[Insert caption.]
DEFENDANT’S MOTION FOR SUMMARY DISPOSITION
Defendant, Doris Johnson, moves for summary disposition, pursuant to MCR 2.116(C)(8), on the ground that Plaintiff’s complaint fails to state a claim for negligence on which relief can be granted.
In support of her motion, Defendant files the attached brief.
Defendant requests that the court grant her motion for summary disposition.
[Firm name]By /s/______
[Typed name (P____)]
Attorney for Defendant
[Address, telephone]
Dated: ______
[Insert caption.]
DEFENDANT’S BRIEF IN SUPPORT OF HER MOTION FOR SUMMARY DISPOSITION
I. FACTUAL BACKGROUND
Defendant, Doris Johnson, owns real property located at 4563 Broadway in Charter Township, Michigan. Plaintiff has sued Doris Johnson for injuries Plaintiff sustained while riding her bicycle on the public sidewalk in front of Ms. Johnson’s home. Plaintiff’s only theory of recovery is that Ms. Johnson was negligent for failing to keep the public sidewalk in proper repair. Ms. Johnson contends that she has no legal duty to maintain the public sidewalk.
Plaintiff, at paragraphs 4–6 of her complaint, makes the following material factual allegations of negligence:
On April 14, 1998, Plaintiff was riding her bicycle along a public sidewalk adjacent to property owned by Defendant and located at 4563 Broadway in Charter Township, Michigan.
Plaintiff’s front tire struck an uneven portion of the sidewalk causing her to be thrown from the bicycle and resulting in her injury.
The sidewalk was in a state of disrepair, and it was Defendant’s duty to keep it in a state of good repair.
II. ARGUMENT
Defendant moves for summary disposition under MCR 2.116(C)(8) because, even accepting Plaintiff’s material factual allegations as true, Plaintiff has failed to state an actionable claim for negligence: In Michigan a landowner has no legal obligation to repair and maintain an abutting public sidewalk. Consequently, Plaintiff’s complaint fails to state a claim on which relief can be granted, and Defendant is entitled to judgment as a matter of law.
A. STANDARD OF REVIEW
MCR 2.116(C)(8) tests the legal sufficiency of Plaintiff’s claim. Spiek v Department of Transp, 456 Mich 331, 337, 572 NW2d 201 (1998). The motion should be granted if the claim is so clearly unenforceable that no factual development could justify Plaintiff’s claim for relief. Id.; Stott v WayneCounty, 224 Mich App 422, 426, 569 NW2d 633 (1997), aff’d, 459 Mich 999, 595 NW2d 855 (1999). When deciding a motion under MCR 2.116(C)(8), the court must accept as true all factual allegations contained in the complaint as well as any reasonable inferences that may be drawn from those allegations. Singerman v Municipal Serv Bureau, 455 Mich 135, 139, 565 NW2d 383 (1997); Peters v Department of Corr, 215 Mich App 485, 486, 546 NW2d 668 (1996).
B. AT COMMON LAW, A LANDOWNER HAS NO DUTY TO REPAIR AND MAINTAIN AN ABUTTING PUBLIC SIDEWALK
Summary disposition is proper under MCR 2.116(C)(8) in a negligence case if the court determines as a matter of law that Defendant owed no duty of care to Plaintiff. White v Beasley, 453 Mich 308, 522 NW2d 1 (1996). In Michigan, the law is clear that an adjoining owner has no duty to keep a public sidewalk in repair. Bivens v City of Grand Rapids, 443 Mich 391, 395, 505 NW2d 239 (1993); Levendoski v Geisenhaver, 375 Mich 225, 227, 134 NW2d 228 (1965).
Under these authorities, Defendant owed no duty of care to Plaintiff. Therefore, because Defendant owed no duty to Plaintiff to maintain and repair the sidewalk, Plaintiff has failed to state a claim on which relief can be granted, and Defendant is entitled to summary disposition under MCR 2.116(C)(8).
Defendant requests that the court grant her motion for summary disposition.
[Firm name]By /s/______
[Typed name (P____)]
Attorney for Defendant
[Address, telephone]
Dated: ______
[Insert caption.]
PLAINTIFF’S BRIEF IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY DISPOSITION
I. INTRODUCTION
On April 14, 1998, Plaintiff, Polly Smith, was riding her bicycle along a public sidewalk adjacent to property owned by Defendant. The property is located at 4563 Broadway in Charter Township, Michigan. The sidewalk was in a state of disrepair, with several portions of the sidewalk being broken and of unequal height. Plaintiff’s front tire struck one of the broken and uneven portions of the sidewalk, causing Plaintiff to lose control. Plaintiff was thrown from her bicycle and suffered severe injuries.
Defendant maintains in her motion to dismiss that she had no legal duty to maintain and repair the sidewalk. Plaintiff disagrees and argues that Charter Township Ordinance 1941-52 imposed such a duty. Because Plaintiff has stated a cause of action for negligence, this court must deny Defendant’s motion for dismissal.
II. ARGUMENT: DEFENDANT OWED PLAINTIFF A DUTY TO KEEP THE PUBLIC SIDEWALK ADJACENT TO HER PROPERTY IN GOOD REPAIR AND IS LIABLE TO PLAINTIFF FOR HER FAILURE TO DO SO
Defendant is correct that, at common law, a landowner has no duty to repair and maintain an adjoining public sidewalk. Bivens v City of Grand Rapids, 443 Mich 391, 395, 505 NW2d 239 (1993); Levendoski v Geisenhaver, 375 Mich 225, 227, 134 NW2d 228 (1965). However, as a case on which Defendant relies makes clear, such an obligation may be imposed pursuant to a statute or ordinance. Levendoski.
In this case, Charter Township Ordinance 1941-52 imposes on landowners a duty to repair and maintain adjoining sidewalks. The ordinance provides as follows:
No person shall permit any sidewalk that adjoins property owned by him to fall into a state of disrepair or be unsafe.
CharterTownship Ordinance 1941-52 imposed on Defendant a duty to repair and maintain the sidewalk adjacent to her property. Accordingly, Plaintiff has stated a claim on which relief can be granted, and Defendant’s motion for summary disposition should therefore be denied.
Plaintiff requests that the court deny Defendant’s motion for summary disposition brought under MCR 2.116(C)(8).
[Firm name]By /s/______
[Typed name (P____)]
Attorney for Plaintiff
[Address, telephone]
Dated: ______