Opinion
Docket No. 7238.
Decided February 15, 1971. Leave to appeal granted April 22, 1971, 384 Mich. 834.
Appeal from Bay, Leon R. Dardas, J. Submitted Division 3 October 7, 1970, at Lansing. (Docket No. 7238.) Decided February 15, 1971. Leave to appeal granted April 22, 1971, 384 Mich. 834.
Complaint by Lillian G. Rule against the city of Bay City for damages for injuries from catching her foot on a steel pipe. Judgment for defendant. Plaintiff appeals. Reversed and remanded for new trial.
Patterson Patterson, for plaintiff.
Egloff, Mainolfi, Taylor, McGraw Collison, for defendant.
Plaintiff was injured when she caught her right foot on a steel pipe protruding from one of defendant's sidewalks (all witnesses save one testified that it could have been a sleeve).
The hollow steel pipe and surrounding tapered concrete collar were what remained of a street sign which had been removed some five months before the accident. There was conflicting testimony at trial as to the height of the remaining portion of pipe as well as conflicting testimony about the height of the collar.
Briefly, it was plaintiff's claim that the defendant city was negligent in maintaining, or failing to correct, the defective condition complained of. The city maintains that, as a matter of law, it cannot be held liable if the "defect" complained of is less than two inches in height.
PA 1909, No 283, ch 22, § 1 as amended (CLS 1961, § 242.1 [Stat Ann 1958 Rev § 9.591]), subsequently repealed by PA 1964, No 170, read as follows:
"Any person or persons sustaining bodily injury upon any of the public highways or streets in this state, by reason of neglect to keep such public highways or streets, and all bridges, sidewalks, cross walks and culverts on the same in reasonable repair, and in condition reasonably safe and fit for travel by the township, village, city or corporation whose corporate authority extends over such public highway, street, bridge, sidewalk, crosswalk or culvert, and whose duty it is to keep the same in reasonable repair, such township, village, city or corporation shall be liable to and shall pay to the person or persons so injured or disabled, and to any person suffering damages by reason of such injury, just damages, to be recovered in an action of trespass on the case before any court of competent jurisdiction".
At the trial of the case, the following instruction, of which plaintiff complains, was given by the court:
"As a matter of law in the State of Michigan, no court will hold a municipality liable in any way whatsoever if a defect, whether it be a depression or elevation, does not exceed two inches in depth or elevation. Therefore, you can see that even a two inch depth or elevation or crack, does not allow any traveler to collect any damages from the city and this is the law. Beyond two inches, the courts allow a jury to decide whether or not the depression or elevation is a defect and if it was a proximate cause of the accident and injuries resulting therefrom."
The jury was then instructed that if they found the pipe did not raise up more than two inches, they had no alternative but to return a verdict in favor of defendant of no cause of action. But if they found a rise of over two inches they could find negligence on the part of the defendant municipality.
A verdict of no cause of action was returned, and plaintiff appeals.
As the height of the projecting steel pipe was a fact question for jury determination, its verdict could have meant either (1) that the pipe was less than two inches high and, as a matter of law, defendant was not negligent or (2) that the pipe was more than two inches high, and while defendant could have been negligent, it in fact was not.
The instruction given was based on a long line of Michigan cases holding that a municipality is not subject to liability because of a discontinuity in a sidewalk. The two-inch rule had its origin in a judicial belief that the public authority could not be expected to construct or maintain a perfectly smooth walkway and, therefore, negligence could not be predicated upon relatively minor variations in the walking surface.
See footnote 1 in our opinion in Howard v. City of Melvindale (1970), 27 Mich. App. 227.
The rule has been applied where a metal grating was a part of the sidewalk. Northrup v. City of Pontiac (1909), 159 Mich. 250. However, in the recently decided case of Howard v. City of Melvindale (1970), 27 Mich. App. 227, this Court declined to extend the rule to cover a protruding bolt, not designed to be walked upon, which had originally been used to hold in place the side rail of a pedestrian bridge. The bridge was still in place, but the side rails had been removed, leaving bolts exposed. All of the cases which support this outworn rule dealt with "defects" or obstructions in a surface designed to be walked upon. In Howard, we specifically limited the two-inch rule to apply only to those surfaces or objects which are "designed to be walked upon".
See footnote 2 in Howard, supra.
Accordingly, in addition to the two questions mentioned above, the jury in this case should have been instructed that it should determine whether, at the time of the accident, the surface or object was of a design to be walked upon. In determining that question, the jury should have been told that it could decide that the surface or object was, at the time of the accident, reasonably adaptable or usable for a walking surface as it then existed, whether or not the city had left the prior condition unchanged or had modified it in some manner.
Defendant has cross-appealed, claiming that plaintiff failed to offer any evidence of giving proper notice to the city. The sufficiency of the notice was already passed upon by this Court in Rule v. City of Bay City (1968), 12 Mich. App. 503. The record in this case shows that the notice was filed; that is enough.
Reversed and remanded for a new trial.
Costs to plaintiff.
All concurred.