Plaintiff appeals as of right an order granting summary disposition in favor of defendants pursuant to MCR 2.116(C)(10). We affirm in part and reverse in part.
Plaintiff tripped and fell on a removed portion of a public sidewalk maintained by defendant city of Dear-born 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, but did not erect a blockade or other warning device to alert pedestrians to the miss ing sidewalk. At the time of the fall, plaintiff, who was visiting his girlfriend at the residence next door to the Duncan residence, was chasing his girlfriend’s dog. According to plaintiff, the sun was shining, but some leaves had fallen into the eight-inch deep hole created by the missing section of sidewalk. As a result of the fall, plaintiff injured his left knee and his back. Plaintiff filed a common-law negligence action against the Duncans and the city. 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 the Duncans and the city on the ground that the danger was “open and obvious.”
On appeal, plaintiff argues that the trial court erred in holding as a matter of law that the missing section of sidewalk was open and obvious. A motion for summary disposition relying on MCR 2.116(C)(10) tests whether there is factual support for a claim.
Spiek v Dep’t of Transportation,
The duty of care owed to an invitee does not extend to conditions from which an unreasonable risk cannot be anticipated or to dangers so obvious that an invitee can be expected to discover them himself.
Ellsworth v Hotel Corp of America,
Having reviewed the picture of the sidewalk and plaintiff’s deposition testimony that he would have seen the missing slab if he had been watching where he was walking, we conclude that the trial court properly concluded that there was insufficient evidence to present a factual question for the jury with respect to the open and obvious nature of the condition of the sidewalk.
[T]he rule generated is that if the particular activity or condition creates a risk of harm only because the invitee does not discover the condition or realize its danger, then the open and obvious doctrine will cut off liability if the invitee should have discovered the condition and realized its danger. On the other hand, if the risk of harm remains unreasonable, despite its obviousness or despite knowledge of it by the invitee, then the circumstances may be such that the invitor is required to undertake reasonable precautions. [Id. at 611 (emphasis in original).]
In the companion case to Bertrand, Maurer v Oakland Co Parks & Recreation Dep’t, the plaintiff tripped on a cement step and sued, claiming failure to maintain a reasonably safe premises by not painting the step a different color or failure to warn of the step. Id. at 618. AlS in the present case, the plaintiffs fall occurred during the daytime and her failure to see the step was her basis for finding the step dangerous or not open and obvious. Id. at 621. The Supreme Court upheld the grant of summary disposition on the ground that the plaintiff had not shown that the step was unreasonably dangerous. Id.
Here, plaintiff has come forward with no evidence upon which a rational factfinder could conclude that, notwithstanding the open and obvious nature, the missing cement slab presented an unreasonable risk of harm. Instead, as in the Maurer case, plaintiff’s only asserted basis for finding that the sidewalk was dangerous was that he did not notice that a section of the sidewalk was missing. Because plaintiff has failed to present any facts that the sidewalk posed an unreasonable risk of harm, notwithstanding its open and obvious nature, the trial court properly granted summary disposition of plaintiffs negligence claims that were premised on a failure to warn.
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). We agree. The defense of open and obvious danger does not apply where liability is premised on a statutory duty to maintain and repair a sidewalk.
Haas v Ionia,
In the context of vehicular traffic, the duty of maintenance under § 2 includes the duty to erect adequate warning signs or traffic control devices at a point of hazard or special danger.
Pick v Szymczak,
Our Supreme Court has defined a “point of hazard” as a condition that directly affects travel along the improved portion of the roadway (including a side
walk
In sum, we conclude that the trial court properly granted summary disposition in favor of defendants on plaintiff’s negligence claims. Thus, the Duncans, against whom only negligence claims were made, were properly dismissed as defendants. However, the trial court erred as a matter of law in granting summary disposition in favor of the city on plaintiff’s claim that the city breached its statutory duty to repair and maintain sidewalks under § 2.
Affirmed in part and reversed in part.