Kowalczyk v. Bailey

Michigan Court of Appeals

Kowalczyk v. Bailey

137 N.W.2d 285, 1 Mich. App. 551

CourtMichigan Court of Appeals

DecidedFebruary 11, 1966

DocketDocket 172

StatusPublished

Cited by3 cases

This text of 137 N.W.2d 285 (Kowalczyk v. Bailey) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kowalczyk v. Bailey, 137 N.W.2d 285, 1 Mich. App. 551 (Mich. Ct. App. 1966).

Pincite

Opinion

T. G. Kavanagh, J.

This is an appeal from a summary judgment of dismissal entered upon motion of the defendant city of St. Clair Shores. The suit arose out of an accident occurring on January 12, 1963. Other defendants are not involved in this appeal.

*553 Plaintiff was injured when the car in which she was a passenger collided with an illegally-parked car owned by defendant David Bailey. She alleges that the city was negligent in the following manner:

“ (a) Permitting the motor vehicle of David Bailey to remain on the public highway illegally.

“(b) Permitting said illegally parked vehicle to remain as a dangerous menace and hazard to others then and there lawfully in the use of the highway, for an unreasonable length of time; and failing in their duty, after full knowledge thereof, to provide signals or other adequate warning devices of the presence of the vehicle in the highway after sundown and the danger thereof.

“(c) Failing in their duty to correct this dangerous condition after knowledge thereof, notwithstanding ample opportunity and facilities to tow away or otherwise remove the danger.”

The motion of defendant city of St. Clair Shores was based upon the admitted failure of plaintiff to comply with the notice requirements of CL 1948, § 242.8 (Stat Ann 1958 Rev § 9.598).

Plaintiff maintains that her cause of action is not based upon the statute and consequently is not limited by its requirements. Plaintiff’s theory is that her action is based upon the common-law liability of a city for the tortious act of its servant in negligently performing his duty. She claims the judicial doctrine of governmental immunity was the only bar to such an action at common law and argues that since Williams v. City of Detroit (1961), 364 Mich 231, the court no longer will sustain this defense and hence plaintiff has the common-law action and need not comply with the notice requirement of the statute, because she does not rely on the statute for her cause of action.

*554 The Michigan Supreme Court in the case of Boike v. City of Flint (1965), 374 Mich 462, has unanimously rejected this argument.

There the court determined that all actions against a city for damages for bodily injury sustained by reason of neglect to keep city streets in repair and safe for public travel must be brought under the statute and in compliance with all of its provisions as to notice.

Affirmed, without costs as this case involves a question of public interest.

J. H. Gtllis, P. J., and Quinn, J., concurred.

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T. G. Kavanagh, J.

This is an appeal from a summary judgment of dismissal entered upon motion of the defendant city of St. Clair Shores. The suit arose out of an accident occurring on January 12, 1963. Other defendants are not involved in this appeal.

*553 Plaintiff was injured when the car in which she was a passenger collided with an illegally-parked car owned by defendant David Bailey. She alleges that the city was negligent in the following manner:

“ (a) Permitting the motor vehicle of David Bailey to remain on the public highway illegally.

“(b) Permitting said illegally parked vehicle to remain as a dangerous menace and hazard to others then and there lawfully in the use of the highway, for an unreasonable length of time; and failing in their duty, after full knowledge thereof, to provide signals or other adequate warning devices of the presence of the vehicle in the highway after sundown and the danger thereof.

“(c) Failing in their duty to correct this dangerous condition after knowledge thereof, notwithstanding ample opportunity and facilities to tow away or otherwise remove the danger.”

The motion of defendant city of St. Clair Shores was based upon the admitted failure of plaintiff to comply with the notice requirements of CL 1948, § 242.8 (Stat Ann 1958 Rev § 9.598).

Plaintiff maintains that her cause of action is not based upon the statute and consequently is not limited by its requirements. Plaintiff’s theory is that her action is based upon the common-law liability of a city for the tortious act of its servant in negligently performing his duty. She claims the judicial doctrine of governmental immunity was the only bar to such an action at common law and argues that since Williams v. City of Detroit (1961), 364 Mich 231, the court no longer will sustain this defense and hence plaintiff has the common-law action and need not comply with the notice requirement of the statute, because she does not rely on the statute for her cause of action.

*554 The Michigan Supreme Court in the case of Boike v. City of Flint (1965), 374 Mich 462, has unanimously rejected this argument.

There the court determined that all actions against a city for damages for bodily injury sustained by reason of neglect to keep city streets in repair and safe for public travel must be brought under the statute and in compliance with all of its provisions as to notice.

Affirmed, without costs as this case involves a question of public interest.

J. H. Gtllis, P. J., and Quinn, J., concurred.

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137 N.W.2d 285, 1 Mich. App. 551, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kowalczyk-v-bailey-michctapp-1966.

Opinion

T. G. Kavanagh, J.

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