Hankins v. Elro Corp.

• Decision Date: 05 May 1986
• Docket Number: Docket No. 81901
• Citation: 149 Mich.App. 22,386 N.W.2d 163
• Parties: Gerald HANKINS, as next friend of Susan Hankins, a minor, and Gerald Hankins and Gladys Hankins, Plaintiffs-Appellants, v. ELRO CORPORATION, a Michigan corporation, Defendant-Appellee, and John Carlo, Inc., a Michigan corporation, City of Sterling Heights, a municipal corporation, and Municipal Consultant Services, Inc., a Michigan corporation, Defendants. 149 Mich.App. 22, 386 N.W.2d 163
• Court: Court of Appeal of Michigan — District of US

Page 163

386 N.W.2d 163

Gerald HANKINS, as next friend of Susan Hankins, a minor and Gerald Hankins and Gladys Hankins Plaintiffs-Appellants, v. ELRO CORPORATION, a Michigan corporation Defendant-Appellee and John Carlo, Inc., a Michigan corporation, City of Sterling Heights, a municipal corporation, and Municipal Consultant Services, Inc., a Michigan corporation, Defendants.

Docket No. 81901.

149 Mich.App. 22, 386 N.W.2d 163

Court of Appeals of Michigan.

Submitted Dec. 12, 1985.

Decided Feb. 4, 1986.

Released for Publication May 5, 1986.

[149 MICHAPP 23] Kelman, Loria, Downing, Schneider & Simpson by Janet M. Tooley, Detroit, for plaintiffs-appellants.

Garan, Lucow, Miller, Seward, Cooper & Becker, P.C. by Daniel L. Garan, Detroit, for defendant-appellee Elro Corp. [149 MICHAPP 24] Before DANHOF, C.J., and J.H. GILLIS and WARSHAWSKY, ^* JJ.

PER CURIAM.

Plaintiffs appeal as of right from an order of the circuit court granting the motion for summary judgment brought by defendant Elro Corporation. Plaintiffs sought damages for personal injuries incurred by plaintiff Susan Hankins, which allegedly resulted when the bicycle Susan was riding struck a defect in a street and she was thrown onto the pavement. Defendant Elro Corporation was the contractor/developer of the subdivision through which the street ran.

On September 24, 1983, Susan Hankins was riding "double" with a friend on a bicycle. Susan was sitting on the seat and her friend was standing up while pedaling. As they were riding on University Drive in Sterling Heights, approaching the intersection of Heyden Court, a wheel of the bicycle became wedged in a defect in the street and Susan was thrown to the pavement. Three of her front teeth were shattered and a hole was punctured in her chin. She also received numerous other facial cuts and abrasions as a result of the fall. The defect was described as "like two pieces of cement and then there was like a gap where there was nothing between it". The gap ran "from curb to curb" and was about 1 1/2 to 2 inches wide.

On November 21, 1983, suit was brought against Elro, the developer of the subdivision in which the street was located, Municipal Consultant Service, Inc., the engineer of the subdivision project, John Carlo, Inc., the subcontractor who paved the streets, and the City of Sterling Heights, which was responsible for maintenance of the streets, alleging that each had breached various duties of care as to design, development, construction and [149 MICHAPP 25] repair. Susan Hankins sought damages for pain and suffering, while Susan's parents sought damages for the medical expenses incurred.

On October 2, 1984, Elro moved for summary judgment pursuant to GCR 1963, 117.2(3), now MCR 2.116(C)(10), averring that the street had been dedicated to the City of Sterling Heights (hereafter the City), that the City had acknowledged acceptance of the street on October 31, 1977, and that the responsibility to maintain the street became the City's after that point in time. A hearing was held on October 15, 1984, at which counsel for defendant Elro argued that, after acceptance of the dedication of the street, Elro owed no further duty to any other party in connection with the street. Plaintiffs responded that Elro was not being sued as the current owner of the subdivision nor as the party responsible for its current maintenance. Rather, plaintiffs' theory was that Elro had failed to hire competent subcontractors to do the work and that Elro had failed to supervise and inspect the work while it was in progress. Plaintiffs also stated that the defect appeared to have been caused by the failure of the subcontractor to use proper metal connecting devices between the sections of concrete. At the conclusion of the hearing, the trial court ruled in defendant Elro's favor, finding that if the crack was apparent, it was the City's obligation to repair it. An order was entered on the ruling November 13, 1984.

Although defendant Elro's motion for summary judgment purported to rely upon GCR 1963, 117.2(3), that no genuine issue existed as to any material fact and the moving party therefore was entitled to judgment as a matter of law, Elro's trial level and appellate briefs and its oral argument before the trial court were based upon the theory that Elro ceased to be liable for any construction[149 MICHAPP 26] defects in the street once dedication to the City was completed. We believe that this argument does not test the factual support for plaintiffs' claim, but rather attacks its legal sufficiency. Thus, Elro's motion would have been more properly brought under GCR 1963, 117.2(1). Since we believe that neither party was misled, we will analyze this issue under the following standard of review:

" 'In reviewing a grant of summary judgment under GCR 1963, 117.2(1), the motion is tested by the pleadings alone. Todd v Biglow, 51 Mich App 346, 349; 214 NW2d 733 (1974). Because the motion tests only the legal and not the factual sufficiency of the pleadings, Grasser v Fleming, 74 Mich App 338, 342; 253 NW2d 757 (1977), all well-pleaded allegations must be taken as true. Tash v Houston, 74 Mich App 566; 254 NW2d 579 (1977), lv den 401 Mich 822 (1977). The motion should be denied unless the alleged claims are so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recover. Koenig v Van Reken, 89 Mich App 102, 104; 279 NW2d 590 (1979); Merit Electric Co, Inc v J Boyle, Inc, 77 Mich App 503; 258 NW2d 539 (1977).' " Charter Twp of Harrison v Calisi, 121 Mich App 777, 781-782; 329 NW2d 488 (1982), quoting Allinger v Kell, 102 Mich App 798, 806-807; 302 NW2d 576 (1981), modified 411 Mich 1053; 309 NW2d 547 (1981).

The issue presented through this appeal, as we see it, is whether a contractor may be held liable for injuries to third parties resulting from defects in construction of a street after the street has been dedicated to a city and the city has assumed full responsibility for repair and maintenance. In support of its position, Elro cites several sections of the Subdivision Control Act of 1967, M.C.L. Sec. 560.101 et seq.; M.S.A. Sec. 26.430(101) et seq., outlining the procedure for dedicating subdivision lands to municipalities. [149 MICHAPP 27] While it is apparent that after the dedication the municipality has total control of the dedicated lands, this act contains no section relieving developers from liability for personal injury which results from the developers' defective construction and which occurs after dedication.

Elro also relies upon Benton Harbor Malleable Industries, Inc. v. Pearson Construction Co., 348 Mich. 471, 83 N.W.2d 429 (1957). In that case, an employee of plaintiff therein was injured when a sandhopper fell 12 months after the hopper had been installed by defendant therein. The plaintiff, the company which owned the hopper, brought suit as subrogee of the injured employee. The Supreme Court affirmed a directed verdict in favor of defendant. In affirming the trial court's decision, the Supreme Court found that the plaintiff had been negligent in failing to inspect the sandhopper during the 12 months that it had been in its possession and relied upon the "accepted work" doctrine to hold that plaintiff's negligence in failing to inspect was a superseding cause of the injury. The "accepted work" doctrine relieves an independent contractor from liability for injuries to third parties where the contractor has completed the work and turned it over to the contractee. 348 Mich. 479, 83 N.W.2d 429. In reaching its decision, the Court quoted and relied upon 13 ALR.2d 191, 207-208, which explains one of the bases of the rule:

"It is the intervening negligence of the proprietor that is the proximate cause of the injury resulting from the contractor's work, after acceptance thereof by the owner, and not the original negligence of the contractor. By occupying and resuming possession of the work the owner deprives the contractor of all opportunity to rectify his wrong."

The doctrine is also based in part on the theory [149 MICHAPP 28] that there is no privity between the contractor and the third party. 13 A.L.R.2d 196, 201, 202.

In Kapalczynski v. Globe Construction Co., 19 Mich.App. 396, 172 N.W.2d 852 (1969), this Court examined the vitality of the "accepted work" doctrine and, despite Malleable Industries, concluded that it is not the law in Michigan. In reaching its conclusion, the Kapalczynski Court relied heavily upon the Supreme Court's decision in Spence v. Three Rivers Builders & Masonry Supply, Inc., 353 Mich. 120, 90 N.W.2d 873 (1958), stating:

"The leading case in Michigan (and a leading case in the law nationally) is Spence v Three Rivers Builders & Masonry Supply, Inc, 353 Mich 120; 90 NW2d 873 (1958), where a manufacturer of cinder building blocks was held accountable for property damage caused by defective blocks which had been used in the construction of the plaintiff's home. The Court viewed the question before it to be (p 128) 'whether we are going to continue to be hobbled by such an obsolete rule [privity] and its swarming progeny of exceptions.' The Court abandoned the privity requirement after a thorough 'resume' of its complex history and a review of the historic decision in...