NAWROCKI v MACOMB COUNTY ROAD COMMISSION; EVENS v SHIAWASSEE COUNTY ROAD COMMISSIONERS
Docket Nos. 107903, 109921
Supreme Court of Michigan
July 28, 2000
463 Mich. 143
Argued December 7, 1999 (Calendar Nos. 8-9)
EVENS v SHIAWASSEE COUNTY ROAD COMMISSIONERS
Docket Nos. 107903, 109921. Argued December 7, 1999 (Calendar Nos. 8-9). Decided July 28, 2000.
Rachel Nawrocki and Lawrence Nawrocki brought an action in the Macomb Circuit Court against the Macomb County Road Commission for injuries suffered by Rachel Nawrocki as a pedestrian allegedly as a result of the commission‘s failure to maintain a road within its jurisdiction in reasonable repair and in a condition safe and convenient for public travel. The court, Lido V. Bucci, J., granted summary disposition for the commission on the ground that pedestrians are covered by the highway exception to governmental immunity only when their injuries result from vehicular accidents. The Court of Appeals, SMOLENSKI and R. R. LAMB, JJ. (WHITE, P.J., concurring), affirmed in an unpublished opinion per curiam (Docket No. 181350). The plaintiffs appeal.
Brian Evens brought an action in the Shiawassee Circuit Court against the Shiawassee County Road Commission for injuries suffered allegedly as a result of the commission‘s failure to maintain an intersection within its jurisdiction in reasonable repair and in a condition safe and convenient for public travel. Specifically, he maintained that the commission owed him a duty to install additional stop signs or traffic signals at the intersection. The court, Gerald D. Lostracco, J., granted summary disposition for the commission, holding that it could not be liable for a failure to install traffic signs, and specifically rejected the commission‘s intervening negligence claim. After the Supreme Court released Pick v Szymczak, 451 Mich 607 (1996), which held that governmental agencies had a duty to provide traffic control devices or warning signs at points of special hazard, the Court of Appeals, JANSEN, P.J., and SAAD and M. D. SCHWARTZ, JJ., reversed the judgment of the circuit court in part in an unpublished opinion per curiam, relying on Pick, and remanded the case to the circuit court with instructions to determine whether the intersection at issue was a point of special hazard. It affirmed the denial of the commission‘s motion on the intervening negligence issue (Docket No. 186253).
In an opinion by Justice MARKMAN, joined by Chief Justice WEAVER, and Justices TAYLOR, CORRIGAN, and YOUNG, the Supreme Court held:
A pedestrian is entitled to the protections of the highway exception to governmental immunity, the same as all other persons, when injuries are proximately caused by the defendant‘s failure to repair and maintain the improved portion of the highway designed for vehicular travel so that it is reasonably safe and convenient for public travel. The state or county road commissions have no duty, under the highway exception to governmental immunity, to install, maintain, repair, or improve traffic control devices, including traffic signs. Rather, the state and county road commissions’ duty, the breach of which invokes the highway exception, is limited exclusively to dangerous or defective conditions within the actual roadway, paved or unpaved, designed for vehicular travel.
1. Governmental immunity from tort liability, as provided by
2. The first sentence of the highway exception clause describes the basic duty imposed on all governmental agencies, including the state, having jurisdiction over any highway: to maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. This sentence establishes the duty to keep the highway in reasonable repair. The second sentence describes those persons who may generally recover damages when injured by a breach of the duty created by the first sentence. The third sentence specifically addresses the duty and resulting liability of county road commissions. The fourth sentence, specifically applicable to the state and county road commissions, narrowly limits the general duty to repair and maintain, created by the first sentence, only to the improved portion of the highway designed for vehicular travel. The fourth sentence expressly provides that the limited duty
3. The statutory language of the highway exception imposes a duty on the state and county road commissions to protect pedestrians from dangerous or defective conditions in the improved portion of the highway designed for vehicular travel, even when injury does not arise as a result of a vehicular accident. Pedestrian plaintiffs may plead in avoidance of governmental immunity, with regard to the state or a county road commission, in claims for personal injuries and property damage, the same as all other persons, when the injury or damage is proximately caused by a failure of the state or county road commission to carry out its duty to repair and maintain the narrowly defined location prescribed by the fourth sentence of the statutory clause, the improved portion of the highway designed for vehicular travel, not otherwise excluded.
4. While the first sentence of the statutory clause establishes a general duty to repair and maintain highways so that they are reasonably safe and convenient for public travel, this duty, with regard to the state and county road commissions, is significantly limited, extending only to the improved portion of the highway designed for vehicular travel. The highway exception does not contemplate conditions arising from points of hazard, areas of special danger, or integral parts of the highway, outside the actual roadbed, paved or unpaved, designed for vehicular travel.
5. In Nawrocki, the circuit court erred in granting summary disposition for the MCRC. By alleging that she was injured by a dangerous or defective condition of the improved portion of the highway designed for vehicular travel, and not a sidewalk, crosswalk, or any other installation outside the improved portion of the highway designed for vehicular travel, the plaintiff pleaded in avoidance of governmental immunity, requiring reversal of the judgment of the Court of Appeals and remand to the circuit court for further proceedings. In Evens, because the plaintiff simply argues that the SCRC failed to install additional traffic signs or signals that might conceivably have made the intersection safer, and the highway exception to governmental immunity imposes no such duty on state or county road commissions, reversal of the decision of the
Nawrocki reversed and remanded.
Evens reversed.
Justice KELLY, joined by Justice CAVANAGH, concurring in part and dissenting in part, stated that in Evens, the majority has improperly interpreted the words “improved portion of the highway designed for vehicular travel” to include only the surface of the road. Had the Legislature so intended, it could have and, presumably, would have said “surface of the road.” Further, its analysis of the phrase distorts the governmental immunity act by shifting to municipalities liability for defective traffic control devices, despite the Legislature‘s delegation of the duty to maintain these devices to county road commissions and to the state.
Standing alone, the phrase “improved portion of the highway designed for vehicular travel” does not specify that the improved portion of the highway designed for vehicular travel includes only the surface of the highway. Because it does not, the phrase might include traffic control devices. Beyond dispute, they constitute an improvement, inasmuch as they are placed on or above the highway by a government agency to improve vehicular travel. Vehicles do not travel solely on the two-dimensional length and width of the roadway, but in three dimensional space, and for obvious reasons, it is impossible to place traffic control devices on the roadbed that the vehicles touch while traveling.
The highway exception of the governmental immunity act places a general duty on each governmental agency having jurisdiction over a highway to maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. Liability not only extends to highways in a state of disrepair, but to those in a condition not reasonably safe and fit for travel. The second sentence of
Keeping a highway in a condition reasonably safe for public travel includes maintaining traffic control devices in working order. Under
Berger, Miller & Strager, P.C. (by Allen S. Miller), for the plaintiffs-appellants in Nawrocki.
Miller, Shpiece & Andrews, P.C. (by Wayne J. Miller, Michael R. Shpiece, and Daniel J. Cherrin), for the plaintiff-appellee in Evens.
Peterson, Hay & Comsa, P.C. (by John M. Ketzler and William L. Hay), for the defendant-appellee in Nawrocki.
Highland & Zanetti, P.C. (by R. Michael John), for the defendant-appellant in Evens.
Amicus Curiae:
MARKMAN, J.
I. INTRODUCTION
In these consolidated cases, we granted leave to once again consider the scope of the so-called “highway exception” to governmental immunity.
In Ross v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984), this Court confronted and resolved conflicting case law defining the scope of governmental immunity. The Ross Court explained its goals in tackling the issue, and its approach, stating:
In resolving the questions presented by this [governmental immunity] act, our goal has been to create a cohesive, uniform, and workable set of rules which will readily define the injured party‘s rights and the governmental agency‘s lia-
bility. We recognize that our case law on these questions is confused, often irreconcilable, and of little guidance to the bench and bar. We have made great efforts to reexamine our prior collective and individual views on this subject in order to formulate an approach which is faithful to the statutory language and legislative intent. Wherever possible and necessary, we have reaffirmed our prior decisions. The consensus which our efforts produce today should not be viewed as this Court‘s individual or collective determinations of what would be most fair or just or the best public policy. The consensus does reflect, however, what we believe the Legislature intended the law to be in this area. [Id. at 596.]
Ross, constituting a significant change in governmental immunity jurisprudence,2 held that the immunity conferred on governmental agencies is broad, with narrowly drawn exceptions. Id. at 618. The failure to consistently follow Ross, specifically with regard to the interpretation and application of the highway exception, has precipitated an exhausting line of confusing and contradictory decisions. These decisions have created a rule of law that is virtually impenetrable, even to the most experienced judges and legal practitioners.3 Further, these conflicting
Accordingly, we return to a narrow construction of the highway exception predicated upon a close examination of the statute‘s plain language, rather than merely attempting to add still another layer of judicial gloss to those interpretations of the statute previously issued by this Court and the Court of Appeals. We believe that such an approach will maintain fidelity to the requirements set forth by the Legislature, while providing the lower courts with a clearer standard to follow when applying the highway exception in individual cases. However, we refuse to impose upon the people of this state our individual determinations of
clearer standard that properly applies the statutory language. That order provided as follows:
The parties are directed to submit supplemental briefs addressing the following questions: (1) In order for a defect to be within the highway exception to governmental immunity, must the defect pose a hazard to vehicular travel? (2) Did the defect alleged in this case represent a hazard to vehicular travel? (3) Is a vehicular accident required for the highway exception to governmental immunity to apply? (4) Does a vehicle striking a pedestrian constitute a vehicular accident? (5) Should this Court reconsider and adopt the position expressed in the concurring and dissenting opinion of Justice WEAVER in this case, and the dissenting opinion of Justice RILEY in Pick v Szymczak, 451 Mich 607, 632-656 [548 NW2d 603] (1996), that the highway exception to governmental immunity does not extend to design defects, i.e., defects not within the surface of the improved portion of the highway. [Brown, supra at 1228.]
Brown was dismissed by stipulation of the parties, before this Court could resolve these questions.
Because prior decisions of this Court have improperly broadened the scope of the highway exception and provided a variety of contradictory and conflicting interpretations of this exception‘s statutory language, we believe it is impossible to avoid overruling some precedent, if we are to set forth a clear rule of law. While we emphasize that we do not lightly overrule existing precedent, we are duty-bound to overrule past decisions that depart from a narrow construction and application of the highway exception and the plain language of the statutory clause, especially when they directly disregard, and are inconsistent with, other decisions of this Court.
In Nawrocki v Macomb Co Rd Comm, we believe that the circuit court erred in granting summary disposition in favor of the governmental defendant. We hold that the highway exception applies when a plaintiff‘s injury is proximately caused by a dangerous or defective condition of the improved portion of the highway designed for vehicular travel. We therefore reverse the decision of the Court of Appeals, which affirmed the circuit court, and remand to the circuit court for further proceedings consistent with this opinion. In Evens v Shiawassee Co Rd Comm‘rs, we hold that the state or county road commissions’ duty, under the highway exception, does not extend to the installation, maintenance, repair, or improvement of traffic control devices, including traffic signs, but
II. FACTUAL BACKGROUND
A. NAWROCKI V MACOMB CO RD COMM
On May 28, 1993, plaintiff Rachel Nawrocki was a passenger in a truck driven by her husband. He parked the truck next to the curb on Kelly Road, in Macomb County,5 and Nawrocki exited from the passenger side onto the grass between the street curb and the sidewalk. She walked the length of the truck and stepped off the curb onto the paved roadway. Nawrocki allegedly stepped on cracked and broken pavement on the surface of Kelly Road and sustained serious injuries to her right ankle, necessitating several operations.
Nawrocki sued defendant Macomb County Road Commission,6 arguing that it negligently failed to maintain Kelly Road in reasonable repair and in a condition safe and convenient for public travel. The MCRC moved for summary disposition under MCR
Nawrocki appealed as of right to the Court of Appeals, which affirmed,7 in reliance on its previous opinion in Suttles v Dep‘t of Transportation, 216 Mich App 166; 548 NW2d 671 (1996), a case subsequently remanded by this Court for further factual findings, Suttles v Dep‘t of Transportation, 457 Mich 635; 578 NW2d 295 (1998). We granted Nawrocki‘s application for leave to appeal.8
B. EVENS V SHIAWASSEE CO RD COMM‘RS
On May 18, 1992, plaintiff Brian Evens sustained serious injuries in an automobile accident at the intersection of Newburg Road and Byron Road in
Evens was driving northbound on Byron Road at the time of his accident. After stopping at the stop signs, Evens entered the intersection, where he collided with a westbound car traveling on Newburg Road, which had the right of way.10 Evens sued defendant Shiawassee County Road Commissioners, arguing that they negligently failed to maintain the intersection in reasonable repair and in a condition safe and convenient for public travel. Specifically, Evens argued that the SCRC owed him a duty to install additional stop signs or traffic signals at the intersection.11
The SCRC moved for summary disposition under MCR 2.116(C)(8) and (10), on two separate grounds. First, the SCRC argued that county road commissions could not be held liable for a failure to install traffic signs on the theory that signs are outside the improved portion of the highway designed for vehicular travel and are not covered by the highway exception. Second, the SCRC argued that Evens’ intervening
One year after the circuit court‘s grant of summary disposition, this Court released its opinion in Pick v Szymczak, 451 Mich 607; 548 NW2d 603 (1996), which held that governmental agencies had a duty to provide traffic control devices or warning signs at points of special hazard. The Court of Appeals then reversed the circuit court in part,12 relying on this Court‘s holding in Pick, and remanded the case with instructions to determine whether the intersection at issue was a point of special hazard. The Court of Appeals affirmed the trial court‘s denial of the SCRC‘s motion on the intervening negligence issue. We granted defendant SCRC leave to appeal.13
III. STATUTORY LANGUAGE
Governmental immunity is the public policy, derived from the traditional doctrine of sovereign
“Government cannot merely be liable as private persons are for public entities are fundamentally different from private persons. Private persons do not make laws. Private persons do not issue and revoke licenses to engage in various professions and occupations. Private persons do not quarantine sick persons and do not commit mentally disturbed persons to involuntary confinement. Private persons do not prosecute and incarcerate violators of the law or administer prison systems. Only public entities are required to build and maintain thousands of miles of streets, sidewalks and highways. Unlike many private persons, a public entity cannot often reduce its risk of potential liability by refusing to engage in a particular activity, for government must continue to govern and is required to furnish services
that cannot be adequately provided by any other agency. Moreover, in our system of government, decision-making has been allocated among three branches of government—legislative, executive and judicial—and in many cases decisions made by the legislative and executive branches should not be subject to review in tort suits for damages, for this would take the ultimate decision-making authority away from those who are responsible politically for making the decisions.” [Ross, supra at 618-619.]
Because immunity necessarily implies that a “wrong” has occurred, we are cognizant that some tort claims, against a governmental agency, will inevitably go unremedied. Although governmental agencies may be under many duties, with regard to services they provide to the public, only those enumerated within the statutorily created exceptions are legally compensable if breached.
These consolidated cases involve the highway exception,
Each governmental agency having jurisdiction over any highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. Any person sustaining bodily injury or damage to his or her property by reason of failure of any governmental agency to keep any highway under its jurisdiction in reasonable repair, and in condition reasonably safe and fit for travel, may recover the damages suffered by him or her from the governmental agency. The liability, procedure and remedy
as to county roads under the jurisdiction of a county road commission shall be as provided in section 21 of chapter IV of Act No. 283 of the Public Acts of 1909, as amended, being section 224.21 of the Michigan Compiled Laws. The duty of the state and the county road commissions to repair and maintain highways, and the liability therefor, shall extend only to the improved portion of the highway designed for vehicular travel and shall not include sidewalks, crosswalks, or any other installation outside of the improved portion of the highway designed for vehicular travel.
There is one basic principle that must guide our decision today: the immunity conferred upon governmental agencies is broad, and the statutory exceptions thereto are to be narrowly construed. Robinson v Detroit, 462 Mich 439, 455; 613 NW2d 307 (2000); Suttles, 457 Mich 641; Horace v City of Pontiac, 456 Mich 744, 749; 575 NW2d 762 (1998); Wade v Dep‘t of Corrections, 439 Mich 158, 166; 483 NW2d 26 (1992); Reardon v Dep‘t of Mental Health, 430 Mich 398, 411; 424 NW2d 248 (1988); Ross, supra at 618.16
The highway exception waives the absolute immunity of governmental units with regard to defective highways under their jurisdiction. However, when the Legislature codified governmental immunity in 1964, it specifically reduced the purview of the highway exception in
Moreover, when reviewing questions of statutory construction, our purpose is to discern and give effect to the Legislature‘s intent. Murphy v Michigan Bell Telephone Co, 447 Mich 93, 98; 523 NW2d 310 (1994). We begin by examining the plain language of the statute. It is a fundamental principle of statutory construction that the words used by the Legislature shall be given their common and ordinary meaning, and only where the statutory language is ambiguous may we look outside the statute to ascertain the Legislature‘s intent. Turner v Auto Club Ins Ass‘n, 448 Mich 22, 27; 528 NW2d 681 (1995).
The structure of
The second sentence describes those persons who may generally recover damages when injured by a breach of the duty created by the first sentence: “[a]ny person sustaining bodily injury or damage to his or her property by reason of failure of any governmental agency to keep any highway under its jurisdiction in reasonable repair, and in condition reasonably safe and fit for travel . . . .”18
It is hereby made the duty of the counties to keep in reasonable repair, so that they shall be reasonably safe and convenient for public travel, all county roads, bridges and culverts that are within their jurisdiction and under their care and control and which are open to public travel. [Emphasis added.]19
The fourth sentence of the statutory clause, specifically applicable to the state and county road commissions, proceeds to narrowly limit the general duty to repair and maintain, created by the first sentence, “only to the improved portion of the highway designed for vehicular travel.” Further, this sentence expressly provides that the limited duty does not extend to “sidewalks, crosswalks, or any other installation outside of the improved portion of the highway designed for vehicular travel.” We believe the plain
repair and maintain the highway. If the dissent‘s assertion were logically acceptable, these sentences would be mere surplusage, because, as asserted by the dissent, the general “duties” relating to highways, and the resulting liability for breach thereof, are created in the second sentence. See In re MCI Telecommunications, 460 Mich 396, 414; 596 NW2d 164 (1999) (a court should avoid a construction of a statute that would render any part of it surplusage or nugatory).
A. PEDESTRIANS
The facts of Nawrocki v Macomb Co Rd Comm require us to apply these principles to determine whether the statutory language of the highway exception imposes a duty on the state and county road commissions to protect pedestrians from dangerous or defective conditions in the improved portion of the highway designed for vehicular travel, even when injury does not arise as a result of a vehicular accident. We conclude that it does.20
The MCRC argues that, as a general rule, pedestrians are excluded from the protection of the highway exception. It contends that, even if pedestrians are not excluded as a general rule, they may benefit from the highway exception only when the improved portion of the highway is not reasonably safe for vehicular travel, as opposed to pedestrian travel.
We believe, however, that pedestrians may recover damages from the state or county road commission for personal injuries and property damage, the same as all other persons, when such injury or damage is
proximately caused by a failure of the state or county road commission to carry out its duty to repair and maintain the narrowly defined location prescribed by the fourth sentence of the statutory clause: the “improved portion of the highway designed for vehicular travel.”
There are four recent opinions of this Court that discuss whether, or to what extent, the highway exception extends to pedestrians: Roy v Dep‘t of Transportation, 428 Mich 330; 408 NW2d 783 (1987), Gregg, Mason, and Suttles, supra. This Court‘s decisions in these cases have interpreted the statutory language in conflicting and confusing ways.
First, Roy involved a plaintiff riding a bicycle on a bicycle path parallel to, but separate from, the roadway actually used by vehicular traffic. The plaintiff suffered injuries when his bicycle struck a bump on the asphalt path. This Court concluded that the plaintiff was not protected by the highway exception because the bicycle path at issue was an “installation.” The Roy Court concluded, on the basis of its review of the statutory language, that the Legislature chose not to impose a duty of maintenance or repair on governmental agencies on behalf of pedestrians or bicyclists traveling outside the improved portion of the highway. This legislative intent was demonstrated by the exclusionary language contained in the fourth sentence of the statute, which indicates that pedestrians traveling in such locations are adequately protected by their separation from vehicular traffic. Id. at 336. With regard to pedestrians traveling on the improved portion of the highway designed for vehicular travel, this Court explained that the location of the alleged defect was the critical factor in determining
Indeed, the statute does not offer general protection to pedestrians or motorists without regard to location. . . . The criterion used by the Legislature was not based on the class of travelers, but the road on which they travel. [Id. at 341 (emphasis added).]
The next case in which this Court discussed the application of the highway exception to pedestrians, Gregg, involved a plaintiff riding a bicycle on a bicycle path immediately adjacent to the paved roadway, who suffered injuries when his bicycle struck a pothole.21 The Gregg Court again focused on whether the bicycle path at issue was an “installation,” but determined that it was not, because it was located on “the inner portion of the shoulder closest to the roadway.” Id. at 310. The defendant in Gregg argued that nonmotorists, as a class, are not protected by the highway exception. This Court rejected that argument in reliance on the “[a]ny person” language of the statute‘s second sentence, concluding that the plaintiff fell within the general class of travelers protected by the highway exception. Id. at 311.
The third case, Mason, involved a child struck by a car while crossing the street at the crosswalk. Once again focusing on the “installation” exclusion, this Court held that the statute excluded “specific installations whose only rational purposes narrowly service the unique needs of pedestrians,” id. at 136, and indi
The explicit removal of exclusively pedestrian installations from the highway exception, coupled with the express language of the provision itself, permits but one conclusion: Pedestrians who trek upon Michigan highways must and do venture beyond the protective mandates of
MCL 691.1402(1) ;MSA 3.996(102)(1) . . . . Pedestrians are situated differently than vehicular traffic, which may approach obstacles in the highway too quickly to avoid them, or may avoid obstacles only by jeopardizing traffic in the adjoining lanes. [Id. at 137-138.]
The fourth case, Suttles, involved a pedestrian who, like Nawrocki, sustained injuries when stepping out of a parked car.22 This Court did not decide whether the plaintiff was entitled to the protections of the highway exception, but remanded for a factual determination of the exact location where she fell. 457 Mich 651-652. However, the Suttles Court stated that “[a] review of
As a consequence, parties like Nawrocki will typically cite Roy or Gregg for the proposition that pedestrians may recover under the highway exception because the state or county road commissions’ duty is determined not by the identity of the injured person, but by the area on which the person traveled. Simultaneously, defendants like the MCRC will cite Mason for the proposition that pedestrians are simply not protected by the highway exception. These conflicting decisions must be resolved, in a manner that faithfully interprets and applies the statutory language drafted by the Legislature and adheres to the narrow construction of the highway exception as required by Ross.
Unquestionably, it is the language used by the Legislature in drafting this statutory clause that has created much of the continuing confusion regarding
While any number of interpretations of the highway exception might be—and have been—argued,25 ulti
Thus, we agree with Roy that the location of an alleged dangerous or defective condition, as narrowly defined in the fourth sentence of the statutory clause, is the critical factor in determining whether a plaintiff is successful in pleading in avoidance of governmental immunity under the highway exception. Moreover, given the Legislature‘s use of language in the statutory clause, we believe Gregg properly relied on the “[a]ny person” language of the statute‘s second sentence to hold that pedestrians are protected by the highway exception, and that the words “designed for vehicular travel” serve to define and describe the “improved portion of the highway“; in other words, the location where the state and county road commissions’ duty arises.
However, we are convinced that Mason erred in rejecting any reliance on the “[a]ny person” language,
While it is true that the second sentence of
The general description of the state‘s duty, with regard to the highway exception, is established by the first sentence of the statutory clause:
Each governmental agency having jurisdiction over any highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. [Emphasis added.]
The general description of a county road commission‘s duty, with regard to the highway exception, is referenced in the third sentence of the statutory clause, as set forth in
It is hereby made the duty of the counties to keep in reasonable repair, so that they shall be reasonably safe and convenient for public travel, all county roads, bridges and culverts that are within their jurisdiction and under their care and control and which are open to public travel. [Emphasis added.]
Thus, a county road commission‘s duty is coextensive with that owed by other governmental agencies, including the state, under the first two sentences of the highway exception clause. However, it is the fourth sentence of the highway exception that expressly limits the duty of the state and county road commissions, the breach of which permits avoidance of governmental immunity,
Constrained to apply the statutory language as best as possible as written, we are persuaded that the exclusionary language of the fourth sentence of the statutory clause narrows the duty of both the state and county road commissions with regard to the location of the dangerous or defective condition, not to the type of travel or traveler. The phrase “designed for vehicular travel” modifies the prior phrase “improved portion of the highway” and thus defines the location to which the duty of the state and county road commissions extends. Thus, if the condition proximately causing injury or property damage is located in the improved portion of the highway designed for vehicular travel, not otherwise expressly excluded, the state or county road commissions’ statutory duty under the highway exception is implicated and a plaintiff is capable of pleading in avoidance of governmental immunity.27 Moreover, because the state and county road commissions must “repair and maintain” their respective highways and roads so that they are “reasonably safe and convenient for public
Applying these principles to Nawrocki, we conclude that the circuit court erred in granting summary disposition to the MCRC. By alleging that she was injured by a dangerous or defective condition of the improved portion of the highway designed for vehicular travel, and not a sidewalk, crosswalk, or “any other installation outside of the improved portion of the highway designed for vehicular travel,” Nawrocki pleaded in avoidance of governmental immunity. We therefore reverse the judgment of the Court of Appeals and remand to the circuit court for further proceedings consistent with this opinion.29
B. TRAFFIC SIGNS AND SIGNALS
The facts of Evens v Shiawassee Co Rd Comm‘rs require us to apply the statutory language of the high
Subsequent to Wechsler v Wayne Co Rd Comm, 215 Mich App 579; 546 NW2d 690 (1996), remanded 455 Mich 863 (1997), a case assuming, without deciding, that the highway exception to governmental immunity created some level of duty with regard to posting traffic signs, this Court expressly held that “a duty to provide adequate warning signs or traffic control devices at known points of hazard arises under the highway exception of the governmental tort liability act.
“What is not so clear is whether the improved portion of the highway includes improvements that serve as integral parts of the highway, such as signs and shoulders. [Citations omitted.] If there is an ‘integral parts of the highway’ exception under the broad concept of ‘traffic sign maintenance’ that includes erecting signs or warning devices at points of hazard, it appears to conflict with the very narrow definition of duty that excluded street lighting in Scheur
man. Because we can find no way to distinguish between street lighting and traffic signs, and because both have their physical structure outside the traveled or paved portion of the roadbed, we must conclude that the defendant is not subject to liability for the alleged lack of adequate traffic signs at the intersection of Roosevelt and Crapo Roads.” [Pick, supra at 613-614.]
Pick determined that the ruling of the circuit court, and the Court of Appeals affirmance of that ruling, were “erroneous as a matter of law.” Id. at 615. The majority believed that Scheurman “[did] not establish authoritative precedent for any such ‘very narrow definition of duty’ and that, in any event, the statutory language of the highway exception, read in its entirety, does not support such a narrow definition.” Id. at 616.
Amicus curiae Michigan Department of Transportation urges this Court to overrule Pick and hold that the statute imposes no duty on the state and county road commissions to install traffic signs, on the theory that signs are outside the improved portion of the highway designed for vehicular travel, which connotes merely the physical surface of the road. In light of the broad reading of the highway exception by this Court in Pick, and the plain language used by the Legislature in setting forth this exception, we feel compelled to accept the amicus’ invitation and overrule Pick.
We believe that a broad, rather than a narrow, reading of the highway exception is required in order to conclude that it is applicable to anything but the highway itself. See Horace, supra. In Pick, this Court stated that “a bright-line rule . . . that limits governmental responsibility for public roadways to factors
Further, although Pick determined that the “statutory language of the highway exception itself, read in its proper context, is fully adequate for resolution of the precise legal question before us in this case,” id. at 620, we are convinced that its holding cannot be supported by the plain language of the statutory clause. In attempting to place its interpretation of the statute in the “proper context,” Pick failed to simply apply the plain language of the highway exception and, instead, relied on judicially invented phrases nowhere found in the statutory clause, thus thrusting upon the state and county road commissions a duty not contemplated by the Legislature.30 Pick unaccept
Such an expansive interpretation of [the highway exception] goes far beyond that which section 2 provides. The statute provides that [the waiver of immunity under the highway exception] “shall extend only to the improved portion of the highway [designed for vehicular travel],” it does not contemplate “conditions, the source of which do not originate on the surface of the roadbed . . . .” [Scheurman, supra at 631, n 22.]31
While we agree with Pick that the first sentence of the statutory clause establishes a general duty to repair and maintain highways so that they are reasonably safe and convenient for public travel, this duty, with regard to the state and county road commissions, is significantly limited, extending “only to the improved portion of the highway designed for vehicular travel.”
Unless we construe the highway exception narrowly, as mandated by Ross, and in accordance with the language of the statutory clause, every accident and every injury, occurring on an otherwise unexceptional highway, containing no dangerous or defective conditions in the actual roadbed itself, will become the potential basis for a lawsuit against the state or county road commissions. This is an extraordinary proposition not contemplated, in our judgment, by the Legislature‘s narrowly drawn highway exception.33
- there should have been yield signs along a highway instead of no signs;
- there should have been stop signs along a highway instead of yield signs;
- there should have been a flashing yellow/red traffic light along a highway instead of stop signs;
- there should have been a fully functional red/yellow/green traffic signal along a highway instead of a flashing yellow/red light;
- there should have been an overpass above a highway, thus eliminating the need for traffic signals altogether;
- there should have been a 25 MPH sign, instead of a 30 MPH sign, nearing an approach to an intersection; or
- there should have been a left turn lane where none existed.34
Because we are persuaded that the state and county road commissions’ duty, imposed by the high
We are thus compelled to overrule Pick because it fails to narrowly construe the highway exception and contradicts the language of the statute, imposing upon state and county road commissions a duty under the highway exception to install, maintain, repair, or improve traffic control devices, including traffic signs. Yet, we wish to make clear that we do not lightly overrule existing precedent. In People v Graves, 458 Mich 476, 480-481; 581 NW2d 229 (1998), this Court recently discussed the proper circumstances under which it would overrule prior case law:
It is true of course that we do not lightly overrule a case. This Court has stated on many occasions that “[u]nder the doctrine of stare decisis, principles of law deliberately examined and decided by a court of competent jurisdiction should not be lightly departed.” Further, . . . “[b]efore this court overrules a decision deliberately made, it should be convinced not merely that the case was wrongly decided, but also that less injury will result from overruling than from following it.” When it becomes apparent that the reasoning of an opinion is erroneous, and that less mischief will result from overruling the case rather than following it, it becomes the duty of the court to correct it. Although we respect the principle of stare decisis, we also recognize the common wisdom that the rule of stare decisis is not an inexorable command. [Citations omitted.]
We are confident that our holding today is also reinforced by the fact that the duty implicating the installation, maintenance, repair, or improvement of traffic signs is expressly created under statutes separate from the highway exception. For example,
The state highway commission shall place or require to be placed and maintain or require to be maintained such traffic-control devices, conforming to said manual and specifications, upon all state highways as it shall deem necessary to indicate and to carry out the provisions of this chapter or to regulate, warn or guide traffic. [Emphasis added.]
Further,
Local authorities and county road commissions in their respective jurisdictions shall place and maintain such traffic control devices upon highways under their jurisdiction as they may deem necessary to indicate and to carry out the provisions of this chapter or local traffic ordinances or to regulate, warn or guide traffic. All such traffic control devices hereafter erected shall conform to the state manual and specifications. [Emphasis added.]
Subsections 609(a) and 610(a) describe the state and county road commissions’ “duty” regarding traffic control devices, obviously implicating traffic signs, in terms of what each agency “deems necessary.” This is the language of discretion, not the imposition of a
The state and county road commissions’ duty, under the highway exception, is only implicated upon their failure to repair or maintain the actual physical structure of the roadbed surface, paved or unpaved, designed for vehicular travel, which in turn proximately causes injury or damage. Scheurman, supra at 631. A plaintiff making a claim of inadequate signage, like a plaintiff making a claim of inadequate street lighting or vegetation obstruction, fails to plead in avoidance of governmental immunity because signs are not within the paved or unpaved portion of the roadbed designed for vehicular travel. Traffic device claims, such as inadequacy of traffic signs, simply do
Evens argues that the SCRC failed to install additional traffic signs or signals that might conceivably have made the intersection safer. Because the highway exception imposes no such duty on the state or county road commissions, we reverse the decision of the Court of Appeals and reinstate the trial court‘s grant of summary disposition to the SCRC.
IV. CONCLUSION
With regard to the state and county road commissions, we hold that a pedestrian is entitled to the protections of the highway exception, the same as all other persons, when injuries are proximately caused by the defendant‘s failure to repair and maintain the improved portion of the highway designed for vehicular travel so that it is reasonably safe and convenient for public travel.
Additionally, we hold that the state or county road commissions have no duty, under the highway exception, to install, maintain, repair, or improve traffic control devices, including traffic signs. Rather, the state and county road commissions’ duty, the breach of which invokes the highway exception, is limited exclusively to dangerous or defective conditions within the actual roadway, paved or unpaved, designed for vehicular travel.
WEAVER, C.J., and TAYLOR, CORRIGAN, and YOUNG, JJ., concurred with MARKMAN, J.
STATUTORY FRAMEWORK
The statutory highway exception imposes a duty on the state and county road commissions to repair and maintain “only . . . the improved portion of the highway designed for vehicular travel,” so that it is “reasonably safe and fit for travel.”
PEDESTRIANS
Under the “[a]ny person” language of
The plain language of the highway exception definitively limits the state and county road commissions’ duty with respect to the location of the alleged dangerous or defective condition; if the condition is not located in the actual roadbed designed for vehicular travel, the narrowly drawn highway exception is inapplicable and liability does not attach.
TRAFFIC SIGNS AND SIGNALS
The state and county road commissions’ duty, under the highway exception, is only implicated upon their failure to repair or maintain the actual physical structure of the roadbed surface, paved or unpaved, designed for vehicular travel, which in turn proximately causes injury or damage. This does not include signage.
The highway exception does not contemplate conditions arising from “point[s] of hazard,” “areas of special danger,” or “parts integral to the highway,” that are outside the actual roadbed, paved or unpaved, designed for vehicular travel.
In the Evens case, the majority again decides that a well-reasoned precedent of this Court must give way to its own interpretation of a Michigan statute.
I. NAWROCKI V MACOMB COUNTY ROAD COMMISSION
In Nawrocki v Macomb Co Rd Comm, the trial court relied on obiter dictum from Mason v Wayne Co Bd of Comm‘rs1 to conclude that the highway exception to governmental immunity does not protect pedestrians, unless their injuries result from vehicular accidents. In so holding, the trial court ignored this Court‘s ruling in Gregg v State Hwy Dep‘t, 435 Mich 307; 458 NW2d 619 (1990).
In Mason, the ten-year-old plaintiff entered a roadway near his school and, while in the intersection, was struck by a vehicle running a red light. Id. at 132-133. He sued the Wayne County Board of Commissioners to recover for his injuries on the theory that the board should have provided signs warning drivers that a school was nearby. Id. This Court found that the highway exception did not apply and that the plaintiff‘s suit was barred by governmental immunity. Id. at 138. The holding was based on a finding that “[t]he highway exception specifically excepts the state and counties from liability for defects in cross-
In a footnote in Mason, this Court stated:
It is true that “[a]ny person” may recover, but only for injuries that result from vehicular accidents. If a defect in the improved portion of the highway causes a traffic accident, any person injured as a result of that accident may recover, including injured passengers or pedestrians, if any, and the owner of the vehicle. [Id. at 135, n 4.]
The issue in Mason was whether the highway exception applies to a pedestrian injured in a crosswalk, not whether pedestrians in other locations can recover under the exception. Therefore, I regard footnote 4 as mere dictum.
In Gregg, however, the defendant argued that the highway exception did not apply to nonmotorists.2 Id. at 310-311. We rejected the argument because the highway exception expressly includes “any person sustaining bodily injury or damage to his property . . . .” Id. at 311. Thus, Gregg stands for the proposition that the highway exception allows injured pedestrians and the occupants of motor vehicles to recover. The injuries must have been caused by the failure of county road commissions or the state to maintain the improved portion of a highway designed for vehicular travel.
In this case, the trial court erred when it rejected the holding of Gregg in favor of dictum from Mason. I agree with the majority that the trial court should not
II. EVENS V SHIAWASSEE COUNTY ROAD COMMISSIONERS
However, I disagree with the conclusion in Evens that
A. THE WORDS “IMPROVED PORTION OF THE HIGHWAY DESIGNED FOR VEHICULAR TRAVEL” REFER TO MORE THAN JUST THE ROADBED
Had the Legislature intended to impose liability on county road commissions and the state for defects in the surface of roads, alone, it could have and would have said so. The plain meaning of the words “improved portion of the highway designed for vehicular travel” connotes a broader concept than just the surface of the road, itself.
The primary goal of statutory interpretation is to give effect to the controlling intent of the Legislature. Lorencz v Ford Motor Co, 439 Mich 370, 376-377; 483 NW2d 844 (1992). “When determining legislative intent, statutory language should be given a reasonable construction considering its purpose and the object sought to be accomplished.” Wills v Iron Co Bd of Canvassers, 183 Mich App 797, 801; 455 NW2d 405 (1990).
As the majority hints, this Court has long struggled with the outrageously imperfect language of the highway exception to governmental immunity. Ante, p 167. That long struggle, alone, supports the conclusion that the language of the highway exception is far from plain.3 However, the majority asserts that the language of the statute is “plain,” in the sense that it lacks ambiguity.
I differ with the majority‘s conclusory assertion that the statutory phrase “improved portion of the highway designed for vehicular travel” has a plain meaning wilfully disregarded by this Court in Pick v Szymczak, 451 Mich 607; 548 NW2d 603 (1996). Standing alone, the phrase does not specify that the improved portion of the highway designed for vehicular travel includes only the surface of the highway. For example, it leaves uncertain whether the space above the highway containing traffic lights is included.
Because it does not, the words “improved portion of the highway designed for vehicular travel” might include traffic control devices. Beyond dispute, they constitute an improvement, inasmuch as they are placed on or above the highway by a government agency to improve vehicular travel.
As we noted in Pick, vehicles do not travel “solely on the two-dimensional length and width of the roadway,” but in three dimensional space. Id. at 622-623.
Provisions of the Motor Vehicle Code support the conclusion that the Legislature envisioned traffic control devices as an integral part of the highway itself:
The state highway commission shall place or require to be placed and maintain or require to be maintained such traffic control devices, conforming to said manual and specifications, upon all state highways as it shall deem necessary to indicate and to carry out the provisions of this chapter or to regulate, warn or guide traffic. [
MCL 257.609(a) ;MSA 9.2309(a) (emphasis added).]
The county road commission has a similar duty:
Local authorities and county road commissions in their respective jurisdictions shall place and maintain such traffic control devices upon highways under their jurisdiction as they may deem necessary to indicate and to carry out the provisions of this chapter or to local traffic ordinances or to regulate, warn or guide traffic. All such traffic control devices hereafter erected shall conform to the state manual and specifications. [
MCL 257.610(a) ;MSA 9.2310(a) (emphasis added).]4
B. THE STATUTORY SCHEME OF THE GOVERNMENTAL IMMUNITY ACT
In Ross v Consumers Power Co (On Rehearing)5, we recognized that the governmental immunity act was intended to provide uniform liability and immunity to both state and local government agencies. The preamble to the act notes that it is
an act to make uniform the liability of municipal corporations, political subdivisions, and the state, its agencies and departments, officers, employees, and volunteers thereof, and members of certain boards, councils, and task forces when engaged in the exercise or discharge of a governmental function, for injuries to property and persons; to define and limit this liability . . . .
The highway exception is § 2 of the governmental immunity act,
The majority concludes that the Legislature did not intend to include traffic control devices within the purview of the highway exception. To reach that conclusion, it reads the first and second sentence of
The second sentence of
A person who sustains bodily injury or damage to his or her property by reason of failure of a governmental agency to keep a highway under its jurisdiction in reasonable repair and in a condition reasonably safe and fit for travel may recover the damages suffered by him or her from the governmental agency.
In this sentence, the Legislature expressly provides that persons who are injured because a government agency failed to keep a highway “in reasonable repair and in a condition reasonably safe and fit for travel” may recover damages from that agency. The majority quotes Justice RILEY‘s dissent in Pick, asserting that a duty to keep the highway in a condition reasonably safe for travel does not exist. However, the assertion is refuted by the second sentence of the highway exception, itself. It is illogical to conclude that the
It is a maxim of statutory construction that every word in a statute should be read to give the word meaning. Also, a court should avoid a construction that would render any part of a statute surplusage or nugatory. In re MCI Telecommunications, 460 Mich 396, 414; 596 NW2d 164 (1999); Altman v Meridian Twp, 439 Mich 623, 635; 487 NW2d 155 (1992). The majority violates these principles by reading the first sentence of the highway exception, but ignoring the second. It renders meaningless the Legislature‘s intent to allow damages to those injured when a government agency fails to keep a highway under its jurisdiction reasonably safe for public travel.
Keeping the highway in a condition reasonably safe for public travel includes maintaining traffic control devices in working order. The majority maintains that traffic control devices are not implicated in the definition of “highway” under the highway exception to the governmental immunity act. I disagree.
Under subsection 1(e) of the governmental immunity act,
“Highway” means a public highway, road, or street that is open for public travel and includes bridges, sidewalks, trailways, crosswalks, and culverts on the highway. The term highway does not include alleys, trees, and utility poles.
As the majority concedes, this definition of “highway” is broad. Ante, p 175, n 30. In defining it, the Legislature specifies what is excluded: alleys, trees, and utility poles. Notably, it did not exclude traffic control devices. The majority usurps the Legislature‘s
This broad definition of “highway” explains the presence of the fourth sentence of
The duty of the state and county road commissions to repair and maintain highways, and the liability for that duty, extends only to the improved portion of the highway designed for vehicular travel and does not include sidewalks, trailways, crosswalks, or any other installation outside of the improved portion of the highway designed for vehicular travel.
This sentence relieves county road commissions and the state from liability for installations outside the improved portions of the highway. But the Legislature did not completely bar recovery when an individual is injured because of a defect in “a portion of a county highway outside of the improved portion of the highway designed for vehicular travel, including a sidewalk, trailway, crosswalk or other installation.”
Instead, the act places liability for those accidents on municipal corporations.
Under the statutory scheme created by the governmental immunity act, state and county road commissions are liable for defects in the improved portion of the highway designed for vehicular travel.
Maintaining traffic control devices is a governmental function delegated to county road commissions and the state.
Defective traffic control devices make highways hazardous for vehicular traffic. It is therefore logical to conclude that the Legislature intended to include traffic control devices in the duty to maintain highways in a condition reasonably safe for public travel. However, the majority has decided that traffic control devices are located outside the improved portions of roads, shifting liability for defective control devices to municipal corporations.
C. PUBLIC POLICY CONSIDERATIONS
In support of its construction of
Contrary to the majority‘s predictions, the inclusion of traffic control devices would not make county road commissions and the state responsible for every instance of injury arising from automobile accidents. Instead, they would be liable only for injuries caused by their failure to maintain the improved highways in a condition reasonably safe for vehicular travel.
In terms of public policy, one could argue that the taxpayers desire the reasonable use of traffic control devices to make roads safer. One could also argue that they intend compensation for those injured when an agency fails to keep roads safe, as expressly provided in the second sentence of the highway exception.
III. CONCLUSION
Pick does not contradict the plain meaning of
In Ross, we provided that exceptions to the governmental immunity act should be construed narrowly; however, it does not follow that they should be construed in contravention of the stated intent of the Legislature.
It appears that the majority is straining in making the statutory interpretation in Evens. It has improp-
More problematic is the majority‘s analysis of the words “improved portion of the highway designed for vehicular travel.” It distorts the governmental immunity act by shifting to municipalities liability for defective traffic control devices. It does so despite the Legislature‘s delegation of the duty to maintain these devices to county road commissions and to the state.
Throughout this judicial term, I have been dismayed by the majority‘s disregard of precedent laid down by the Court in years past. See Robinson v Detroit, 462 Mich 439, 475-477; 613 NW2d 307 (2000) (KELLY, J., dissenting). This case is yet another example.
CAVANAGH, J., concurred with KELLY, J.
Notes
In the companion case to Suttles, Brown v Dep‘t of Transportation, 457 Mich 635; 578 NW2d 295 (1998), reh gtd (1998), app dis (1999), 459 Mich 1228, this Court‘s order granting rehearing also recognized the confusion in this area of law and demonstrated that this Court has been seeking a See People v Warren, 462 Mich 415; 615 NW2d 691 (2000). (“The Court‘s varied readings of the personal wrong exception to the spousal privilege in the opinions discussed here bear witness to the ambiguous language of the exception.“)We acknowledge that the notion of governmental immunity, its interpretation, and its practical application have been difficult at times, stemming in part from the decisions of this Court and from the confusing nature of the statute itself.
We think it is important to note that the first, third, and last (fourth) sentence of subsection 2(1) speak to only one duty, that being the duty to
The express language of the highway exception indicates that the duty of highway authorities to repair and maintain the highways “shall extend only to the improved portion of the highway designed for vehicular travel.” The provision then states that such duty “shall not” extend to three types of installations: (1) “sidewalks“; (2) “crosswalks“; and (3) “any other installation outside of the improved portion of the highway designed for vehicular travel.” (Emphasis added.)This language is confusing for several reasons. First, its structure implies that installations 1, 2, and 3 are exclusions from the highway exception. Yet, it is difficult to fathom how “sidewalks,” unlike “crosswalks,” could be construed as part of the “improved portion of the highway designed for vehicular travel,” even absent their explicit exclusion from the highway exception. Second, the “any other installation” language of the third exclusion to the highway exception follows a specific enumeration of terms that by implication also describe installations “outside of the improved portion of the highway designed for vehicular travel“; “crosswalks,” however, clearly do not fit this description. In other words, it is unclear why “sidewalks” are expressly excluded from the highway exception and it is equally unclear why “crosswalks” are implicitly described as installations “outside of the improved portion of the highway designed for vehicular travel.” [457 Mich 643, n 5.]
Concepts such as the “intended and permitted user” language derived from Gregg apply to the negligence analysis and bear on whether a defendant owed a duty to the plaintiff or whether the plaintiff was comparatively negligent.
provide[s] insight to the Legislature‘s desire to limit the duty of the state and county only to the obligation to “repair and maintain” the improved portion of the highway [designed for vehicular travel]. The duty to repair would generally limit the government‘s liability to cases in which there are defects in the roadbed‘s surface. In contrast, the Legislature may have feared that it could not anticipate the circumstances in which the state or county would be exposed to liability if the Legislature imposed on [them] the duty to ensure that travel is reasonably safe on governmental highways. [Id. at 641 (RILEY, J., dissenting).]
While a particular decision to “improve,” “augment,” or “expand” a highway may be prudent and advisable, the decision nevertheless is for persons entrusted with the expenditure of taxpayer resources, not the courts.Ultimately, if the people of this state are dissatisfied with the quality of signage along their highways, they can communicate this dissatisfaction through the selection of representatives to state and local executive and legislative bodies.
Clearly, traffic signals and signs are not implicated in the broad definition of “highway” in