Harris v. City of Detroit

• Decision Date: 10 September 1962
• Docket Number: No. 17,17
• Citation: 117 N.W.2d 32,367 Mich. 526
• Parties: Eliza HARRIS, Paintiff and Appellant, v. CITY OF DETROIT, Defendant and Appellee
• Court: Michigan Supreme Court

Page 32

117 N.W.2d 32

367 Mich. 526

Eliza HARRIS, Paintiff and Appellant, v. CITY OF DETROIT, Defendant and Appellee.

No. 17.

Supreme Court of Michigan

Sept. 10, 1962.

Charfoos & Charfoos, Detroit, by Lawrence S. Charfoos, Detroit, for plaintiff and appellant.

Nathaniel H. Goldstick, Corp. Counsel, Alfred Sawaya, Andrew F. Valenti, Asst. Corp. Counsel, Detroit, for defendant and appellee.

Before the Entire Bench.

KAVANAGH, Justice.

Plaintiff filed a declaration in the circuit court for the county of Wayne against defendant city of Detroit seeking to recover for damages growing out of injuries suffered when she allegedly tripped on a depressed sidewalk. Plaintiff alleged one of the slabs had settled into the ground approximately 1 inch below the preceding slab. Plaintiff based this action on the general highway law, as amended,* which provides for recovery of damages for injuries suffered upon any of the highways or streets in this State by reason of failure to keep such highway or street in reasonable repair.

Defendant city of Detroit appeared and filed a motion to dismiss stating:

1) That the declaration failed to state a cause of action upon which plaintiff could recover from defendant city.

2) That on the face of plaintiff's declaration it appears the alleged defective sidewalk was approximately 1 inch below the other squares.

3) That no liability was imposed on the city, a municipal corporation, with the meaning of the statute, where anyone trips over a depression of less than 2 inches in depth.

The trial judge granted the motion to dismiss, apparently relying upon Berry v. City of Detroit, 341 Mich. 702, 69 N.W.2d 145.

Plaintiff appeals, presenting one question:

Under C.L.S.1956, § 242.1 (Stat.Ann.1958 Rev. § 9.591), is a defect in a sidewalk wherein there is less than a 2-inch difference in levels, as a matter of law, nonactionable?

Plaintiff, both in her brief and in oral argument, admits that the rule in Michigan, supported by a long list of cases beginning with Bennett v. City of St. Joseph, 146 Mich. 382, 109 N.W. 604, and culminating with Berry v. City of Detroit, supra, is that a depression in a walk which does not exceed 2 inches in depth will not render a municipality liable for damages incident to an accident caused by such depression. It is to be noted that most of these cases are unanimous opinions of this Court. Plaintiff would have us abolish this long-established rule of law without citing any reason or authority for the change in position. We find no reason for doing so.

The trial court was correct in granting the motion to dismiss. The order granting the motion to dismiss is affirmed, with costs in favor of defendant.

CARR, C. J., and DETHMERS, KELLY and BLACK, JJ., concurred with KAVANAGH, J.

ADAMS, Justice (dissenting).

The question in this case is whether or not this Court shall continue to hold as it has in the past that, under C.L.S.1956 § 242.1 (Stat.Ann.1958 Rev. § 9.591), a person cannot, as a matter of law, recover for injuries received because of a defect of less than 2 inches in a city sidewalk.

In 1893, Bigelow v. City of Kalamazoo, 97 Mich. 121, 56 N.W. 339, was decided. A description of the scene of the accident in that case and the reasons barring recovery as a matter of law, are set forth in the majority opinion:

'Portage street was unpaved, and in wet weather very muddy. A street-car track occupied the center of the street. The walk was constructed of two planks, four inches thick, and from twelve to sixteen inches in width. Between the planking a space of sixteen inches, and a space outside of the plank, had been paved with cobblestones. The rail in use by the street railway was the ordinary flat rail. The planking had been raised above the street grade so that at the car tracks the surface of the plank was two inches higher than the rail. Short planks had been laid between the rails. The ends of the planking were from two to four inches from the rail. In this condition it was found that the planking, being above the rail, interfered with the scrapers attached to the street cars, and the city authorities caused the ends of the planks to be chamfered off, commencing back several inches from the ends. Plaintiff's decedent stepped upon the beveled edge of one of these planks, her foot slipped, and she fell forward. The court submitted the case to the jury, and a verdict for the defendant resulted.

'Upon the case made, defendant was entitled to a verdict, and it is unnecessary to consider the questions raised by plaintiff. The alleged defect in the crosswalk was part of a plan adopted, which was rendered necessary by existing conditions. Crosswalks are constructed for the convenience of pedestrians.

This walk was elevated of necessity; otherwise, it would have been of little value. The railway tracks were necessarily lower than the walk. It became necessary either to cut off the planks to allow for the use of the scrapers, or to chamfer them down so as to allow the scraper to pass over them. By adopting the other plan, another and greater danger would have been presented. In all of our cities these conditions present themselves. Even in our most prominent thoroughfares, paved in the most approved manner, curbs must be carried, and at the crossings they are from two to six inches higher than the pavement. The curb must be left bare, and inattentive people be liable to stumble, or, as is frequently done, a plank is placed upon an incline, upon which pedestrians carelessly advancing are liable to slip. In either case there is the minimum of danger. The walk is not absolutely safe, but it cannot be said that it is not in a reasonably safe condition. The same is true of nearly all of our alley crossings. Gutters are necessarily left for the passage of water. These crossings are not absolutely safe, but they may be reasonably so. Neither streets, sidewalks, nor crosswalks can be constructed upon a dead level. People are liable to stumble over a Persian rug upon a parlor floor, and streets cannot be made less dangerous than drawing rooms. Crosswalks upon our unpaved streets are usually constructed in this identical manner. Street-car tracks are necessarily constructed at the street grade. Of necessity we must have gutters at these railway tracks. These gutters have abrupt edges, and must be wide enough to admit of wheels, the play of wheels, and the passage of the scraper, or the walk at the intersection of the walks must be chamfered off, as in the present case. To have shortened the planking, leaving holes large enough to admit a foot, would increase the danger rather than diminish it. The construction of a crosswalk in accordance with the requirements of the locality, adopting the means usually adopted, and which are best adapted for the convenience of the public, cannot be said to be negligent construction. Cities are not required to keep streets in a condition absolutely safe for travel. A crosswalk must be reasonably safe; reasonably safe in view of the purpose for which it is constructed, the necessary uses of the street, and all the varying conditions.' (Emphasis supplied.)

The most significant thing about the majority opinion of the Court is the italicized portion. Under the conditions existing at that time, the city had constructed a walk that would cause the minimum amount of danger, other known and available methods of construction being likely to be more dangerous. One Justice dissented, agreeing with the circuit judge that the condition raised a question for the jury as to whether or not the walk was a reasonably safe one.

Prior to this case, in the case of Sebert v. City of Alpena, 78 Mich. 165, 43 N.W. 1098, the duty of cities to keep their streets in reasonable repair was affirmed by this Court and it was held that the question of whether or not the duty had been performed was for a jury, taking into account all of the circumstances, such as the time of the day or night, the location and size of the defect, and any other of the facts or circumstances surrounding the accident.

However, following the decision in the Kalamazoo Case, the proposition gradually hardened into a rule of law that where a defect in a walk was less than 2 inches in depth, the walk would be considered to be safe and the city free from negligence. The process is worth noting. In Weisse v. City of Detroit (1895), 105 Mich. 482, 484, 485, 63 N.W. 423, it was said:

'In cities having many miles of walks it would be an utter impossibility to make these walks absolutely safe and the legislature did not intend to impose that duty upon municipalities by this act, whatever construction the act of 1879 ¹ may have had. It would require an army of men in the city of Detroit to do this. Inspectors are not expected to carry around with them a smoothing plane or an adz to plane or hew down every small protuberance against which people might stumble and fall. The fact that this plank was not nailed down does not seem to have caused the injury. It was the same as if it had been nailed, but was 1 1/2 or 2 inches above the other, so that the question is squarely presented whether such a rise is a defect in the street so that it is not reasonably safe. While not desiring to relieve municipalities from the duties and responsibilities fairly cast upon them by this act, we should be careful not to cast a burden upon them which it was not the intent of the legislature to create.'

In the year 1899, in the first cement sidewalk case--Jackson v. City of Lansing, 121 Mich. 279, 80 N.W. 8--it was held that because cement sidewalks may, by freezing and thawing, become broken, or, by constant travel, may wear through the outer crust and into the grouting, a defect of about 1 1/2 inches would be no greater obstacle to reasonably safe travel than the rise in the walks which have been involved in previous cases before the Court. Weisse v. City of Detroit, supra; Yotter v. City of Detroit...