Kowalczyk v. Bailey

• Decision Date: 06 November 1967
• Docket Number: No. 14,14
• Citation: 379 Mich. 568,153 N.W.2d 660
• Parties: Carole KOWALCZYK, Plaintiff and Appellant, v. David BAILEY, City of St. Clair Shores, a municipal corporation, Daniel B. Kachnowski and Donald J. Taylor, Defendants and Appellees.
• Court: Michigan Supreme Court

Page 660

153 N.W.2d 660

379 Mich. 568

Carole KOWALCZYK, Plaintiff and Appellant, v. David BAILEY, City of St. Clair Shores, a municipal corporation, Daniel B. Kachnowski and Donald J Taylor, Defendants and Appellees.

No. 14.

Supreme Court of Michigan.

Nov. 6, 1967.

Royal A. Oppenheim, Detroit, for plaintiff and appellant.

Robert Tatham, Kelly, Oster, Tatham & Solner, Detroit, for defendnats and appellees. Norman L. Zemke, Detroit, of counsel.

Before the Entire Bench.

SOURIS, Justice.

Plaintiff sued defendant city for damages for injuries she incurred in 1963 while riding in an automobile which collided with another automobile illegally parked on a city street. She claimed that the city had notice of the presence of the illegally parked vehicle, but negligently failed to remove it or to warn of its dangerous presence to others traveling lawfully upon the street. On defendant city's motion, the suit was dismissed as to it on the ground that plaintiff had failed to serve written notice upon the city within 60 days from the occurrence of her injuries in accordance with the requirements of Chapter XXII section 8 of P.A.1909, No. 283, as amended (C.L.1948, § 242.8 (Stat.Ann.1958 Rev. § 9.598)). ¹ The Court of Appeals affirmed, 1 Mich.App. 551, 137 N.W.2d 285, and we granted leave to appeal to this Court.

Our decision in this appeal turns upon whether the city is liable in damages for injuries caused by its alleged negligent failure to remove an obstruction in a highway after it had notice thereof. That issue caused this Court some difficulty late last century and early in this one.

Our Court, in City of Detroit v. Blackeby (1870), 21 Mich. 84, had ruled that at common law a city was not liable for injuries caused by its neglect to keep its streets in repair. Thereafter, the legislature, in 1879, adopted a statute bearing upon the issue. P.A.1879, No. 244. This Court construed it in Joslyn v. City of Detroit (1889), 74 Mich. 458, 42 N.W. 50, referring also to P.A.1887, No. 264, which superseded the earlier act:

'This statute was passed in May, 1879. It makes the city not only liable for injuries occurring through neglect to keep the streets in repair, but also for such as occur by reason of the neglect of the city to keep its streets in a condition reasonably safe and fit for travel. The duty is imposed in both cases, and the necessity for it exists in the one case just as much as in the other, and the liability is the same, and it is every manifest that the Legislature intended to make it so. It was the object of the legislature in the passage of this statute to avoid the decisions of this court, by which, before the passage of the act, the law by construction was made to relieve the municipality from all liability of this kind, and we think the statute should be so construed as to effect the object intended by the legislature.

'If further evidence of the intention of the legislature upon this subject is desired, I think it may be found in the act of 1887, pages 345 and 346, when it discarded the narrow limits of the common-law liability entirely, as heretofore held by this court and some others.' 74 Mich. 458, 460, 42 N.W. 50.

The 1879 act, in all relevant respects similar to P.A.1909, No. 283, which, as amended, was applicable in 1963 at the time plaintiff Kowalczyk's cause arose, was construed by this Court in McEvoy v. City of Sault Ste. Marie (1904), 136 Mich. 172, 98 N.W. 1006. In McEvoy, we said:

'This act was open to two constructions--one, that it imposed upon municipalities an obligation to use diligence to keep their highways and streets in a condition reasonably safe and fit for public travel; and the other, that it imposed upon municipalities only the obligation to use due diligence to keep their highways and streets in good repair. Under the first construction, there would be an obligation on the part of a municipality to remove obstructions within a reasonable time after it had knowledge or notice of their existence. Under the second construction, there would be no such obligation. In the case of Joslyn v. City of Detroit, 74 Mich. 458, 42 N.W. 50, this court deliberately adopted the first construction. The facts in that case were very similar to those in the case at bar, and were these: On the evening a April 23, 1886, plaintiff was driving on Clifford street, in Detroit. Her carriage came in contact with a pile of sand, and was overthrown, and she was injured. This pile of sand was placed in the street to be used for building purposes. It had been...