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141559-60 - LaMeau v City of Royal Oak

Thomas LaMeau, Personal Representative of the Estate of John M. Crnkovich, Deceased,
 
Mark R. Granzotto
 
Plaintiff-Appellee,
 
 
(Appeal from Ct of Appeals),
 
 
(Oakland – O’Brien, C.)
 
City of Royal Oak, Elden Danielson, and Bryan Warju,
 
 
 
Defendants-Appellants,
 
and
 
 
Detroit Edison Company and Gaglio PR Cement Corporation,
 
 
 
Defendants-Appellees.
 

Summary

​This case arises from a fatal accident that occurred at night on a Royal Oak city sidewalk that was under construction. A Detroit Edison Company utility wire, also called a guy wire, was anchored in the area of the Normandy Street sidewalk construction site. The city asked Detroit Edison to move the wire but, when Detroit Edison did not do so, the city elected to proceed with construction. The city’s construction project field manager, Bryan Warju, was warned by the cement contractor, Gaglio PR Cement Corporation, about the dangers posed by having the guy wire remain above the new sidewalk. Warju instructed the contractor to barricade the area; Gaglio agreed to do so, but warned Warju that the barricades would not completely stop the public from using the pathway. The contractor posted dozens of safety barricades in the area, including fencing, barrels, and cones. Caution tape was hung so people could not pass through. Flags were hung from the wire, which was already sheathed in a bright yellow covering. The barrels had safety lights that went on at night. Yet, the barricading was repeatedly removed. Gaglio’s employees frequently checked on the barricades and put them back in place.

Despite the barricades, people continued to use the pathway. In April 2006, Detroit Edison dispatched a lineman to the site, following a report from city police that a bicyclist had struck the guy wire. The lineman asked Detroit Edison to have the wire relocated as soon as possible, stating in a note that the wire needed to be moved “to stop decapitating pedestrians.” In May 2006, another bicyclist had an accident on the site
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On the night of May 24, 2006, after drinking and smoking marijuana with friends, John Crnkovich rode his motor scooter down the Normandy Street sidewalk, crashed into the guy wire, and was killed. A bicyclist who rode past Crnkovich in the other direction later testified that he believed Crnkovich was driving at a high rate of speed. An autopsy showed that Crnkovich had a blood alcohol level of .13 and that he also had marijuana by-products in his blood.

Thomas LaMeau, Crnkovich’s personal representative, sued the city of Royal Oak, City Engineer Elden Danielson, Bryan Warju, Detroit Edison, and Gaglio PR Cement. Among other things, LaMeau alleged that the city breached its duty to maintain its sidewalk in reasonable repair. Under the governmental tort liability act, MCL 691.1401 et seq., a governmental agency is “immune from tort liability if the governmental agency is engaged in the exercise or discharge of a governmental function.” But the act also requires that every “governmental agency having jurisdiction over a highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel.” MCL 691.1402(1). Under the highway exception, a person may recover for physical injuries or property damage caused by the government’s failure to meet the requirements of MCL 691.1402(1). The act defines “highway” to include sidewalks. MCL 691.1401(e).

The city moved to dismiss LaMeau’s claims, citing governmental immunity. The city argued that the highway exception did not apply because the guy wire and its anchor were part of the telephone pole, not the sidewalk.

LaMeau also claimed that the city employees were grossly negligent in planning and constructing the sidewalk. But the city employees asked the court to dismiss the claims against them. They contended in part that their actions could not be considered grossly negligent, and that their conduct could not be viewed as the proximate cause of Crnkovich’s injuries. According to Danielson and Warju, the proximate cause of Crnkovich’s death was his own negligence in racing down the sidewalk while drunk and high on drugs, without appropriate safety equipment.

The trial court denied the defendants’ motions to dismiss; the defendants appealed. But in a split published opinion, the Court of Appeals affirmed the trial court. The majority held that the city could be held liable because the guy wire was part of the sidewalk itself, and that the sidewalk was not closed to the public, given the evidence showing that the barricades were routinely removed or stolen. A reasonable jury could conclude that the two city employees were grossly negligent, given the repeated warnings they had received about the dangers posed by the guy wire, the majority said. Moreover, the majority stated, there was a genuine issue of material fact as to whether the employees’ conduct constituted the one most immediate, efficient, and direct cause of Crnkovich’s death. The dissenting judge would have held that the guy wire was not a defect in the sidewalk, and that no reasonable person could conclude that the actions of the city’s employees were the proximate cause of Crnkovich’s death. The defendants appeal.