VanStrien v. City of Grand Rapids

504 N.W.2d 13, 200 Mich. App. 56

• Court: Michigan Court of Appeals
• Decided: June 7, 1993
• Docket: Docket 145930
• Status: Published

Opinions

Michael J. Kelly, P.J.

On January 11, 1990, plaintiff Lorraine VanStrien stepped on a manhole while walking on a public sidewalk located in the City of Grand Rapids. As she put her foot on the cover of the manhole, the cover tipped back and slipped out from underneath her. Plaintiff’s right leg went inside the hole and she sustained serious injuries. This particular manhole had been abandoned by the City of Grand Rapids for over thirty years. Subsequently, plaintiffs initiated the present action, alleging, among other things, negligence on the part of defendant, the City of Grand Rapids.

Thereafter, defendant, claiming that it did not have either actual or constructive notice of the alleged defective condition of the manhole, moved for summary disposition. The trial court, in granting defendant’s motion under MCR 2.116(0(10), stated as follows:

I’m convinced here that given the representations factually as presented by the parties, there is no genuine issue of a material fact which would justify deviation from liability under the theory that the City had actual or constructive notice or that the defect had existed for over 30 days.

It’s not in dispute there was no actual notice. No one knows what it was that caused this cover to give way under the Plaintiff and, again, assuming that it is abandoned, all the Court knows and the only conclusion to be drawn is that on this regrettable and tragic day Plaintiff, minding her own business, stepped on an abandoned manhole cover which was defective at that time.

I cannot presume from anything presented that defect existed over 30 days, nor can I presume from the City’s policy, which they implemented and followed, that they [sic] said to have constructive notice.

Plaintiffs appeal as of right, claiming that the trial court erred in holding that defendant did not have actual or constructive notice of a defect pursuant to the terms of MCL 691.1403; MSA 3.996(103). We disagree.

MCL 691.1403; MSA 3.996(103) provides:

No governmental agency is liable for injuries or damages caused by defective highways unless the governmental agency knew, or in the exercise of reasonable diligence should have known, of the existence of the defect and had a reasonable time to repair the defect before the injury took place. Knowledge of the defect in time to repair the same shall be conclusively presumed when the defect existed so as to be readily apparent to an ordinary observant person for a period of 30 days or longer before the injury took place.

For purposes of the statute, the term "highways” includes public sidewalks. MCL 691.1401(e); MSA 3.996(101)(e). In order to hold the city liable under MCL 691.1403; MSA 3.996(103), plaintiffs were required to show that defendant knew, or in the exercise of reasonable diligence should have known, of the alleged defective condition of the manhole cover and had a reasonable time to repair it before the injury occurred. Peters v Hwy Dep't, 400 Mich 50, 57; 252 NW2d 799 (1977). Having reviewed the record in this matter, we conclude that the trial court properly granted summary disposition in favor of defendant. The record is devoid of evidence that defendant knew or should have known of the alleged defect in the abandoned manhole. Under the facts of this case, we believe that summary disposition was properly granted in favor of defendant. See Beamon v Highland Park, 85 Mich App 242; 271 NW2d 187 (1978).

Affirmed.

Weaver, J., concurred.