Listanski v. Canton Township

452 Mich 678 LISTANSKIv CANTONTOWNSHIP WILLIAMSv REDFORD TOWNSHIP

MOCERIv CANTONTOWNSHIP 100808,104006, Argued April 10, (Calendar Docket Nos. 104007. Nos. 3-4). July 30, Rehearing Decided 1996. denied 453 Mch 1204. Raymond brought Wayne Ethel and Listanski an in action Circuit against Township, alleging inju- Court Canton Charter that Ethel’s ries were caused because to a road township repair. in court, located was not in reasonable The Battani, J., granted summary disposition Marianne O. for the ground governmental immunity. defendant on the The Court of Appeals, P.J., (J. J., dissenting), and R.J. Hood, Danhof, Stempien, affirmed, holding jurisdic- that because the did not have sidewalk, highway exception tion over immunity apply (Docket 154045). plaintiffs appeal. did not No. brought Wayne Judith Williams against an action in the Circuit Court Township injuries Redford sustained on a sidewalk located Wayne County a road over which has because of township’s reasonably failure to maintain the sidewalk. The court, Finch, J., case, Sharon finding Tevis dismissed the that the had no to construct and or maintain side- Appeals, P.J., walks. The Court of and Brennan and G.B. White, JJ., special order, stating required by affirmed in that it was .a Ford, Administrative Order No. 1994-4 to follow Listanski v Canton Twp, App (1994) (Docket 154658). Charter No. brought Wayne Priscilla and Leo Moceri an in action Circuit Court against Township Canton Charter sustained Priscilla arising out of its failure to maintain a sidewalk to a highway. court, Callahan, J., Michael J. denied the defendant’s summary disposition. Appeals, P.J., motion for The Court of Reilly, JJ., special and Wahls and M.A Chrzanowski, reversed in a order per curiam, because it was constrained to do so Listanski (Docket 155596). No. Appeals The Court of consolidated Williams and Moceri and special panel convened a to resolve the conflict between those Court, P.J., cases and Listanski. The and McDonald, Murphy, JJ., Marilyn Fitzgerald, Kelly, Connor, Hoekstra, Markman, v Canton Moceri, opinions in vacated the Williams and reversed the circuit summary disposition Williams, grant court’s and affirmed the summary disposition Moceri, circuit denial of court’s cases, township duty holding remanded the that a has a to maintain pursuant 691.1402(1); 3.996(102)(1) to MSA sidewalks MCL 691.1401(e); 3.996(101)(e), along county MCL MSA even sidewalks (Docket 154658,155596). or state roads Nos. Listanski and Redford Townships appeal. and Canton opinion joined by In an Justice Chief Justice Cavanagh, Supreme and Justices Levin the Court held-. Brickley, Mallett, jurisdiction township public A has over sidewalks located county township support within the to roads sufficient a cause of against township highway exception action under the for fail- repair. township them in ure to maintain reasonable A thus can be 691.1402; 3.996(102) injuries held liable MCL under MSA for occur- ring public county abutting on sidewalks roads within its boundaries. Analysis Michigan Constitution, statutes, of the and common law Legislature on this issue leads to the conclusion that intended

municipalities retain to reasonable control over sidewalks within boundaries, long pertains their as as the control to local concerns and does with not interfere the state or counties’ control over their Legislature’s highways. legislation providing The reenactment authority township with and maintain construct sidewalks years after the McNitt act demonstrates that it did not intend the duty county. McNitt act to transfer the to maintain sidewalks to the Further, public policy legislative consistent with and the overall scheme, treating townships persons the same as cities ensures that injured township county abutting sidewalks state or road are only persons remedy against not within the class of without governmental agency. Boyle, concurring, agreed Justice with the result and rationale of majority they apply townships. insofar Listanski reversed and remanded. special panel of the decision in Williams and Moceri

affirmed and remanded. township dissenting, Justice Weaver, stated that a cannot be held liable for sustained because condition of a of the township’s sidewalk located beside a within a road boundaries. 691.1402(1); 3.996(102)(1) provides MCL MSA that it is the the state and road commissions to and main- highways. only tain for so extends failure to do to the improved portion highway designed travel; of the for vehicular it 452 Mich 678 Although 691.1401(e); does not include sidewalks. MCL MSA 3.996(101)(e) highway, includes sidewalks within its definition of it statutory “highway” is clear from the definition of that a sidewalk purposes governmental is not to be treated as a of the immunity exception. Rather, the term is to be construed as encom- passing adjacent portion certain features to the traveled of the roadway, including sidewalks. Because MCL 3.996(102)(1) grant is an to a broad immunity, strictly Accordingly, govern- it must be construed. entity mental that has over the road also has exclusive over the sidewalk. It follows that a iiquries adja- can be held hable sustained on a sidewalk road, injuries occurring cent to a not for on sidewalks or state roads. governmental agency having jurisdiction any highway Each highway. must maintain and be hable for the The state and counties only obligated portions to maintain and be liable for those improved portion highway designed traffic, for vehicular highway exception clear, a lesser burden. Because the there is beyond go no need to the four corners of the statute to examine purposes statute, the historical for sidewalks. For of the individually, part sidewalks are not to be considered but pubhc when to a road. There is no reason for cities to be held liable for sustained on side- walks or state roads. dissenting, Justice stated that the defendants did not have Riley, question. jurisdic- sufficient over the sidewalks in This simply tion cannot be estabhshed because the defendants did not requisite control, have the level of control. Without such jurisdiction, and, thus, they defendants did not have be cannot held highway exception governmental immunity. hable under the 3.996(102)(1) imposes MCL agencies liability maintaining highways jurisdic- within their tions. Jurisdiction connotes some form of control. Because the up against sidewalks in these cases butted roads and right way, any construction, repair, were contained within the performed by anyone maintenance on the sidewalks needed approval county. authority It is this blanket of vested in the county, townships, that demonstrates that the and not the Merely having has control and over the sidewalks. necessarily req- to maintain a sidewalk does not estabhsh the jurisdiction. uisite level of App 356; (1994) reversed and remanded. Listansh Canton

Opinion of the Court Steinberg plaintiffs Ronald A. for the in Listanski. Lopatin, Miller, Freedman, Bluestone, Herskovic & (by Heilmann Lee R. Franklin) plaintiff for the Williams.

Stem, Cohan & (by Stem Kenneth A. Stem) and Thomas, Bendure & of counsel Mark R. (by Bendure and Victor S. Valenti), plaintiffs in Moceri.

Johnson, Rosati, Galica, Shifman, Labarge, Aseltyne, Sugameli Field, & RC. (by Marcia L. Howe), for the defendants.

Amici Curiae:

Bauckham, Sparks, & Thomsen, P.C. (by Rolfe John H. Bauckham), for Michigan Townships Association.

Kohl, Secrest, Wardle, Lynch, Hampton Clark & (by Gerald A. Fisher, P. Hampton, William Thomas R. Schultz) for Oakland County Association of Township Supervisors, Townships and the Bloomfield, Highland, Independence, Milford, Oak- land, Orion, Waterford, and West Bloomfield. Cooney,

Plunkett & P.C. (by Christine D. Oldani and Mary Ross), Liability Massaron for Michigan Property Pool. present J. The instant cases the issue

Cavanagh, whether can be held liable under MCL 691.1402; 3.996(102) occurring on public county sidewalks abutting roads within the townships’ boundaries. After analyzing issue, we special with the agree panel in Williams v Redford 452 Mich 678 682 Opinion of the Court adopted holding Twp which [Williams IT],1 reasoning [Williams I],2 of Williams v Redford and held that have county located roads within the sidewalks township support a action sufficient to cause of township exception against under repair. them in reasonable failure to maintain I. FACTS AND PROCEDURAL HISTORY

A. FACTS 1. LISTANSKI injured August Listanski was 25, 1989, On Ethel road3 in Can- located Raymond Township. brought Listanski ton Ethel against township,4 alleging suit that the sidewalk repair, was not in reasonable and thus the damages. trial However, was liable for their court township summary granted disposition on the immunity. ground governmental The Court of Appeals holding affirmed, did not that the sidewalk, have over the and therefore the immunity did not apply. Twp, Canton Charter 206 Mich App (1994). 356; 523 NW2d229 App 60; (1995). 210 Mich 533 NW2d 10 App 801; (1994). ques The Listanskis have asserted before this Court that the road in However, they precluded asserting tion was not road. from appeal this on because at trial court the Listanskis conceded that “The responsible roadway.” for the The Listanskis also sued the owner of the residence to the sidewalk, but that suit is not before us. 683 Canton Opinion of the Court

2. WILLIAMS 20, 1990, injured On March Judith Williams was Township a sidewalk in Redford located a road Wayne County jurisdiction. over which has She township suit for failure to rea brought against 5 sonably maintain the sidewalk. The circuit court dis against township, finding missed the suit that the township duty had no to construct of Appeals initially maintain sidewalks. Court summary affirmed the in favor of Redmond judgment Listan Township, saying required6 by it was to do so ski. Williams I.

3. MOCERI April 26, 1990, injured On Priscilla in Moceri was Township Canton on a sidewalk that runs highway. Priscilla and Leo Moceri sued the damages out of its failure to arising maintain the sidewalk. The circuit court denied Can- Township’s summary ton motion for disposition on plaintiffs negligence Appeals action. The Court of Lis- reversed because it was constrained to do so tanski. Moceri v Canton Twp, Charter App 814; 524 NW2d 458 (1994).

B. PROCEDURAL HISTORY consolidated Williams Appeals The Court of Moceri and convened a special panel pursuant Administrative Order No. 1994-4 to resolve the con- 5 County. brought against Wayne Williams also suit The trial court dis Wayne County. appealed missed Williams has not that order. 1994-4, xci, requires subsequent Administrative Order No. Mich Appeals panel prior Court to follow rule of law established published Appeals. of the Court of decision 452 Mich

Opinion of Court reasoning panels in flict between the Williams spe- I and decision in Moceri Listanski. panel prior opinions vacated the in cial these two summary disposition grant cases, reversed the Williams, affirmed the circuit court’s denial of sum- mary disposition spe- Moceri, and remanded. The panel cial held that “a does have a pursuant maintain sidewalks to MCL 3.996(102)(1) 691.1401(e); and MCL MSA 3.996(101)(e), even sidewalks state roads.” Williams II. granted appeal

This Court leave to in all three ordering argued together. cases, them to be

H. JUSTICE WEAVER’SOPINION hastily arriving In at her Justice Weaver conclusion, analogous reasoning holding fails to address the and Ypsilanti, App of Jones v 574; 182 NW2d 795 (1970), wherein that Court held that cities are exposed liability injuries occurring to on side- running along Contrary walks a state road.7 to Justice highway exception assertion that the stat- Weaver’s plain govern- ute’s intent is and does not hold local agencies injuries occurring mental liable for on side- abutting walks state or roads within their recognized boundaries,8 even the Jones Court an doing so, cursorily In Justice Weaver stated: case, question city’s liability, opposed In this of a to a township’s, Therefore, is at not issue. I do not address whether I However, would overrule Jones. I see no reason for cities to be held liable for sustained on sidewalks or state roads. [Post 695.] opines townships Justice Weaver that evidence that would show that historically have had over sidewalks within their application boundaries is not relevant to a determination of the Canton Opinion of the Court years twenty-five ago

ambiguity when it stated, preferable been if the statute “It would indeed have spelled fully, legislative had out the intent more [§ 2] thereby unnecessary this labor of con- rendered to close what would otherwise have been an struction loophole law.” unintended in the Id. at 582. analyzing analogous Jones, Before issue argument: Court restated the defendant’s juris- urges places that the 1963 constitution Defendant highways diction of state trunkline in the state department; highways are defined include side- so as to walks; responsibility has the state exclusive highways accepts legal maintain state trunkline all lia- bility that, therefore, city them; defendant relieved of all for defects in sidewalks passes city. Michigan through Avenue as it at 576 [Jones (citations omitted).] emphasize directly argument

We that this tracks the reasoning employs that Justice Weaver to hold that the defendant are not liable these cases. reasoning However, because, we find that untenable eloquently stated, as the Court so “This inter- Jones pretation oversimplifies question the that is before posit oversimplification the Court.”Id. We that it is an primarily highway exception because the does not clearly liability governmental set forth local for side- county abutting walks state or roads. immunity, asserting “Legisla-

Legislature’s that the waiver of plain.” highway has made its intent She continues: “Because the ture beyond exception clear, go four comers statute is there is no need to the liability for sidewalks.” Post of the statute and examine the historical view, opinion, position, However, in in our our 695. as discussed incorrect. 452 Mich Opinion of the Court position Justice Weaver’s made Legislature that the plain excep- its the language intent the unsupportable. tion is limits liabil- ity improved portion of the state and counties to the pro- road for designed travel, vehicular vides that will not be for liable sidewalks that However, abut these roads. the statute not does explicitly provide that local governmental agencies county for liable sidewalks state or roads abutting within their Thus, boundaries.9 we find Justice analysis inadequate for the resolution Weaver’s issue before this Court. Court,

Like the Jones this Court must consider an analysis extensive and historical review of the consti- statutes, tution, and common law regarding a town- ship’s liability for sidewalks it before dismisses the plaintiffs’ argument.10 particular Of importance, 9 Although acknowledges plaintiffs’ argument Justice Weaver that a township jurisdiction any passes through has sidewalk that its boundaries, summarily it, stating gov she “I dismisses would find entity jurisdiction ernmental that has road over the also has exclusive adjacent Thus, over the sidewalk. under MCL 3.996(102)(1) can be held liable for sus township road, occurring tained on a not for those (emphasis on sidewalks added). state roads.” Post at 694 agreeWe with I that Williams appears Legislature, to have been the clear [i]t intent incorporating municipal liability regarding the older statutes recovery damages highways, including due defects in side- municipality’s jurisdiction, walks within the to retain lia- bility formerly applicable. 2, township may Thus, where § under jurisdiction. be held liable for defects in sidewalks within its contrary interpretation, assigns which to the total township, por- including over all within a roads those tions, sidewalks, such as to which owes no liability, application townships virtually has no nugatory. renders the to§of Legislature specifically Because the included municipalities attaches, in the to which defects 687 v Canton Opinion of the Court 29 1963, 7, art § Const in Williams II that noted Court places to and township streets of left control Court also Additionally, the townships. control of townships that provides 2(1) that subsection noted Thus, sidewalks. their maintaining for responsible county or of state exception’s provision the highway or that abut state over sidewalks necessarily eliminate clearly or does not roads municipalities’ longstanding local their boundaries. through that run sidewalks contrary correctly interpretation con- conclude that this we cannot townships relieved of all Legislature’s were intent. If the strues the within the responsibility all installations for not roads but way the McNitt right under of roads taken over Legislature to act, no reason for the there would have been then 2, townships townships included in to have been §in or for include supra 1963, 7, 2 § art 29. 812-813.] Const [Note townships’ argument support Thus, reject no for the we and find (the 242.1; repealed in 1964 PA 170 Legislature MSA 9.591 MCL when the liability immunity act), it meant to abolish current municipalities. historically imposed and other it had policy Legislature logic Additionally, for the no reason in or there is repair 1986, city responsibility have, and maintain sidewalks in retained township responsibility city city roads, for along but eliminated along roads. See Ross state or maintenance of sidewalks 567; (On Rehearing), NW2d 641 363 Consumers Power Co Lansing, Detroit, Rapids, and Trav- (1984). Grand that cities like We note liability responsibility City for sidewalks or are not relieved of erse Legisla- Thus, way city to the right would not attribute streets. we maintaining, responsibility and lia- Detroit of an intent to relieve ture Mile, maintain, along bility Woodward Avenue 8 failure to sidewalks roads), (county Mile, roads), Mile, Drive (state and Outer 6 Greenfield responsibility undisputably Detroit of did not relieve when it Livemois, Wyoming, city respecting such as streets sidewalks (5’/2Mile), Evergreen, Detroit), (Tireman Puritan Mile in to 8 Schaefer city Parkside, streets (6>/2Mile), other Mark Twain and countless Curtis county, city state, on the basis (These roads roads are labeled Detroit. Transportation City provided of Detroit information Department.) Mich Opinion of the Court hi. RILEY’S JUSTICE OPINION step goes Riley Justice one further than Justice correctly recognizes townships and that Weaver negligently would be liable for maintained sidewalks jurisdiction if had over sidewalks within their However, boundaries. we when believe she errs she townships jurisdiction. concludes that do not have She reasons that because the would have to approve any repair, construction, or maintenance of township county’s right the sidewalks in the of way, townships then do not have sufficient control requisite jurisdic- over to the sidewalks establish the Although acknowledges tion.11 Riley Justice that requires summarily Jones result, a different she dis- twenty-six-year-old cards a of decision the Court of Appeals. Similarly, analysis ignores her both the Wil- completely liams I and Williams II decisions, which persuasively jurisdiction and refute her exclusive proposition.

IV. WILLIAMS I analysis Michigan After an extensive of Consti- tution, statutes, law, and case in the Court Williams I stated: argument unpersuasive. This is There are a number of reasons to require county approval construction, repair, state or or maintenance township sidewalks, supports none of which the conclusion that town ships of, liability for, example, do not have control the sidewalks. For county may plans

the state or have for the road would that affect the side way, i.e., right building township walk its additional lanes. Unless the required county approval, money large may to seek state or sums of be expended construct, repair, or maintain a that will have to be planned Also, removed when additional lanes are installed. the state assuring have an that interest the sidewalks are located at a improved portion sufficient distance from the of the and shoul safely ders so that the sidewalks are located and will not add to the bur maintaining improved portion highway. den and cost of v Canton

Opinion of the Court historically townships have been that We conclude repair of sidewalks responsible the maintenance jurisdictional that the statutes boundaries and within their counties roads to transferring approval gov requiring to obtain the authority having over the ernmental of a sidewalk improved installation or being to, and improvement were not intended is made before the township’s maintain sidewalks not, transfer the did county, from or relieve the the state or duty. discharge 802.]1121 for the failure to [Id. “townships have contin- emphasized The Court and maintain side- authority to build to retain the ued jurisdic- geographical within their walks roads act, to the McNitt pursuant that tion, notwithstanding roads jurisdiction over the do not have townships Id. at 807. themselves.”

V. WILLIAMS II holding, I support for the Williams As further of this recent decisions II Court noted that Williams In Mason v position. support plaintiffs’ Court 130, 136, 6;n 523 Comm’rs, 447 Mich Co Bd Wayne a different which decided a case (1994), NW2d 791 Boyle exception, Justice under issue concurring), opined JJ., and Griffin, Riley, (Brickley, liability issue: on the sidewalk sentence, ... purpose this . . . appears It and crosswalks responsibility sidewalks to allocate townships, cities, including and vil- governments, local (when arrangement before 1964 lages. been the This had added).] (emphasis enacted). was the statute at issue [Id. 12 I. see Williams analysis, For a more in-depth 690 452 678 Mich Opinion of the Court interpreta- Justice also advanced the same Boyle Transportation Chaney Dep’t, tion in 145, Mich (1994), 172, 2;n she wherein stated: duty repair to maintain and sidewalks and cross- governments, cities, including villages, walks on local falls townships. Wayne Comm’rs, See Mason v Co Bd 130, 6; 136, (1994). (emphasis Mich n NW2d [Id. added).] In addition to Justices Boyle, Riley, Brickley, appear agree

Justices and Mallett also Levin townships repair have a to maintain and side- walks within their boundaries. In Justice Levin’s dis- Chaney concurring), sent in J., he stated: (Mallett, responsibility and maintenance of side- crosswalks, subsequent walks under the 1879/1887 and statutes, imposed townships had been on and cities. [Id. 202.] injuries occurring Thus, are liable for sidewalks that abut state or roads as a result negligent of their failure to maintain their sidewalks repair. in reasonable

VI. conclusion analyzing Michigan After Constitution, statutes, and common law on this issue, we believe that the Legislature municipalities intended to retain reasona- ble control over sidewalks within their boundaries, as long pertains as control to local concerns does not interfere with the state or counties’ control highways. Legislature’s over their reenactment legislation providing authority with to years construct and maintain sidewalks after the v Canton Listanski by Boyle Opinions Weaver, JJ. not intend the it did act demonstrates McNitt maintain sidewalks duty to transfer the act to McNitt is consistent Further, our conclusion county. to scheme. legislative and the overall policy public with cities, and ensures the same It treats township sidewalks injured on persons those class not within county road are a abutting a remedy against without a persons intended Legislature we believe Because agency. injuries occur- for subject be townships to maintain sidewalks a failure to a result of ring as remand these boundaries, we would within their courts for trial. respective circuit to their cases JJ., C.J., concurred and Levin Mallett, Brickley, with Cavanagh, inso-

Boyle, and rationale with the result agree J. I townships. they apply far as Court before this The issue J. (dissenting). Weaver, liable under MCL be held a can whether is injuries sustained 3.996(102) 691.1402; MSA located a condition of because township’s boundaries. county road within beside be held liable township cannot that a I would hold injuries. such injured was 25, 1989, Ethel

On August in Can- located road1 a sidewalk Township. ton ques the road this Court that asserted before Listanskis have asserting precluded However, from road.

tion was not a that “The Listanskis conceded appeal trial court the because at the this on roadway.” responsible for the 692 452 678 Mich Dissenting by Opinion Weaver, J. injured 20, 1990,

On March Williams Judith was on Township a sidewalk in Redford located a road Wayne jurisdiction. County over which has injured April 26, On 1990, Priscilla Moceri was Township Canton on a sidewalk that runs county highway.

i The sole issue Court before this is the construction liability governmental tort act. plaintiffs injured public All three were side- Normally, walks. would be insulated ground from governmental immunity. for such an occurrence on the of township’s

A construction and maintenance of sidewalks within its boundaries is performance governmental of a function. This performance nonperformance or of an authorized activity immunity it to entitles absolute from tort lia- bility. (On Rehearing), Ross v Consumers Power Co (1984). Legislature 420 567; Mich 363 NW2d 641 governmental agencies has conferred on a broad grant immunity, narrowly with certain drawn statu- tory exceptions strictly that are to be construed. MCL 3.996(107), Dep’t 691.1407; MSA Scheurman v Transportation, 619, 627; Mich 456 NW2d (1990). plaintiffs proceeding

Here, assert statutory governmental under a immu- nity, 3.996(102)(1), MCL which provides: governmental jurisdiction agency having any

Each shall maintain reasonable so reasonably that it safe and convenient for travel. Any person sustaining bodily injury damage or his or her Canton Dissenting Opinion Weaver, any governmental agency to property of failure of reason any in reasonable keep highway under its travel, reasonably and fit for repair, safe and in condition by him her from the may damages suffered recover the remedy liability, procedure agency. road under the as to roads chapter provided IV in section shall be as commission amended, 1909, as the Public Acts of of Act No. 283 of Compiled Michigan Laws. The being 224.21 section of road commissions to of the state and the liability therefor, shall highways, and the and maintain improved portion highway only of the to the extend shall not include side- designed for vehicular travel and any walks, crosswalks, other installation outside of the or improved portion highway designed vehicular for travel. purposes “highway” term of this statute the

For under MCL to include sidewalks is defined “ ‘Highway’ 691.1401(e); 3.996(101)(e): means MSA open every public highway, which is road, and street bridges, sidewalks, travel and shall include any highway. The term and culverts on crosswalks, utility alleys, trees, include does not ' poles.” majority agrees, plaintiffs argue, that and the expressly excluded are because the state adjacent under to roads from for sidewalks 691.1402(1); jurisdiction, MCL MSA their township 3.996(102)(1), should be construed to any passes jurisdiction that over sidewalk have through disagree. I It is clear from its boundaries. defining “highway” is not to be statute purposes govern- for the treated as a “high- immunity exception. Rather, the term mental encompassing way” certain fea- is to be construed roadway, portion adjacent to the traveled tures Mich Dissenting Opinion Weaver, including 691.1402(1); sidewalks. MCL Because MSA 3.996(102)(1) grant gov- is an to a broad immunity, strictly ernmental the Court must construe the conditions and restrictions the statute. Scheur- supra. man,

Accordingly, I would find that the entity jurisdiction that has over the road also has adjacent exclusive over the sidewalk. 3.996(102)(1) Thus, under MCL can be held liable sustained on a sidewalk road, not for occurring those on sidewalks state roads.

n general gov- The statute sets out a rule, each agency having any high- ernmental way high- must both maintain and be liable for the way. This rule is then modified for the state and the only obligated counties; to maintain and be portions improved portion liable for those of the of highway designed the for vehicular traffic—a lesser supra. See Scheurman, burden. recognize plaintiffs’ arguments

I that the statute being governmental agency results in there no that is required either to maintain or be liable for sidewalks adjacent to roads. However, state is a this policy Legislature, decision made with which this Court cannot interfere. appreciate analysis

I the extensive and historical Michigan of review Constitutions, statutes, and by plaintiffs attempt law common advanced in an to townships historically show that have had public sidewalks within their boundaries. How- Canton Dissenting Opinion Weaver, of determin- purposes not ever, this is relevant waiver Legislature’s gov- application of the ing the plain. it has its intent immunity when made ernmental clear, is there exception statute Because of the stat- beyond no the four comers go need to liability for sidewalks. ute and examine the historical are not to this statute sidewalks purposes For the individually, part but as be considered to a road. when be treated assert should Plaintiffs respect as with to sidewalks the same cities jurisdiction of under the another highways roads or Ypsilanti, Jones v citing governmental unit, Jones, a city In was App 574; (1970). 691.1401; MSA to be under MCL found liable a state road. running along 3.996(101) city’s liability, case, question In I Therefore, is not at issue. opposed township’s, to overrule Jones. I would How- do not address whether ever, no for cities be held liable for I see reason sustained sidewalks or state roads.

CONCLUSION relinquish jurisdiction I and remand the would trial courts to either enter three cases summary disposition, appropriate orders reinstate opinion. I would affirm with this accordance Appeals in Listanski of the Court of decision in Williams Appeals decision reverse the Court of and Moceri. 452 Mich 678 Dissenting Opinion by Riley,

Riley, J. (dissenting).

i I with disagree majority’s the conclusion that jurisdiction defendants had sufficient over the side- support plaintiffs’ walks to cause action. The majority concludes: analyzing issue, agree special panel After we with Twp Williams App 60; [Williams Mich II] [210 Redford adopted (1995)], 533 NW2d 10 which holding and rea soning of Williams v Mich [Williams 7] [207 Bedford

App 801; (1994)], and held that public have over sidewalks located support roads within the sufficient to against highway cause action under the repair. for failure to maintain them in reasonable [Ante 681-682.]

I dissent.

The highway exception immunity, MCL 691.1402(1); provides MSA 3.996(102)(1), in rel- part: evant governmental agency having jurisdiction any

Each highway repair shall maintain the in reasonable reasonably so that it is and convenient safe Any person bodily travel. sustaining injury damage or to his property any governmental or her reason of failure of any agency keep under its in reason- repair, reasonably able and in condition safe and fit for may travel, damages recover the suffered him or her governmental agency. from . . . the state and the road commissions to and maintain highways, liability therefor, and the shall extend improved portion highway designed vehicu- sidewalks, crosswalks, lar travel and shall not include v Canton by Dissenting Opinion Riley, J. improved portion any other installation outside of [Emphasis highway designed for vehicular travel. added.] imposes Specifically, this statute within maintaining highways agencies obviously gov- A is “juiisdiction[s].” their can a highway. and be agency, ernmental pro- fact, 3.996(101)(e) MSA 691.1401(e); In MCL highway. for the term vides definition every highway, road, “Highway” public and street means bridges, open and shall include which is travel any sidewalks, crosswalks, highway. The and culverts on utility alleys, trees, term does not include poles. [Emphasis added.] had becomes whether defendants

Thus, question Unfortunately, the sidewalks. “jurisdiction” over “jurisdiction” is within the statute. term not defined defined, plain when a term is not its Generally, Co v Consumers Power ordinary applied. meaning & 76; Lansing Light, Bd Water App 73, 200 Mich can be found (1993). meaning Such Plymouth-Canton Nalepa dictionary. consulting Dist, School App 580, 586; 525 Community 207 Mich Random NW2d 897 An (1994). examination English Language: House Second Dictionary Edition “jurisdiction” is Unabridged reveals defined as: justice power, authority right,

1. the or to administer authority; power; hearing determining 2. controversies. control .... jurisdiction defined

Furthermore, this Court has Oil Hwy Comm’r v State power act.” “the Gulf 452 Mich Dissenting Opinion by Riley, Corp, (1966). 309, 140 NW2d All 312; “jurisdiction” conclusion, these definitions lead to one some connotes form of control. question then becomes whether defendants

had sufficient control over these sidewalks to estab- requisite “jurisdiction.” lish the Part of the answer to query by looking language can be found at the 41.288a(3); 9.585(4)(3). contained MCL construction, repair, If board determines that the necessary, may construct, maintenance of sidewalks is it repair, or maintain the sidewalks and assess the costs to 5-year property involved, payable period, per- the over a or property mit the owners of the involved to have the side- constructed, repaired, walks according or maintained specifications expenses. at their own Sidewalks constructed, repaired, or maintained under this section on right-of-way highways county the state or roads must of approval county highway authority have the the state or of having jurisdiction highway [Emphasis over the or road. added.]

Right way of is then defined in MCL 13A.82101(1) portion as “that of a or roadway any street the less and Here, shoulder.” up against sidewalks butted roads and way. right Consequently, were contained within the of any repair, construction, or maintenance the side- performed by anyone walks defendants would approved county. support have to be “In of this allegation, defendant submitted the affidavit of Tom engineer Township.” Casari, the for Canton Listanski Twp, App v Canton 356, 358; 523 NW2d 229 (1994). Casari stated: Township may construct, Canton not or maintain

any geographical sidewalk within its boundaries without v Canton Opinion Dissenting Riley, J. permit Wayne County obtaining of from the Office first Services, road, the Michi- along if or from Public highway. Department Transportation, if a state gan authority in the is this blanket of vested It county, townships, and that the not the demonstrates over the sidewalks. has control I look to conclusion, this support In order case, Livingston Markillie v Appeals recent Court Comm’rs, App Mich 16; Co Rd Markillie, In an accident automobile (1995). (a county at the Road occurred intersection Latson plaintiff sub- highway).1 and M-59 state road) (a complaint against county, filed a claim- sequently design, construction, inspection, ing negligence maintenance The Court of intersection. it did found for the defendant because not Appeals any arriving control this In have intersection. Appeals conclusion, the Court of examined the immunity “jurisdiction” connoted some noted term control. form of light definitions, trial

In we that the above believe properly “jurisdiction” equated This court with “control.” Legislature’s purpose in definition is consistent with the immunity. enacting the to keep public Legislature’s goal highways “reason- was to ably travel.” MCL safe convenient objective will 691.1402(1); 3.996(102)(1). be MSA That the limiting for a served defective entity authority construct, maintain, and with the “jurisdiction” in MCL it. We therefore the word hold 1 seventeen-year-old traveling August 16, 1990, girl north was on On a stop sign with M-59 and Road when she at its intersection Latson ran impact girl was killed. was so severe the her car was struck. The 452 Mich

Dissenting Opinion by Riley, synonymous 3.996(102)(1) “con- with trol.” [Id. 21-22.] county, possess type not however, did of Department go

control because it had to to the of Transportation approval pave Latson Road. Specifically, permit the had to defendant obtain begin before it could the construction. perform

In order to on construction the intersection paving Road, the course of Latson defendant had to obtain permit plans from the Defendant submitted its work MDOT. MDOt’s approval. (after involving for the In accident Markillie), Carrie Anne rebuilt the intersection MDOT seeking permission M-59 and Latson Road without any entity. . Accordingly, other . . the trial court did not err summary in granting disposition. defendant’s motion for [Id. at 22.] present presented.

In the case, a similar situation is Like Markillie, the defendant in defendants in the required approval instant higher authority were matter to seek the of a beginning before construction or any on modification of the sidewalks in the involved injuries. Consequently, possess likewise did not requisite level of control the sidewalks to jurisdiction.2 establish their argue Plaintiffs, however, that this Court should Appeals instead to an look older Court case. In Ypsilanti, App Jones v 574; (1970), plaintiff injured tripped was when she allegedly adjoined an defective sidewalk that Michi- may maintaining sidewalks, The county have the burden but paved in Markillie the intersection and still did have con not Merely fixing performing trol. the sidewalk or the work does not necessa rily demonstrate control. Canton Dissenting Opinion Riley, City highway,

gan in the Avenue, a state trunkline Appeals Ypsilanti. found that the defend- The Court of responsible maintenance of for the ant was indeed and, result, as a was liable to the the sidewalk plaintiff. 22, 1966, City Ypsilanti was on November Defendant question responsible for the maintenance of the sidewalk plaintiff negligent to maintain and liable to for the failure sidewalk. [Id. 581.] presented that case are similar to those

The facts of However, case. I believe that the Court in the instant Merely wrong hav- came to the conclusion. Jones ing not necessa- to maintain a sidewalk does “jurisdiction.” rily requisite As a establish the level I would overrule Jones. result,

n majority wrong find- reaches the conclusion ing that defendants had sufficient my opinion, In can- these sidewalks. simply defendants did not not be established because requisite level of control. Without such con- have the jurisdiction. Thus, did not have trol, the defendants excep- cannot be held liable under the immunity. tion to to the trial courts for I would remand these cases summary reinstating proper entering orders disposition.

Case Details

Case Name: Listanski v. Canton Township

Court Name: Michigan Supreme Court

Date Published: Jul 30, 1996

Citation: 551 N.W.2d 98

Docket Number: Docket Nos. 100808, 104006 and 104007, Calendar Nos. 3-4

Court Abbreviation: Mich.