Durant v. Stahlin (1965), 375 Mich. 628.

Plaintiffs' complaint alleged that the presence of a light and air vent six feet long, four feet wide, and six feet deep, guarded by a railing along the perimeter, adjacent to an abandoned building, constituted a nuisance, an attractive nuisance to children, and a violation of the city's statutory duty to maintain safe streets and sidewalks.

Plaintiffs' opening statement alleged that plaintiff Harold Hooks was playing on the sidewalk in the area of the police station. While plaintiff was sitting on the sidewalk with his feet dangling over the edge of the vent well, another boy, pushing a grocery cart, struck him in the back, causing him to fall into the vent.

The statute drawn into question is MCLA § 242.1 (Stat Ann 1958 Rev § 9.591), which provides:^[1]

"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 * * * 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 * * * 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."

It is clear from a reading of the statute that the city's liability is predicated on either a finding of fact that the sidewalk was not in reasonable repair or not in a condition reasonably safe and fit for travel. See Carver v. Detroit & Saline Plank Road Co. (1886), 61 Mich. 584; Sebert v. City of Alpena (1889), 78 Mich. 165; Bravo v. Chernick (1970), 28 Mich. App. 210. Such a determination was for the jury.

The question of whether a boy playing on the street and sidewalk is a "traveler" and within the ambit of the statute is a question of fact. Beaudin v. Bay City (1904), 136 Mich. 333; Elbert v. City of Saginaw (1961), 363 Mich. 463. It was for the jury to decide whether the light and air vent constituted a nuisance in fact, Bluemer v. Saginaw Central Oil & Gas Service, Inc. (1959), 356 Mich. 399; Brown v. Nichols (1953), 337 Mich. 684, and whether the city knew or should have known that the area was an attractive nuisance likely to draw neighborhood children. Lyshak v. City of Detroit (1958), 351 Mich. 230; Jaworski v. Detroit Edison Co. (1920), 210 Mich. 317. The issue of whether the alleged dangerous condition was the proximate cause of the injuries is the subject of jury determination, and the fact that another force may have brought about the harm would not, as a matter of law, relieve defendant of liability. Raatikka v. Olin Mathieson Chemical Corporation (1967), 8 Mich. App. 638.

The issues of fact, if resolved in plaintiffs' favor, could support a judgment against defendant. While the evidence may not establish defendant's liability for the complained of injuries, it was error to grant defendant's motion before plaintiffs had an opportunity to prove their case.

Reversed and remanded. Costs to plaintiffs.

All concurred.

NOTES

[1] The statute cited was in effect at the time of the injury, but has since been repealed. Similar provisions are now included in MCLA § 691.1401 et seq. (Stat Ann 1969 Rev § 3.996[101] et seq.).