Walker v. City of Flint

• Decision Date: 22 August 1995
• Docket Number: Docket No. 164201
• Citation: 539 N.W.2d 535,213 Mich.App. 18
• Parties: Ruth WALKER, as Next Friend of Alfonso Johnson, Minor, Plaintiff-Appellee, v. CITY OF FLINT, a municipal corporation, Department of Public Works, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 535

539 N.W.2d 535

213 Mich.App. 18

Ruth WALKER, as Next Friend of Alfonso Johnson, Minor Plaintiff-Appellee, v. CITY OF FLINT, a municipal corporation, Department of Public Works, Defendant-Appellant.

Docket No. 164201.

Court of Appeals of Michigan.

Submitted June 6, 1995, at Detroit.

Decided Aug. 22, 1995, at 9:10 a.m.

Released for Publication Nov. 17, 1995.

Blum, Konheim, Elkin & Blum by David J. Elkin, Southfield, for plaintiff.

Loyst Fletcher, Jr., and Barry A. Wolf, Flint, for defendant.

Before JANSEN, P.J., and FITZGERALD and LAMB, ^* JJ.

JANSEN, Presiding Judge.

Defendant City of Flint appeals as of right from an April 14, 1993, judgment of $12,572.28 entered on a jury verdict in plaintiff's favor. We affirm.

This case involves a slip and fall on a city sidewalk. On August 7, 1991, eight-year-old Alfonso Johnson was walking to his cousin's house when he tripped and fell over a raised portion of sidewalk in the City of Flint. Alfonso received a four-centimeter cut to his scalp, which required stitches and resulted in a scar.

James Hill resided in the house in front of which the sidewalk where Alfonso tripped and fell was located. Hill testified that the roots of an elm tree caused the sidewalk to buckle. Hill stated that he contacted defendant's public works department to fix the bump. The public works department built up a mound of asphalt over the top of the bump. As the tree grew, the sidewalk required refilling. Hill estimated that the bump was approximately twelve inches in height. According to Jeffrey Bye, a street maintenance supervisor for defendant, city employees had placed asphalt on the raised portion of the sidewalk to smooth it. Bye stated that the raised portion was open and obvious for all to see.

Plaintiff filed suit against defendant on January 13, 1992, alleging that defendant failed to maintain and repair the sidewalk in a reasonably safe manner. It was plaintiff's theory that this claim fell within the highway exception to governmental immunity. The case went to a jury trial, and the jury found in plaintiff's favor. Following the jury's verdict, defendant moved for a judgment notwithstanding the verdict (JNOV) or a new trial. The trial court denied the motion. Defendant now raises three issues on appeal.

Defendant first argues that the trial court erred in refusing to give its requested instruction concerning its theory that the danger was open and obvious. The trial court denied defendant's requested instruction, ruling that the instruction was not applicable because plaintiff's theory of the case invoked duties arising from the highway exception to governmental immunity rather than a failure to warn.

A standard jury instruction must be given if it is requested by a party, is applicable, and accurately states the applicable law. MCR 2.516(D)(2). Jury instructions are reviewed in their entirety to determine whether the instructions given adequately informed the jury regarding the applicable law reflecting and reflected by the evidentiary claims in the particular case. Riddle v. McLouth Steel Products Corp., 440 Mich. 85, 101, 485 N.W.2d 676 (1992).

The trial court did not err in denying defendant's requested instruction concerning an open and obvious danger because plaintiff's claim was not premised on a failure to warn theory. In Riddle, our Supreme Court explained that a premises owner must maintain the property in a reasonably safe condition and has a duty to exercise due care to protect invitees from conditions that might result in injury. A premises owner's duty to warn extends to hidden or latent defects. Id., at pp. 90-91, 485 N.W.2d 676. However, where the dangers are known to the invitee or are so obvious that the invitee might reasonably be expected to discover them, an invitor owes no duty to protect or warn the invitee unless the invitor should anticipate the harm despite knowledge of it on behalf of the invitee. Id., at p. 96, 485 N.W.2d 676.

In Riddle, the issue to be determined was whether a premises owner must warn invitees of known or obvious dangers. Id., at p. 88, 485 N.W.2d 676. The Supreme Court simply reiterated the rule that there is no absolute duty to warn an invitee of an open and obvious danger. Id., at p. 97, 485 N.W.2d 676. The scope of the duty to warn was revisited in Glittenberg v. Doughboy Recreational Industries (On Rehearing), 441 Mich. 379, 491 N.W.2d 208 (1992). There, the Supreme Court stated that a manufacturer or seller has no duty to warn of open and obvious dangers connected with an otherwise nondefective product. Id., at p. 390, 491 N.W.2d 208. Accordingly, the open and obvious danger rule is applicable to a duty to warn case.

In the present case, plaintiff's theory of liability was not based on a duty to warn. Rather, plaintiff's theory of liability was premised on the highway exception to governmental immunity, which is a statutory duty. We make clear that a claim of a duty to warn is a separate and distinct theory of liability from a statutory duty to maintain and repair under the highway exception to governmental immunity. See, e.g., Poe v. Detroit, 179 Mich.App. 564, 567, 446 N.W.2d 523 (1989) (the duty to warn was "an additional theory of liability" where the plaintiff also alleged a breach of a statutory duty). The defense of open and obvious danger relates to a claim of a duty to warn, but will not exonerate a defendant from liability where the claim is one of a duty to maintain and repair the premises.

Accordingly, the trial court did not err in denying defendant's requested instruction of an open and obvious danger. That defense is not available where plaintiff's theory of liability was based on the statutory duty to maintain and repair the sidewalk under the highway exception to governmental immunity. Because defendant's requested instruction regarding an open and obvious danger was not applicable to plaintiff's theory, the trial court correctly denied the requested instruction.

Defendant next argues that the trial court erred in ruling that the statutory duty to maintain and repair the sidewalk was separate from the common-law duty to warn.

As we have stated, the trial court correctly ruled that defendant's duty was statutory and not based on the common-law duty to warn. Duty may be...