Justices order argument in signpost stub suit

The Michigan Supreme Court has granted leave to appeal in a case where a man was injured after he tripped over the remnants of a signpost embedded in a public sidewalk.

Last year, a divided Court of Appeals panel held in Mann v. City of Detroit ( MiLW 08-107356 ) that the city of Detroit should have been granted summary disposition under MCR 2.116 (C) (7) of Kenneth Mann’s claim for damages under the sidewalk exception to the Governmental Tort Liability Act or GTLA.

“In light of the statutory definition of sidewalk and caselaw, we are constrained to rule that a sign post is not part of the sidewalk,” Judges Michael J. Kelly and Thomas C. Cameron said. “Regardless of how irresponsible the City may be for allowing a metal stub that is over five inches high to exist in the middle of its sidewalk (and near a bus stop), the Legislature has determined that no liability exists under the present circumstances.”

Judge Douglas B. Shapiro dissented .

“The five-inch pipe is unquestionably ‘in the sidewalk’ it is bound to the sidewalk by concrete, partially submerged beneath the concrete surface, immobile, and unremovable unless the sidewalk slab is replaced,” he wrote.

The justices have directed the parties to address whether the sidewalk exception to immunity under the GTLA applies to the metal post protruding from the sidewalk that allegedly caused Mann to trip and be injured.

Those invited to file amicus briefs include The Michigan Association for Justice, the Michigan Defense Trial Counsel Inc. and the State Bar of Michigan’s Negligence Law Section. Other interested parties may move the court for permission to file amicus briefs.

Sidewalk stub

Kenneth Mann was injured after he tripped and fell on what he described as a “pole that was sticking out of the sidewalk” in Detroit.The embedded stub in the middle of the sidewalk is the remnants of a signpost that had been partially removed and is five inches higher than the sidewalk’s surface.

Mann filed a complaint against the city, claiming it breached its statutory duty under MCL 691.1402a(1) .

The city filed a motion for summary disposition under MCR 2.116(C)(7). The danger posed by the stub was open and obvious, and the defect wasn’t part of the sidewalk, the city argued.

The Wayne County Circuit Court denied the city’s motion, concluding that the “protrusion from the walkway sidewalk is an imperfection in the walkway itself,” that “a sidewalk defect of a vertical discontinuity of two inches or more as stated in the statute, is always open and obvious, thus, [the defense of open and obvious] is a violation of public policy.”

The trial court also said there was a question of fact whether the danger was open and obvious or had special aspects.

Open and obvious

The appeals court majority looked to 2023’s Kandil-Elsayed v. F & E Oil, Inc. decision.

“Until recently, our Supreme Court held that whether a danger is open and obvious must be analyzed under the element of duty, and that, in cases where the danger was open and obvious, a premises possessor would only be liable if the plaintiff provided ‘evidence of special aspects of the condition,’” they noted. That precedent was overruled in Kandil-Elsayed .

Using the new framework established in Kandil-Elsayed , the judges said questions of material fact remain whether the city breached its duty and whether Mann was comparatively at fault.

Some evidence suggests that the city didn’t exercise reasonable care; the defect has existed for more than a decade. And even if the city had breached its duty, other evidence indicates that a jury might find Mann was comparatively negligent because he tripped over the stub as he was looking backward while he was walking.

“Because factual questions remain, notwithstanding that the court applied the now-overruled framework set forth by Lugo and its progeny, we conclude that the trial court did not err by denying summary disposition on the question of whether the hazardous condition was open and obvious,” the majority wrote.

Nature of the defect

The judges noted that, under MCL 691.1402a(1), the city has a duty to “maintain the sidewalk in reasonable repair.” (Emphasis added.)

And according to MCL 691.1401(f), sidewalk is defined as “a paved public sidewalk intended for pedestrian use situated outside of and adjacent to the improved portion of a highway designed for vehicular travel.”

Mann claimed the embedded stub of the signpost was part of the sidewalk, but the majority disagreed.

“He points to no language in the GTLA to support that position,” they wrote. “Further, he does not point to any caselaw supporting his interpretation.”

The city offered two cases in support of its position that the stub isn’t part of the sidewalk 2010’s LaMeau v. Royal Oak holding and Weaver v. City of Detroit from 2002.

“Although Mann argues on appeal that this case is distinguishable from LaMeau because the defect is ‘embedded in the middle concrete,’ the LaMeau dissent adopted by the Supreme Court found no liability despite the fact that the anchor for the guy wire was embedded in the sidewalk,” the judges said. “Mann offers no rationale for why an external object embedded in concrete results in liability when it is in the center of the sidewalk as opposed to the sidewalk’s edge, and we can discern no meaningful distinction between the defect in this case and the defect in LaMeau .”

Next, the Weaver court determined that a streetlight pole wasn’t part of a “highway.”

“[T]he relevant statutory definition of sidewalk refers, generally, to ‘a paved public sidewalk intended for pedestrian use ,’ the majority noted. “A sign post, regardless of whether it is maintained in pristine condition or as in this case is cut down so that only a metal stub remains is not a paved public sidewalk intended for pedestrian use.”

Finally, the judges said Ali v. City of Detroit from 1996 was persuasive.

“Considering that the highway exception must be narrowly construed, the Court concluded ‘that it does not encompass bus passenger shelters that are attached to the sidewalk,’” the majority said. “We conclude that a sign post even one that is cut down is a separate fixture that is attached to the sidewalk. It does not become part of the sidewalk merely by being embedded in the concrete of the sidewalk.”

Dissent

Shapiro disagreed that the stub wasn’t “in the sidewalk,” noting that the partially submerged stub was unremovable unless the sidewalk slab was replaced.

He said the majority wrongly relied on Weaver because the nature of the two situations is different.

“ Weaver , as well as Nawrocki v Macomb Co Rd Comm , on which it was based, rested on the fact that traffic signs and streetlight poles are not within the roadbed designed for travel ,” he wrote. “But here, the remnant of the street sign was actually in the middle of the sidewalk. Despite the fact that utility poles or streetlight poles are not deemed part of the highway in and of themselves, if the five-inch-high remnant of one was embedded in the middle of the roadbed, it would plainly render the roadway itself defective.”

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