Landowner Not Liable For Injury Arising From Defective Sidewalk Because City Ordinance Did Not Expressly Provide For a Private Action

Thamara Sordo-Vieira

In an unpublished decision, Bazzi v City of Dearborn Heights, et al, the Court of Appeals recently held that local ordinances requiring landowners to maintain the public sidewalk adjacent to their properties do not create a private cause of action against the property owners absent any express language to the contrary.

On November 26, 2016, Ali Bazzi tripped and fell while jogging on the public sidewalk in front of defendants Robert Medley and Michele Medley’s home.  In the weeks leading up to the incident, the Medleys had received notices from the City of Dearborn Heights, informing them that they were responsible for repairing the uneven cement in front of their home pursuant to local ordinance. Bazzi filed suit against the Medleys and the City of Dearborn Heights.

The Medleys filed a motion for summary disposition arguing plaintiff’s premises liability claim failed because they neither owned nor controlled the public sidewalk. They also argued the unevenness in the sidewalk was open and obvious, and plaintiff’s claim of ordinary negligence was devoid of merit because they did not owe the plaintiff a duty of care under the terms of the local ordinance. Plaintiff conceded the Medleys did not own or control the public sidewalk, but argued the Medleys’ failure to comply with the ordinance was evidence of negligence per se, the open and obvious doctrine did not apply, and the claim survived as one of ordinary negligence. The Medleys replied that any failure to comport with the ordinance could still not establish negligence because they did not owe a duty of care to the plaintiff.  The trial court granted the Medleys’ motion for summary disposition holding they did not owe a duty of care the plaintiff.

On appeal, plaintiff raised a new argument: that the Medleys had assumed a duty of care to him when they made reassurances to the city that they would fix the sidewalk. While the court recognized that the argument was not properly preserved by the plaintiff, it nonetheless decided to exercise its discretion to review the trial court’s order for plain error.

The Court of Appeals held plaintiff’s attempt to characterize his claim against the Medleys as one of ordinary negligence was erroneous because his complaint alleged his injuries resulted from a dangerous condition on the land. The court then examined plaintiff’s claims that the Medleys owed a duty of care to him pursuant to the local ordinance, recognizing its prior holdings that violation of an ordinance alone is not enough to impose a legal duty of care. The court analyzed the language of the local ordinance in this case, noting that Michigan law has found local ordinances requiring property owners to maintain sidewalks abutting their property in good repair impose a public duty rather than a private right of action for individuals using the sidewalk, unless the ordinance expressly imposes liability.  The court held the ordinance at issue imposed on landowners an obligation to the public at large, but did not create a private right of action, and did not expressly impose tort liability on non-compliant property owners.  The court decided that the plaintiff’s negligence theory failed because he could not establish that the Medleys owed him a duty of care.

The court further determined the Medleys did not possess or control the sidewalk and thus could not be liable for premises liability because they owed no duty to plaintiff.  Finally, the uneven sidewalk had a readily visible and apparent defective condition that was not unique and did not pose an unreasonably dangerous condition.