Defendant appeals by right the circuit court’s order denying defendant’s motion for summary disposition. We reverse and remand for entry of judgment for defendant. This appeal is being decided without oral argument pursuant to MCR 7.214(E).
Plaintiff was riding a motorcycle in the right lane of a road that merged left. Plaintiff attempted to merge, but a car blocked him, and he moved back to the right and rode onto the shoulder of the road because the right lane ended. He then hit a rut on the shoulder next to the pavement, lost control of the motorcycle, and crashed. Plaintiff suffered a punctured lung and five fractured ribs and sustained chest, right shoulder, and back injuries. Plaintiff sued defendant under the highway exception to governmental immunity, MCL 691.1402, alleging a road defect for which defendant is liable.
*619
At the close of discovery, defendant moved for summary disposition under MCR 2.116(C)(7), (8), and (10). Defendant argued that plaintiff had produced no evidence from which to find that defendant had the actual or constructive knowledge required by MCL 691.1403 to be liable for a defect in the road pursuant to the highway exception to governmental immunity. Defendant also contended that plaintiffs other theories of liability regarding inadequate illumination, inadequate lane markings, and inadequate signage failed to state cognizable claims under the highway exception. See
Hanson v Mecosta Co Rd Comm’rs,
At oral argument on defendant’s motion, defense counsel noted that defendant “does not dispute the shoulder is part of the improved portion of the road.” Plaintiffs counsel, however, believed defendant had raised the issue of “jurisdiction over the shoulder,” and attached to his response to defendant’s motion a copy of
Grimes v Dep’t of Transportation,
unpublished opinion per curiam of the Court of Appeals, issued December 16, 2004 (Docket No. 249558). The trial court denied defendant’s motion for summary disposition. We conclude that we must reverse because our Supreme Court overruled
Gregg v State Hwy Dep’t,
Defendant did not move for summary disposition on the basis that the alleged defect was on the shoulder
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and thus outside the highway exception to governmental immunity, MCL 691.1402(1). For this reason, this Court could choose to rule only on the specific issues raised by defendant and not address the effect of
Grimes.
For two reasons, however, we do not take that course of action. First, plaintiffs complaint is premised on the alleged failure of defendant to properly maintain the roadway shoulder. Because whether the shoulder of the road is within the highway exception to governmental immunity is a question of law and the facts necessary to resolve the question are before this Court, we can resolve this issue without the benefit of a ruling by the trial court. See
Smith v Foerster-Bolser Constr, Inc,
Clearly, the holding in Grimes, if applied to this case, requires summary disposition in favor of defendant. The critical question for purposes of this appeal then is whether Grimes is to be applied prospectively or retroactively. We conclude that Grimes applies retroactively.
Generally, judicial decisions are given full retroactive effect, i.e., they are applied to all pending cases in which the same challenge has been raised and preserved.
Wayne Co v Hathcock,
Arguably, the
Grimes
decision was foreshadowed by our Supreme Court’s decision in
Nawrocki,
which held, among other things, that the highway exception “encompassed only the ‘ “traveled portion, paved or unpaved, of the roadbed actually designed for public vehicular travel.” ’ ”
Grimes, supra
at 91, quoting
Nawrocki, supra
at 180, quoting
Scheurman v Dep’t of Transportation,
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First, the purpose of the new rule is simply to bring case law in line with the explicit language of the statute and preclude liability under the highway exception to governmental immunity if the defendant’s alleged failure to repair and maintain involves anything other than the “improved portion of the highway designed for vehicular travel.” MCL 691.1402(1). Our Supreme Court noted that
Gregg
was a poorly reasoned decision and opined that “by correcting
Gregg’s
erroneous construction of the highway exception, we restore ‘legitimate citizen expectations’ that the Court will not arrogate to itself the legislative power to make public policy.”
Grimes, supra
at 88 n 49, quoting
Robinson v Detroit,
The second factor — the extent of the reliance on the old rule — also weighs in favor of retroactive application. Addressing the issue of stare decisis, the Court in Grimes stated that it was “ ‘not constrained to follow precedent when governing decisions are unworkable or are badly reasoned.’ ” Grimes, supra at 87 n 49, quoting Robinson, supra at 464. The Court further noted:
One of the most significant considerations [in overruling Gregg] is “the effect on reliance interests and whether overruling would work an undue hardship because of that reliance.” [Robinson, supra at 466.] We find no reliance interests at work that support the continuation of Gregg’s erroneous interpretation of the highway exception. Motorists traverse shoulders because of the exigencies of highway travel. They do not traverse shoulders because our case law might permit them to recover against the governmental agency in the event of an accident. Indeed, to do so would *623 be a violation of the [Michigan Vehicle Code], MCL 257.637. Gregg is not the sort of case that fosters a reliance interest or shapes future individual conduct. Therefore, we do not believe we work an undue hardship in overruling Gregg. [Grimes, supra at 88 n 49.]
This reasoning also applies in deciding whether to give Grimes retroactive application. Undoubtedly, plaintiff relied on Gregg in bringing this lawsuit, but that reliance is not relevant. Rather, the relevant question is whether plaintiff relied on Gregg while operating his motorcycle. Clearly, plaintiff did not drive onto the shoulder because he believed Gregg somehow entitled him to do so. Hence, plaintiff cannot claim that he acted in reliance on Gregg, or that this reliance resulted in the motorcycle accident and his injuries.
The third factor we consider is the effect of retroactive application on the administration of justice. We conclude that this factor also weighs in favor of retroactive application. We find instructive
Gladych v New Family Homes, Inc,
If given full retroactive effect, the Gladych decision would have precluded some litigants who had justifiably relied on Buscaino in calculating filing deadlines from bringing lawsuits that could otherwise have been timely brought within the period of limitations. But in this case, the full retroactive application of Grimes would simply preclude plaintiff or others in similar situations from filing a legal action that is not permitted by MCL 691.1402(1). Thus, the full retroactive application of Grimes is not unfair because a cause of action never existed. Consequently, we conclude that the administration of justice weighs in favor of full retroactive application of Grimes.
We reverse and remand for entry of judgment for defendant. We do not retain jurisdiction.
Notes
Buscaino
was also overruled in part on other grounds in
McDougall v Schanz,
2 “The specific issue was the requirement that tolling of the relevant statute of limitations can only be accomplished by complying with the provisions of MCL 600.5856, which include service of process on the defendant prior to the expiration of the period of limitation.”
Collins v Comerica Bank,