*1 1969] 365
MULLINS WAYNE COUNTY Opinion of the Court Highways Repair—Construction—Statute. 1. — duty keep The view there is road reasonable quo repair duty maintain the status not a to con- —but —to keep reasonably struct or the road so that it and safe public convenient for travel has not the rule been since en- defining respeet actment of the statute duties of counties with (MOLA 224.21). to roads § Highways Duty—Road Authority. Building 2. — authority beyond of a goes preservation quo, status design it affirmative has the and keep construct road and and con- venient for travel. [18] [19] [23] [24] [26, [2] [21,22,25] [4] [5] [6] [1] [7] [3, T3] [8] [9] 15] 10] 12] 14, 16] 17] 11] 397, 398. 345, 346. 41 50 Am Am 20] 523, 38 Am 39 39 Am Jur 39 Am Jur 39 41 Am 50 Am 38 Am 39 Am Jur 39 Am Jur 39 Am Jur 39 Am Jur 50 Am 39 Am Jur 50 Am Am Jur Am Am Jur 39 Am Am50 524, Jur, Negligence Jur Jur, Jur, Am Jur 39 Am Jur, Negligence Jur, Pleading Jur, Jur, Jur, 527, 528. References Jur 2d, Highways, 2d, 2d, 2d, Jur, Pleading Statutes 2d, 2d, Highways, 2d, Highways, 2d, Statutes Statutes 2d, Highways, Statutes 2d, Highways, Highways, Highways, Highways, 2d, Highways, 2d, Highways, Highways, Jur Highways, Statutes 2d, Highways, § §§ §§ § §§ 442. §§ 350. 403. 340-343. 534, § 340-343. Streets and Streets and Streets Streets 27. 344, Streets and Streets Streets and 350. Streets and Points Streets and Streets Streets 542. Streets and 351. and Streets Bridges Bridges Bridges Bridges Bridges Bridges Bridges Headnotes Bridges Bridges Bridges Bridgеs Bridges §§ § §§ §§ §§ §§ §§ 402. §§ §§ 398, 401, 202, §8 72-74. Bridges §§341, §§ 405, 398, 397-407. §§ 397, 398, 342, 345, 486, 488-490, 402, 345. 491. 406. 404. 494. 491. 407. Ápp Í6 Highways Jury—Negligence—Barriers. — may negligence for failure jury A find the road railings or barriers needed reason- provide *2 public ably travel. safe and convenient for
4. Statutes —Construction—Re-enactment. Supremo a Early continuing the Court of constructions responsibility building for and maintenance imposing statute regarded legislatively ap- as highways entitled to be of are light subsequent of which have proved in re-enactments the (MCLA 224- change language sought applicable the not to
.21). Authority Warning Highways Devices. — 5. —Road duty reasonably part keep of to As its construct and a road public authority travel safe convenient a road is points required provide special danger such at to devices of necessary may margins to warn the driver where the of prevent roadway leaving his the end or vehicle from the road. Summary Judgment Negligence — — — Judgment 6. Question Fact. Summary judgment for dеfendant in road commission alleged negligence plaintiff the in ease where commission’s failing signs warning a visible barricade and a to erect that error; was about to terminate was no court can decide road negligence causal whether sufficient evidence of introduced jury question pleaded a on the issue whether to make negligence of such barriers and is until the absence plaintiff heard. evidence of the Highways Deviation—Negligence—Question Fact. 7. — Every surface of a road is not sufficient in direction or deviation responsible negligence evidence plaintiff go jury. a entitle commission to Negligence Evidence—Sufficiency—Question Law. 8. — negligence particular case of causal in a the evidence Whether go law jury is a plaintiff still entitles the eourt. Negligence. Highways Abruptly-Ending Road — 9. — justified concluding in оf fact would be A reasonable trier warning con- abruptly has been ends without a road which kept reasonably in a safe manner. structed Wa.ynb Highways Dangers—Darkness. 10. — Dangers surrounding night the traveler the darkness of are conditions that should be taken into consideration keep repair authorities whose is to construct and roadway. Highways — Signs— (cid:127)— —
11. Construction Barriers Question Pact. permitted The trier of fact should be to decide whether failure sign coming erect or barrier that a road is flagrant an is a end defect in construction. Highways Signals —Traffic —Statute. signal statute, The uniform traffic control which authorizes erec- sign- tion of traffic-control devices discretion of a erecting authority, thereby does not relieve to construct and the road (CLS 257.610). and convenient for travel Repeals—Implication.
13. Statutes — principle repeals by impliсation of statutes are not is well favored established. *3 Highways Signals 14. —Statutes—Traffic —Pari Materia. signal The uniform traffic control statute and the statute imposes upon road authorities roads under jurisdiction in repair their conven- pari publie 1961, (CLS ient for travel are not materia §§ 224.2, 257.610).
Dissenting Opinion C.
Lesinski, J., Quinn, J. Highways Negligence—Pailure 15. — to Warn of Terminus. having jurisdiction highway The over a cannot be charged negligence by failing with virtue to warn the of highway. the terminus of of Highways. 16. Statutes —Construction—Common Law — liability providing improper The statute maintenance for of derogation county roads is in the common law can- of enlarged (CLS 1961, §224.21). not be construction Highways Repair Warning Duty. 17. —Road Statute — Devices — requires heep repair statute which The coimties in reasonable county county all roads no on the creates of county anything and the board road commissioners tо do of anil devices (CLS §224.21). about Ápp Negligence Duty.
18. — duty. Negligence requires breach of Highways 19. Controls —Statute. —Traffic dealing system with a The statute of uniform traffic-control given says dis- than authorities are more local devices no ' high- place devices on and maintain cretion to traffic-control jurisdiction carry ways to indicate and to out under provision local ordinances or to code or the vehicle traffic devices, used, regulate, guide warn, or and that sueh if traffic specifications provided to the state manual and shall conform 257.610). (CLS §§257.608, statute Highways—Road Repair Control Statute —Traffic Statutf.s — 20.. Materia. Device Statute —Pari improper providing maintenance The statute dealing de- county with roads the statute traffic-control do statutes pari read in because the vices cannot be materia they thing common nor do have a not relate same 257.610). (CLS 1961, §§224.21, purpose
Dissenting Opinion Holbrook, Immunity — — Highways Legislature (cid:127)— Coun- 21. Governmental ties. granted gov- legislature, by statute, abrogation limited improper immunity county as to ernmental suits county (CLS 1961, §224.21). maintenance roads Immunity Highways County —Com- 22. — Roads —Governmental mon Law. abrogation governmental legislative granting act limited immunity improper roads has maintenance of narrowing generally changed by im- law been decisional (CLS 1961, munity §224.21). cities and counties Complaint. Judgment Sufficiency Pleading Summary — — Summary judgment road commis- in favor of defendant *4 negligence plaintiff’s complaint proper, was where sion for allege maintaining it because road was deficient failed county knowledge have knowl- or notice or should has refused, dangerous edge it condition which or notice aof injury injuries neglected correct, failed, or and that or by proximately plaintiff caused were caused fact breach county’s duty. County Wayne Highways by -Statutes—Incorporation Reference. 24. — signs devices providing The statute traffic-control for improper liability providing main- part statute for by incorporated it counly nor is it roads tenance of 257.610). (CLS 1961, §§224.21, or otherwise reference Highways -Duty—Liability. Controls — 25. —Traffic statute, upon liability to another based Absent reference liability legislature on the to create with failure of signs place county its traffic-control failure for signs highways providing in the act its devices on (CLS 1961, imposed devices, can be no traffic-control §257.610). Highways Duty. Controls —
26. —Traffic mandatorily devices does not providing Statute for traffic-control county place require commission traffic-control jurisdiction (CLS 1961, higlmays 257- under its on or devices .610\a\). Negligence. Highways Controls — 27. —Traffic place proper county maintain a road commission Failure of possible may deprive sign or device traffic-control negligence such does not but in an action failure defense negligence. grant plaintiff action a cause of Benjamin Wayne, Appeal Burdick, D. from (Docket May at Detroit. 13,1968, en banc Submitted Behearing 1,411.) 24, March Decided No. April granted awarded, a 1969. No costs
costs
appeal
question.
denied October
Leave to
Complaint Mullins, administra- Hassie Bay Dutton, deceased, of Clifford of the estate trix Wayne County, the Board and Lois and Clarence Sell Commissioners, Boad wrongful her decedent when death of Sell,M. for the driving end went off the which he an automobile of a defendants owned road onto lands Summary judgment in of defendants favor Sell. appealed Plaintiff commissioners. and road *5 16 App appealed Appeals. Plaintiff Affirmed.
to
to
Court
by
equally
Supreme
divided
Affirmed
an
Court.
equal
by
division of
court; order of affirmance
sponte
Supreme
cause
and the
vacated sua
Court
rehearing
Appeals for
remanded to the Court
Reversed and remand-
Ripple, Steiner, L. & DeWitt Chambers counsel), plaintiff. Joselyn, Cary, de- Martin, Bohall & BeGole, commissioners. fendant road BEFORE: Entire Bench. was decedent Plaintiff’s T. G. J.* Kavanagh, driving collided he was with when the car
killed barrier of Mortenview road at terminus county. Wayne at Mortenview road terminated There intersected Brest road. where it dead end advising sign other device no road. of Mortenview the termination complaint plaintiff’s asserted that the de- had commissioners board of fendant duty road in maintain Mortenview travel. fit and safe condition had a to main- of that defendants It Sell asserted adjoined property, terminus tain their as not to consti- a manner road, Mortenview such lawfully using persons trap Mor- hazard to tute a complaint the defend- asserted road. The tenview duty by erecting im- an breached ants Sell signed to sit on the the work 6, [*] Thomas 4, and CLS assigned Giles Kavanash, has been Court of 600.225, as amended. completed” pursuant Appeals from Justice of the February 27, Supreme Const Court, 1963, art “until as- op Opinion the Couet property they did. It on their barrier movable fail- its board breached defendant asserted ing of Mortenview terminus to warn although have known it knew or should road of the by trap erected created the barrier or hazard *6 by duty its failure it breached Sell, defendants complaint further asserted it. The warn negligence the was the cause of defendants the injuries plaintiff suffered.1 of the complaint: following paragraphs are from the The day April, 1964, plaintiff of on the 27th “4. That or about [’s] deeedent, Ray Dutton, operating his 1958 Clifford convertible, southerly no. HS 8636 a licеnse Oldsmobile near its with on Mortenview road intersection direction Taylor, eounty Wayne, township of of Brest road the Michigan. being time of road at that a State street, Mortenview thoroughfare highway or maintained and controlled Wayne eounty road commissioners which the board of maintain in a had a and said board publie travel. condition fit township road and Brest road in the of “5. That Mortenview Taylor, Wayne, eounty Michigan of both State dead at their intersection. end or terminate are the Clarence Sell and Lois M. Sell the “6. That defendants adjoins property road on owners of the south as well as the Brest the southerly termination of Mortenview road. at with Brest road its intersection have That the Clarenee Sell Lois M. Sell “7. defendants immediately adjoining property to so maintain their southerly of Mortenview road Brest road at the in sueh terminus hazard, trap fashion as not to constitute a or operating persons lawfully vehicles nuisance motor on Brest Mortenview or road. day 1964, plain- April, 3:10 a.m. the 27th “8. That about lawfully operating while his automobile on tiff’s decedent road as aforesaid was unable to ascertain that Mortenview road a dead end intersection said came to at its Mortenview road, a result the carelessness and with Brest stop negligence turn failed to of the defendants come to -or at end of Mortenview and as a the south result thereof, placed a barrier the his car collided with de- property on their at the terminus of Morten- fendants Sells view grave caused and severe in- road which said collision resulting juries on the 27th plaintiff death, in his deeedent [’s] day April, negligence of the board of road com- “9. The following: missioners consist post warning “(a) or Failure suitable other devices along Mortenview road north of its at termination its with road. intersection Brest Míen App Opinion op the Court county road commission- defendant board of summary judgment the trial court moved
ers granted it. carefully considering now we are matter
After trial erred even as we erred court convinced Wayne County prior in Mullins v. our decision App 4 Mich I. prior decision of our would limit Court applicable authority’s obligation under preservation quo. More
statute3 the status “(b) provide a Failure to visible barricade termination, despite at deviee the faet fendants Clarence Sell and were of Mortenview road it knew should have known that de- and a M. Sell Lois had erected maintaining dangerous, immovable, bar- at the ricade termination of which was Mortenview clearly light visible to motorists under all conditions of wholly and which was unmarked. negligence “10. That defendants Clarence Sell and creating maintaining Lois M. Sell condition on consisted *7 property their immediately south of termi- the which, by nation of Mortenview road reason of its character an trap constituted invisible to almost who motorists might not be aware that Mortenview road was terminated property at said defendants’ line which said hazard was by great any calculated said defendants to do harm to might by motorists who emergency be confronted an situ- by ation reason of the termination of Mortenview road.” 2 by evenly Our former decision was affirmed an Supreme divided Court 380 151. The order of affirmance was subse by Supreme quently remanded 1, 1968, vacated the April Court on and the case rehearing by for en Court, together banc this with Kuchta (Court v. St. Clair Board Docket Road Commissioners Appeals 2,646). No. See Subscribers, Mich, Notices to 380 Part applicable The 1909, statute to 283, 4, this ease is PA No eh (MCLA 9.121]), Ann 1958 Rev in § § [Stat rele § part, continuously vant (Kowalczyk Bailey since enactment [1967], 568, 571), 379 Mich has read as follows: hereby duty is “It made the of the keep in counties to reasonable repair, travel, they so that shall be safe and public convenient for roads, eounty bridges all and eulverts that are within their jurisdiction and under their and care control open and whieh are to public provisions travel. The respecting of law liability the of town- cities, ships, villages corporations damages and injuries re- sulting from in performance a failure the duty respecting of the same roads under control, apply their shall adopting to counties such system,” road 373' Wayne--County op Opinion the Court' been),built specifically, goes aif road lias and into* obligеd repair disrepair, is it. the the obstructed,' obstruction be If must it becomes regard places If it there. without who removed sign an'd falls it must be down, a replaced. been erected has opinion, says that is where''the
But, that authority’s duty ends. prior opinion keep italicized'the words “to in The repair” quotation of the the relevant reasonable (see applicable portion footnote 3 for of the statute ' “emphasis statute). supplied” That em- text opin- phasizes the theoretical basis for the Court’s keep repair duty i.e., is a in reasonable ion, there quo duty maintain the status not —to —but “reasonably keep so it is the road that construct public convenient for travel”. Michigan was, once the law in indeed, Such view the the rule since enactment but has been legislation here and the con- under consideration Sq-r legislation Miсhigan struction of that quoted “provisions of sentence law” referred to the second The already which the substance was a then enacted statute on above modeled, comparison of can seen first sentence was as with be legisla- quoted previously enacted first sentence : above tion hereby townships, villages,’ cities or cor- made the “It reason-, so, they porations ably repair, shall reasonable streets, travel, highways, public all safe and convenient ju-.' sidewalks, within their bridges, and culverts that are cross-walks tp- control, open risdietion, public care and which are under ** 1897, 3443). (CL 1887, 264, PA No travel § language 1885, PA No copied relevant in turn verbatim the This 214, 4.§ .. July 1, applicable language 19(?4, of PA No effective language verbiage new in force since 1885. 965, parallels stating “the of the State 1964 law in the highways, and the maintain commissions repair road therefor, portion highway' only shall extend improved sidewalks, and shall not include cross- designed- travel for vehicular *8 improved portion of, any outside of the installation walks other. duty, designed travel,” highway vehicular not lessen the 'for does the “improved portion highway authority keep of the the to of the repair, in in designed for vehicular travel” “reasonable condition for travel.” safe fit 16 Mich 365 App Opinion op the Coukt preme Joslyn City (1889), in Court Detroit Malloy Township 458,4 Walker 695). (6 Joslyn, 77 Mich LRA In the Court only held that is liable not “for injuries occurring through neglect keep to the streets repair, by but also such as occur of the reason condition, city neglect reasonably of the to streets its Joslyn and fit for In travel”. an permitted obstruction was in the to continue midst warning lights. language of the road without In guide which should clared us in this case, the Cоurt de 461): (p requires everything [the statute] “It to done city necessary upon travel make its streets reasonably sary doing safe. If in so it becomes neces- place signals safeguards given or other at
points, give proper warning, duty other it is the city of the that it see is done or that the street imposed travel; is closed and that express language injury statute,' aris- ing neglect from the of such to the citizen will responsible municipality party make the jured.” in- Malloy carefully In history the Court reviewed the prior including decisions, those that effect negligence plan in the of construction, as distin- guished negligence from in the execution plan, ivas not actionable. It held that such earlier that case. in first word “good repair” and struck the not aware of the 3885 aet. words. read as did the 1885 and date Joslyn adopted (September 19, 1885) No “reasonably” aсcident Joslyn in 1885) as in the 1879 words 4. The in J regarded Court referred to the 1887 act but before “safe and oslyn “at all Joslyn later acts supportive act occurred 'the It is clear from the Court’s observations times” the 1885 language Court construed the 1879 aet which “reasonable except appearing of the conclusion it reached in convenient April, aet, of the 1887 act which act 1886 after repair”, the 1885 act after apparently and added the replaced the effective last-quoted (actually changed travel” PA *9 375 v. Opinion the of Court the enactment superseded by ease law had' been the and before language the then Court statutory now before us. Malloy in negligence
The .specific allegation authority road building the shows that' that quo, of the status beyond preservation goes design the affirmative to does indeed have it “reasonably safe keep the road and it construct and convenient for travel”. public Malloy in was that
The claim of specific negligence in not construct- was authority negligent the road an embankment. alongside barriers ing railings concluded that it was Supreme Court Michigan a decide or barriers railings whether jury for to. of the case then
were in the circumstances required Court, that even if the sur- Thus, at bar. ruled and con- engineered the road perfectly face of the road in a reason- structed, design the failure railings erection of manner, ably including .safe be an act of barriers, negligence: could cannot a “This statute construction given up- a or other township municipality, would relieve in keep burden is cast its highways travel, for from repair reasonably safe a method had of construc- by saying adopted A plаn. and had munic- tion, built.,according unsafe dangerous cannot construct ipality public travel, not and convenient road, —one behind its legislative power —and itself shield building and method of and construct- adopt plan therewith. con- negligence accordance ing in the of the work or the manner sists, plan failure to done, provide but suit- which it was after accident the embank- able protection made. The statute imperative ment had been safe, make a road whether it is in reasonably, and fit for travel must be safety that condition under circum- proper jury, App Mich Opinion Court ” supra, p Township Malloy Walker, stances. jury may holding that the
For additional cases
negligence
find
provide railings
for failure
the road
or barriers needed
see
travel,
safe and convenient
Township
Evergreen (1887),
Sharp
*10
Township
(1895), 104 Mich
Ross v.
Ionia
443;
of
City
(1904), 136
320, 324; Hannon v.
Gladstone
of
(1913),
Township Clam Lake
621;
Lamb v.
of
Carpenter
Township
Mich 77; and
v.
Bloom
ing
(1924),
dale
.óf night.” off oh a dark driving And the risk of off the dead-end a.m., this case of Mullins at 3:10 the hour alleged greater than it accident, had been was.no if A overflown with water. short time Harris before Township supra, Clinton, v. decided was the Court - .observed: highways
“I have no doubt that the defects in
by
covered
struction,
repair,
the act of
extend
defects in con
’
through
as well
as clefects
omission
neglect
keep
public highways
and to
See
footnote 3.
Waynk
v.
op
Opinion
the Court
by
reasonably
fit for travel
and
safe
condition
kept,
night;
day
it con-
unless
is so
highway,
if in-
which,
a defect in the
stitutes
jury
&
v. Detroit
will lie.” Carver
an action
results,
(1886),
590.
The Court McEvoy opinions Joslyn that in observed pre- of the dissenters never have “the views two in this vailed Court.” principle emerges is that that as its
The the road safe to construct public the road travel and convenient Arp op Opinion the Court points provide required at such devices is necessary especial danger may warn the be ’to roadway margins end or driver where of the prevent leaving the his vehicle from road. alleged county’s negligence plaintiff
Here the failing warn- to erect a visible barricade ing to terminate. Until that the road was about plaintiff no court can heard, is the evidence decide whether sufficient negli-
evidence
causal
gence
jury
introduced to make
.the
pleaded
whether the
issue
absence
n , nn
signs negligence.
such barriers
opinion
completely
statutory
prior
ignores
kept reasonably
requirement that the road be
According
that
travel.
and convenient
any
opinion
make
difference whether the
it doesn’t
river,
or
leads over a cliff
into
Detroit
road
railings
barriers,
or whether
whether there are
manifestly
against.
dangerous
are warned
conditions
accept
argument
made
the defendant that
position
“every
plaintiff’s
de
ance of
would mean
the surface of a
must
the direction or
viation
negli
subjected
a trier of fact for
test
be
every
contrary
gence”
law, assumes,
to the
be submitted to the
absurd,
however
must
claim,
every
jury.
deviation
direction
course,
Of
jury.
go
the suitor
will not entitle
surface
railings
where it was claimed
In
cases
several
Supreme
required,
Court ruled
were
or barriers
evidentiary showing
plaintiff’s
was inad
that the
permitted
jury
equate
would
and that a
negligence
their absence.
from
infer
Canfield
Township
384;
Mich Plains
Gun
(1928);
Township
Mich the the Court earlier cases ground practically that “in all of them the ac- cident resulted from a claimed in defect the traveled portion highway, proper of the or incident to some language entirely use shoulder.” That was appropriate in Goodrich where the tree perfectly which the collision occurred “was a visible object point and a to the that at that pertinent only the shoulder was available for uses to the width of feet”. 2-1/2 Township in Court, Goodrich Canfield supra, Township Plains, Gun and Vose v. Rich supra, simply
land, declined to let the negligence go jury the defendant’s on the presented. facts case there In contrast, it is manifest that a reasonable trier of fact would justified concluding in road, such as the abruptly road in this case, ends without warn ing, kept has not been constructed Compare Alpena City manner. Sebert v. stump 78 Mich where was claimed a standing part” “so near the traveled of the street dangerous night time. The Court held that: applies
“The statute defects in construction as neglect repair well as to when the road is unsafe; * * * dangers surrounding the traveler night darkness are conditions that should be taken into consideration authorities whose *13 App 365 16 Mich 380 Opinion op the Court repair Iceepin the road- duty is to construct supplied.) (Emphasis way.” jury whether for the awas and that it negligent. city had been “flagrant applies defects to the statute That neglect in as as well construction,
method of (1895), City repair”, Port Huron see Schrader per- should be The trier of fact 106 Mich sign failure erect whеther the mitted to decide coming an that the road barrier flagrant in construction. defect end was every-devia- prior opinion hypothesizes the At case. tion-in-direction-or-surface-of-the-road highway spectrum there is the of the end other edge river’s terminating a cliff or at the at the warning. edge In a case could such without due duty say no because there was heard that we be empty the unfortunate air in which or water the traveler the traveled part of demise was not to his
descended portion highway? of the
II. signal adopted Michigan the uniform traffic When [Stat (MCLA Ann 1960Rev control statute 9.2310])',' of traffic- which authorizes the erection sign-erecting in the discretion devices control authority, thereby the road author- not relieve it did ago imposed years ity duty 75 over to con- keep reasonably the road and con- struct v. Watson travel. State See venient 175). (436 App (1968), P2d Ariz 81 City аrgument Detroit in O’Hare v. there before the that the case Court 19, 23, strong missing particularly because the one awas does, stop sign erected had once been constitute holding need never be erected Opinion by J., Dissenting C. -Lesinski, Quinn, keep instance first the road reasonably safe. principle repeals by
It well-established prior opinion implication are not favored. The acknowledges signal that the uniform traffic control imposes upon and the statute which statute road authorities the jurisdiction roads under their repair safe and con- *14 public pari not in venient for travel are materia. permitted The road should no more be signal to use the uniform traffic a control statute as statutory liability its shield to for construction authority Malloy of an unsafe road than the road unsuccessfully sought which to “shield itself behind power adоpt legislative plan its building and method of constructing in accordance therewith.” Township Malloy supra, p Walker, of foregoing judgment all For reasons the trial court is reversed and the cause remanded appellant. for trial. Costs to R. B. H. J. and Levin, Burns, Fitzgerald, Gtllis, with
JJ., concurred
T. Gr. Kavanagh,
J.
(dissenting).
J.C.
and Quinn,
Plain-
J.
Lesinski,
complaint against
county
tiff
Wayne,
filed a
of
Wayne county
board
road commissioners, Clar-
complaint,
ence Sell and Lois M. Sell. The
sought
liability
wrongful
to establish
under the
(Stat
act,
death
CLS
Ann 1962 Rev
§ 27A.2922), alleged
plaintiff’s
decedent, at
April
traveling
3:10 a.m.
27, 1964,
on
was
in a
southerly
Taylor
direction on Mortenview road in
township;
said
Mortenview road was a term-
highway,
inating
county
and that defendants
Wayne
board
road commissioners failed
any
post
suitable
warn-
devices
App 365
16 Mich
J.,
Dissenting Opinion
C.
Lesinski,
Quinn,
terminating highway.
ing
that said road was a
complaint
as a result of defend-
further stated that
existing
danger
on
to warn of this
ants’ failure
plaintiff’s
driving on
was
road,
decedent,
who
stop
turn at the
road,
said Mortenview
failed to
with a
terminus of said road and collided
placed by
harrier
M.
and Lois
Sell
defendants Clarence
property
road,
at
end Mortenview
death.
that this collision resulted
his
county Wayne
Wayne
Defendants,
and board of
commissioners,
filed motion for sum-
they
post
mary judgment, asserting
had no
warning signs
or devices at the terminus Morten-
granted, and
heard,
road. The motion was
view
summary judgment
granting
an
of no cause
order
county of
of action as to defendants
Wayne county
commissioners
board of
appeals.
entered. Plaintiff
The issue before the Court is whether the author-
jurisdiction
highway
ity having
over the
charged
negligence by
failing
with
can be
to warn the
virtue
highway.
the terminus of the
sought
to be enforced
defend-
*15
purely stаtutory;
derogation
the statute is in
ants is
of
struction.
enlarged by
law
cannot
the common
and
con-
County
Kalamazoo
Goodrich
Plaintiff offers the provisions county to warn of road’s terminus (Stat 9.121) § § 224.21 Ann 1958 Rev of CLS provide part: in which hereby duty “It made the of the counties to repair, they
keep in reasonable so that shall be rea- public sonably travel, and convenient for all bridges county and roads, culverts that are within contro] jurisdiction and under their care and their open provisions are travel. The and J., Dissenting Opinion C. and Lesinski, Quinn, townships, respecting law cities, damages villages corporations injuries and resulting same performance from failure respecting roads under their shall control, apply adopting sys- such to counties (Emphasis supplied.) tem.” supra, interpreted by Goodrich, As this statute part no on the signs to do creates the defendants Negli- anything warning about devices. gence requires duty. breach supra, conjunction
In 1961, 224.21, with CLS plaintiff (Stat cites CLS Ann 1960 9.2310) statutory authority establishing §Rev as duty plaintiff contends with defendants have respect devices. latter part: statute reads “Local authorities commissions respective jurisdictions place
their shall and main- upon highways tain such traffic-control devices under jurisdiction they may necessary to in- deem carry provisions chapter dicate and or local out of this regulate, warn, traffic ordinances or to guide All traffic. such traffic-control here- devices after erected shall conform to the manual State (Emphasis specifications.” supplied.)
This statute is of the vehicle whose code title-expressed purpose regard pro- in this is “to regulation high- vide for the and use of streets and ways.” quoted portion The sеction is found in a system dealing the code with a uniform of traffic- says devices, control and it no more than local given place authorities are discretion to and main- highways tain traffic-control devices on under their jurisdiction carry pro- indicate out the visions of the code or local traffic ordinances or to regulate, guide they warn, or traffic. If so, do spec- devices shall conform to the State manual and *16 App 16 Mich Dissenting Opinion J.,O. Lesinski, Quinn, provided (Stat § 1961, ifieations CLS 257.608 Aim 9.2308). § 1960 Rev (Stat 9.121) § 1961,
CLS
224.21
Ann 1958 Rev
(Stat
CLS
Ann
1960 Rev
§ 9.2310)
pari
cannot be read in
materia to create
duty plaintiff
asserts defendants
in this
bear
action because the statutes do not relate to the same
thing
they
purpose. City
nor do
have a common
of
Michigan
Telephone Company (1965),
Detroit v.
Bell
None
cases relied
theory
liability
of
asserted in this action.
City
(1960),
O’Hare v.
Detroit
in
of
highway authority
volved the failure of the
to re
place previously
stop sign; Joslyn
City
erected
Detroit
It well be that current traffic conditions and driving habits dictate that defendants should have plaintiff here but asserts, that is for *17 Wayne 385 Dissenting Opinion J. by Holbkook, say. legislature not for It is this Court to by enlarging the statute establish such construction.
Summary judgment proper was under existing law. without affirm, involved. costs, but vote to We being with C. J. concurred J., Lesinski, McGregor, J. Quinn, (dissenting). After careful review J. Holbrook, applicable the instant of opinions my law case necessary judges, I find it brother separate matter further deal with the this to opinion. repeated in Mullins v. are as stated The facts App County (1966), Mich 361: complaint against “Plaintiff filed Wayne county Wayne, commissioners, board of road complaint, The Sell. and Lois M. Clarence Sell. wrong- sought which ful death to establish under (Stat Ann 1961, 600.2922 act, CLS 27A.2922), plaintiff’s alleged dеcedent, Rev that traveling April in a 27, 1964, on 3:10 a.m. at Taylor southerly Mortenview road in direction on township; road was a term- said Mortenview highway, inating and that defendant Wayne county failed commissioners board any post or devices warn- suitable highway. terminating ing road was a that said complaint a result of defend- stated that as further danger existing on the warn of this failure to ant’s road, Mortenview driving plaintiff’s said who was decedent, stop or turn at the term-
road, failed
placed
and collided with a
of said
barrier
inus
by
Clarence and Lois M. Sell on their
defendants
property
road,
at
end of Mortenview
death,
collision resulted
his
this
App
16 Dissenting
Opinion by IIolbkook,
county Wayne
“Defendants,
and board of
Wayne county road commissioners, filed a motion
summary judgment, asserting they
for
to
bad no
post warning signs
or devices at the terminus of
granted,
road.
Mortenview
The mоtion was heard,
granting summary judgment
and an order
of no
county Wayne
cause of action
toas
defendants
Wayne county
and board of
road commissioners was
appeals.”
entered. Plaintiff
legislature
early
in its wisdom, as
as 1893,1
*18
granted
abrogation
governmental
limited
immun-
ity
county
improper
as to suits
for
main-
county
tenance of
roads. The act has been amended
many
present
§
In
times.
its
form,
1961,
CLS
224.21
(Stat
9.121) provides
§
Ann 1958 Rev
for the lia-
procedure
bility,
remedy
county
as to
roads
jurisdiction
county
under the
of a
road commission.
pertinent part
It reads in
as follows:
hereby
“It is
made the
of the counties to
keep
repair,
they
in reasonable
so that
shall be rea-
sonably
county
public
safe and covenient for
all
travel,
bridges
roads,
and culverts that are within
jurisdiction
their
and under their care and control
open
provisions
and which are
tо
travel. The
respecting
liability
of law
townships,
the
cities,
villages
corporations
damages
injuries
for
for
resulting
performance
from a failure in the
of the
duty respecting
same
roads under
control,
shall
apply
adopting
county
to counties
sys-
such
tem.”
legislative
granting
abrogation
This
act
limited
governmental immunity
changed by
has not been
rulings
Supreme
Myers
the
of onr
Court in
v. Gen-
County
(1965),
esee
Auditor
Í969] Opinion by Holbrook, Dissenting upon based the failure a cause of action restricted comply the with road commission present with the This decision is consonant statute. immunity governmental in this State.2 law as properly complaint, in state order Plaintiff’s negligence against defend- of action cause grounded must be CLS ant 1961, § complaint § (Stat should Rev Ann 9.121). (1) highway allegations was not contain reasonably sаfe and fit in a condition maintained herein reason of to that determined law is identical Present July 1, 1965, 170, whieh was enacted for the effective No PA liability municipal corporations, making “uniform purpose of subdivisions, State, agencies departments, and the its political function, injuries property governmental engaged in a when liability; by negligence; limit such persons to define and caused liability engaged in a limit of the State when to define provides in relevant as function.” It follows: proprietary governmental agencies provided, all “Except in this act otherwise as liability gov- gov- in all eases wherein said immune from tort shall be discharge agency engaged in exereise and of a ernmental Except herein, provided as otherwise this act ernmental function. shall the restricting immunity modifying not be construed heretofore, immunity tort as it existed State from (Stat 170, 7; hereby PA No MCLA 691.1407 affirmed.” is Ann 1968 § Supp 3.996[107]). Gum agency having jurisdiction any highway governmental over “Each repair highway in reasonable so that it is rea- shall maintain publie Any person sonably travel. sustain- safe and convenient damage injury property ing bodily to his reason of failure of any highway jurisdiction agency under its any governmental *19 repair, and in condition safe and fit for in reasonable damages by govern- travel, may mental him from recover the suffered such county liability, procedure remedy ageney. The and as to jurisdiction county of a road commission shall under the be roads 21, chapter 4 of No 283 of provided section Act the Public Acts as of 1948, (Stat amended, being 224.21 Ann 1958 1909, CL Rev as § county 9.121). of the State and the road commissions The § highways, liability therefor, shall repair and maintain the highway designed only improved portion of the for extend sidewalks, any or аnd shall not include crosswalks vehicular travel improved portion highway of the of the outside other installation brought against designed travel. No action shall for vehicular injury except for or loss suffered on or after this section State under Any judgment on a July 1, the State based claim high- arising from or omissions of the State under this section aets only ap- way payable from department shall be restricted funds highway department provided by funds propriated its the State or (Stat 1964, 170, 2; 691.1402 PA No MCLA Ann insurer.” § § Supp 3.996[102]). 1968 Cum § Apr 365 Mien LMar Dissenting Holbrook, by Opinion or notice knowledge has comity travel, (2) of the dan- or notice knowledge had have
or should failed, or refused, neglected which it condition gerous were to plaintiff injuries or injury correct, (3) county’s caused fact proximately caused sus- (4) plaintiff duty, breach alleged tained damages. summary judgment trial granting court’s plaintiff’s in that рroper of defendant was favor it failed to allege because was deficient
complaint above. elements outlined the second and third bases her cause complaint, her Plaintiff, by claimed violation defendant CLS action on a Ann 9.2310 (Stat 1960 Rev (a) § 257.610 subd § as follows: which reads [a]) subd county “Local authorities commissions shall main- jurisdictions place in their respective under upon highways tain such traffic-control devices deem jurisdiction they may necessary provisions indicate and to out this carry chapter regulate, or local ordinances or traffic All de- warn, guide such traffic-control traffic. vices hereafter erected shall conform to the state manual and specifications.” (Emphasis supplied.) statute and traffic- foregoing providing signs is not a part control devices of CLS 224.21 1961, § Ann 1958 Rev (Stat 9.121) providing liability § nor is it therein incorporated by reference or other- wise. Absent based liability upon reference, with failure of the to create legislature liability for its failure to place signs or traffic-control devices on its in the act highways itself, no can be imposed. CLS (Stat 257.610 subd Ann (a) 1960 Rev does not subd[a]) mandatorily require road commission to place traffic-control or de- *20 Dissenting Opinion by Holbrook, highways jurisdiction. Although under its vices oil may county be advisable for a road commission it to
“place and maintain such traffic-control devices jurisdiction highways they may upon under their carry pro- necessary and to out the to indicate deem chapter local ordinances or this or visions traffic regulate, guide warn, or its efforts traffic” occurring on of traffic accidents reduce the number its effectively highways and to defend lawsuits claiming the duties im- failure on its to meet (Stat upon posed virtue of CLS required. 9.121) Ann not such action is 1958 Rev supplied.) (Emphasis may
Arguendo, herein have the defendant faulty possible for the claimed avoided maintenance of Mortenview road, construction by simply determining terminating highway, a sign erecting a traffic-control de- for and need e.g., stop sign, that all a at the intersection so vice, using Mortenview road would have been vehicles stop turning required onto the intersect- before stop sign placed ing highway. been Had such point terminating of Mortenview at the maintained possibility of a lawsuit the defend- road, negligible. would have been herein ant county road commission The failure proper sign place traffic-control and maintain possible deprive may defense defendant of device plaintiff grant a cause does but such failure the laiv. under action summary judgment of dismissal in favor of costs, affirmed. should be No defendant being involved.