By Kelly Caplan
BridgeTower Media Newswires
DETROIT-The trial court did not err when it denied a city's motion for summary disposition under the highway exception to governmental immunity in a slip-and-fall case, a Michigan Court of Appeals panel has ruled.
Defendant City of Grosse Pointe filed the motion arguing that the plaintiff fell in an alley, not a "highway" as defined by the governmental immunity statute.
The panel rejected that argument.
"Plaintiff presented evidence that established the existence of a genuine issue of fact whether the area in question served 'any broader function consistent with the usage of a road travelled by the public,'" the panel held. "We do not believe that the evidence presented by the parties established that the passageway, as a matter of law, consisted of features commonly associated with alleys rather than highways."
The unpublished per curiam opinion, Nyenhuis v. Kroger Company of Michigan, was issued by Judges James Robert Redford, Mark J. Cavanagh, and Deborah A. Servitto.
Robert Seibert of Seibert & Dloski PLLC in Clinton Township represented the City of Grosse Pointe. He said that, in his opinion, the case has no impact on any governmental immunity issue on a go-forward basis.
"All the Court of Appeals said was it's a fact question as to whether or not the area behind this Kroger store was an alley or a highway for purposes of governmental immunity," he said.
He added that the case doesn't help - or hurt - future litigants with similar matters.
"The Court of Appeals didn't help anybody on the question of whether this is an alley or not because, even though the governmental immunity statute defines a highway, it doesn't define alley," he noted. "There are only three cases that grapple with that, and this court didn't address it at all. It doesn't provide any guidance to litigants as to what constitutes an alley, so we're back to square one."
Mark Granzotto, who represented the plaintiff, did not respond to a request for comment.
Background
Plaintiff Kerrie Nyenhuis parked her car in the parking lot behind defendant Kroger Company of Michigan's store in Grosse Pointe.
A one-way pavement area on which motor vehicles may travel runs the entire length of the rear of the Kroger store and adjacent businesses, according to the COA opinion.
As the plaintiff left the store, her shopping cart stopped suddenly which caused her to fall over it. The cart landed on top of her, causing her injury.
The plaintiff and her husband, Joshua, sued Kroger for premises liability, then amended their complaint to add defendant Grosse Pointe, stating a claim under the "highway exception" to governmental immunity, for failure to maintain an alleged defective roadway.
Grosse Pointe moved for summary disposition, arguing that the highway exception did not apply because Kerrie fell in an alley, not a "highway" as defined by the governmental immunity statute.
The Wayne County Circuit Court denied Grosse Pointe's motion.
Analysis
The panel first turned to defendant's argument that the area where plaintiff fell did not constitute a "highway," but rather an "alley," which is excluded from the highway exception to governmental immunity.
But the panel noted that a prior Court of Appeals panel addressed the distinction between a "highway" and an "alley" in Stamatakis v Kroger Co (1982).
"In Stamatakis, this Court opined that the plaintiff might be entitled to claim avoidance of governmental immunity if she could prove that the physical characteristics and pattern of use of the place where she claimed her injury occurred were those of a highway, and not those of an alley," the panel wrote.
In the current case, the panel said the trial court record reflects that the defendant presented evidence that the one-way passageway ran the length of the rear of the Kroger store and adjoining businesses, and served as a means of ingress and egress from a parking lot and businesses used it for unloading trucks.
"[The defendant] contended that it was not a highway as defined under MCL 691.1401(c) but merely an alley," the panel said. "The record reflects that the passageway is not designated as a street or roadway but functions as a 20-foot-wide public passageway between businesses and an adjacent parking lot."
However, the panel explained that the plaintiff presented photographs and evidence of the physical description of the passageway.
"[The plaintiff] also provided to the trial court an affidavit supported by exhibits that supported her contention that it customarily serves as a publicly used passageway between two city roads with specifically dedicated painted loading zones like control painted zones on city streets," the panel stated. "She presented evidence of storm sewers for management of surface waters. Further, the photos she submitted established that the passageway, like a city street, had designated angular parking spots governed by parking meters."
The panel noted that the passageway featured "control signage and directional signals painted on the surface directing traffic onto the adjacent city street."
"The trial court did not err by denying defendant Grosse Pointe's motion for summary disposition," the panel concluded.
Published: Tue, Aug 04, 2020
