Rule v. Bay City, 5

• Decision Date: 06 April 1972
• Docket Number: No. 5,5
• Citation: 387 Mich. 281,195 N.W.2d 849
• Parties: Lillian G. RULE, Plaintiff-Appellee, v. City of Bay CITY, Defendant-Appellant.
• Court: Michigan Supreme Court

Page 849

195 N.W.2d 849

387 Mich. 281

Lillian G. RULE, Plaintiff-Appellee, v. City of Bay CITY, Defendant-Appellant.

No. 5.

Supreme Court of Michigan.

April 6, 1972.

Patterson & Patterson by Thomas P. Patterson, Bay City, for plaintiff-Appellee.

Egloff, Mainolfi, Taylor, McGraw & Collision, by John W. McGraw, Saginaw, for defendant-appellant.

Before the Entire Bench.

PER CURIAM.

In its opinion reversing and remanding for new trial, the Court of Appeals, 30 Mich.App. 396, 186 N.W.2d 358, noted that by its decision in Howard v. City of Melvindale, 27 Mich.App. 227, 183 N.W.2d 341 (1970) it had limited the application of the 'two inch rule' to surfaces or objects which are 'designed to be walked upon'.

That was indeed a step in the right direction, but for the reasons stated by Mr. Justice Adams in his dissent in Harris v. City of Detroit, 367 Mich. 526, 529, 117 N.W.2d 32 (1962), we do not regard it as desirable to continue to enforce the 'two inch rule'.

Accordingly we take this opportunity to advise the bench and bar that hereafter we will no longer hold as a matter of law that a depression or obstruction of two inches or less in a sidewalk may Not be the basis for a municipality's liability for negligence.

The Court of Appeals is affirmed. No costs, a matter of public importance.

T. M. KAVANAGH, C.J., and SWAINSON, T. G. KAVANAGH, ADAMS and WILLIAMS, JJ., concur.

BLACK, Justice (for reversal).

According to the profession's moccasin telegraph, humming as it has been since the allegedly promissory Supreme Court campaign of 1970, the case at bar is due to result in still another order for overrulement of another long line of settled decisions this Court has handed down. Construing and applying 1961 C.L.S. 242.1*; MSA 9.591, the mentioned decisions have resulted in what we know as the 'two-inch rule'. For pro and con details, see Harris v. Detroit, 367 Mich. 526, 117 N.W.2d 32 (1962), particularly the majority opinion of present Chief Justice Kavanagh. That opinion, which I endorsed, ended at 528, 117 N.W.2d at 33 with these words:

'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 facts giving rise to this section 242.1 action appear sufficiently in the opinion of Division 3 (30 Mich.App. 396, 186 N.W.2d 358). To them I would add that this plaintiff failed to measure, photograph or otherwise preserve the then readily available evidence which might tend to establish her charge of failure on the part of the defendant city to maintain the sidewalk, at the place of her alleged injury, 'in reasonable repair, and in condition reasonably safe and fit for travel * * *.'

Under the rule of Perkins v. Delaware Twp., 113 Mich. 377, 379, 71 N.W. 643 (1897); Brown v. Detroit United Railway, 216 Mich. 582, 585, 185 N.W 707 (1921), and Baldinger v. Ann Arbor R. Co., 372 Mich. 685, 691, 127 N.W.2d 837 (1964), all followed in Schedlbauer v. Chris-Craft Corp., 381 Mich. 217, 232, 160 N.W.2d 889 (1968), plaintiff failed to make out a submissible case of actionable negligence within the statute. See, in particular Brown v. Detroit United Rwy., supra, 216 Mich. at 584, 585, 586, 185 N.W 707 and the requirement of measurement stated therein. To quote Schedlbauer, 381 Mich. at 231, 160 N.W.2d at 896:

'In every action for negligence it is the duty of the plaintiff to prove by the most accurate evidence that is reasonably available to him the particular defect or act or omission which to him was the cause of the injury for which he would recover. (See quotation, Post; Perkins v. Township of Delaware).'

I hold that plaintiff failed by proof, or permissible inference from proof, to establish...