Summary
In Figueroa, supra, p 623, this Court found that the city ordinance in that case, which is very similar to the one involved here, did not create a private right to recover against the landowner and that, accordingly, the city was not entitled to indemnification.
Summary of this case from Bivens v. Grand RapidsOpinion
Docket Nos. 90745, 92126.
Decided April 20, 1988.
Cummings, McClorey, Davis Acho, P.C. (by Suzanne P. Walworth), for the City of Garden City.
Romain, Donofrio, Kuck Egerer, P.C. (by Pat M. Donofrio and John C. Brennan), for John and Rhonda Vorhoff and Chester Howell.
These consolidated cases both involve plaintiffs who fell and suffered injuries on allegedly defective sidewalks in the City of Garden City. Plaintiffs filed actions against the city. At the time the actions were filed, the city had enacted Garden City Ordinance 94.37, which provided:
All sidewalks within the City shall be kept and maintained in good repair by the owner of the land adjacent to or abutting upon it. If an owner shall neglect to keep and maintain the sidewalk along the front, rear, or side of the land owned by him in good repair and safe for the use of the public, the owner shall be liable to the City for any damages recovered against the City sustained by any reason of such sidewalk being unsafe and out of repair.
Pursuant to this ordinance, the city instituted a third-party claim against third-party defendants Vorhoff and Howell, who are the owners of the properties abutting the public sidewalks where the plaintiffs were injured. In both cases, the third-party defendants moved for and were granted summary disposition pursuant to MCR 2.116(C)(10). In both cases, the circuit judges held that the city's ordinance contravened state law. The city appeals as of right. We affirm.
We believe that an ordinance such as the city's creates a public duty from which there can be no private right to recovery. In cases involving the failure of abutting landowners to keep their sidewalks clear as required under local ordinances, our courts have uniformly held that liability could not be posited. Levendoski v Geisenhaver, 375 Mich. 225 ; 134 N.W.2d 228 (1965); Taylor v Saxton, 133 Mich. App. 302; 349 N.W.2d 165 (1984). In Levendoski, our Supreme Court, citing Taylor v Lake Shore M S R Co, 45 Mich. 74; 7 N.W. 728 (1881), stated:
"An ordinance requiring all persons to keep their sidewalks free from ice imposes a purely public duty, and persons injured by slipping on the ice cannot bring private actions against the owners of the premises." [ 375 Mich. 227.]
The Court noted that Taylor was in accord with the weight of American law. However, the Court left open the possibility that liability might properly be imposed if the ordinance in question directly provided for liability, as it stated:
Since the duty here imposed upon a property owner [by the ordinance] is to the city which has the primary responsibility for the maintenance and control of its sidewalks as well as a liability to those injured by defective sidewalks, by virtue of CL 1948, § 242.1 (Stat Ann 1958 Rev § 9.591), in the absence of an express provision imposing liability on the property owner, there is none. [ 375 Mich. 228.]
The city relies on this language to support its claim that its ordinance is valid, noting that the ordinance states that the owner shall be liable to the city for any damages recovered against the city as the result of a defective sidewalk.
We disagree with the city's argument. First, we note that the language is merely dictum. More recent cases involving ordinances requiring the removal of snow have stated that ordinances imposing "a duty upon landowners to clean sidewalks create no private liability." Gillen v Martini, 31 Mich. App. 685, 687; 188 N.W.2d 43 (1971); Woodworth v Brenner, 69 Mich. App. 277, 280; 244 N.W.2d 446 (1976). Similarly, we are of the view that the city's ordinance in this case does not create a private right to recover against the landowner and that, accordingly, the city is not entitled to indemnification.
Second, we believe that the city is not permitted to delegate a duty to private landowners which has been squarely posited on it by the Legislature. Since the city cannot delegate the duty to maintain its sidewalks, it cannot delegate the liability for the breach of the duty.
MCL 691.1402; MSA 3.996(102) provides, in part:
Each governmental agency having jurisdiction over any highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. Any person sustaining bodily injury or damage to his property by reason of failure of any governmental agency to keep any highway under its jurisdiction in reasonable repair, and in condition reasonably safe and fit for travel, may recover the damages suffered by him from such governmental agency.
In Davis v Chrysler Corp, 151 Mich. App. 463, 469; 391 N.W.2d 376 (1986), this Court held that the liability of municipalities under this statute extended to the municipalities' sidewalks.
We are of the view that the Legislature, in enacting the governmental immunity act, MCL 691.1401 et seq.; MSA 3.996(101) et seq., intended to occupy the entire field of governmental liability. Therefore, accordingly, we do not believe that the city is permitted to delegate its duty or the liability for any breach of its duty to the private landowner. Granger Land Development Co v Clinton Co Bd of Zoning Appeals, 135 Mich. App. 154; 351 N.W.2d 908 (1984).
The orders of the circuit judges granting third-party defendants' motions for summary disposition are affirmed.