Haas v. City of Ionia

• Decision Date: 21 November 1995
• Docket Number: Docket No. 167640
• Citation: 214 Mich.App. 361,543 N.W.2d 21
• Parties: Nancy M. HAAS, Plaintiff-Appellant, v. CITY OF IONIA, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 21

543 N.W.2d 21

214 Mich.App. 361

Nancy M. HAAS, Plaintiff-Appellant, v. CITY OF IONIA, Defendant-Appellee.

Docket No. 167640.

Court of Appeals of Michigan.

Submitted Aug. 3, 1995, at Grand Rapids.

Decided Nov. 21, 1995, at 9:15 a.m.

Released for Publication Feb. 7, 1996.

James E. Gould & Associates, P.C. by James E. Gould and Todd R. Bohnenstiehl, Grand Rapids, for plaintiff.

Plunkett & Cooney, P.C. by Christine D. Oldani and Susan Klooz, Detroit, for defendant.

Before BANDSTRA, P.J., and MARKEY and HAMMOND, ^* JJ.

PER CURIAM.

Plaintiff tripped, fell, and sustained serious injuries on a public sidewalk in the City of Ionia. She sued for damages in the Ionia Circuit Court, which granted the city's motion for summary disposition pursuant to MCR 2.116(C)(10) on the basis of the "open and obvious" danger rule. See, e.g., Bertrand v. Alan Ford, Inc, 449 Mich. 606, 537 N.W.2d 185 (1995). We reverse.

Plaintiff's deposition testimony was to the effect that, for six years, she and her friends had discussed how the sidewalk in this particular location was grossly defective, with broken and jagged chunks of concrete jutting every which way. The circuit court reasoned that, accordingly, with regard to plaintiff, the danger was "open and obvious."

In an ordinary premises liability situation, the landowner has no duty to make repairs, but merely a duty to protect invitees and licensees from unreasonable dangers of which they may be unaware; the "open and obvious" danger principle establishes awareness and thus ability to avoid the danger. Riddle v. McLouth Steel Products Corp, 440 Mich. 85, 96, 485 N.W.2d 676 (1992); White v. Badalamenti, 200 Mich.App. 434, 437, 505 N.W.2d 8 (1993). With regard to highways, including, with respect to municipalities, sidewalks, M.C.L. § 691.1401(e); M.S.A. § 3.996(101)(e), there is a statutory obligation to keep the highway or sidewalk in good repair so as to be reasonably safe for public travel. M.C.L. § 691.1402(1); M.S.A. § 3.996(102)(1). There is no corresponding common-law duty on the part of an ordinary landowner. ¹

If the open and obvious danger rule applied, then any governmental agency with the duty to maintain a highway could simply post a sign announcing "Defective Highway Ahead--Travel at Your Own Risk" and avoid the statutory obligation to keep its highways in good repair so as to be reasonably safe for public travel. Alternatively, a governmental agency could meet its statutory duty merely by allowing the roads and sidewalks to deteriorate until their appearance made any danger apparent to the public. Thus, absolving the city of liability in this situation would be tantamount to allowing the open and obvious danger rule to swallow the statutory duty to maintain highways, including--with regard to municipalities--sidewalks, in good repair.

Absolving the city of liability is also inconsistent with M.C.L. § 691.1403; M.S.A. § 3.996(103). This section protects a governmental agency from liability unless there is actual or constructive knowledge of a defect and reasonable time to repair it. However, this section also establishes a time limit beyond which these protections become unavailable.

Knowledge of the defect and time to repair the same shall be conclusively presumed when the defect existed so as to be readily apparent to an ordinarily observant person for a period of 30 days or longer before the injury took place.

If the open and obvious danger rule precluded liability, then in all conclusive presumption situations, the obligation to maintain the highway or sidewalk in good repair would be self-extinguishing. In other words, the very fact that the defect was so obvious as to be readily apparent to an ordinarily observant person would not only establish a conclusive presumption of actual notice giving rise to a duty to repair, it would also establish conclusively the basis for asserting "open and obvious" danger as a complete defense for failing to make the repair.

A fundamental rule of statutory construction is that the Legislature did not intend to do a useless thing, and absurd or self-defeating consequences should be avoided. Gross v. General Motors Corp, 448 Mich. 147, 164, 528...