Messecar v. City of Garden City

172 Mich. App. 519 (1988) 432 N.W.2d 311

MESSECAR
v.
CITY OF GARDEN CITY

Docket No. 96985.

Michigan Court of Appeals.

Decided July 21, 1988.

Bloom, Prahler & Kavanaugh (by James M. Prahler), for plaintiff.

Cummings, McClorey, Davis & Acho, P.C. (by Timothy Young), for defendant.

Before: DANHOF, C.J., and MAHER and C.W. SIMON, JR.,^[*] JJ.

PER CURIAM.

Defendant, Garden City, appeals as of right from a jury verdict and judgment which awarded plaintiff, Albert Messecar, damages for injuries sustained by Clayton Messecar as a result of a fall on a sidewalk in Garden City. On appeal, defendant contends that plaintiff's claims are barred by governmental immunity, the trial court abused its discretion in allowing plaintiff to amend his complaint to allege intentional nuisance, and plaintiff did not properly plead and prove his intentional nuisance claim. We affirm.

On August 25, 1982, eighty-three-year-old Clayton Messecar was walking along Henry Ruff Road in Garden City. After crossing Dawson Street, he walked about eight to ten feet on a path before reaching the sidewalk. Defendant owned the berm between Dawson Street and the sidewalk. When the sidewalk was installed in 1958, it was level with the berm. The path eroded, leaving a six- to eight-inch rise between it and the sidewalk.

Clayton Messecar lost his balance while stepping up onto the sidewalk from the path. He fell on his forehead. The fall produced a subdural hematoma (blood clot on the brain). The hematoma caused Clayton Messecar's death.

Plaintiff filed a negligence complaint against defendant. Defendant's motion for summary disposition based upon governmental immunity was denied. Plaintiff was allowed to amend his complaint to allege intentional nuisance. The jury returned a verdict in favor of plaintiff on the negligence count, but found that the conditions about which he complained did not constitute an intentional nuisance.

We first consider whether plaintiff's claims are barred by governmental immunity. The defective highway exception to governmental immunity exists where a governmental agency's failure to maintain a highway under its jurisdiction in reasonable repair causes bodily injury or property damage. MCL 691.1402; MSA 3.996(102). This exception applies to municipal corporations such as defendant. MCL 691.1401(a) and (d); MSA 3.996(101)(a) and (d). The term "highway" includes sidewalks. MCL 691.1401(e); MSA 3.996(101)(e).

Under MCL 691.1402; MSA 3.996(102), municipalities are liable for the defective construction or maintenance of public highways, roads, and streets open for public travel, including bridges, sidewalks, crosswalks, and culverts on the highway. Davis v Chrysler Corp, 151 Mich. App. 463, 469; 391 NW2d 376 (1986), lv den 428 Mich. 869 (1987). The defective highway exception extends to berms. Michonski v Detroit, 162 Mich. App. 485, 494-495; 413 NW2d 438 (1987). Defendant is liable for the defective construction and maintenance of the sidewalk and berm that produced the drop-off where Clayton Messecar fell.

Defendant claims that plaintiff failed to plead facts in avoidance of governmental immunity because he did not allege a defect in the sidewalk itself. A plaintiff must plead facts in his or her complaint in avoidance of immunity. Hoffman v Genesee Co, 157 Mich. App. 1, 6; 403 NW2d 485 (1987), lv den 428 Mich. 902 (1987). In his complaint, plaintiff alleged that the sidewalk was defective and that the approach to the sidewalk from the curb or edge of the street was negligently constructed in such a way as to be subject to erosion or washout, constituting a hazard to travel. Plaintiff pled sufficient facts in avoidance of immunity.

Defendant's next contention is that the trial court abused its discretion in allowing plaintiff to amend his complaint to allege intentional nuisance. Defendant further contends that plaintiff did not properly plead and prove his intentional nuisance claim. Our Supreme Court recently announced that there is no intentional nuisance exception to governmental immunity. Hadfield v Oakland Co Drain Comm'r, 430 Mich. 139, 172; 422 NW2d 205 (1988). We decline to further discuss Hadfield or defendant's arguments about plaintiff's intentional nuisance claim because the jury found in defendant's favor on that claim. Any error would be harmless and not constitute grounds for reversal. MCR 2.613(A).

Affirmed.

NOTES

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