concurring.
I concur in the holding that summary judgment for defendant city was improper. City had a non-delegable duty to maintain its sidewalks or to warn of known dangers or dangers discoverable by exercise of ordinary care. However, I also find the city was not free of a duty to repair a known danger in the sidewalk simply because part of the sidewalk was also part of a sewer system. The area of danger was both sidewalk and sewer system.
The relevant provisions of MSD’s charter are quoted in the principal opinion. They operate to transfer “existing sanitary and storm water sewer systems and facilities ... together with all ... easements ...” to the use of MSD. They also provide MSD “shall exclusively operate, maintain, and control said systems and facilities.” But, MSD does not operate, maintain or control sidewalks. Within the boundaries of defendant City it provides and maintains sidewalks. It did not transfer custodianship of sidewalks to MSD. It transferred sewer systems and facilities. Both MSD and defendant City had a duty to plaintiff to repair a known defect in the city sidewalk in an area which is also part of a sewer system. The “exclusive” provision should be applied to qualify sewer systems not as a shield for the city to excuse breach of a duty to repair a known sidewalk defect. We need not decide the resulting relationship between defendant city and MSD where both have a duty to repair. The MSD charter is not decisive on those issues.