Williams v. Redford Township

210 Mich. App. 60 (1995) 533 N.W.2d 10

WILLIAMS
v.
REDFORD TOWNSHIP
MOCERI
v.
CANTON CHARTER TOWNSHIP

Docket Nos. 154658, 155596.

Michigan Court of Appeals.

Submitted January 3, 1995, at Detroit. Decided April 21, 1995, at 9:40 A.M.

Lopatin, Miller, Freedman, Bluestone & Herskovic (by Lee R. Franklin), for Judith Williams.

Stern, Cohan & Stern (by Kenneth A. Stern) (Bendure & Thomas, by Mark R. Bendure and Sidney A. Klingler, of Counsel), for Priscilla and Leo Moceri.

Cummings, McClorey, Davis & Acho, P.C. (by Marcia L. Howe), for Redford Township and Canton Charter Township.

Amici Curiae:

Bauckham, Sparks, Rolfe & Thomsen, P.C. (by John H. Bauckham), for Michigan Townships Association.

Plunkett & Cooney, P.C. (by Christine D. Oldani and Mary Massaron Ross), for Michigan Liability and Property Pool.

Before: MURPHY, P.J., and McDONALD, MARILYN KELLY, CONNOR, FITZGERALD, HOEKSTRA, and MARKMAN, JJ.

MURPHY, P.J.

These consolidated cases were considered by this panel pursuant to Administrative Order No. 1994-4 to resolve a conflict between the reasoning of the original panels in these two cases and the decision in Listanski v Canton Charter Twp, 206 Mich. App. 356; 523 NW2d 229 (1994). The conflict concerns the liability of a township for injuries received by a pedestrian who falls on a sidewalk that is within the township and that is located along a county road.

In Williams v Redford Twp, the plaintiff claimed that the township was liable pursuant to the highway exception to governmental immunity, MCL 691.1402(1); MSA 3.996(102)(1), for a failure to reasonably maintain the sidewalk. The circuit court granted the township's summary disposition motion on the ground that the township did not have a duty to maintain a sidewalk situated along a county road. The circuit court's decision was consistent with this Court's later decision in Listanski v Canton Twp, supra, in which a panel of this Court concluded that, in light of MCL 41.288(1); MSA 9.585(3)(1), the Legislature had limited a township's jurisdiction over sidewalks within its boundaries and there was no requirement that a township repair sidewalks adjacent to county or state roads. On appeal in Williams, a panel of this Court concluded that townships do have a duty to maintain sidewalks and that Listanski was wrongly decided, but the panel was constrained to affirm by Administrative Order No. 1994-4 because the decision in Listanski was a prior published decision.

In Moceri, as in Williams and Listanski, the plaintiff fell on a sidewalk within the township that was located along a road under county jurisdiction. The circuit court denied the defendant township's motion for summary disposition. Upon leave granted, a panel of this Court reversed on the basis of Listanski, which the panel found controlling pursuant to Administrative Order No. 1994-4. The Moceri panel indicated that but for Listanski the panel would have affirmed and that the analysis in Williams v Redford Twp was persuasive.

This panel was convened to resolve the conflict between Listanski and Williams/Moceri. Pursuant to Administrative Order No. 1994-4, convening this panel also required that the initial opinions in Williams and Moceri be vacated. The order doing so and the vacated opinions in Williams and Moceri have been published beginning at 207 Mich. App. 801 (1994). Our review of the law and arguments in these cases leads us to the same conclusion reached by the prior panels of this Court in Williams and Moceri. As did the panel in Moceri, we find persuasive the reasoning and analysis of the Williams decision and hereby adopt that opinion as our own. Consequently, we hold that a township does have a duty to maintain sidewalks pursuant to MCL 691.1402(1); MSA 3.996(102)(1) and MCL 691.1401(e); MSA 3.996(101)(e), even sidewalks along county or state roads. This duty was not diminished by the McNitt act, 1931 PA 130, MCL 247.1 et seq.; MSA 9.141 et seq., repealed by 1951 PA 151, which transferred responsibility for township roads from townships to counties.

Our conclusion is supported further by Const 1963, art 7, § 29, which left control of township streets and public places under the control of townships, and by the first sentence of MCL 691.1402(1); MSA 3.996(102)(1), which provides that, among other things, townships are responsible for maintaining their sidewalks.

Additional support for our conclusion is found in language in Mason v Wayne Co Bd of Comm'rs, 447 Mich. 130; 523 NW2d 791 (1994), and Chaney v Dep't of Transportation, 447 Mich. 145; 523 NW2d 762 (1994). Neither of these cases was directly concerned with the responsibility of a governmental entity for sidewalk maintenance. Nevertheless, the Court in Mason, in the course of discussing the scope of liability under MCL 691.1402(1); MSA 3.996(102)(1), noted the appearance of a legislative intent to allocate responsibility for sidewalks and crosswalks to local governments, including townships. 447 Mich. 136, n 6. Similarly, in Chaney, Justice BOYLE, in her concurring opinion, noted that the "duty to maintain and repair sidewalks and crosswalks falls on local governments, including cities, villages, and townships...." 447 Mich. 172, n 2. In his dissent in Chaney, Justice LEVIN discussed the development of liability for sidewalk maintenance, which liability historically has been placed upon townships and cities. See 447 Mich 201-203.

Our holding treats townships the same as cities with respect to sidewalks along roads or highways under the jurisdiction of another governmental unit. For example, in Jones v Ypsilanti, 26 Mich. App. 574; 182 NW2d 795 (1970), a city was found to have jurisdiction over a sidewalk constructed along a state trunk line. The analysis in Jones is not outdated. Williams v Redford Twp, 207 Mich. App. 808. There is no logical or legal reason to treat a township differently. Accordingly, we reject the holding in Court v Clark, 19 Mich. App. 261; 172 NW2d 545 (1969), where a township was found not to be liable for improper maintenance of a sidewalk. Court v Clark should not be considered good law. See Mason v Wayne Co Bd of Comm'rs, 447 Mich. 136, n 6; Williams v Redford Twp, 207 Mich. App. 812, n 16.

The circuit court's order of summary disposition in Williams v Redford Twp, Docket No. 154658, is reversed. The circuit court's denial of summary disposition in Moceri v Canton Charter Twp, Docket No. 155596, is affirmed. Both cases are remanded for further proceedings.