Daily Development for Wednesday, March 5, 2000

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
randolphp@umkc.edu

LANDOWNER LIABILITY; SIDEWALKS: Although a landowner may be liable for the condition of a public sidewalk, there is no liability if the condition is "open and obvious," although a city may be liable even for an obvious dangerous condition where it has a statutory duty to provide a safe right of way along the sidewalk.

Weakley v. City Of Dearborn Heights, LC No. 97722062NI, (Mich App. 3/28/00)

Plaintiff, while chasing his girlfriend's dog, tripped and fell on a removed portion of a public sidewalk maintained by defendant City of Dearborn Heights and adjacent to property owned by defendants Darron and Rosemary Duncan.

The city had removed the entire section of the sidewalk for the purpose of repair, leaving a depression about eight inches deep. The City did not erect a blockade or other warning device to alert pedestrians to the missing sidewalk, although state law requires public agencies undertaking such repairs to provide such protective devices.

According to plaintiff, the sun was shining, but some leaves had fallen into the eightinch deep hole created by the missing section of sidewalk. Plaintiff admitted he'd have had no problem with the hole had he been looking where he was going.

Plaintiff filed a commonlaw negligence action against both the owners of the property adjacent to the sidewalk. (Apparently Michigan law recognizes parties using public sidewalks located easements on a private owner's land as invitees of the private owner.) Plaintiff also alleged that the city breached its statutory obligation to keep the sidewalk in good repair so as to be reasonably safe for public travel.

The trial court granted summary disposition in favor of both defendants on the ground that the danger was "open and obvious."

On appeal, held: Affirmed as to the private defendants; reversed as to the City. There was no triable issue of fact as to whether the hazard in this case was "open and obvious." It was. But that characteristic does not protect the city for liability for failure to make safe.

The court cited other Michigan authority for the proposition that steps and differing floor levels, such as the uneven pavement that resulted when the section of sidewalk was removed, "are not ordinarily actionable unless unique circumstances surrounding the area in issue made the situation unreasonably dangerous." The mere fact that plaintiff didn't notice the hole in the sidewalk when plaintiff wasn't watching where he was going does not establish that the hazard was not "open and obvious" to a reasonable person.

Plaintiff also argues that it was error for the trial court to dismiss his cause of action against the city under the open and obvious doctrine because the city has a statutory obligation to keep the sidewalk in good repair so as to be reasonably safe for public travel. MCL 691.1402(1); MSA 3.996(102)(1). The court agreed with plaintiff. The defense of open and obvious danger does not apply where liability is premised on a statutory duty to maintain and repair a sidewalk.

Another Michigan case, in explaining this rule, indicated that any other rule would give municipalities a license to create hazards with the only condition that they be very notoriously hazardous:

"If the open and obvious danger rule applied, then any governmental agency with the duty to maintain a highway could simply post a sign announcing "Defective Highway AheadTravel at Your Own Risk" and avoid the statutory obligation to keep its highways in good repair so as to be reasonably safe for public travel. Alternatively, a governmental agency could meet its statutory duty merely by allowing the roads and sidewalks to deteriorate until their appearance made any danger apparent to the public. Thus, absolving the city of liability in this situation would be tantamount to allowing the open and obvious danger rule to swallow the statutory duty to maintain highways, includingwith regard to municipalitiessidewalks, in good repair."

In the context of vehicular traffic, courts have held that the duty of maintenance in statute includes the duty to erect adequate warning signs or traffic control devices at a point of hazard or special danger. It concluded that there was no reason to construe the statute differently with respect to a municipality's duty to repair and maintain a sidewalk.

Although the court admitted that a sidewalk under repair with an eight inch deep hole where a section has been removed might "reasonably safe" even without a warning or barrier because the danger is obvious, it concluded that this judgment is one for the trier of fact, and not one that can be disposed of on summary judgment.

LANDOWNER LIABILITY; FRANCHISORS: McDonald's Corporation, a franchisor of a restaurant location, lacks sufficient possession and control over the premises to establish a duty of care to a franchisee employee who is shot through the drive up window.

Ison v. Packer, LC No. 9553 5765 NO (Mich. App. 3/24/99) (unpublished opinion) http://www.michbar.org/opinions/home.html?/opinions/appeals/2000/032400/6620 .html

The plainiff's theory, first, was that McDonald's controlled the architectural design and operation of the facility through its right of approval of all plans and its power to inspect and review the physical site and all operations. It alleged that the failure to provide a bullet proof drive up window was a hazardous condition. (Where have we come??)

The court acknowledged that if McDonald's had exercised its power in such a way as to create a hazard, it might have liability for that hazard. But it concluded that the mere power to control, without actual possession, did not impose upon McDonald's the duty to correct hazards.

The court also concluded that the fact that the plaintiff's decedent was a member of the McDonald's "family" did not create a special relationship imposing special duties of care upon McDonald's for safety.

Comment: Perhaps the plaintiff was looking at the wrong hazards. Although McDonald's may have said nothing about the bulletproof window, it undoubtedly had, as any franchisee would have, elaborate expectations as to other design aspects of the drive through area. The plaintiff needed to get to the jury, obviously, and it may have had better luck had it focussed on those aspects of the design that McDonald's did mandate.

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