LaMeau v. City of Royal Oak

289 Mich. App. 153
CourtMichigan Court of Appeals
DecidedJuly 13, 2010
DocketDocket Nos. 290059 and 292006
StatusPublished
Cited by4 cases

This text of 289 Mich. App. 153 (LaMeau v. City of Royal Oak) 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
LaMeau v. City of Royal Oak, 289 Mich. App. 153 (Mich. Ct. App. 2010).

Opinions

M. J. Kelly, J.

In this suit to recover damages for wrongful death allegedly caused by a defective sidewalk, defendants city of Royal Oak, Elden Danielson, and Bryan Waiju appeal as of right the trial court’s denial of their motions for summary disposition premised on governmental immunity. Because the trial court correctly determined that Royal Oak, Danielson, and Warju were not entitled to governmental immunity, we affirm.

I. BASIC PACTS AND PROCEDURAL HISTORY

A. THE SIDEWALK AND ACCIDENT AT ISSUE

Bryan Warju testified at his deposition that he was an engineering assistant under the supervision of Royal Oak’s city engineer, Elden Danielson. Warju stated that [158]*158he served as the field manager for Royal Oak’s sidewalk-improvement project in the summer of 2005. Warju said that he walked the area on the south side of Normandy Street where a new sidewalk was to be constructed and noticed a telephone pole’s guy wire that crossed the path of the proposed sidewalk.

Skylan McBeth, who is a service planner with the Detroit Edison Company, testified that a guy wire is a steel cable that runs from a telephone pole to an anchor in the ground. The wire pulls the pole in the direction opposite the weight on the pole. McBeth said that a “down guy” is a guy wire that runs in a direct line from the pole to the ground. However, a “sidewalk guy” is a wire that runs along a three-inch steel bar that juts out from the telephone pole and then proceeds straight down from the end of the bar to the anchor in the ground.

In May 2005, Warju informed various parties, including defendants Gaglio PR Cement Corporation (Gaglio Cement) and Detroit Edison, about a preconstruction conference to discuss the details of the 2005 summer sidewalk-construction project. The letter indicated that the conference would include a discussion concerning any conflicts with utilities. Danielson averred that Detroit Edison did not send a representative to this meeting, and Warju stated in his affidavit that he would have discussed the existence of the guy wire with the representative from Detroit Edison had a representative gone to the meeting. Danielson also averred that he spoke with various persons from Detroit Edison and orally requested them to move the guy wire to a safe location. However, no one from Detroit Edison came to move the wire.

Rosalino Gaglio (Rosalino) testified that he was a foreman with Gaglio Cement and that he visited the site on Normandy Street where the sidewalk was to be constructed. He stated that he saw the wire at issue and [159]*159told Warju that the .wire needed to be moved! Rosalino said that Warju told him that he would contact Detroit Edison and have it moved.

Salvatore Gaglio (Salvatore) testified that he was a foreman with Gaglio Cement and that he had worked on the project to pour a new sidewalk on Normandy Street in 2005. He stated that Royal Oak had set out the path of the new sidewalk using stakes and paint. As they approached the guy wire, he notified Royal Oak’s inspector about the need to move the wire. He said that Warju told them to just block it off, but Salvatore responded that they should either block it off further back or stop the project until the guy wire could be moved. Rosalino stated that he wanted to leave 10 flags — which are 5-foot by 5-foot slabs of concrete — open on either side of the guy wire. Thus, there would have been 50 feet of unpaved land on either side of the guy wire. However, Warju disagreed with this approach: “[H]e made us form it to the guy wire. He told me not to form it like that. He told me go right up to the guy wire and just leave one flag out.” Rosalino said that he did as Warju asked, but warned that it was not a good idea because “people could get hurt over here, with this wire being here.” Salvatore also said that he warned Warju many times about the hazard of cementing up to the wire. At his deposition, Warju explained that he ordered Salvatore to pave up to the guy wire because he was on a schedule: “Well, we are on a schedule to do the sidewalk. We are coming down that street. We are not going to stop and wait for nine months in this case for Detroit Edison to relocate their wire along with other objects which are in the way.”

Salvatore said that they had prepared the area around the guy wire for cementing, but left it unpaved. Later Warju instructed them to fill with asphalt the gap left at the point where the guy wire was anchored to the ground. [160]*160Salvatore said that he protested that the “wire still [hadn’t] been moved,” but Warju replied, “[J]ust put it there, and then next year when you guys come back, you guys can fill it in with the concrete.” Salvatore said that he warned Warju that if they put asphalt in there, people were going to just “kick over our barricades and walk through.” He said that Warju told him not to “worry about it, we’ll just keep an eye on it.” Danielson testified that the city does not have a policy that construction should be halted because of a conflict with a utility; rather, the proper procedure is to barricade the area.

According to an inspection report, Gaglio Cement paved the area between the cement portions of the sidewalk with asphalt on July 22, 2005. Photographs of the anchor for the guy wire show that the anchor was actually in the asphalt and the wire crossed the path of the sidewalk at an angle to the telephone pole.

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[161]*161Rosalino said that Waiju made them surround the area with barricades. He placed the barricades in such a way that the sidewalk “wasn’t useable in between that area.” Unfortunately, people kept taking the barricades and throwing them. For that reason, he reemphasized that Warju had to move the wire because the barricades “are missing every day.” He said that Royal Oak even sent others to barricade the location. Rosalino said that the problem persisted even after they completed working for the summer and returned in the spring of 2006: “And I told Bryan [Warju], it’s like that wire’s still there, it’s been eight months now. I was like why is that wire still there. I was like you gotta move that wire, ’cause they’re taking the barricades and we just put more barricades there.”

Douglas Burg testified at his deposition that he was a lineman with Detroit Edison and that he was dispatched to Normandy Street on April 24, 2006, regarding a report of a bicyclist who had struck a guy wire. When he arrived there were no emergency personnel and no injured person, but he noticed that the plastic guard for the guy wire was on the ground some feet from the guy wire. He reattached the guy wire guard after tightening some of the lines. After this, he called his dispatch center and instructed them to have a service planner schedule a project to move the guy wire as soon as possible. He wrote a note that stated: “At the lead south of Normandy, 10 poles east of Crooks a guy ran into the down guy on his bike. We looked at it and it does need a sidewalk guy to stop decapitating pedestrians. Needs service planning.” Burg said that he was so concerned about the wire that, if he had had the right crew with him, he would have asked for permission to move the wire immediately.

[162]*162McBeth testified that he received a memo about a potential problem with a guy wire on Normandy Street. He acknowledged that the memo had stated that the area needed a sidewalk guy in order for the guy wire to stop decapitating pedestrians.

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Cite This Page — Counsel Stack

Bluebook (online)
289 Mich. App. 153, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lameau-v-city-of-royal-oak-michctapp-2010.