Bouser v. City of Lincoln Park

Decision Date09 May 1978
Docket NumberDocket No. 77-1410
Citation83 Mich.App. 167,268 N.W.2d 332
PartiesMargaret BOUSER and William Bouser, Plaintiffs-Appellants, v. CITY OF LINCOLN PARK, a Municipal Corporation, G. A. Morrison Co., an unregistered business, and Pate, Hirn & Bogue, Inc., a Michigan Corp., jointly and severally, Defendants- Appellees. 83 Mich.App. 167, 268 N.W.2d 332
CourtCourt of Appeal of Michigan — District of US

[83 MICHAPP 169] Milan & Miller, P. C. by Allen S. Miller, Detroit, for plaintiffs-appellants.

John R. Hocking, Southfield, for City; John A. Aloisi, Lincoln Park, of counsel.

Richard A. Harvey, Detroit, for Morrison.

Dennis M. Day, Detroit, for Pate, et al.

Before BASHARA, P. J., and J. H. GILLIS and KAUFMAN, JJ.

J. H. GILLIS, Judge.

On April 9, 1975, while walking in the City of Lincoln Park, plaintiff Margaret Bouser tripped on a curb constructed higher than the adjoining sidewalk, causing her to fall. She suffered permanent injury from a fracture of the left fibula and left tibia.

On August 26, 1976, plaintiffs started a lawsuit in Wayne County Circuit Court against the City of Lincoln Park, G. A. Morrison Company (the construction firm) and Pate, Hirn and Bogue, Inc. (the architectural firm). Plaintiffs alleged that defendant City was guilty of negligence and willful and wanton negligence in hiring the architects and the construction company, and failing to inspect, maintain and repair the sidewalk. The other defendants were alleged to have provided a defective and dangerous curb and sidewalk and failed to warn foreseeable users of the curb and sidewalk of the hazard.

On October 28, 1976, defendant, Pate, Hirn and Bogue, Inc., filed a motion for summary and/or accelerated judgment, contending that M.C.L. § 600.5839; M.S.A. § 27A.5839 establishes a 6-year statute of limitations for personal injury claims arising from the performance, furnishing of designs or supervision of construction by registered [83 MICHAPP 170] engineers and licensed architects; that plaintiffs' claim accrued more than 10 years after the completion of the sidewalk and its turning over to the City; and that the claims were therefore barred. On December 2, 1976, plaintiffs filed a reply asserting that M.C.L. § 600.5839; M.S.A. § 27A.5839 is unconstitutional.

The trial judge upheld the view of defendant Pate, Hirn and Bogue, Inc. Plaintiffs appeal.

It is well settled that the Legislature of this state has the authority to abolish a cause of action which has not accrued. Const.1963, art. 3, § 7. 1 Statutes enacted pursuant to this authority are statutes of abrogation. See Dyke v. Richard, 390 Mich. 739, 213 N.W.2d 185 (1973).

Plaintiffs contend that the statute 2 at issue in the instant matter is one of limitation which cannot abolish a cause of action before it accrues. We disagree.

The Dyke case, supra, indicates that the legislative intent underlying the enactment of the statute is a key factor to consider in determining whether a statute is one of limitation or abrogation. 3

[83 MICHAPP 171] The Legislature has set forth rather unambiguous language in M.C.L. § 600.5839; M.S.A. § 27A.5839 concluding that the 6-year period in which actions may be brought begins to run at the time of occupancy of the completed improvement or upon acceptance of such improvement.

"No person may maintain any action to recover damages for any injury to property, real or personal, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained as a result of such injury against any state licensed architect or professional engineer performing or furnishing the design or supervision of construction of such improvement more than 6 years after the time of occupancy of the completed improvement, use or acceptance of such improvement. This limitation shall not apply to actions against any person in actual possession and control as owner, tenant or otherwise, of the improvement at the time the defective and unsafe condition of such improvement constitutes the proximate cause of the injury or damage for which the action is brought." M.C.L. § 600.5839(1); M.S.A. § 27A.5839(1). (Emphasis supplied.)

Hence, the statute expressly prohibits any suits six years after the individual accepts the improvements. Accordingly, the statute is one of abrogation in respect to claims which accrue after the designated 6-year period.

Plaintiffs' brief on appeal rejects this analysis on the basis of the Dyke case, supra.

However, the statute construed to be one of limitation in the Dyke case does not specifically state when the period within which to maintain an [83 MICHAPP 172] action begins to run. Instead, it concludes that the limitation period begins to run when the cause of action accrues.

"No person may bring or maintain any action to recover damages for injuries to persons * * * unless, after the claim first accrued * * * he commences the action within the periods of time prescribed by this section." M.C.L.A. § 600.5805; M.S.A. § 27A.5805. (Emphasis supplied.)

As noted by Connelly v. Paul Ruddy's Equipment Repair & Service Co.,388 Mich. 146, 151, 200 N.W.2d 70, 72 (1972):

"Once all of the elements of an action for personal injury, including the element of damage, are present, the claim accrues and the statute of limitations begins to run."

A careful reading of the statute at issue in the Dyke case indicates that the Legislature did not intend to eliminate a cause of action before it accrued. The purpose of the enactment was to limit the period in which actions could be maintained after they accrued.

However, the distinct language of the statute in the instant matter strictly prohibits any actions six years after occupancy or acceptance of the improvement. The statute does not concern itself with when the cause of action accrues. Accordingly, the plain language of the enactment leads us to the conclusion that the Legislature intended to abrogate any cause of action arising under the statute after the specific six-year period has run.

To hold otherwise, would require us to ignore well-settled principles of statutory construction.

[83 MICHAPP 173] "A statute may be judicially construed if the language used is ambiguous or the statute is susceptible of two or more meanings. Royal Oak School Dist. v. Schulman, 68 Mich.App. 589, 243 N.W.2d 673 (1976). The primary rule of statutory construction is to determine and effectuate the Legislature's intent. Williams v. Secretary of State, 338 Mich. 202, 60 N.W.2d 910 (1953); Chesapeake & Ohio R. Co. v. Public Service Commission, 59 Mich.App. 88, 228 N.W.2d 843 (1975). Toward that end, statutory language should be given a reasonable construction considering the purpose of the statute and the object sought to be accomplished. Schoolcraft County Board of Commissioners v. Schoolcraft Memorial Hospital Board of Trustees, 68 Mich.App. 654, 243 N.W.2d 708 (1976)." King v. Director of the Midland County Department of Social Services, 73 Mich.App. 253, 258, 251 N.W.2d 270, 273 (1977).

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  • Adair v. Koppers Co., Inc.
    • United States
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    ...the instant litigation and that Adair has no standing to present the instant equal protection challenge. Accord: Bouser v. Lincoln Park, 83 Mich.App. 167, 268 N.W.2d 332 (1978). Contra: McClanahan v. American Gilsonite Company, 494 F.Supp. 1334 Even if Adair had standing to challenge § 2305......
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