Chaney v. Department of Transportation

v DEPARTMENT OF TRANSPORTATION CHANEY 9). (Calendar Argued No. March Decided Docket No. 96282. 31, 1994. Rehearing August post, 1216. denied (cid:127) against Ray Chaney brought the Court of Claims an action the damages injuries Department Transportation, seeking of for motorcycle roadway his left the of a sustained when shoulder, overpass, ramp the and struck entrance and crossed to, adjacent beyond,, bridge railing immediately the shoul- but court, J., Giddings, summary disposi- The R. denied der. James tion, immunity rejecting the defendant’s claim of guardrails designed way concluding that affect the are P.J., Appeals, Sullivan, of vehicles travel. The Court JJ., citing Transpor- Torres, I. B. Scheurman v Mackenzie (1990), per Dep’t, opinion in an tation reversed curiam, railing bridge concluding that because the was neither travel, designed governmental immu- roadbed nor for vehicular (Docket 131092). appeals. nity applied plaintiff No. The separate Supreme opinions, held the Court the defendant liability, judgment and affirmed the to be immune from Appeals. Court bridge railing Brickley, Justice stated because portion improved physically not located within the travel, not for vehicular and because it did integrally directly affect travel on the im- safe vehicular gov- portion highway, highway exception proved inapplicable. immunity ernmental is broad, grant governmental immunity statutory 1. The is legislative purpose narrowly exceptions and its are drawn. requiring underlying highway exception fulfilled is governmental agencies repair and certain maintain designed portion so that the is safe and travel. travel convenient normally does not include installations paved portion physically separate of a or traveled are Rather, limiting creating highway. language liability under 3.996(102) 691.1402; encompasses physi- installations MCL MSA paved portion cally of a located within traveled installations, those travel or even some paved physically beyond located traveled Mich integrally highway, directly affect safe vehicular improved portion. on the travel case, governmental immunity precludes 2. In this physically bridge railing located within the because improved portion highway designed travel of the for vehicular directly integrally and affect vehicular travel and does not portion highway. along improved of the the concurring part joined by Riley, Griffin, in Justice Justice impermissibly dissenting part, majority the and stated that misconstruing plain meaning expands liability by the of the arising damages at issue. The state is not liable for statute affecting directly integrally vehicular from installations and safety improved portion highway on the of the unless the highway physical disrepair unreasonably is unsafe because of of improved portion designed the of the roadbed for vehicular travel. bridge railing improved portion highway A is not an of a bridge railing designed designed for vehicular While a travel. is portion safety, highway it not on which is a the designed to travel. The motor vehicles were expressly impose liability bridge railings. statute does contrary, bridge railings, separated To the from the roadbed sidewalks, paved a akin a reused curb and crosswalks, shoulder are improved any other installation or outside the portion highway. unambiguous language the The of the involving bridge railing. injuries the statute excludes majority ignores presented expands The the narrow issue sovereign immunity exception injuries arising the to include all directly any integrally installation that safe affects improved portion highway, vehicular travel on the language contradiction of the clear of the statute. the While purpose undergirding compensate obvious the section is to injured persons highway when the is unsafe for vehicular travel, very it does so limited circumstances. The provide injuries statute does not blanket for all deprive safety highway drivers of conditions essential to on the only imposes liability injuries It if itself. the arise from the repair failure to or maintain the highway designed for vehicular travel. judiciary may not amend statutes to conform to its Court, policy preferences. Legislature, not the is the law- making authority separate within the constitutional order of powers. legislative Unless the constitution invalidates a enact- ment, propriety the and wisdom of an enactment is not for the Supreme question. Court to Boyle, concurring, exception highway Justice stated that the encompass governmental immunity aris- does not accidents directly integrally any ing affects installation that out portion highway improved a vehicular travel on designed for vehicular travel. exception, to main- both state’s Under repair so failure to do and its tain and portion improved are restricted However, portion phrase "improved travel. draws no obvious for vehicular travel” installations, Including line. some paved beyond physically or those located the traveled even highway, directly integrally affect safe of a portion, helpful less than vehicular traffic statute, litigation imprecise and is that would foster so Rather, be with no clear benefit. the state and counties should they highway exception only fail to liable under the when including repair paved roadway, surface of and maintain the surface, supporting objects traffic on and structures signals signs necessary for safe vehicular travel. case, by governmental plaintiff’s In this claim is barred immunity allege because he does not failure to sign paved roadway the maintain the surface of or a traffic signal. concurring, Jus- Cavanagh, Chief Justice stated that while Brickley’s Boyle’s interpretations highway of the tices governmental immunity preferable exception to the are statute Riley’s policy interpretation standpoint, is in from a Justice plain language with the of the statute and the command accord (On Rehearing), of Ross v Power Consumers (1984), immunity narrowly governmental with drawn of broad addition, interpretation provides exceptions. an exact her standard, rights defining only injured party’s but the an not separate potential liability. government’s None other of the components. opinions satisfies each of these highway liability the it is that under Because inconceivable limited, severely Legislature exception should so the be provide urged list or revise to a more exhaustive of exclusions statute, exception. illustrating of the the the extent Affirmed. dissenting, joined by Levin, stated Mallett, Justice Justice Depart- Michigan question presented is whether the the liability, the under is relieved from ment governmental immunity tort liabil- from to ity, design wall or a defect in or construction of the concrete for they guardrail at were involved in the accident issue because Mich outside, improved immediately beyond, the and thus erected portion for vehicular travel. The Court of the Scheurman, judge relying Appeals, the circuit held that summary department’s granted the motion should have only Legislature impose disposition intended to a because repair, keep duty in reasonable the traveled roadbed structure, wall, overpass part of the because the concrete while travel, designed but instead constituted not for vehicular was high- of the installation outside the an other meaning way designed for vehicular travel within the highway exception any-other-installation of MCL clause 3.996(102). that, 691.1402; further held because the MSA It travel, a roadbed nor barrier was neither governmental immunity applied defendant should plaintiff’s injuries. held However Scheurman be liable for decisis, precedentially binding is not under the doctrine stare addition, opinion signatures. In because no obtained four in this case were not decided in Scheurman. fundamental issues Further, plurality opinion in Scheurman the statement duty Legislature impose was to the true intent of the keep physical portion road in traveled repair is obiter dictum. reasonable impose highway exception The first two sentences of the duty repair and a the traveled roadbed reasonable discharge duty, duty, liability for failure to to main- reasonably tain the in condition safe and fit for travel. consistently Case law has held that the failure discharge to maintain the in condition rea- sonably design safe and fit for travel extends to failures of construction, including guardrails failures to install as reason- high- ably necessary to maintain the way designed reasonably for vehicular travel condition safe only statutory duty and fit for travel. The view that repair, imposed by the words "in reasonable and in condition keep roadways and fit for is to travel” rejected. Legislature, repeatedly surely aware construction, judicial extending seventy-five years consistent language nevertheless reenacted in 1964 the same Although Supreme in the tort act. Court, thirty years govern- in the since the enactment of the true, dissent, liability mental tort act has been without precedents holding governmental agen- to the well-established warn, subject liability cies to for failures to failures to erect barriers, design, Legislature and failures of the has not changed statutory subjecting governmental agen- the standard keep highways liability in reasonable failure to to for cies reasonably and fit for travel. repair, and in condition excep- highway providing, sentence of the in the fourth tion, highways, duty repair and the and maintain the "to "any liability to other installation therefor” shall not extend highway designed improved portion for the of outside of the depart- travel,” Legislature the did not relieve the vehicular duty liability of under the first two sentences its and ment of improved repair highway exception the to and maintain the portion travel in condi- for vehicular of the travel, including of reasonably installation safe and fit for tion improved por- necessary reasonably the guardrails to maintain reasonably safe and fit for travel. tion highway exception contains two The fourth sentence any-other-in- repair-and-maintain and the clause clauses: the whole, Reading highway aas the stallation clause. repair-and- liability expressly in the duty extended the portion improved the de- of clause to the maintain repair and mainte- signed vehicular travel concerns obligation scope improved portion. is to of nance repair and in condi- keep in reasonable obligation and reasonably fit for travel. That safe and tion maintain, repair the consistent liability under to for failure reenactment, to a the 1964 extends and after case law before construction, including to warn or design a failure failure of clearly Although Legislature did to erect suitable barriers. unimproved liability failure to maintain intend not travel, fit for portion safe and in a condition of suggests highway exception wording an nothing in the governmental agencies only liability to limit the intent necessary safely the im- maintain factors that are certain highway. proved portion any-other-installation providing Legislature, in the highways and the duty maintain clause that the any other installa- not include to do so did for failure designed portion improved tion outside the travel, department relieved the repair and in concrete wall in reasonable travel, simply not because safe and fit for condition immediately were located metal barrier the concrete wall and de- beyond outside the travel, wall the concrete signed also because for vehicular but travel. barrier were and metal complaining the concrete wall plaintiff is not However the repair or in a condition was not in reasonable that was erected Mich Rather, reasonably fit for on the concrete wall. safe and travel clause, that, repair-and-maintain the under the he asserts design department concrete wall failed to and construct the reasonably necessary to maintain the metal barrier as and improved portion travel for vehicular reasonably and fit for travel. in condition safe "plain” reading any-other-installation A or literal obligation and counties of their clause does not relieve the state repair-and-maintain clause to the under the portion designed travel not in reasonable reasonably repair, fit for but in condition safe and travel. also Court, obligation, Supreme subjects That as construed liability design the state and counties to for failures of or construction, including or to erect suitable a failure to warn any-other-installation in barriers. The clause should be read harmony repair-and-maintain with the clause. To hold that part there is no on the of the state or counties of in to maintain the condition deprives reasonably and fit for travel the words "and safe repair-and-maintain any meaning. maintain” in the clause of majority legislative purpose adding misreads the any-other-installation clause the fourth sentence. That sen- county responsibility tence was crafted to avoid state and crosswalks, repair maintenance sidewalks and tradi- and cities, tionally responsibility townships and also to county responsibility eliminate state and for the bicycle paths, bridges maintenance of installations like to, adjacent traversing, running alongside, medians state and county highways. It was not crafted to eliminate the counties, townships, by implication the state cities and design and construction defects and for all other failures to maintain, distinguished repair, highways as from in condition it, majority and fit for travel. Read as the reads highway exception meaningful exception govern- is not a meaning immunity. developed by majority mental The new purposefully ignores years adjudication by one hundred Supreme holding highway exception requires that the Court. nothing keeping more than even a hazardous road reason- repair, liability arising only resulting able with for accidents indulges potholes, majority heavy- to fix failures judicial. legislation, rendering handed practical any meaning. devoid of (1993) 728; App NW2d affirmed. Blumberg, Gittleman, Paskel, Tashman & P.C. Opinion J. Brickley, Paskel); (by Thomas, counsel & Bendure Clifford Sidney Klingler), (by A. Mark R. Bendure and plaintiff. Kelley, Attorney General, L. Thomas Frank Turner, Casey, General, and Brenda E. Solicitor Attorney General, for the defendant. Assistant Amicus Curiae: Koory A. A. and Elizabeth Givens

Robert Michigan Lawyers Trial Association. us to whether J. This case asks decide Brickley, immunity1 governmental highway to bridge

encompasses and ad- abutment concrete joining guardrail adjacent beyond to, but ramp and of, a trunk line entrance state shoulder overpass. Appeals upon our The Court of relied opinion plurality of Trans- in Scheurman (1990), portation, 619; 434 Mich 456 NW2d 66 of Claims denial of defendant’s reverse Court agree disposition. summary we While motion Appeals, by Court of result reached with the we do fully endorse its rationale. 3.996(102)(1) 691.1402(1); part, provides, pertinent MSA 1 MCL that: having jurisdiction any high- governmental agency over Each repair highway that it way in reasonable so shall maintain the person Any reasonably safe and convenient for travel. by bodily damage property sustaining reason of failure highway injury to his or her any agency any governmental jurisdiction repair, its in reasonable under travel, may fit for recover safe and condition damages suffered him or her county agency. and the road commis- . . . The of the state highways, there- and the and maintain sions for, improved extend shall sidewalks, designed crosswalks, portion shall not for vehicular travel and include any installation outside of other for vehicular travel. 447 Mich 145 Opinion Brickley, J. (1993). App 728; 499 NW2d 29 We hold that be- guardrail part cause the abutment and are neither of "the for vehicular integrally

travel,” nor installations directly affecting upon safe vehicular travel improved portion, governmental immunity plaintiff’s bars the cause of action set forth in complaint.

i injured motorcycle Plaintiff was when his left roadway ramp of a entrance overpass, shoulder, crossed the and struck either a guardrail metal ately adjacent or concrete abutment2 immedi- beyond,

to, but the shoulder. Plain- bridge railing tiff was thrown over the and landed next to a median barrier below, on the incurring injuries. a number of alleg-

Plaintiff Claims, filed suit in the Court of ing ramp that the entrance was owned jurisdiction state and under and control of plaintiff responsi- who, maintained, defendant had bility design, construction, for the and mainte- bridge railings nance of those on the entrance ramp. complaint specifically alleged Plaintiff’s design properly that defendant had failed to guardrail Plaintiff does not recall whether he struck the metal original complaint concrete abutment. Plaintiff’s and the brief filed guardrail with this Court collectively describe the and abutment as a "bridge railing.” appears photograph It from a in included both plaintiff’s appendices guardrail merges and defendant’s that into point ramp the concrete abutment at that where the entrance be bridge overpass spanning comes a below. Plaintiff has accuracy photograph. not contested the of this any guardrail Because distinction between the and abutment decision, purposes will, plaintiff, irrelevant for of our like the we noted, guardrail unless otherwise ment hereinafter refer to this and abut- collectively "bridge railing.” Additionally, as a and unless noted, ramp otherwise overpass we will refer to both the entrance and the ramp.” anas "entrance Opinion Brickley, .J. inspect bridge railing, failed to construct ramp dangerous conditions, and failed for entrance adequate warnings dangers provide on the alleged ramp. complaint further entrance negligent the direct and omissions were these acts injuries. plaintiff’s proximate cause of disposition summary and, Defendant moved supra, relying upon Scheurman, our decision governmental argued immunity it that because bridge railings duty to was under no maintain paved the traveled and "which fall outside actually designed vehicu- of the roadbed summary The Court Claims denied lar travel.” guardrails concluding disposition, are "de- signed way down the travel to affect the vehicles explaining Invoking stare decisis and road.” holding Scheurman, our bound to "follow” per Appeals curiam Court of reversed Appeals opinion.3 Specifically, the con- Court bridge railing "was nei- cluded that because 'designed travel,’ ther 'roadbed’ nor immunity applies governmental and defendant injuries” plaintiff’s liable for not be held should Scheurman). (citing

ii A governmental agencies general rule, are As a taken actions immune tort function. MCL of a furtherance 3.996(107). Legislature has 691.1407; MSA general exceptions rule, to this limited articulated including highway exception, which mandates 3 (1993), gtd App 728; lv 444 Mich 900 499 NW2d 29 Mich (1993). Mich Opinion by Brickley, governmental agency having jurisdiction

that a any highway over

shall maintain the in reasonable so that public it is reasonably safe and convenient 691.1402(1); travel. 3.996(102X1).] MSA [MCL Notably, for activities undertaken to fulfill this government’s duty mandate, both the and its lia- bility "improved portion are limited to that for vehicular travel.” It is this limiting language interpret apply which we the instant case. explained As this Court v Ross Consumers (On Rehearing),

Power 567; 363 NW2d (1984), grant statutory immunity exceptions broad, and its are nar- rowly mindful, however, drawn. We are like judicial interpretations provisions, statutory all this Court is bound the well-established rule primary goal give that our is to effect to the controlling Legislature. intent of the Lorencz v Co, Ford Motor 439 Mich 370; 483 NW2d 844 (1992). Accordingly, while we address our efforts in narrowly excep- statutory the shadow of a drawn analysis inextricably proceeds tion, our toward the light legislative intent. legislative purpose highway excep- for the is, believe, tion we a clear one: to enhance the safety upon highways. travel state-owned interpretation highway exception This Roy Dep’t Transportation, first articulated in v (1987), 330, 428 most 341; Mich 408 NW2d 783 and was recently Gregg Dep’t reaffirmed of State Hwys, (1990). 316; Mich 458 NW2d 619 expressly adopt today. We reiterate and explained Roy, legislative As was first purpose underlying highway exception is ful- Opinion by Brickley, J. agencies requiring governmental by filled certain highway "repair that the to and maintain so designed for vehicular travel is travel.” safe and convenient "repair Although supra Roy, at this to 341. one—extending only to is a limited maintain” designed "improved portion highway conceptual this travel”—within vehicular maintaining goal statutory boundary the unambiguous. highways is Because we clear controlling legis- give obligated to effect are against exception, this lative intent of it. today backdrop statutory purpose that we of this interpret limiting language apply of MCL 3.996(102). 691.1402; MSA

B dep’t 1. ROY v TRANSPORTATION OF limiting exception, its lan- Roy. by guage, this Court first examined was path adjacent bicycle to, There held that a but we separate from, not was and detached improved part of that at 340. In reach- travel. Id. primarily ing conclusion, on the focused this we Spe- allegedly defective installation. location of [highway excep- explained cifically, "the we general protection pedestri- tion] does offer regard location,” without ans motorists Legislature by was criterion used "[t]he that not travelers, the road on but on the class of based added). (emphasis they at 341 travel.” Id. which path Roy bicycle was located be- Because portion designed yond immunity travel, we concluded excep- abrogated from suit was not tion. Mich Opinion Brickley, 2. v DEP’t SCHEURMAN OF TRANSPORTATION allegedly The location of defective installations again emphasized by this Court in Scheur man. There we held that the failure to install lighting along subject a state trunk line did not government potential the physical "the because lights

structure of the falls outside the paved portion actually traveled or of the roadbed designed public vehicular travel.” Id. at 633.4 Notably, justices joined while four in Scheurman opinion, in the rationale and result of the lead only ing justices expressly three to its subscribed hold limiting language 691.1402; of MCL 3.996(102) por MSA tion, "refers to the traveled

paved unpaved, actually of the roadbed designed for vehicular travel.” Id. at 623.5 Con-v ersely, justices specifically expressed four their interpretation limiting desire for an of the lan guage that would include installations—even those improved portion highway located outside the designed of a integrally for vehicular travel—that af improved portion.6 fected safe travel on the 4Similarly, companion Scheurman, in a case decided with this hedge growing private property Court held that a the view of condition that obstructed highway categorized travelers "cannot be as a defective upon 'the of the Accordingly, vehicular travel ....’” liability at Id. 635. it concluded that imposed, per highway exception, upon could not be hedge. defendant road commission because of the Riley Cavanagh authored, Chief Justice and Justices Griffin and joined, plurality opinion in Scheurman. 6Specifically, dissenting justices plurality three concluded that the opinion, by limiting liability paved portion to the traveled or of a travel, actually designed "negate[d] roadbed mental munity”: the funda legislative purpose underlying highway exception to im legislative purpose policy compensate per "a clear injured governmental agency’s sons highways because of a failure to maintain in a condition safe for travel.” Id. at 640 (Brickley, J., dissenting, joined by Justices Levin Archer); see also id. at (the argument majority holding "seriously 648 undermines the dissent’s legislative high- mandate of 2 to maintain safe § v Opinion Beickley, reiterating gen- interpret as Scheurman We Roy, rule, this Court first articulated eral normally highway does not that include installations tached from the highway. separate physically de- portion paved aof traveled interpretation explained below, this As is supra, Gregg, this most Court’s with consistent interpretation majority ex- recent ception. interpretation is also of Scheurman This position we take in instant consistent with case. dep’t OF STATE HWYS

3. GREGG again supra, Gregg, majority Court of this key determinant affirmed that location is excep- defining applying properly running bicycle path There held that a tion. between we its of a the traveled comprised part paved highway shoulder "designed In reach- for vehicular travel.” explained ing conclusion, we this part normally shoulders, roadbed, traveled while not intended and nevertheless were ways”). dissenting justices held that would have 691.1402; "improved portion” language of MSA [MCL

the distinguish highway 3.996(102)] opposed which safe.” as the surface of the does not highway the other than the surface of to conditions "reasonably being may well foreclose the at [Id. 641.] concurring and result of Additionally, in both the rationale while Boyle preference inter- opinion, a also indicated the lead preting safe Justice Justice "integral limiting language to” installations the to include highway. Specifically, along improved portion passage of a Boyle opinion: expressly in the lead concurred preclude appli- understanding that it does not [W]ith 3.996(102) alleging 691.1402; in cases of MCL MSA cation failure to, signed integral are "repair maintain” installations of, "improved portion de- part of the if not signs. travel,” lights and [Id. as traffic such for vehicular 637.] at Mich Opinion Brickley, citing for vehicular travel. Id. at Johnson v (1971). Michigan, App 37; 188 NW2d 33 highway exception We held that must be tempered by experience, common and that certain beyond paved installations located the traveled or roadway highway” "are essential to a safe modern highway excep- so as not to be excluded from the interpretation tion. Id. at 315. This exception, concluded, we was more consistent with exception’s express purpose protecting vehi- by mandating cular travelers the safe highways. maintenance of Id. at 316.

c The rule that can be derived from these deci- today: clear, sions is ing language and we confirm it The limit- 3.996(102), of MCL 691.1402; MSA creating liability only for "the highway designed a passes travel,” vehicular encom- (1) physically installations located within paved portion that signed traveled or of a de- (2) travel, some installa- physically tions, beyond even those located paved portion highway, traveled or rectly of a that di- integrally affect safe vehicular travel on improved portion. this prior This conclusion is consistent with our in-

terpretations highway exception articulated Roy Gregg, supra. Furthermore, this con- incorporates position, clusion advocated majority justices in Scheurman, highway exception preclude potential should alleging in "cases a failure 'repair to integral and maintain’ installations that are part 'improved portion

to, of, if not travel,’ such as lights signs.” (opinion traffic Id. at 637 of Brickley, Opinion J., Boyle, J., Brickley, of dissenting opinion JJ.). Archer, by Levin joined interpretation importantly, of More this exception highway riding legislative with the over- is consistent inquiry guides our

intent that high- today, namely, safe, of reliable the assurance protect ways travel. As we recognized Gregg, Roy is mani- this intent language plain festly of MCL evident from 3.996(102), high- 691.1402; which commands MSA highways way authorities to and maintain public travel. for safe interpretation adopt an

Defendant asks us exception liability limit that would arising "part exclusively alleged defects physical of the roadbed” or "relat- structure arising [ing] out roadbed.” to conditions physical that a conclude this case While we installation off not es- does expressions cape immunity, a in view of the majority of this in the above-referenced Court respectfully opinions, re- we decline defendant’s interpretation quest for such limited exception. as- Even the most minimalist safety more than of vehicular demand surances potholes repaired, simply decreeing be high- striping applied, proper state-owned to those upon by way's greatly both citizens and relied so interpret guests not the limit- state. We do of this 3.996(102) ing language 691.1402; MSA of MCL damag- clearly with, inconsistent manner so highway exceptibn’s ing to, clear and over- high- riding legislative demanding mandate ways. emphasized

Nevertheless, must be scope is under the potential all-encompassing. Indeed, "improved portion expressly aof limited to Mich Opinion by Brickley, J. designed highway vehicular for travel.” MCL 3.996(102). phrase, limiting 691.1402; MSA This of necessarily scope course, defines of duties and exception. highway liabilities sanctioned respect, phrase spatial this the restrictive ais duties, liabilities, all limitation: complish and all must ac- purpose promoting the travel on the of safe vehicular

improved portion. light legislative To summarize: of the clear purpose uphold, interpret that we must we limiting language exception of the as only including physically on, installations located integrally properties affect, or deemed to those comprising "the of a designed interpretation for vehicular travel.” This adequately legislative goals provi- fulfills the recognizing narrowly sion, while that is also a grant immunity. defined to a broad

m Turning now to the facts this instant case we conclude, albeit for reasons, different that Appeals reversing Court of did not err in Court of Claims denial of defendant’s motion for summary disposition. Accordingly, we affirm the Appeals. decision Court of Appeals The Court of read our decision having interpreted statutory Scheurman as phrase "improved portion designed encompass for vehicular travel” to "the trav- actually designed eled of a roadbed public Chaney, supra vehicular travel.” 730. at We reading comport note that this narrow does not interpretation limiting language. with our the above, explained Rather, and as have inter- we preted statutory phrase including this as installa- physically tions within located traveled or Opinion Brickley, designed paved portion vehicular (including portion of a road- that "traveled travel travel”), actually bed narrowly as, as defined circum- well some beyond stances, portion located this installations directly integrally affect safe and highway. on the vehicular travel limiting interpretation

Applying lan- this immunity guage, we conclude bridge railing precludes liability for the at issue bridge First, it is clear that this this instant case. railing—lying and the both the curb shoul- outside physically highway—is not located der of the portion improved de- within that bicycle signed Unlike the for vehicular travel. bridge part path Gregg, railing not is this path Rather, like the bike shoulder. railing separate bridge physically Roy, and this is high- improved portion of this from the "detached” way. railing directly bridge

Second, the does not and along integrally the im- affect vehicular travel guard- proved portion highway. a of this Neither beyond abutment, rail nor a concrete located upon highway, any has effect shoulder of a passage while on safe and vehicles convenient bridge improved portion. respect, In this the railing markedly from the traffic here is different lights signs Boyle Justice alluded to and signs supra. signals Scheurman, Traffic are directly purposely flow of affect the improved portion of a vehicular highway. traffic on the fail, on the If traffic these installations directly is integrally in- the likelihood of accidents affected: probability injury creases, related as does the passengers. guardrail contrast, abutment or concrete Mich Opinion by Brickley, permanently beyond located the shoulder of a highway simply cannot cause an accident originates improved portion highway. on the of a purpose bridge Indeed, the sole and effect of the railing prevent here—i.e., to vehicles from acciden- tally leaving highway—is only implicated after improved portion. a vehicle has left the Accord- ingly, guardrails barriers such as and concrete directly integrally abutments are not related along highway—the to safe travel barrier is simply necessary for safe vehicular travel on along improved portion.

iv bridge railing Because the at issue here was not physically improved portion located within the of a travel, and because directly integrally it did not affect safe vehicu- lar highway, travel on the highway exception inappli- we conclude that the immunity cable and that is avail- Accordingly, able to defendant. sion of the Court of we affirm the deci-

Appeals.7 my position Because I concerning stand alone immunity, and thus have contributed to badly Legislature this Court’s in its effort to value it fractured view of what the has divined provide exception, this I wish to offer—for whatever might bar—my be to the bench and individual view of where I think the fracture lines are formed. are, view, my positions in represented by three basic .There the opinions previous various viewpoint in this and cases. The first is that liability "improved portion because the state’s highway designed ing is limited to the of the travel,” plain and because the mean- statutory language of only interpreted this encompass can be travel, only the roadbed on which vehicles those accidents that are by directly caused qualify condition excep- on this roadbed for the immunity. tion to Dep’t Post at Riley, J. Scheurman v of Transportation, (1990). 619; 456 NW2d 66 viewpoint, represented by writings, Another Justice Levin’s is that any improved accident portion that results from the use of the of the highway, thereon, by whether or not it occurs thereon or is caused a condition subject potential 196-198, liability. is Post at Levin, J. J;. Opinion by Riley, (concurring part dissenting

Riley, part). agree I that the state is immune While liability may case, I find in the instant because that damages arising from instal-

not be liable affecting directly integrally vehicular lations portion safety improved of unreasonably unsafe be- unless the portion disrepair improved physical of the cause of designed travel, I fo1"vehicular roadbed separately. write

i case is defen- At the instant whether issue injuries may to a motor- liable for dant be held cyclist allegedly occurred because defen- that design, properly construct, and dant’s failure to railing. majority bridge holds that maintain defendant allegations liability from such is immune from bridge railings are neither because physically within the traveled located installations or paved portion of the directly and inte-

vehicular travel nor installations grally affecting safety on the im- the vehicular portion highway. proved at While Ante 161. impermissi- majority result, I concur with this my position foregoing distinguish I read I from the views that creating accident that occurs on the statute as improved portion for an by a that affects caused condition portion, regardless improved location of that of the ultimate when, Hence, prior recovery my this allow for cause. decisions when, portion improved and is on the and caused improved sioned highway. occurrence is directly affecting travel on the a condition may though portion, have been occa- even that condition an act an omission outside herein, my interpretation expressed latter As it is view this provides captures of a best essence statute highway, mishaps occurring but which on the causality. any their the location of does so without direct reference to protects purpose interpretation statute the stated This also improved portion of liability for that occur outside the avoid accidents highway, regardless their cause. Mich Opinion by Riley, bly expands liability by misconstruing plain meaning of the statute at issue.

A Michigan The State of and its subdivisions are passengers Michigan public not highways. insurers of Hwys, Salvati v of State (1982) J.). 708, 716; 405 NW2d 850 (Coleman, nearly century legislative culmination of re- 3.996(102) form,1 691.1402; MCL MSA crafts a general prin- narrow ciple to the common-law government injuries is immune for arising public highways: from the use of governmental

Each agency having jurisdiction any highway over reasonable convenient for shall maintain the highway in repair so that it is reasonably safe and public Any person travel. sustain- ing bodily injury damage to his or her property for reason to reasonable any governmental under of failure of agency keep any jurisdiction its repair, and in condition reasonably safe travel, and fit for may damages by recover the him or her governmental from the agency. . . . The duty of the state county and the road commissions to therefor, and maintain highways, and shall extend to the for vehicular travel and sidewalks, crosswalks, shall not include any law, governments At common local were immune from suits arising negligent upkeep highways. Twp Hwys from the Nile Martin, (1857). passage Comm’rs v 4 Mich 557 With the of 1879 PA 244, 1442, however, Legislature provided 1 How Stat for broad bodily injury arising negligent upkeep from the highways, bridges, crosswalks, 264, and culverts. 1887 PA 3 How Stat 1446c, expanded liability Liability to include sidewalks. remained essentially nity the same until 1964 PA 170 restored immu others; expanded provided some areas and it in the act also greater uniformity. thorough history sovereign immunity For a regard public highways, Roy Dep’t Transportation, with 428 Mich see (1987). 336-338; 408 NW2d 783 165 v Opinion Riley, J. installation outside of

other highway designed for vehicular travel. long held that the fundamental Court has This statutory purpose to determine construction is enacting Legislature in the intention Taylor, Twp 148, 154-155 20 Mich Leoni v statute. (1870). Legislature presumed is Because the places meaning language it understand begins analysis necessarily "[statutory law, into wording Carr v of the statute itself.” with , Corp, 317; 389 425 Mich Motors General 313 (1986). ¡an Hence, act 686 each word of is NW2d purpose,” "presumed to use of for be made some given possible, far as effect must be’ and "so every Michigan Univ of Bd clause sentence.” Regents General, 444, 450; v 167 Mich Auditor (1911). may Accordingly, 1037 the Court 132 NW People word, v Cruci or redefine a not substitute America, 563, 567; 150 Mich 114 ble Steel Co (1907), Legislature 350 NW mistakenly or assume phrase or instead of

utilized one word Twp, 453, Mich 253 another. Detroit v Redford 456; principle unambiguous (1931). Thus, "'[a] 235 217 fundamental NW guiding a clear and this Court is that judicial no

statute leaves room interpretation.” v Gur or Coleman construction (1993).2 59, 65; 503 NW2d 435 win, 443 Mich open words, is not to construc "[a] statute other course, but where the as a matter of tion language interpreta requires the statute used in ambiguous or 2 or more where tion—where upon placed it, it is of where can constructions be meaning reasonable doubtful obscure such minds disagree might as its be uncertain Cooley 2 nothing to do but explained, "the courts have As Justice Blodgett, People 13 Mich obey” ex rel Twitchell v a clear statute. (1865). 127, 167 Mich Riley, Opinion Lansing meaning.” Lansing Twp, 356 Mich (1959). statutory 649; 97 NW2d 804 These rules of especially appropriate in the in construction are stant strictly Michigan historically, because, case has imposing liability construed statutes derogation the state in of the common-law rule of e.g., sovereign immunity. Putnam, See, Detroit v (1881); 263, 265; 45 Mich Ontonagon Johnson v NW Comm’rs, Co Bd of Co Rd (1931). 465, 468; 235 NW B permits majority The finds the statute lia- that "(1) bility injuries when arise from installations physically paved that located within traveled or portion highway designed travel, of a (2) physically installations, or some even those paved beyond portion located the traveled or of a highway, directly integrally affect safe improved portion.” vehicular travel on this Ante majority 158. at reasons that such an inter- pretation of the statute is consistent with both precedent legislative and the of intent the statute. Id.

Contrary majority, to the conclusion of the the unambiguous language clear imposes liability only of the statute physical highway the

when unreasonably physical is unsafe because of dis- repair signed of the of the road de- language

for vehicular travel. The is so doubtful or obscure that reasonable minds need to search behind its words to find its

meaning. This explained: Court has duty imposed by upon the the statute state [T]he county road commissions is restricted to the "improved portion Dep’t v Opinion by Riley, Dep’t . Roy . . of Trans- vehicular travel [v 330, 339; 408

portation, NW2d the (1987)], scope the limited of observed we parallels "highway” found in the common term § understanding are accord with of word. We Therefore, we hold Roy. reached in conclusion phrase "improved portion of the today that highway designed for travel” refers vehicular unpaved, portion, paved to the traveled public actually roadbed vehicular supra. Roy, travel. not to purpose upon an

place the state or counties unrealistic upon the will duty highways travel ensure Looking always language to the be safe. statute, discern that the true intent of the we impose Legislature duty physi- is to cal repair. of the traveled roadbed reasonable Transportation, 434 [Scheurman 630-631; (1990).] Mich NW2d 66 "compliance Hence, and re- with conditions highway exception negates statute strictions of the inclusion of street

lighting within the physical structure of the state because lights paved portion falls outside traveled actually designed the roadbed county Similarly, liable travel.” Id. at 633. is not private caused for obstructions hedges any to the it lacks "connection because designed portion the for traveled vehicular traffic.” of roadbed Id. at 636.3 plain language therefore, statute, the of arising liability injuries simply permit for does not railing. bridge railing bridge an A is not from a highway designed "improved portion for of the liability rejected imposition Similarly, for the of the Court has from, to, parallel bicycle paths the traveled but that are detached imposing liability Roy, supra for portion highway, while the at of Gregg paved portion highway. paths part of the of the such that are (1990). 307, 316; Hwys, 435 Mich 458 NW2d 619 of State Mich by Opinion Riley, J. bridge a railing vehicular travel.” While is de- signed for safety, portion vehicular not a of the on which motor highway vehicles were de- signed travel. Nor does the statute expressly impose liability bridge railings. for To the con- bridge railings, separated the trary, from the road- shoulder, paved bed a raised curb and a are "sidewalks, crosswalks, akin to any or other instal- ‘ lation the improved portion outside of the .” . . . highway Generally, bridge railings, un- not vegetation, like lighting exist outside im- proved portion designed of the highway for vehicu- lar part travel and are of the roadbed. Nor allegations particular are there this bridge railing posed danger to those traveling on the improved Thus, portion of the highway. the unam- biguous of the statute language excludes injuries arising bridge from the railing.4_ Levin, however, Justice finds: providing, excep- highway in the fourth sentence of

tion, repair highways, that the "to and maintain and the liability "any shall not extend to therefor” other installation improved portion designed highway outside of the travel,” Legislature did not relieve the moot duty, therefor, liability exception, its under the first two sentences improved and maintain the designed of the travel condi- reasonably travel, including tion fit safe and installation of guardrails necessary to maintain the portion reasonably and fit for travel. at [Post 193-194.J Yet, Justice Levin’s conclusion the first and second sentences provision impose damages of the beyond duties and liabilities for "improved portion highway designed for vehicular travel” is language belied statute. While first two sentences of impose general the statute duties and on defendant to "main- repair,” tain explicitly reasonable the fourth sentence improved portion limits such "to-the exempts liability "sidewalks, vehicular travel” and cross- walks, any other installation outside repeat- vehicular travel.” While for. Justice Levin edly ignoring statutory language criticizes members of the Court for "myopic” interpretations issue, and for so-called of the statute at his 1994J Opinion Riley, J. supra Scheurman, at the Court noted lighting necessity safety purposes for was was lighting it,

not the issue before but whether highway designed an for Similarly, contrary vehicular travel. to the conclu- majority, sion of the issue instant case bridge railings necessary is not whether are safety, whether an but common-law provided immunity arising been has for accidents properly design, failure to maintain, from the repair majority, however, such installations. The - ignores presented expands the narrow issue sovereign immunity exception all include arising injuries rectly any from installation that "di- affecfjsj integrally safe vehicular travel improved portion on” the in con- language tradiction of clear of the statute. purpose undergird- Ante at 158. While the obvious ing compensate persons injured is to the section travel, when the is unsafe for vehicular only very does so limited circumstances. The provide liability statute does blanket for all deprive injuries that drivers of conditions essential safety on the itself. statute provides injuries if arise from the improved portion failure maintain the for vehicular travel.5 The attempts majority holding to reconcile this with precedent legislative ignores intent, but proper inquiry: plain language focus of the statute. holding Furthermore, is inconsistent with majority explains

Scheurman. may arise from those installations "deemed to properties integrally comprising affect, those 'the of a for vehi- interpretation blatantly by making meaning- misconstrues the statute provision. less fourth sentence of the 5Thus, arising injuries crumbling collapsing bridges, roads or instance, compensable. clearly are LAug Mich Opinion Riley, ” Thus, 160. cular Ante at travel.’ installations beyond roadbed, it, but which affect traffic on give may rejected liability liability. Court, however, rise to This has

arising from blocked vision overhanging hedges inadequate light- by caused ing, of which are both located outside the roadbed, but which also affect traffic on the roadbed. Id. In majority effect, the overrules Scheurman because lighting hedges and that block drivers’ vision cer- ,'efy tainly highway. sí Indeed, affect on the ade- quate lighting and unobstructed views are more proper essential to the and safe flow of traffic railings, bridge majority because as the notes, upon have no "effect passage the safe and convenient improved por- while on vehicles Ante at 161. tion.” majority’s holding appears to be based on Legislature that the

the conclusion could not have been so unwise as to have intended a result incon- majority’s. Yet, wisdom, sistent with fair- incongruity ness, or of the statute is not our judiciary may concern. The not amend statutes to preferences. policy Legisla- conform with its lawmaking ture, authority Court, not the is the separate powers. within our constitutional order of legislative Unless constitution invalidates a propriety enactment, and wisdom of en- such question. actments are not for this Court to Un- legislative by wise enactments must be rectified safeguards the democratic and checks in the con- box,6 initiative,7 stitution: ballot referendum,8 or 6 ("Laws 2, provide Art 8 shall § be enacted to for the recall all except record”); (senators judges 4, elective officers are to of courts of art 2§ 4, every years); (representatives four be elected art 3§ to are be 5, (the every years); elected two art § Governor is to be elected every years). four ("The people power Art propose § reserve to themselves initiative”). reject laws, laws and to enact and called the ("The people power Id. . approve reserve . . themselves reject by legislature, referendum”). laws enacted called the 1994J Opinion Boyle, J. Finding

constitutional amendment.9 itself wiser Legislature people, than the and the the majority plain language reaches of the act beyond crafts new statute reflective of its sensibilities. not our Because this is role the constitutional order, I with concur the result solely reached by the majority. J., J.

Griffin, Riley, with concurred Boyle, (concurring). agree with Justice I Brickley’s conclusion that the defendant im- mune accidents alleg- are caused its failure edly properly repair, main- tain, or bridge construct concrete abutments or guardrails that are the beyond shoulder of a state trunk I line. write I separately because do not agree that the highway exception encompasses accidents out of arising installation "di- any affect[sj rectly integrally safe vehicular travel Ante at portion.” on this 158. improved statute, By agencies are immune liability from tort while in engaging a governmen function, except tal fall activities within one narrowly drawn exceptions. See MCL 691.1407; 3.996(107); MSA Ross Consumers (On Rehearing), Power Co 567, 618; 363 (1984). NW2d 641 The outcome of hinges this case highway in found MCL 3.996(102)(1).1 691.1402(1); MSA exception, Under highway state’s duly to 12, (outlining Art 1-3 three methods §§ to amend the consti state tution). governmental agency having jurisdiction high any Each over .way highway repair shall maintain the it reasonable so that n reasonably Any person and convenient safe travel. sustaining bodily injury damage by property or or to his her Mich LAug Boyle, Opinion maintain and repair highway and its liability for failure do are so restricted to the "improved portion designed for highway vehicular travel”:2 duty

The state and county road commis- repair highways, and maintain sions and the therefor, only shall extend im- portion proved designed for vehicu- sidewalks, lar travel and shall not include cross- walks, any other installation outside of the for vehic- 691.1402(1); ular travel. 3.996(102)(1).] MSA [MCL difficulty is that the phrase "improved por- tion of the travel” know, draws no line. obvious We because us, statute tells does include sidewalks crosswalks, pedestrian which are for travel. any governmental agency keep any reason of failure of jurisdiction repair, under its reasonable travel, may fit condition recover the damages governmental agency. him or suffered her liability, procedure remedy county toas roads under jurisdiction county pro- of road commission shall be as chapter vided section IV of Act No. 283 of the Public amended, being Acts Compiled Michigan as section 224.21 of the county Laws. The of the state and road commis- highways, improved sions to and maintain and the there- for, shall extend to the designed crosswalks, sidewalks, for vehicular travel and shall not include any other installation outside of the portion of the for vehicular travel. No action brought against shall except be the state under this section injury 1, July Any judgment or loss suffered on after 1965. against arising the state on based a claim under this section transportation department from acts or of the omissions state payable only appropriated shall be from restricted funds to the transportation department provided by state or funds its in- surer. to maintain and sidewalks and crosswalks falls on cities, governments, including villages, townships. local See Ma Comm’rs, Wayne 130, 6; v 136, son Co Bd of 447 Mich n 523 NW2d (1994). Dep’t v Opinion Boyle, por- improved However, between the the contrast "any of the outside other installation tion and helpful portion” because, improved in this is not de- not seem to context, "outside” does the word relationship. "Crosswalks,” spatial one ex- note a ample portion,” of the outside of an "installation highway, physically outside the are pavement3 part are but are instead with vehicular traffic. shared agreed generally the im- that be

It seems to paved portion proved as well includes the surface portion. paved paths part bicycle that are of the as Gregg Dep’t Hwys, 307, 435 Mich of State v See 316; (1990). hand, it the other On 458 NW2d bicycle paths are detached that does not include portion parallel to, from, but the traveled Transportation, Dep’t roadway. Roy 428 Mich v (1987). 330, 331; 408 NW2d 783 general agreed that, to be as a It also seems "improved portion de- rule, signed in- travel” does not include edges roadway. The stallations outside limiting subject of this Court’s sentence was the Transportation, in Scheurman v decision (1990).4 case, 619; In that 456 NW2d governmental agencies immune are we held 3 Mason, supra, p n 2 n 5. See Scheurman, plaintiff’s attempting to 4 In decedent was killed plaintiff Eight City Mile Road in the of Detroit after dark. The cross Transportation, alleging negligence Department on the sued the ground keep safe and fit it had failed to the road a condition streetlights specifically, not installed on travel. More it had for that Eight Mile Road. Comm’rs, case, companion Prokop Wayne Ed Co Bd of a grounds plaintiff Wayne County on the sued the Road Commission because the road safe for travel it had failed grew private property. hedge that it failed to trim or remove a riding bicycle plaintiff on Schoolcraft Road had been her westbound light with Street. The trafile turned toward the intersection green, Columbia time, proceeded At the same into the intersection. and she traveling approached the inter- northbound on Columbia Street van T-type him to turn. As the It intersection that forced section. Mich by Opinion Boyle, J. lighting failing next to to install physical freeway of structure "the because paved

lights the traveled falls outside actually the roadbed companion case, we held 633. In a

travel.” Id. at property growing private hedge that on that a allegedly vision was with a driver’s interfered highway. part Id. at 635. agree, however, with Justice

I cannot Brickley’s highway exception includes that statement physically installations, located even those "some highway, paved portion beyond of a the traveled integrally directly safe vehicular affect improved portion.” 158. The Ante at travel on this helpful statute itself. I am test is less persuaded than the imprecise that it the test is so now countervailing litigation no clear would foster with agencies attempting Governmental benefit. fulfilling duty liability by know their cannot avoid they required certainty what it is that are with litiga- seeking regarding Injured persons advice do. given tion could not be the and trial determine the maintain. In the reasonable evaluation responsibility, parameters government’s judges would be left without standards

question scope phrase end, mean that would agencies this will be liable whenever long expensive Court, appellate litigation, of a road of at the end it reasonable. deems Although language far from of the statute is clear, I think the course for this Court best precedents of this clear. should reaffirm We adop- its that construed the after Court Schoolcraft, plaintiff. began on it struck the van driver claimed that drivers, however, to turn east he, too, green light. visibility had the of both hedge growing a six-foot had been obstructed of the intersection. the southeast corner Opinion Boyle, counties) (and may say be the state tion and exception only when under the liable paved repair falls surface maintain5 to and including objects roadway, on and structures signs supporting surface, or traffic traffic that or vehicular travel. necessary signals for safe given clarification, course, will this

Of defects of the above-listed that all variations follow exception. Because the issue within will come presented us, squarely we in the case before is not any certainty say can be that there with cannot liability signals.6 given signs However, and for signals general signs im are and traffic traffic travel, provements are for that opposed pedestrian traffic, and are essential to as Moreover, travel. efficient vehicular to safe and support that for the conclusion textual there is failing agencies may governmental be liable for signals. By early signs repair maintain duty eighties, to main that "the it was established encompasses repair highway in reasonable tain a Dep’t signs.” Salvati v of traffic the maintenance Hwys, 708, 64 715; 330 NW2d 415 Mich of State (1982).7 liability Legislature narrowed In 5 repair duty duty defects includes the We have held that this 50; Hwys, Dep’t Mich design of State 400 See Peters v or construction. (1977). 799 252 NW2d 6 Mason, holding governmental supra, regard, n 2 In this see signs failing that do not warn agencies to install cannot be liable for danger to vehicular trafile. Fitzgerald 7 Coleman, Salvati, joined Chief Justice Justice Ryan, as follows: summarized and Justice concept may governing incur under broad A unit failing following ways: sign for in the maintenance” of "trafiic roadway, sign placed v properly O’Hare maintain (1960); failing 19; Detroit, to erect 362 Mich 106 NW2d hazard, warning point v any sign Bonneville at a device (1909); 279; Wayne v Alpena, Mullins 122 NW 158 Mich (1969); 365; positioning App County, 168 NW2d 246 16 Mich roadway, system signs Bank improper on the National an 415; Highways, App NW2d 51 Mich of State Detroit Opinion Boyle, excluding exception by trees

under the "highway” utility poles the definition of exception. is used as that term 3.996(101)(e). 691.1401(e); Before the MSA MCL amendment, merely that had stated this section 'highway’ include deemed' to shall not be term "[t]he ”8 governmental leys. time, Because, at al repair failing to units could be liable lights signs, and because traffic maintain Legislature mentioning without restricted signs lights, to infer9 it is reasonable and traffic should be units that it intended signs failing and maintain liable for signals. case, I affirm the decision

In this would plaintiff’s Appeals. claim is barred Court of immunity by governmental he does not because (1974); sign inadequately placing which informs 599 approaching or for hazard, Joseph County Lynes v St motorists of a (1970). Comm, 51; App 111 While the 29 Mich 185 NW2d Road authority highway control not be highway with standard manual of traffic has discretion in the erection 9.2308, 257.608; may signs, MCL MSA this discretion upon authority liability capitalized to from shield defects, Mullins, supra, compliance nor should see similarly wholly specifications act However, liability. highway authority from Na- absolve the Detroit, supra, suggests compliance with tional Bank of determining traffic manual standards is a factor to consider of the state’s actions at the time the reasonableness Mich accident. [415 715.] Kavanagh Williams, joined by Levin, would Justices Justice have found a duty expansive. See id. at 721. at least as 8 (1989) Oak, 319; App Royal v 178 Mich 443 NW2d 410 Cf. Dettloff ground (affirming nity alley). governmental immu dismissal of the case on plaintiff alleged slipped in an that she had and fallen where 9 is, best, approximate. at We concede that tho inference Legislature’s highway signs lights of a failure to exclude or from the definition necessarily that it intended to include them. does not show proposal. necessary may for either votes not have been available Cognizant presented by the information of the difficulties limited us, we remain convinced that this is the most reasonable available interpretation occurred. of what Opinion Cavanagh, C.J. paved allege and maintain a failure signal. sign roadway a traffic surface (concurring). agree I C.J. Cavanagh, liability. Ross v is immune defendant (On Rehearing), 420 Mich Power Co Consumers 567, 596; (1984), sought Court 363 NW2d 641 this cohesive, uniform, set of and workable "to create a injured party’s readily . . . define the rules which rights liability.” governmental agency’s It and the against backdrop goal of and our remain- this legisla- ing statutory language "faithful to government liability act1 intent” of the tort tive recognized that immunity this broad Court exceptions.2 narrowly drawn Be- with Riley’s offering remains faithful cause Justice join opinion. premises, reluctantly I her these Riley’s plain interpretation Admittedly, Justice in harsh conse- results interpretation, quences. however, is defensible Her language plain is in accord with because govern- Ross’ the statute3 and command of broad narrowly exceptions. immunity with drawn mental interpretation pro- Riley’s Furthermore, Justice defining standard, an an vides exact rights government’s poten- injured party’s but 3.996(101) seq.; seq. et MCL 691.1401 et MSA Comm’rs, Ontonagon Bd of See also Johnson v Co Co Rd (1931) (statutes 465, 468; derogation imposing NW 221 construed). strictly of the common law are to be responsi explicitly The statute states the government agencies: ble county commissions to The of the state and the road therefor, highways, shall and maintain highway designed portion of extend for vehicular travel and shall not include to the sidewalks, crosswalks, any improved portion other installation outside 691.1402(1); highway designed MSA travel. [MCL 3.996(102X1).] LAug Mich Opinion Dissenting Levin, J.

tial separate opinions None other liability. each of these components. satisfies Although I find Justices Brickley’s Boyle’s interpretations preferable policy stand- I point, in good join opin- cannot conscience either interpretation Brickley’s ion. Justice does not provide guide a standard with which to both the bench and bar. test vulnerable to endless interpretation, encouraging recurrent appellate lit- igation. Justice interpretation, while more Boyle’s limited in is not scope, supported by the statutory language post-Ross case law. Justice Finally, interpretation, while Levin’s the plight

sympathetic injured plaintiffs, effectively abrogates governmental immunity transportation. within realm of highway While Legislature obviously intended except cer- tain from the situations shield it immunity, did not certainly provide intend to application limitless of the highway exception. I find inconceivable liability under highway exception limited, should be so severely above, nevertheless for the reasons stated I am compelled strictly construe the statute. The badly opinions fractured seen in this case and Wayne Comm’rs, Mason v Co 130; Bd (1994), 523 NW2d 791 legislative scream for action. I urge Legislature to provide a more exhaus- tive list of statute, exclusions4 or revise illus- trating the extent highway exception. J. (dissenting). Ray Chaney operating

Levin, his motorcycle Michigan Avenue Dearborn onto a two-lane entrance ramp leading 1-94. He legal profession, government agencies, potential plaintiffs greatly Legislature if would benefit term defined the "other installation outside of the for vehicular travel.” MCL 691.1402(1); 3.996(102X1). MSA 179 Transportation Chaney Dissenting Opinion by Levin, right moving to the of the he was claims as approaching ramp from the the he saw an automobile straighten attempting rear, motorcycle and that while or hit the curb and concrete wall he ramp catapulted guardrail.1 over the He was metal on I-94.2 to a median barrier and landed next Michigan question presented is whether The Department from is relieved govern- liability under immunity3 tort for a from defect mental 1 paved paved Immediately roadway beyond there is a curb and shoulder, bridges ramp a where the and then concrete wall a narrow the metal Immediately expressway. before and after the concrete wall is railing. guardrail the metal the or could not recall whether he struck ramp. motorcycle did wall. His not leave the concrete highway exception reads: high- governmental agency having jurisdiction any over Each

way that it shall maintain the in reasonable so Any person travel. and convenient for safe sustaining damage property by bodily injury or his reason of any any governmental agency highway under failure of its ably by repair, jurisdiction in condition in reasonable reason- travel, may damages suffered ñt for recover liability, governmental agency. proce- from him such county jurisdiction remedy as to roads under the dure 21, provided county road shall be section commission as 1909, chapter 4 of 283 of Acts of as Act No. the Public amended, being Compiled 224.21 of Laws 1948. section county The repair of the state and road commissions to therefor, highways, shall and maintain of the extend to the sidewalks, shall not for vehicular travel and include crosswalks portion improved any other outside of the installation highway designed brought against No action shall be travel. except injury under the state this section July Any judgment against suffered or after 1965. loss the state based on a claim arising this section acts under payable be department shall or omissions of the state only department appropriated funds to the state from restricted 170, 2, provided PA insurer. § or funds its [1964 3.996(102). 691.1402; Emphasis MCL MSA added.] 283, concerning liability, portion county 1909 PA The text of the forward, change, 224.21 in n 1948 CL carries without is set forth 55. operative language act: Mich Dissenting Opinion Levin, J. design concrete wall or or construction immediately guardrail they were erected because beyond thus "outside of the highway designed for travel.” Appeals, relying v on Scheurman The Court of Transportation, Dep’t 619; 434 Mich 456 NW2d (1990), judge 66 held that should have circuit disposi granted summary motion for the mdot’s Legislature in tion for two reasons: because keep impose only duty "the traveled tended to repair,” and also because roadbed in reasonable part overpass wall, "the concrete while designed travel, structure, was not for vehicular an 'other installation out but instead constituted side of the signed de meaning [within the for vehicular travel’ 'any-other-installation’ the exception clause of the 3]. in n set forth Because barrier 'designed neither nor 'roadbed’ supra, governmental travel,’ Scheurman, immu nity applies and defendant should not be held plaintiff’s injuries.”5 liable

i Appeals We would the Court of reverse remand for trial.

A binding precedentially is not Scheurman under the doctrine of stare decisis. hereby It is made the of the counties to repair, they

reasonable convenient so that shall be safe and travel, roads, public bridges county all jurisdiction culverts that are within their and control and which are and under their care open travel. following preceding See text n 48 and n 49. (1993). 728, 729-730; App 499 NW2d 29 v Dissenting Opinion Levin, opinion justices signed plurality Three justice joined in the "ration- A Scheurman. fourth opinion plurality "with result” of the ale and preclude appli- understanding it does not alleging highway exception "in cases cation” 'repair and maintain’ installations a failure 'improved por- part integral of, to, if not are travel,’ tion signs.”6 lights and as traffic such opinion [in Scheurman] obtained "Since neither binding signatures, under the doc- neither four People Jackson, 390 Mich of stare trine decisis.” (1973).7 621, 627; 212 NW2d

B unqualifiedly signed justices if four had Even opinion plurality we in Scheurman—and acknowl- concurring justice edge that in this connection joined "in and result” of both rationale concurring opinion—the analysis of and rationale 6 ante, Id., opinion p p concurring with: 637. The concluded "See 637, 29,” opinion adverting plurality thereby n 29 in which n of the Dep’t Hwys, acknowledged in Tuttle v of State 397 Mich it was that (1976), 44, 45-46; 243 244 found NW2d "this Court the defendant- newly "reasonably opened a intersection that 'was not liable for ” signalization.’ inadequate fit for travel” reason opinion Hwys, plurality 415 there adverted to Salvati v State also (1982), 708; Mich 64 and stated: NW2d willingness by plurality decision indicates [T]he [in Salvati] post signs duty to

the Court to include the within the and maintain traffic Tuttle], highway exception Again statute. in [as however, opinions, any the two nor cited cases neither of them, signs issue traffic within within address the whether fall "improved the travel.” inappropri- Notwithstanding today, feel it is our decision we express opinion validity as to of Tuttle Salvati ate to at an or this time. (1976). Slotkin, 105, 109; Negri also v 397 Mich NW2d 98 See 447 Mich 145 Opinion by Dissenting Levin, opinion govern disposition does not plurality this case.

"It has often been said this and other courts a decision must be construed language that with to the facts of that reference to and confined Holcomb, 361, 368; case.” v 97 Mich Wolcott (1893). NW 837 Justice Marston’s statement Starkweather, in the Court Larzelere (1878), again point: 100-101 is question No such was involved or decided in [the case. Nor were the facts that case such as cited] justify coming would the court in to and announc- ing expression may such a conclusion. Some be reasoning opinion found in the in the delivered case, might give which taken alone color reasoning opinion such an idea. The in an is not court, judge prepares but of the who it. It may may delivers not be considered unanswerable, sound and and as such is the sub- ject of criticism. The conclusion at arrived upon questions announced the several discussed case, proper disposition essential is court, concurring that of the and in in such con- generally supposed clusions is not or understood everything opinion contained or said in the is thereby unqualiñedly adopted and unquestionably opinion preparation as the of the court. In of an opinion, the facts of the case are in It mind. prepared facts, with reference to such and when therewith, considered connection generally will When, however, satisfactory. be found attempt an sentences, pick particular parts is made to out cases, apply them indiscriminately in other nothing but likely confusion and disaster will be words, opinion follow. In other the and decision of a court must be read and in examined as a whole light upon the it facts which was based. They are the foundation of the entire structure safety which with be used without refer- cannot [Emphasis ence to them. added.] 183 v Dissenting Opinion Levin, J. Chaney—whether the in The fundamental issues design subject failure of or is to for mdot bar- wall metal construction of concrete Wayne companion case, Mason v rier—and in its Comm’rs, 130; 791 523 NW2d Mich Co Bd (1994)—whether County subject Wayne liabil- is to signs—were warning ity to erect school for failure they Nor have not in Scheurman. could decided presented issue, is such as been. Neither a barrier pre- warning Chaney, issue, as is in nor a such present Mason, in or in were Scheurman sented Prokop Wayne companion case, Co Bd Rd its Comm’rs.8 plurality opinion

Further, the statement Legisla- that the "true intent of in Scheurman physical impose ture repair”9 portion of traveled road in reasonable the added) (emphasis is obiter dictum. Scheurman Prokop have either could been decided with high- "plain meaning”10 of the first way or second plurality opinion exception put in the forth Scheurman.11 agreed mdot

We all Scheurman lighting subject liability install not on case, failure to companion majority highways. in the A state obligation county’s Prokop, held require exception does not under Prokop (plurality, were decided with one Scheurman Both dissenting) concurring, opinion. Id., "plain meaning” p was the third 631. This plurality opinion ns 70- put in Scheurman. See forth in 74. Prokop, concerning Scheurman, lighting, concerning street intersection, hedges that were trimming installations an involved at "part (the Scheurman, supra, meaning,” p "plain second vehicular travel” 623) portion, paved unpaved, of the roadbed "the traveled (the "plain mean actually designed first travel” 623). accompanying Scheurman, p text. ing,” supra, See 67-70 and ns ns 70-74. See 447 Mich by Dissenting Opinion Levin, J. hedges private property or trim on

remove located that obscure the line of vision at an A intersection. design or of in construction defect the barrier Chaney could have been corrected without intrud- ing private property. warning sign on A could right been in have erected Mason within the way. presented Chaney

The issues in and Mason thus require overruling do not of or reconsideration Scheurman,12 should Nor Scheurman be overruled. If one focuses on what was decided Scheurman/ Prokop, Legislature the results are The defensible. required had indicated that is not state to provide nighttime lighting highways.13 of state question subject county a whether should be to liability pri- for failure to on remove obstructions property persons close, vate might and reasonable regarding

differ whether the and liabil- ity keep roadways to in condition requires and fit for travel such intervention. response majority’s pre- to issues here sented, in with contrast its decisions on the issues presented actually Scheurman/Prokop, has not been, be, and cannot defended._ 12The author of Scheurman states set forth that formulation concurring opinion Scheurman,” "is inconsistent with and its adoption (opinion Ante, 169, pp would effect” overrule Scheurman. "[i]n J.). however, Scheurman, Riley, could be overruled holding requires exception a decision this Court that lighting highways county the installation of on state or the state or to hedges private property remove located obscure line of an vision at intersection. case, deciding facts, A decision of this Court another with different that, Scheurman, especially a decision like finds that the state is not subject highway exception, under would not overrule merely analysis Scheurman because of the later holds out decision possibility county might the be failures other than other the state or some case subject under the for maintenance repair. failure 13Scheurman, supra, J.), pp Riley, n 651-652 p (opinion J.). Brickley, (opinion of Dissenting Opinion Levin,

C excep- The first two sentences impose duty to "the traveled roadbed tion14 repair,” duty, also and liabil- in reasonable ity discharge duty, "main- failure to highway reasonably safe "in condition tain” fit for travel.” and today, consistently ruled, has, until

This Court years—both and after hundred before over one for the of reenactment, sentences 1964 in those two language liability governmental act, of tort liability 1879 in and 188715—that first enacted discharge duty maintain the to to for failure 14 highway exception read: The first sentences of the two any having jurisdiction high- governmental agency over Each highway way is so that it shall in reasonable maintain Any public person reasonably for travel. convenient damage by sustaining bodily injury property of to his reason or governmental agency keep any any to under failure its ably repair, jurisdiction reason- and in condition reasonable travel, damages may recover the suffered safe and ñt for 170, 2, governmental by agency. PA him § from such [1964 3.996(102). 691.1402; Emphasis MSA added.] MCL exception of the n 3 the full text of § See for governmental act. tort 15The 1879 act read as follows: injury persons bodily upon person sustaining any or That state, by any neglect public highways streets in this reason or streets, bridges, public highways keep or and all to such good repair, in a culverts the same crosswalks and condition on travel, township, reasonably safe and ñt corporate authority village, city, over corporation extends or whose culvert, street, bridge, highway, or such crosswalk repair, good duty it is to the same in such and whose township, village, city, to, corporation liable or shall be disabled, just person persons injured pay or so shall to the case, trespass damages, action be recovered- in an to jurisdiction. competent PA 244. any court [1879 before Emphasis added.] 1887 as follows: act read Mich Dissenting Opinion Levin, reasonably fit condition safe and design construction, travel extends to failures of including guardrails failures install as reason- ably necessary to maintain the travel reasonably condition safe and fit for travel.

During seventy-five years before language reenactment of the 1879/1887 in the go\ernmental tort liabil- ity during thirty years act, also after the agencies reenactment, have subject been held

(cid:127) might failures warn hazards that expected,16

not be (cid:127) prevent for failures to erect barriers leaving roadway,17

vehicles design (cid:127) for failures of that created hazards making roads than less safe and fit for travel.18 person any persons sustaining bodily injury upon That or any neglect State, public highways by or streets in this reason of keep public highways streets, bridges, to such or and all sidewalks, cross-walks and culverts on the same reasonable repair, township, village, city reasonably by and in condition safe and ñt for travel corporation corporate authority or whose street, public highway, bridge, sidewalk, extends such over culvert, keep cross-walk or reasonable shall and whose is to the same in repair, township, village, city corporation such or pay person persons to be liable and shall so

injured of tion. just damages, or disabled to be recovered in an action trespass any competent jurisdic- on case before court of Emphasis 264. PA [1887 added.] 16 Detroit, 458; (1889); Joslyn Dep’t 74 42 v Mich NW 50 Salvati v Hwys, supra. State n 6 17 448; Malloy Twp, (1889); v Walker 77 Mich 43 v NW 1012 Arnold Dep’t 235; Hwys, (1979); Endykiewicz of State 406 Mich 277 NW2d 627 (1982). Hwy Comm, 377; v State 414 324 755 Mich NW2d 18Malloy Twp, supra; Dep’t Hwys, v n Walker 17 Peters v of State 50, 63; (1977); Dep’t 400 252 Hwys, Mich NW2d 799 Arnold v of State supra; Dep’t Hwys, supra; n 17 Dep’t Tuttle v of State n 6 Killeen v (1989). Transportation, 1; 438 NW2d 233 187 Opinion Dissenting Levin, J. Legislature, surely consistent aware extending seventy-five judicial construction, years in 1964 1889,19 reenacted nevertheless governmental language20 tort lia- in the the same bility act. roads the beneficiaries. New

We all have been designed, have been re- and old roads were highway department designed, by and the state county the risk of to reduce road commissions accidents, of accidents to reduce the hazard and compliance occur, in with the standard that do Legislature over one hundred first declared years ago, requir- ago, thirty years and reiterated ing agencies keep highways21 repair, reasonably in condition "reasonable fit safe for travel.”22

D could be Court held this imposed of barriers because of absence railings resulting when a horse-drawn for a death path passenger wagon road in left a well-worn trier of fact said Court midwinter.23 obligation statutory find, the basis could highways good repair, "in in a condition travel,”24 town- fit for that a wrongful ship subject death in notes 16-18. See cases cited n 3. See including See n 57. and streets. Defined as roads 15 for text of statutes. See ns 23 convey report speed of the horse-drawn does not state the. ance, conveyance surely far than the speed less but highways county under speed roads on state of automobiles cities, corporations. municipal jurisdiction townships, other 24 full of the 1879 act. n 15 for the text See Mich Dissenting Opinion by Levin, J.

resulting provide from a failure "to barriers or railings along the sides”25 of an embankment.

Ray Chaney similarly liability claims imposed injuries should be he claims resulted provide properly from the mdot’s failure to along and constructed barrier the side of an embankment. thereafter,

In cases decided this Court held that may impose liability the trier of fact provide railings for failure to keep

or barriers needed to a road safe and convenient for travel.26 Also relevant—here as in Court, Mason—this City also in held that of Detroit was subject liability injuries suffered a woman carriage nighttime, when her encountered, in the pile lying of sand that had been for over a month in the middle of a street on the basis that city place lights had failed to or other suitable warning of the obstruction. City

This Court said that of Detroit was subject injuries occurring "for through neglect keep repair, streets but neglect also for such as occur reason of the city its streets in a condition reason- and;Gt ably added.) (Emphasis for travel.”27 25Malloy Twp, supra, p v Walker n 17 455. 26Sharp Evergreen Twp, 443; v (1887); 67 Mich 35 NW 67 Ross v Twp, 320, 324; (1895); Ionia 104 Mich 62 NW 401 City Hannon v Gladstone, 621; (1904); 136 Mich 99 NW Twp, v Lamb Clam Lake 77; (1913); 175 Mich Carpenter 140 NW 1009 Bloomingdale Twp, v (1924). 355; NW 27Joslyn Detroit, supra, p n 16 460. The Court continued: imposed cases, in both necessity and the for it just other, exists in the one case as much as in the and the same, very is the Legisla- and it is manifest ture intended to make it so. Chaney 189 v Dissenting Opinion by Levin, J. rejected 1889 the This thus in view—one Court excep- meanings” "plain of three opinion plurality in Scheur- forth in the tion28—set only statutory duty imposed by man, the the repair, rea- "in and in condition words reasonable sonably travel,” to road- fit for is safe and repair.”29 ways "in (cid:127) "repairs rejection in 1889 of This Court’s by only” 1904,30 this Court in was reaffirmed view in and reiterated 1967.31

The Court said that statute by city necessary requires everything to make done to be doing upon safe. If in so it becomes its travel necessary streets given points, place signals safeguards or other at warning, duty city give proper is see it or that duty other .of travel; the street is is done or that imposed closed statute, express language by and the is arising neglect injury make the of such citizen will from the injured. [Id., p responsible party municipality to the 461.] 28 accompanying text. n 9 and 70-74 and See ns J., dissenting); J., dissenting); 29 Detroit, supra, p Joslyn (Campbell, n 462 v 16 supra, Twp, (Campbell, Malloy v n 17 466 p Walker (1904) 172, Marie, 183; McEvoy 1006 Sault 98 NW v Ste J., dissenting). (Grant, 30 Marie, supra. McEvoy v Ste n 29 Sault 31 (1967), 568, 572; Kowalczyk Bailey, in 379 153 NW2d 660 Mich which this Court said: supra] supra] McEvoy Joslyn 29 dissent- [n In both 16 [n ing opinions of the two dissenters filed but the views were persuaded prevailed this We are not never have in Court. opinions carefully of this the McEvoy, considered

we should abandon views, Joslyn in favor of the dissenters’ Court in 1909, provisions relevantly applying of PA in No 283. It now the similar conclusion, therefore, imposed that the statute our negligent injuries liability upon failure their caused cities in their streets after notice to remove obstructions thereof. the the Kowalczyk before the enactment The accident in occurred act, language dealt with in but the tort enactment 1964 1904 and 1967 cases was carried forward change. governmental tort act without substantive Mich Dissenting Opinion Levin, E plurality opinion essentially in Scheurman ignored32 prior all decisions of Court. this majority similarly ig- Mason, early nores this Court’s its decisions and decisions construing between sentences as and 1989 the first two incorporated reenact- ment.

In the first case to reach this after Court the language,33 1964 reenactment of the 1879/1887 as highway exception, the first two sentences the Dep’t Hwys, 44, Tuttle v of State 397 Mich 45-46; (1976), 243 Department liability 244 NW2d this Court held that the Highways34 subject of State was to ”35 "inadequate signalization. following year, Dep’t The in Peters v of State Hwys, (1977), Mich 63; 400 252 NW2d 799 the 32 With the referred to in n 6. 77. See also n dissenting opinion Transportation, Dep’t in Killeen v n 18 supra, 20, 5, p Scheurman, plurality opinion n but not the in adverted Co, Wayne App 365, 375; (1969), to Mullins v and the citation there of 16 Mich 168 NW2d 246 (see 16) (see 17). Joslyn Malloy n n distinguished "county’s Mullins was on the basis that it a involved duty repair county 224.21; 9.121, whereas, to roads MCL under MSA construing governmental agency’s duty here this is Court to main- highways highway exception tain liability county were under” the tort act, additionally on the basis state that the and not a governmental agency Joslyn Malloy was the in Killeen. distinguished they twenty the basis that "were both decided years 224.21; before the effective date of MCL MSA 9.121.” See n 3 for 224.21; the text of MCL MSA 9.121. dissenting opinion Endykiewicz, in Killeen also adverted to expressed disagreement statutory not concerning with statements the rules of opinion. Endykiewicz, supra, in construction that n 17 was plurality opinion in adverted to the in Scheurman. language. nSee 15 for the text of the 1879/1887 See n 3 for the text of the 1964 reenactment. predecessor A of the mdot. judge clearly The issue in Tuttle was whether the Court of Claims department finding negligent in erred that the was not carry when undisputed the facts showed out failed to its own work flashing lights signals orders to add and other at an intersection after engineers existing stop its traffic devices were not had determined that control sufficiently noticeable. This Court ruled that judge clearly Court of Claims erred. Dep’t v Dissenting Opinion Levin, J. passenger plaintiff’s in an auto- was a decedent body of water that encountered mobile covered depth 1-94 at a of westbound the north half up The driver lost to ten twelve inches. vehicle, into a skid and which went control of defect broadside a truck. The was struck design repair, but a a failure Peters was not drainage insufficiency sys- defect, sewer an permitted tem, on the accumulate water Expressway. Edsel Ford "the of the defend said that This Court ant[36] highway in a condition p id., travel,”37 ñt for safe and added), department (emphasis and that

subject defect was whether the "design” highway, or in the "construction” highway, or in the "maintenance” p highway. Id., 61. years later, of State Two Arnold (1979),

Hwys, 235, 236; 277 NW2d design, construction, the and maintenance defect was in claimed guardrail separating of a of 1-94. The east and westbound lanes driver riding plaintiff in was a automobile which the as hitting passenger to an swerved avoid automobile high directly him, in of "struck the 10-inch front effectively catapulted the vehi- median curb which guardrail path the into the cle over 20-inch and Court that it is westbound traffic.” This declared enough plaintiff that if the establishes defect reasonably highway and fit "rendered for travel.”38 36 Michigan Department Department Highways, Of of State now

Transportation. 37 highway excep in Peters under the The statement keep highway reasonably safe and fit for tion is "to travel,” in a condition department liability subject recognition is to maintenance, design, at in construction or whether the defect was companion in the case Mason odds with the statement highway repair. is limited to 38Id., pp 236-238. 192 447 Mich 145 Dissenting Opinion by Levin, years by Endyk- Arnold was followed three later Hwy iewicz Comm, v State 377; 414 Mich (1982), years NW2d and ten later Killeen v Dep’t Transportation, 1; 438 NW2d (1989). Endykiewicz, factually Arnold, similar to this Highway Court held that Commission,39 State subject liability design was for a failure of guardrail separating construction the north Express- and southbound lanes of the Southñeld way.40 Finally, just years Killeen, in Court, this five

ago, subject liability held that the mdot was design "supereleva- failure of and construction of a expressway interchange resulting tion” at an in injuries when a motor vehicle crossed the center of and rolled down an embankment.41 rejected The Court Highway Depart- the contention of the State plaintiff ment that a or "flagrant” must show that a defect was Id., "palpably dangerous.” p 238. " The Court 'duty reiterated the statement in Peters that the defendant is fit for travel.’ reasonably in a condition safe and ” Arnold, supra, p (Emphasis original.) 238. predecessor A of the mdot. Endykiewicz The issue in Highway was whether the State Com damages society mission was in a sion travel. This recover for statute must be companionship liable for loss of wrongful arising death action out of the failure of the commis to maintain a in a condition safe and fit for rejected plaintiff Court the contentions that the could not society companionship the loss of because "this construed,” strictly and the courts should "defer to Legislature’s narrowly the highway intent to confine the state’s tort Id., p plurality opinion defect cases.” 384. Contrast the Scheurman, supra, p 627. Transportation, supra, p In Killeen v the issue did not meaning concern repair, of "in reasonable and in condition reasonably safe fit for travel.” The issue was whether the mdot subject jurisdiction road, was county when it assumes of a redesigns jurisdiction and reconstructs the road and then returns county commission, injuries to road sustained in accidents design jurisdiction, caused failures or construction while had although department the accident did not occur until after the had relinquished jurisdiction. to subject This Court held that the mdot liability design in such a case for failures or construction. majority The said: Dep’t v by Dissenting Opinion Levin, thirty years Although Court, in the since this governmental liability tort of the the enactment today, true, 1964, has, been without until act precedents consis- dissent,42to the well-established holding governmental tently applied 1889, since agencies subject liability warn, to for failures to barriers, and for failures of for failures to erect changed design, Legislature the not statu- the has governmental agencies tory subjecting to standard keep highways liability repair, to reasonable for failure and fit for in condition travel.

ii high- providing, the in the fourth sentence of duty repair way exception,43 ”to and main- department presented question The is whether liability liability subject tort act is under design person sustaining injury of to a construction ment has assumed accident occurs after reason defects county highway depart- of a road made while the county jurisdiction road where the of highway department has returned jurisdiction county road commission. We hold subject highway department result of loss suffered as is design it defects made while has and construction responsibility by jurisdiction, and that absolved county jurisdiction of the defective road to the retransfer [Id., pp road 4-5.] commission. dissenting opinion in Killeen. See ns 32 and 77 discussion expressed only Excepting in dissent the author the view supra, p Transportation, (Riley, Killeen Scheurman in C.J., dissenting). 77. See 32 and ns reads: fourth sentence county and the road commissions state therefor, highways, shall maintain to the extend sidewalks, shall not include crosswalks for vehicular travel and any outside of the other installation 2, 170, MCL § travel. PA [1964 3.996(102).Emphasis 691.1402; added.] MSA highway exception. n full See 3 for the text of § Mich Dissenting Opinion Levin, J. highways, liability tain and the therefor” shall not "any extend to other installation outside of the improved portion of the Legislature travel,”

vehicular the mdot did not relieve duty, liability therefor, of its under highway exception, the first two sentences of the improved portion and maintain the for vehicular travel in condi- including tion travel, safe and fit for guardrails reasonably necessary installation of improved portion reasonably maintain the and fit for travel.

A Although plaintiff’s Endykiewicz claim in injuries for fatal suffered when a vehicle traveled through guardrail dividing the northbound and Expressway, southbound lanes the Southfield opinion and Justice Coleman’s for the Court re- ferred to the fourth sentence of the ex- ception,44 justices none of the then on the Court suggested language relieved the State Highway specting Commission of its re- guardrail.

B concededly say myopic; narrow,45 I would meaning "any-other-installa- view of the of the plurality opinion tion” clause forth set in the urged by Attorney Scheurman was not Gen- Attorney eral in Scheurman. The General ac- knowledged in his brief in Scheurman: "Guardrails highway provision "liability states that . . . shall extend improved portion highway” [Endykie to the .... wicz, supra, p 389.]

45Scheurman, p 627. Dissenting Opinion Levin,

are within the shoulders, to wit: as an sense as use the same adjunct (Emphasis paved highway.” to the added.)46 spanning years, of the cases one hundred None 1889-1989, in this held the obli- which Court gation in condition reason- to maintain ably fit for includes safe and travel including design construction, fail- failures necessary reasonably install maintain ures to guardrails, and opin- plurality in the were discussed ion.47 representing Attorney General, The the mdot during predecessor highway the

and its authorities period, twenty-two-year 1964-1987, did contend Endykiewicz any-other- that the in Arnold or duty mdot to clause relieved the the installation provide proved portion necessary maintain the im- barriers to of a in condition reason- ably and fit for travel. safe Attorney to fol-

The General’s failure so assert lowing the the 1964 reenactment of 1879/1887 language suggests the undoubted that was 46 Attorney said courts of state have The General the this improved portion they are ’an "found items be within the where portion’ integral part 'directly and which relate to the statutory imposed upon duty the defendant to maintain travel,’ Lynes Joseph highway in a and fit v St Rd condition safe (1970).” Comm, 51, 59; App 29 Mich NW2d 111 " Attorney 'Essentially, any- continued in Scheurman: The General intimately making thing it safe with travel and connected abrogation of has been to be within the ambit of the for travel said Hwys, App immunity.’ State Tibor (1983).” 159, 163; 337 NW2d Tuttle, Killeen, Endykiewicz, plaintiffs recovered on predecessor had that the mdot and its state authorities basis reasonably roadways and fit for condition failed travel. not, acknowledge, duty that the The mdot did I assert in the and second sentences of set forth keep roadways superseded first reasonably was safe and fit for travel in condition any-other-installation sentence. clause fourth 47Except 6. also and 77. as in n See ns 32 noted Mich Dissenting Opinion Levin, J.

Legislature placed intended that the construction on the words "in condition safe and fit this Court seventy-five years by travel” for over in the when incorporated highway exception those words were reenacted with the result obligation provide barriers necessary warning signs, required by as cases of Malloy Joslyn, incorporated.48 was so

c The highway exception fourth sentence set forth in its in n 43. There are entirety two clauses, repair-and-maintain clause and the any-other-installation clause:

(cid:127) repair-and-maintain clause: county of the state and the road highways, commissions to the and maintain therefor, shall extend to the ' [emphasis added]; vehicular travel (cid:127) The any-other-installation clause: sidewalks, any and shall not include other installation outside of the crosswalks or highway designed of the for vehicular travel. [1964 3.996(102). 170, 2, 691.1402; PA MCL MSA Em- § phasis added.]

D whole,49 Reading as a the highway 48See 16-18. ns highway exception 49 I write that the words and sentences of the should be read as a whole because the fourth sentence does not stand Dissenting Opinion Levin, J. expressly liability, in the duty "extended” so and improved por- repair-and-maintain to clause designed highway travel, for vehicular tion of repair im- and maintain” for failure "to is proved obligation scope portion. to of the The improved keep "repair to maintain” is and repair, portion in condition "in reasonable (Emphasis reasonably fit for travel.” safe and added.) repair-and- county liability under the State and "only to the im- indeed extends maintain clause designed proved portion for vehicu- of the added.) obligation (Emphasis The to travel.” lar keep highways repair, and in condi- in "reasonable reasonably travel,” neverthe- and fit for tion expressly clearly so extend to such does less improved obligation highway.50 portion That highway exception language reads pertinent itself. All the as follows: any high- having jurisdiction governmental agency over Each so that it way in reasonable shall maintain Any person public travel. reasonably safe and convenient damage property by injury reason of sustaining bodily to his keep any highway agency under any governmental to failure of repair, in condition reason- jurisdiction in reasonable its ably travel, damages may suffered recover sáfe and ñt liability, proce- agency. governmental The by him from such jurisdiction county of a remedy under the roads dure and county chapter amended, as provided in section as commission shall be road 1909, as Acts of 283 of the Public 4 of Act No. Compiled 1948. being Laws of 224.21 of the section county commissions road of the state and The repair therefor, highways, shall and the maintain improved to the extend sidewalks, crosswalks not include travel and shall for vehicular improved portion of the any outside of the other installation 170, 2, PA MCL highway designed § travel. [1964 3.996(102).Emphasis 691.1402; added.] MSA together, subjects a reading highway exception, the words all "the agency for failure "in reasonable portion repair, for vehicular travel” fit for travel.” safe and in condition portion” is redescribed "improved Mich Dissenting Opinion Levin, J. liability, case law before under the consistent going a 1964 reenactment back over and after the design years,51 a failure of hundred extends to including construction, to a failure to warn or erect suitable barriers. agree opinion forth in the

We with the view set concurring part dissenting part in in in Scheurman that the Legislature’s impose duty expresses the intent to county highway to main on state and authorities improved portion in a condi

tain the tion safe and fit for travel and to for provide liability Although Legislature the failure do so. to liability clearly not for a failure to did intend portion unimproved maintain the in a condition safe and fit for the of the nothing travel, in wording highway exception] sug §2 [the gests liability governmen an intent to limit the agencies tal sary the certain factors that are neces improved portion safely maintain the [Emphasis originalj[52] highway.

ill agree Appeals in the We with Court Legislature, providing instant case that duty any-other-installation clause highways and maintain and the "any other therefor shall include installation outside of the

designed' travel,” relieved the mdot concrete wall portion” plurality opinion “physical and "traveled Scheurman as the redescription "improved portion” "physi- portion.” The as the Id., inconsequential. p 623. cal” or "traveled” 16-18. See notes 52Id., (Brickley, J., p concurring part dissenting in part). Chaney Opinion by Dissenting Levin, J. Appeals, "neither the of the Court of —in words 'designed ”—in nor for vehicular travel’ 'roadbed’ reasonably repair in safe condition reasonable and App 728, 730; 499 fit for travel. (1993). NW2d agree Appeals, the of not so with Court We simply concrete wall and metal bar- because the beyond, immediately of were "outside rier located improved portion of travel,” but because the concrete vehicular also not, as Court of were wall and metal barrier Appeals observed, travel. for vehicular duty repair thus, in And, to and maintain reasonably safe fit for travel could condition a "other such as extend to an installation” not wall and metal barrier. concrete Chaney complaining plaintiff in is not The not that was erected was the concrete wall reasonably repair, or in a condition reasonable fit on wall.53 safe and for travel the concrete plaintiff complains, Chaney rather, under The repair-and-maintain clause, of the failure design wall to concrete the mdot construct reasonábly necessary as and metal barrier improved portion maintain the "designed sonably travel” condition rea- fit for

safe and travel. sign or, Mason, A as in needed barrier reasonably in condition maintain and fit for is not an "installation” that travel itself Wayne plaintiff complaining not of a in Mason is failure County reasonably fit for safe and and maintain condition warning signs not that were not erected. He does travel school imaginary complain travers that he unable to on an road travel was signs ing tops warning should been erected of school have improved portion highway. Mason and located outside plaintiff complains Wayne County the failure to erect school warning signs. complain of suitable does the barrier not driving. design ordinary or daredevil width Mich Dissenting Opinion Levin, repaired in condition rea- can be and maintained (cid:127) sonably safe and fit for travel. "plain” reading—the majority prides A literal or meanings—of "plain” any-other- itself installation of relieving clause, the state and counties keep "any other instal- high- lation outside of the way designed for travel” condition travel, fit safe and does not relieve obligation the state and counties of their under repair-and-maintain the proved portion designed clause to the "im- travel,” not repair, in reasonable but also in condition reasonably obligation, safe and fit for travel. That reasonably as the words "in fit condition safe and by Court, for travel” have been construed this subjects the state and counties for design including construction, failures of or a fail- warn, ure to or to erect suitable barriers.

IV repair-and-maintain any-other-installa- The tion clauses need not be read as in conflict. The any-other-installation clause should be read in harmony repair-and-maintain with the clause. sign barrier, sure,

A to be is an installation. Signs generally barriers, indeed, are located outside the de- signed always. for vehicular travel. But School warning signs parts often, in some of the state generally, are stenciled with the word school right left to on the itself. "any installation,”

The words other read in the highway exception context of whole, as a abstract, not in isolation or in the are at least ambiguous. acknowledge my reading "any

I that other Opinion Levin, Dissenting deprives absolute some of the installation” meaning might to it if one were be ascribed "any in isolation and installation” other read the abstract. holding

However, there is no part liability, or coun- of the state on the high- ties, to maintain the reasonably way fit travel safe in condition consistently construed have been —as those words requiring of neces- Court, the installation this signs—deprives sary "and the words barriers and repair-and-maintain cláuse in the maintain” meaning. any "reasonably and convenient

The words public travel,” in the first sentence exception, "in condition and the words sentence, travel,” are in the fit for second safe and meaning. words, in third of all stricken sentence, edy” against reaffirming "liability” "rem- of and keep county

counties for failure repair, they shall be roads "in reasonable reasonably so travel” safe and convenient changed by amended, 1909 PA as are under repair.” judicial mean "in reasonable fiat to in the first and fourth words "and maintain” meaning. are stricken of all sentences v plurality opinion forth in Scheurman sets history the exception. of the fourth sentence of meaning, plain There, be is to not "true intent of the found the source of the ,”54 Legislature . . . A subject liability to Counties, to for failure while 54Id., p 631. 145 Mich

202 Dissenting Opinion Levin, bridges keep "county roads, in "rea- and culverts” reasonably they repair, shall be so that sonable safe subject public travel,” for were and convenient keep liability to sidewalks for failure pedes- repair, reasonably safe for reasonable trian travel.55 repair responsibility for and maintenance crosswalks, under the 1879/1887

sidewalks and and imposed subsequent statutes, had been townships and cities.56 subject 1964, not,

The state had before been liability keep any statutory highways for failure to state in condition in reasonable reasonably safe and fit for travel. "highway” in the 1964

Because was defined crosswalks,57 reenactment to include sidewalks and (1914). Co, 335; Ferguson Muskegon v 181 Mich 148 NW provided: The statute keep hereby It made the of the counties repair, they reasonably reasonable convenient for culverts that are within their and control and which are so that shall be safe and and roads, travel, public county bridges all jurisdiction and under their care open public provisions travel. The cities, respecting liability townships, villages of law injuries resulting corporations damages from a failure in performance duty respecting roads under their the same control, apply adopting county road shall to counties such 283, 4, system. PA ch § [1909 21.] (see plurality opinion, PA 244 n 15 for As set forth in the text) subjected townships and cities to for failure to crosswalks, culverts, public highways bridges, as well as streets, good repair, fit for and in condition safe and travel, expanded in 1887. and this was to include sidewalks repair” changed repair” by See n 15. "Good to "reasonable act, Crystal Twp, same 1887 PA see n 15 for text. See Welton v Co, 486; (1908); Ferguson Muskegon n 55 152 Mich 116 NW 390 (1968). Pleasant, supra; Twp 82; Union v Mt 158 NW2d 905 road, "Highway” every public highway, means and street open bridges, which is travel and shall include sidewalks, crosswalks, any highway. and culverts on The term trees, "highway” alleys, utility poles. does not include 691.1401(e); 3.996(101)(e).] MSA [MCL by Dissenting Opinion Levin, J. continuing responsibility thereby townships therefor of cities, of which

and maintenance subject had been the state nor the counties neither to preserve necessary, liability, it the status was responsibility quo, county and to exclude state "sidewalks and crosswalks.”

Reading any-other-installation clause light history, it at least of that becomes clear that is unre the exclusion for sidewalks and crosswalks sought merely preserve the status markable and quo county and would not be so that the state repair responsible for the maintenance and legislative purpose and crosswalks.58The sidewalks regard distinction, not to an artificial create warning signs ing barriers, to erect jurisdiction highways under of the between streets under the state and counties and roads and townships. jurisdiction of the cities B any-other-installation sure, clause ex- To be responsibility repair for the and mainte- cludes crosswalks, of sidewalks and but nance not "any of the im- also of other installation outside proved portion for vehicu- (Emphasis lar travel.” added.)_ sure, matter, counties, practical and the To be as a the state road, they repair county probably also when and maintain a state or traversing crosswalks such roads. and maintain may may not be an "installation outside of Sidewalks are, definition, part highway.” by Crosswalks highway. responsibility But of the state and counties is to maintain reasonably repair, roadways safe and in reasonable condition appear the roads. It would fit for travel vehicles authorized use case, formally I do not because this is not an issue this —but it—that, than what to the extent that standard is less address repair, and in condition would constitute reasonable city by pedestrians, townships continue fit for travel responsible. be Mich Dissenting Opinion Levin, J. language appears any-other-installation Roy such as v a case added to cover

have been Transportation, Dep’t 330; Mich 408 NW2d bicycle (1987), agreed that a we all 783 path adjacent which "other installation to 1-275 was an improved portion of the outside designed therefore, that, travel,” and for vehicular injuries subject the mdot was not path.59 bicycle suffered on sidewalks, crosswalks, that, like "Installations” upon paths, bicycle that, and traveled and can be might any-other-installation clause, but give for the against the state and counties rise to claims city repair maintain, and include for failures to bridges traversing township road and street and state express- county highways, roads, and and bridges, grassy bridges, ways, pedestrian railroad rising beyond the shoulders and other areas sloping away expressway lanes, the from median stops weigh expressway lanes, truck and between areas,60 overlooks, stations, overlooks rest scenic private schoolyards and other lands, and drains and ditches.61 per opinion. agreed Roy curiam We all that the was decided injuries sidewalks, crosswalks, which arise from "does not extend to detached, installations, ancillary such as Id., bicycle paths.” p 331. riding bicycle bicycle path adjacent portion Roy to a his on a " alleged asphalt complaint that there was a 'substantial 1-275. The ” piled bump,’ agents had cut weeds and them and that the mdot’s result, and, bump, was unable to see the over the area of the as a he Id., p bump bicycle he it. and was thrown from his when encountered 332. leading improved portion roadway to and from rest 60 The of the areas, improved stops portions stops, possibly parking are and truck highway designed of the for vehicular travel. remainder roadway expressway the outer of the areas between stops stops rest and truck would be an installation boundaries of improved portion of outside the travel. subject have not been The state and counties paralleling of drains and ditches and maintenance Chaney Dissenting Opinion Levin,

VI concurring opinion in The author Chaney] railing bridge does [in that "the concludes not integrally directly travel affect vehicular highway. along Nei- of this guardrail abutment, located nor a concrete ther a beyond any highway, affect has of a

the shoulder passage upon of vehicles convenient the safe and improved portion.”62 while on catapulted Ray Chaney onto the If had been below, rather think, median, would, I have had than onto the passage upon the safe and convenient an "affect improved portion.” Most vehicles while on of, would to steer clear some would seek motorists even injured lying stop, to, a man to render assistance expressway. can of an One in the middle easily potential for catastrophe._ visualize the they right way if were located within the of even of right way. boundaries of the of median, stops, regard rest I with to a have made these observations some, ditches, stops, with other installations truck drains and and do not concern such the issues in the instant case reluctance because installations, briefing argument. I make been no or and there has majority placed by the on because the construction these observations meaning "any other installation” the fourth sentence attributes a that, obliged judgment, clearly wrong, that my I feel to show that is and gives meaning. reading words substantial there is another those 62 J.). Ante, p Brickley, (opinion 161 of reiterating opinion Scheurman as The declares that reads "highway exception normally general include does not rule that the paved physically separate detached from the or installations traveled and added). Id., p (emphasis portion highway.” 157 The of a opinion limiting language of the fourth sentence of continues that the "creating liability only improved highway exception for 'the (1) travel,’ encompasses portion installations of a for vehicular of a paved portion physically or located within that traveled (2) travel, installations, designed some paved physically beyond of the traveled or even those a this located directly integrally highway, safe vehicular travel affect Id., improved portion.” p 158. (2) "integral” language language parallels in the n 5 for the above accompanying opinion concurring text of that See text in Scheurman. opinion. Mich by Dissenting Opinion Levin, Endykiewicz the absence show Arnold and guardrails, properly constructed of separating 1-94 in lanes of the east and westbound southbound lanes Arnold and the north and Endykiewicz, the safe and affects Southfield passage on the of vehicles while convenient port ion.63 the north were erected between

Metal barriers stages early and southbound lanes Lodge Expressway accidents after innumerable passen- injured killed not drivers gers into crossed the center line in vehicles that passengers opposite lane, the traveling but also drivers and opposite direction. Neither lane of reasonably expressway an is in "condition lanes, between the fit for travel” without barriers years, which, have been modern- barriers over the skimpy mounted ized from the metal barriers first 572; Transportation, App Fogarty Dep’t Mason, 28, (1993), February abeyance for NW2d 710 (Docket formal 97248), plaintiff’s decedent was killed when his No. being driven automobile was struck head on an automobile decedent, traveling Mancini was southbound on defendant’s 1-75 when he lost control median, Mancini. vehicle, through grassy passed his plaintiff’s and entered the northbound lanes in which the traveling. plaintiff claims that the mdot failed to decedent was adequately construct, design, repair the median. Appeals grassy part The Court of held that th'e median is not required highway designed for vehicular travel. While the mdot is not in condition safe and to fit for and maintain the median travel, accompanying n median and as set forth in text installation,” generally an "other that does not relieve the mdot obligation necessary barriers to maintain the the portion directions, to erect expressway moving opposite highway, of a such as lanes and fit travel. condition safe for Sinishtaj Dep’t Hwys, unpublished opinion per See also v of State (Docket 30, April Appeals, issued 1993 No. No. curiam Court (Docket 135368), 3, abeyance Chaney, formal for December 96641). plaintiff guardian hurt when The is the of a woman who was guardrail her automobile went over a claims the mdot breached ably guardrail, ment. The Court of of on M-59 near Adams Road. She to The woman’s automobile struck a M-59 in a manner reason- its and fit for travel. steep guardrail, went and rolled down a embank- over Appeals granted summary disposition on basis Chaney decision in and Scheurman. its v Opinion Dissenting Levin, J. Lodge sturdy concrete on the on wood stakes barriers. Hwys, Gregg Dep’t of State (1990), decided after Scheu'r- Gregg

315; 458 NW2d majority man, that could maintain held bicycle injuries when his received an action pothole white lines located within two struck a demarking bicycle path between the traveled paved its shoulder. bicycle alleged on a in this case occurred defect quoting path majority concluded, that the comprised part "unquestionably syllabus, sepa- on an installation vehicular travel and not improved portion.”64 from the rated and detached Gregg majority in said that the contention Legislature not intend to include the did highway excep- highway within the shoulder of a tion it face of common

has an obvious flaw: flies experi- has ever experience. Any motorist who highway emergency understands enced a highway. a safe modern shoulders are essential stop, park, or leave get To on or off a shoulder vehicle, must travel on the standing a motorists shoulder. vehicles, high speeds of modern such an At the travel, significant "in the often results in

endeavor ordinary Indeed, sense,” highway. on the shoulder of a extraordinary, if fic- quite it not seems tional, do not travel on to assume that vehicles designed for or that shoulders are not shoulders travel, [Id., p temporary sort. albeit of a 315.]_ dissented, justice stating not a shoulder of a is One because

within the travel but rather temporary disabled or accommodation of (Griffin, J., dissenting). Gregg, supra, p stopped vehicles. Mich 145 Dissenting Opinion by Levin, J. stating dissented,

The author of Scheurman plain reading while a of the definition of shoulder precluded in the Motor Vehicle Code of the the extension government’s duty highways to maintain pursuant highway exception to the to road shoul- quoting again syllabus, ders, from the "the defini- logically comport tion is inconsistent and does not driving,” highway with the realities of and the Legislature should amend the statute.65 argument Legislature did not in- running tend to include a concrete wall or barrier alongside highway the shoulder of a within the similarly has a obvious flaw. A who, Arnold,66 motorist experienced like the driver has highway emergency necessitating that he move onto the shoulder understands that precipice, where the far side of a shoulder is a as ramp in the instant case where the was an over- pass 1-94, a barrier on the far side of the high- shoulder is as "essential to a safe modern way” as the shoulder itself. majority bologna slices the far too thin in

holding Legislature that the intended that a shoul- highway exception der be included within the but alongside not a barrier the shoulder.

This is not a case where the mdot saw no need long past day to install a barrier. We are when might ordinarily ignore authorities designing highway. need for barriers when Mani- festly a barrier is essential wherever the portion bridge, overpass, is a otherwise like a cliff in the sense that without a improved barrier a motorist forced off heading straight of would be down his doom. Michigan’s highways

Those us who drive on (Riley, Gregg, supra, p C.J., dissenting). accompanying See text n 38. Dissenting Opinion by Levin, J. during especially experience that, in- know clement infrequently weather, automobiles immediately spin in of other motorists. front out split second, choice, is in a to drive to made The straight be ahead—assuring in effect will be a what right, to turn the left or collision—or to head-on the Arnold. the area to like the in Unless driver graded, right gradually a barrier immedi- or left ately beyond to maintain the shoulder is essential condition the fit for travel. VII opinion plurality in the The statement (and Scheurman,67 —that the and counties state necessary implication, townships appear, by would cities) only subject failure are to a repair highway, road, or whatever installation to constructed, hazardous, as a has been however design construction, result defects may highway, road, all or installation be—removes meaning operative language from most exception, and renders most language superfluous.68 operative reading Legislature correct, If that were highway exception would not have reenacted the without striking, enacting, rather than first in the words indicated following:_ employee 3.996(Í07)(2)(c), majority observed: ^[67] Id., p 631. a recent governmental opinion, construing immunity, gross negligence exception MCL 691.1407(2)(c); MSA to responsible defies of our It common sense exercise authority Legislature provided have to would conclude eliminating liability having

protection without tantamount Asch, 99, 115; commented it. 521 NW2d [Dedes (1994).] Mich Dissenting Opinion by Levin, governmental having Each agency jurisdiction any highway over shall maintain repair reasonable éé/fháf/it/WiAAiéÁéMf/áélé/áiíd Any person sustain ééúMMéM/iét/^iMié/titMél. ing bodily injury damage property by to his reason of any governmental failure of agency to keep any highway jurisdiction under its in reason repair, able áúA/iÁ/éóÁAMóá/MáéóúáWf/¿¿fé/áÁd fit/tdiltiM€UJmay damages recover the suffered him from such procedure agency. The EA¥>Eltf{ county roads under áiíd/férfuád^/as jurisdiction county road commission shall 21, provided be as chapter in section 4 of Act No. amended, 283 of the Public being Acts of as section Compiled 224.21 of the Laws of 1948. The duty of the state and the county road commissions áñdMáMfdM/highways, and the liability therefor, shall extend the improved portion highway designed of the for vehicular travel and sidewalks, shall not include crosswalks or any other installation outside of the travel[69] highway designed the reading Legislature If correct, were (cid:127) stopped would have with the words "reason- repair” writing

able when the first and highway exception, second sentences of the (cid:127) have, would not in sentence, the third re- "liability” "remedy”

affirmed the against county under 1909 PA as amended, and stopped

(cid:127) "repair” would have with the word in the first sentence, clause of the fourth and would not have added the words "and immediately maintain” thereafter. plurality opinion Scheurman reads out from the

exception text, foregoing the words stricken in the and in effect highway exception renders the exception almost no at all. Dissenting Opinion Levin, J.

VIII plurality opinion discerned in Scheurman meaning” "plain that the Legislature tois intent of the the "true

is that portion keep physical impose repair”70 in reasonable traveled roadbed A intent”—liability under arises "true That keep exception only for failure repair—so portion physical dis- of the roadbed opinion plurality is in Scheurman cerned excep- meaning” "plain the third tion set forth Scheurman. portending meaning,” possibly "plain

The second precludes recovery meaning,” "plain un- im- third "part is the defective condition less proved for vehicu- meaning” "plain does The second lar travel.”71 preclude recovery design conditions of for defective dictum72 the obiter It is not until or construction. limiting recovery meaning,” "plain the third of loss portion” "physical resulting a failure to "repair,” in reasonable of the roadbed design recovery defects or construction precluded. dictum, roadbed, that obiter meanings” "plain forth set of the three The ñrst 70Id., p 631.

71Id., p 623. case, Prokop, companion con- nor its Neither Scheurman itself "plain allegations design The third or construction defects. cerned meaning” Scheurman, stating opinion plurality in in the set forth keep impose Legislature is to intent of the that the the "true repair," reasonable physical roadbed in of the traveled necessary or beyond either Scheurman to decide what was went Prokop. conclusion with the same have been decided Both cases could "plain the first or second governmental under either of no meanings” Id., p opinion 631. plurality in Scheurman. in the set forth Mich Dissenting Opinion by Levin, J. opinion Scheurman—stating plurality

in the in highway exception that the fourth sentence of the portion, paved "refers to the traveled unpaved, public actually of the roadbed travel,”73—mandates no

vehicular Thermi- exception.74 dorian obliteration of the postscript, again As "[t]he is once clear that notion that because the words of the statute are plain, meaning plain, merely perni- its is also is oversimplification.”75 cious

B "plain meanings” plu- The three derived rality expect, Scheurman, in I are attributable to a excep- failure to read all the words of the together. recognition plu- tion There is no in the rality opinion in Scheurman that the fourth sen- appear tence of the isolation. There is no reference to or does in

any discus- reasonably sion whatsoever of "in condition safe and ñt for travel” set forth in the second sentence highway exception. selectively quotes

Scheurman ex- ception. opinion quotes, page the first highway exception sentence of the and omits the provides second sentence which liability. opinion thus fails to set forth all the

73Id., p 623. "plain meaning” sentence, read, This first of the fourth itas must read, conjunction language sentence, be with the of the second "in repair, travel,” reasonable condition and fit governmental agency subject liability, means that a is in the words Scheurman, plurality opinion for a failure to "the portion, paved unpaved, actually designed traveled for reasonably of the roadbed repair, travel” in reasonable condition meaning safe and fit for travel. That the correct Id., p fourth sentence. 623. Monia, 424, 431; 409; United States v 317 US 63 S Ct 87 L Ed 376 (1943) (Frankfurter, J., dissenting). by Opinion Dissenting Levin, J. exception. pertinent It' fo- words sentences first and fourth on the cuses in isolation exception. reference, as all without Omitted—dismissed operative precedent prior stat- is dismissed—is sentence, language, utory in the second set forth kept "in rea- requiring both be reasonably repair, and condition sonable added.) (Emphasis Those words fit for travel.” and appear anywhere statutory —the standard—do opinion plurality in Scheurman.76 in the

IX legisla- majority conclusion, misreads the adding any-other-installation purpose tive in the fourth sentence. clause state and crafted to avoid

That sentence repair responsibility county and mainte- traditionally for the crosswalks, and nance of sidewalks townships responsibility cities, and also responsibility county state and to eliminate crafted repair of installations maintenance for the adjacent bridges, paths, bicycle and medians like alongside, running traversing, state and to, highways. county to eliminate not crafted sentence was

That implica- counties, of the state design townships, and construc- tion cities tion defects and maintain, failures to for all other repair, highways distinguished in condi- as reasonably fit for safe and tion travel._ high opinion quoted plurality the first sentence agency obligating to "maintain the way exception, highway safe and conven that it is so reasonable alone, words, might standing have been public travel.” Those ient for (see 16-18)—-by it first this Court when read—they ns were not requiring only years ago as issue over a hundred confronted the reasonable repairs. Mich Dissenting Opinion Levin,

A new meaning developed by major- the new ity purposefully ignores one hundred years adju- by dication this Court. Not one by case decided this Court before the advent the new majority, the over during of "in one-hundred-year history repair, reasonable and in condition reasonably safe travel,” and fit for is distinguished. departure precedent A substantial only can justified, thought, light experi-

be I had in the application ence with the doned or in the of the rule to be aban- light of an altered historic environ- ment. change upon A basic in ground the law a no change

firmer than a the little in our membership invites popular misconception that this institution is political different from the two branches of misconception the Government. No could do more lasting injury to this Court and to the system of abiding law which it is our mission to serve. Co, 600, 634, 636; v WT Grant 416 US [Mitchell S Ct (1974) 1895; (Stewart, J., 49 L Ed 2d 406 dissenting).] itself, indulges new majority masked by

"plain meaning” and "strict construction” in heavy-handed judicial legislation, rendering exception practical devoid of meaning.

B It is noteworthy the view in expressed Scheurman, in plurality opinion based on the fourth sentence of the highway exception, was not Killeen, set forth in dissent where another analysis reaching the same prof- conclusion was Dissenting Opinion Levin, high- the law of the It is remarkable that fered.77 way after- an has been transformed urged by Attorney thought Gen- was thrust the mdot in behalf of before eral upon profession plurality opinion Scheurman. intuitively guides the situation sense78that by any not informed

author of Scheurman was the second sentence in Scheurman of consideration exception, imposing liability repair, "in reasonable failure to trav- fit for condition by any el,”79 in Scheurman consideration 77 Killeen, p supra, dissented the author of Scheurman stating: opinion exception Michigan’s my It is encompasses immunity statute negligent liability for maintenance and does not include design highways. and construction of any-other-installa- That statement in Killeen was not based on Indeed, highway exception. in the sentence of the tion clause the fourth might provide thought a basis for the fourth sentence design governmental liability "negligent holding that there is no highways” was of mind the fourth and construction of so far out quoted dissenting opinion. quotation sentence was in the dissenting opinion highway exception concluded set forth Id., (Riley, C.J., p dissenting). the third 20 with sentence. rather, based, expressed dissenting opinion The view in the dissenting justice highway exception. The the first sentence of the position following language: expressed her view, words, my Legislature’s "shall choice of repair,” its inten- maintain the in reasonable indicates duty upon govern- merely impose a

tion maintenance agency having jurisdiction highway. Further- over mental more, compassing only highway repair” interpret en- I ... in reasonable as "maintain repairs necessary as a result of normal those usage. impose The statute does not original.] design Emphasis in or construction. defects [Id. Tradition, Deciding Appeals, p Llewellyn, 206. Law Common accompanying n 76 and text. See Mich Dissenting Opinion Levin, J. prior essentially decisions of this Court that were ignored.80

x I would remand in to the circuit court evidentiary support for trial Chaney’s to determine the design claims of failure, and construction and for his other claims.81 J.,

Mallett, Levin, concurred with 80Except as noted in n 6. See also ns 32 and 77. ante, J.). pp Brickley, (opinion See 152-153

Case Details

Case Name: Chaney v. Department of Transportation

Court Name: Michigan Supreme Court

Date Published: Aug 31, 1994

Citation: 523 N.W.2d 762

Docket Number: 96282, (Calendar No. 9)

Court Abbreviation: Mich.