DeNoyer v. City of Ann Arbor
| Decision Date | 05 December 1967 |
| Docket Number | No. 2,Docket Nos. 2748,2747,2 |
| Citation | 155 N.W.2d 689,9 Mich.App. 26 |
| Parties | Barbara J. DeNOYER, Minor, by Doris H. DeNoyer, her quardian, Plaintiff-Appellant, v. CITY OF ANN ARBOR, a municipal corporation, Minion Construction Co., Inc., a Michigan corporation, and Colvin, Robinson, Wright and Associates, a co- partnership, Defendants-Appellees. John M. DeNOYER, Plaintiff-Appellant, v. CITY OF ANN ARBOR, a municipal corporation, Minion Construction Co., Inc., a Michigan corporation, and Colvin, Robinson, Wright and Associates, a co- partnership, Defendants-Appellees |
| Court | Court of Appeal of Michigan — District of US |
Shirley J. Burgoyne, Ann Arbor, for appellant.
Jacob F. Fahrner and Fred Steingold, Ann Arbor, for City of Ann Arbor.
Ralph C. Keyes, Ann Arbor, for Colvin, and others and Minion.
Before LESINSKI, C.J., and BAUM, * and QUINN, JJ.
These actions were brought to recover damages for personal injuries sustained by the minor plaintiff while in a warming shed at an ice skating rink, both operated and maintained by defendant City, and for the incidental expenses arising therefrom and incurred by her father. Defendant Minion constructed the shed under the supervision of and pursuant to specification drawn by the other defendant. The cases were consolidated below and are considered together here.
All defendants moved for summary judgment (GCR 1963, 117), and after extensive argument thereon, the trial court found the sole and proximate cause of the injury to the minor plaintiff was her negligent act which barred recovery. Pursuant to such finding, an order entered granting such motions on the basis plaintiffs' complaints failed to state a cause of action (GCR 1963, 117.2(1)) because of the negligence of the injured minor plaintiff. Plaintiffs appeal.
The sole issue presented is whether the trial judge found properly as a matter of law that the minor plaintiff was guilty of negligence which barred recovery.
In the posture of these cases before this Court, the only facts necessary to consider and recite are those which establish the conduct of the minor plaintiff and the circumstances existing at the time of the injury. They are as follows: at the time of the injury, the minor plaintiff was 11 years of age. She entered the warming shed walking on ice skates and proceeded toward a seat. In so doing, she placed her left hand in such a position that it was caught between the door she had entered and the door frame on the hinge side. When the door closed it severed a portion of her little finger. Visibility in the shed was not obscured nor was the minor plaintiff shoved or pushed into the position which made the injury possible. Plaintiffs alleged, and for purpose of this decision we accept as true (Robbins v. Evening News Association (1964), 373 Mich. 589, 130 N.W.2d 404), that the door involved was a heavy steel door which closed with excessive speed because of an improperly installed and improperly adjusted closing device.
In making its finding of negligence on the part of the minor plaintiff, the trial court referred to the...
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...contends that he was entitled to the Child Standard of Care Instruction. We agree. For as we said in DeNoyer v. City of Ann Arbor (1967), 9 Mich.App. 26, 29, 155 N.W.2d 689, 690: 'The due care of a child for its own safety must be measured by the care the ordinary child of similar age, expe......
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