Municipal

This summary also appears under Negligence & Intentional Tort

 

Issues: Trip and fall on a city sidewalk; The Governmental Tort Liability Act (MCL 691.1401 et seq.); The highway exception (MCL 691.1402(1)); "Highway" as it was defined at the time of the incident (MCL 691.1401(e)); Prima facie case of negligence; Loweke v. Ann Arbor Ceiling & Partition Co.; "Proximate cause"; Skinner v. Square D Co.; Price v. High Pointe Oil Co.; Wilson v. Alpena Cnty. Rd. Comm'n; Multiple proximate causes; Allen v. Owens-Corning Fiberglas Corp.; Genuine issue of material fact; Allison v. AEW Capital Mgmt., LLP; Ridley v. Detroit; Foreseeability; Haliw v. Sterling Heights; Comparative negligence; Zaremba Equip., Inc. v. Harco Nat'l Ins. Co.; Applicability of the "open and obvious" doctrine where there is an alleged violation of statutory duty; Walker v. City of Flint; Argument for retroactive application of the 2012 amendments to MCL 691.1402a; Unpreserved issue; Hines v. Volkswagen of Am.; Duffy v. Department of Natural Res.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Foren v. City of Taylor

e-Journal Number: 58436

Judge(s): Per Curiam – Boonstra, Markey, and K.F. Kelly

 

Holding that reasonable minds could differ as to "whether the raised sidewalk was a 'but-for' cause of plaintiff's injury," and thus a genuine issue of material fact existed, the court reversed the trial court's order granting the defendant-city's summary disposition motion. As plaintiff was walking on the left-hand side of the sidewalk heading west, he saw a woman on a bicycle heading east on the same side of the sidewalk. To avoid colliding with the bicyclist, he moved over to the right-hand side of the sidewalk. "As he did so, plaintiff stubbed his toe on a raised portion of the sidewalk and fell down, resulting in various injuries." The court concluded that the evidence was sufficient for a fact-finder to determine that he "stubbed his toe on the raised sidewalk, and that even if he would not have done so but for avoiding the bicyclist, it was the raised sidewalk that caused, or was a substantial factor in causing, his fall." This evidence was "not mere speculation or impermissible conjecture." Further, there was a genuine issue of material fact "as to whether the raised sidewalk was the legal cause of plaintiff's injuries." While the city argued that "any alleged unevenness of the sidewalk was too remote to amount to legal cause" due to plaintiff's "'sudden movement upon seeing'" the bicyclist, the court disagreed. Even if his "avoidance of the bicyclist contributed in causing his fall, that fact would not render the unevenness of the sidewalk, as a contributing cause, too remote to constitute legal cause. Rather, it is foreseeable that an individual walking on a sidewalk could trip and fall on an uneven portion of that sidewalk while attempting to navigate around an oncoming pedestrian or bicyclist." A reasonable jury "could find that plaintiff's injuries in tripping and falling on the raised sidewalk 'were the legal and natural consequences of [defendant's failure to maintain the sidewalks in reasonable repair] and might reasonably have been anticipated.'" The fact that he was aware of the general condition of the sidewalks in his neighborhood was an issue of comparative negligence for the fact-finder, and the open and obvious doctrine did not apply given that his negligence theory involved an alleged violation of the city's statutory duty. The court did not entertain the city's unpreserved alternative argument for retroactive application of the 2012 amendments to MCL 691.1402a. Remanded.

 

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