Ward v. Frank's Nursery & Crafts, Inc.

• Decision Date: 17 December 1990
• Docket Number: Docket Nos. 105045,105080,105266 and 110838
• Citation: 186 Mich.App. 120,463 N.W.2d 442
• Parties: Dina WARD, Plaintiff-Appellant, v. FRANK'S NURSERY & CRAFTS, INC., and Pete & Franks Fruit Ranch, Defendants, and City of East Detroit, Defendant-Appellant. Dina WARD, Plaintiff-Appellant, v. FRANK'S NURSERY & CRAFTS, INC., Defendant, and Pete & Franks Fruit Ranch, Defendant-Appellee, and City of East Detroit, Defendant. Dina L. WARD, Plaintiff-Appellant, v. FRANK'S NURSERY & CRAFTS, INC., Defendant-Appellee, and Pete & Franks Fruit Ranch and City of East Detroit, Defendants.
• Court: Court of Appeal of Michigan — District of US

Page 442

463 N.W.2d 442

186 Mich.App. 120

Dina WARD, Plaintiff-Appellant, v. FRANK'S NURSERY & CRAFTS, INC., and Pete & Franks Fruit

Ranch, Defendants,

and

City of East Detroit, Defendant-Appellant.

Dina WARD, Plaintiff-Appellant, v. FRANK'S NURSERY & CRAFTS, INC., Defendant, and Pete & Franks Fruit Ranch, Defendant-Appellee,

and

City of East Detroit, Defendant.

Dina L. WARD, Plaintiff-Appellant, v. FRANK'S NURSERY & CRAFTS, INC., Defendant-Appellee, and Pete & Franks Fruit Ranch and City of East Detroit, Defendants.

Docket Nos. 105045, 105080, 105266 and 110838.

Court of Appeals of Michigan.

Submitted Feb. 21, 1989.

Decided Nov. 5, 1990.

Released for Publication Dec. 17, 1990.

Meklir, Schreier, Nolish & Friedman, P.C. by Sherwin Schreier, Southfield, for plaintiff-appellant.

Martin, Bacon & Martin, P.C. by Kevin L. Moffatt, Mt. Clemens, for Frank's Nursery & Crafts, Inc.

Hayduk, Dawson, Andrews & Hypnar, P.C. by Mark S. Hayduk and Alice M. Rhodes, Detroit, for Pete & Franks Fruit Ranch.

Cummings, McClorey, Davis & Acho, P.C. by Marcia L. Howe and Timothy Young, Livonia, for City of East Detroit.

Before GRIBBS, P.J., and HOLBROOK and REILLY, JJ.

HOLBROOK, Judge.

Plaintiff ¹ appeals from a series of summary disposition rulings effecting a dismissal of her claims for personal injuries sustained in a slip-and-fall incident. We reverse as to defendant Frank's Nursery & Crafts, Inc., but we affirm as to the other defendants-appellees.

Plaintiff's accident occurred in an area of public access characterized, alternatively, as an alley or a walkway. This way, owned by defendant City of East Detroit, served as a means of access for vehicles and pedestrians to adjacent business premises and parking lots operated by defendants Frank's Nursery & Crafts, Inc., and Pete & Franks Fruit Ranch. Plaintiff's injury was sustained as she was leaving the premises of Frank's Nursery and proceeding to Pete & Franks for the purpose of patronizing their business.

Docket Nos. 105045 and 110838 (Defendant City of East Detroit )

I

Plaintiff argues that her claim against the city is not subject to governmental immunity because it falls within the highway exception. Because the circuit court's ruling required consideration of facts outside the pleadings, we review the grant of summary disposition to the city pursuant to MCR 2.116(C)(10). See Velmer v. Baraga Area Schools, 430 Mich. 385, 389, 424 N.W.2d 770 (1988). A motion pursuant to subsection (C)(10) tests whether there is any factual support for the claim and should be granted in favor of the defendant only if there is no genuine issue of material fact and if the defendant is entitled to judgment as a matter of law. Id., at p.p. 389-390, 424 N.W.2d 770.

The highway exception set forth in M.C.L. Sec. 691.1402; M.S.A. Sec. 3.996(102) provides in pertinent part:

Each governmental agency having jurisdiction over any highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. Any person sustaining bodily injury or damage to his property by reason of failure of any governmental agency to keep any highway under its jurisdiction in reasonable repair, and in condition reasonably safe and fit for travel, may recover the damages suffered by him from such governmental agency.

Plaintiff's deposition testimony establishes that she fell in the alleyway. For purposes of this issue, plaintiff and the city agree that the fall occurred in a place subject to the city's jurisdiction.

The issue in dispute is whether the alleyway constitutes a highway within the meaning of the statute. In this regard, M.C.L. Sec. 691.1401(e); M.S.A. Sec. 3.996(101)(e), in providing a statutory definition of "highway," expressly excludes alleys from its scope:

"Highway" means every public highway, road, and street which is open for public travel and shall include bridges, sidewalks, crosswalks, and culverts on any highway. The term highway does not include alleys, trees, and utility poles.

Relying on the exclusion of an alley from the statutory definition of highway, the city submitted a certificate of survey labeling the area as a "public alley" as well as excerpts of deposition testimony in which plaintiff characterized the area as an alleyway. Plaintiff makes the contrary argument that the common and customary usage of the area as a means of public travel raises an issue of material fact as to whether the alleyway should be deemed a highway for immunity purposes.

The highway exception to immunity is to be strictly construed. Ehlers v. Dep't of Transportation, 175 Mich.App. 232, 234, 437 N.W.2d 642 (1988). The apparent policy is to open a window of liability for those places accessible to public travel. Campbell v. Detroit, 51 Mich.App. 34, 36, 214 N.W.2d 337 (1973).

In Stamatakis v. Kroger Co, 121 Mich.App. 281, 284-285, 328 N.W.2d 554 (1982), lv. den. 417 Mich. 1014 (1983), a slip-and-fall accident occurred in a city-owned access way. The Court provided and applied the standard governing delineation between a highway excepted from immunity and a nonexcepted alley:

The government's duty to maintain the highways in reasonable repair so that they are reasonably safe and convenient for public travel does not extend to alleys. The term "alley" must be defined with due regard for the Legislature's intent in using it. In the present case, defendant supported its claim (that the place in which plaintiff fell was an alley) by presenting an affidavit concerning a review of the Wayne County Bureau of Taxation base map of the area. The map allegedly showed that the place was a "dedicated public alley." By itself, this showing was insufficient to defeat, as a matter of law, plaintiff's claim that the dedicated alley had become a highway by use and custom. We do not hold that a plaintiff's claim that an alley has become a highway usually presents a question for the trier of fact. We hold only that defendant's proof that the place had been dedicated as an alley was not dispositive. If plaintiff can prove that the physical characteristics and pattern of use of the place are those of a highway, not those of an alley, she may be entitled to claim avoidance of the defense of governmental immunity. [121 Mich.App. at 285, 328 N.W.2d 554.]

Although summary disposition was denied, it is apparent that the Court's assignment of error was directed to the trial judge's belief that the formal designation of the access way as an alley was conclusive as a matter of law of its status. An appropriate resolution of the motion was apparently thought to be premature in light of the inadequate development of the record.

In this case, the city met its burden pursuant to MCR 2.116(G)(4) of supporting its argument that the passageway was in fact an alley. Plaintiff, in attempting to controvert this showing, points to nothing establishing that the alley served any broader function consistent with usage of a road travelled by the public. Plaintiff's vague allegation that the alleyway was extensively used by persons seeking to patronize adjacent businesses is not inconsistent with the common understanding of the functions of an alley. As such, the alley appears to serve as a publicly owned driveway shared by two businesses. There is no indication that the alley was used as a common means of passage by persons leaving from and going to places not in close proximity to the two businesses. Although we do not believe that lack of usage as a general thoroughfare is conclusive of this issue, we find it significant, particularly since nothing is asserted that suggests that the alley was otherwise used in any manner inconsistent with the generally understood notions of an alley. In the absence of any evidence of this nature, the described usage of the passageway does not alter its characterization as an alley statutorily excepted from the definition of a highway in M.C.L. Sec. 691.1401(e); M.S.A. Sec. 3.996(101)(e). See also Dettloff v. Royal Oak, 178 Mich.App. 319, 443 N.W.2d 410 (1989).

II

In a further effort to avoid the bar of governmental immunity, plaintiff argues that her claim is cognizable as a nuisance excepted from immunity. Plaintiff urges that her claim raises four different nuisance theories: (1) trespass-nuisance, (2) public nuisance, (3) nuisance per se, and (4) intentional nuisance. A trespass-nuisance exception to immunity was recognized in Hadfield v. Oakland Co. Drain Comm'r, 430 Mich. 139, 422 N.W.2d 205 (1988), but no other theory was either accepted or disavowed by a majority of the Court.

A

Essential to the trespass-nuisance exception is a physical intrusion onto private property causing injury sustained outside of the governmental defendant's own premises. Id., at p.p. 145, 154, n. 7, and 199, 422 N.W.2d 205. This much of Hadfield is binding precedent. Since, in the case at bar, plaintiff's accident and injury occurred in the public alley owned by the city without any causation attributable to a physical intrusion onto private property, the trespass-nuisance exception is facially inapplicable.

B

The question whether a public nuisance is excepted from immunity was acknowledged but left unresolved by the plurality of three justices in an opinion authored by Justice Brickley. Id., at p.p. 175-177, 422 N.W.2d 205. In the lead opinion, Justice Brickley addressed the limited version of the public nuisance exception that was suggested by Pound v. Garden City School Dist., 372 Mich. 499, 127 N.W.2d 390 (1964), where the Court held that governmental immunity did not bar a claim for injuries from a slip and fall on ice formed from the discharge of water from the roof of a school building onto an adjacent public sidewalk. As such, the public nuisance exception acknowledged by Justice Brickley is highly analogous to the trespass-nuisance exception validated in Hadfield. The only difference is that the trespassory invasion effects injury on public, not private,...