*1
Transportation
v
Scheurman
TRANSPORTATION
DEPARTMENT OF
SCHEURMAN
OF ROAD
BOARD
v WAYNE COUNTY
PROKOP
COMMISSIONERS
(Calendar
5,
81739,
10-
Argued
Nos.
October
Nos.
Docket
11).
7, 1990.
May
Decided
representa-
Scheurman,
individually
personal
and as
Catherine
deceased, brought
Rogocki,
estate of Geraldine
tive of the
against
of Claims
wrongful
in the Court
death action
alleging
ade-
Transportation,
the lack of
Department of
City
along
trunk line within
quate
a state
street
caused the death
in the road which
constituted a defect
Detroit
Kallman, J.,
court,
granted
T.
James
of the decedent.
gov-
ground of
summary disposition
for the defendant
P.J.,
Cynar,
Appeals,
and
immunity. The Court of
ernmental
Shepherd
JJ.,
Jasper,
and remanded
B. A.
reversed
and
94117).
(Docket
The defendant
No.
to the trial court
case
appeals.
brought
Wayne
Court
Prokop
Circuit
an action
M.
Lisa
Commissioners,
County
against
Wayne
of Road
Board
property
that,
hedge
private
failing
alleging
remove
at an intersection at
view of the travelers
obstructed the
vehicle,
the board failed
struck
a motor
which she was
reasonably
and
keep
safe for travel
in a condition
its street
govern-
exception
under
thus was liable
J.,
court,
granted
Foley,
Thomas J.
act. The
mental
Appeals,
summary disposition
The Court of
for the defendant.
JJ.,
Mackenzie, P.J.,
Clulo,
and P. J.
affirmed
and Doctoroff
curiam, holding
opinion per
the road commission
in an
trim,
property
owner to trim the
or cause the
had no
94600).
(Docket
plaintiff appeals.
hedge
No.
Riley,
joined by
opinion by
Justices
Chief Justice
In an
Cavanagh
Supreme
Griffin,
held:
Court
and
by the
created
of the state and the counties
_The
References
167, 168,
103, 104,
Streets,
Bridges
2d, Highways,
and
§§
Am Jur
341, 343-345,394.
High-
Crossing
Crossings;
under
See the Index to Annotations
Streets;
ways
Sidewalks.
Prokop, affirmed. joined by Brickley, Archer, Justice Justices Levin dissenting part, concurring part stated that MCL 3.996(102) 691.1402; imposes county a on state and improved portion highway authorities to maintain the of a provides highway in a condition safe and fit for travel and Although liability liability clearly was for the failure do so. unimproved portion not intended for failure to maintain an travel, nothing highway in fit for in 2 a condition safe and § suggests liability governmental agen- an intent to limit the necessary safely main- cies to certain factors that are improved portion highway. tain negli- apply alleging should cause of action gence arising out of conditions which rendered a unfit and unsafe for travel. Immunity comprise under interrelated but § Where, cases, analytically distinct elements. as these arising plaintiff alleges negligence out of the condition of highway, 2 does not entitle a state county highway plaintiff’s authority immunity. *3 to A mere however, immunity, impose necessarily avoidance of does not liability highway authority; plaintiff prove aon the still must causation, negligence. duty, distinguish 2 not Section does between the surface highway highway and conditions other than the surface may highway being reasonably foreclose safe. Rather, improved portion highway it contrasts the of a de- sidewalks, crosswalks, signed for vehicular traffic with other or improved portion. phrase installations outside the The "im- which, proved portion” conceptual reflects a division on the one hand, immunity county highway for state and removes authori- remedy affecting ties that fail unsafe conditions the im- traffic, proved portion highway designed of the for vehicular and, hand, on the other renders for the authorities immune sidewalks, Crosswalks, conditions on or other installation improved portion. outside the duty safely repair highways maintain in reasonable merely highway not
extends surface of the or conditions roadbed, duty. on the but to the location of the The fact that an obstruction exists off the traveled should not immunize agency’s directly affecting safety an failure to correct a hazard improved portion. safety on The focus is of the 619 434 Mich [May- services, road, improved portion not on the location facilities, of travel on or installations that affect conditions improved portion. Scheurman, holding Appeals that of the Court of plaintiff’s cause of action should would not bar the judgment Appeals Prokop, the of the Court of affirmed. In be for a determination be vacated and the case remanded should the defendant’s to correct the obstruction of the extent of out. and whether the was carried (1987) 774; App reversed. 162 Mich 413 NW2d (1988) 119; App affirmed. 168 Mich NW2d Co, 465; App Cryderman R 78 Mich 260 NW2d v Soo Line (1977), modified. Comm, Endykiewicz Hwy 324 NW2d v State (1982), modified. Lighting Vegetation. Immunity Highways — — — Governmental highway created of the state and the counties act, extends of the designed improved portion for vehicular i.e., travel, portion, paved unpaved, the traveled or travel, designed actually vehicular and does roadbed crosswalks, sidewalks, any other installation include portion; vege- neither street nor outside the adjacent growing private property to a road can be tation being part classified as (MCL 691.1402; 3.996[102]). for vehicular travel Cahill, Michael A. Sobel & P.C. Sobel (by John Cahill), Scheurman. Schwartz,
Sommers, Schwartz, P.C. (by Silver & Toth), for plaintiff D. Fox and Richard Richard Prokop. Kelley, General, Louis J.
Frank J. Attorney Turner, E. Caruso, and Brenda General, Solicitor General, Depart- for defendant Attorney Assistant Transportation. ment *4 Green, and David A. Counsel,
Saul Corporation Perkins, Counsel, A. for Corporation Assistant of Road Commis- Board Wayne County defendant sioners. Transportation Scheurman Riley, appeal granted in these leave to C.J. We appeal, purposes of this cases, consolidated
two gov- exception1 whether to decide upon imposes immunity2 or the state ernmental the counties (1) lighting, street to: install (2) vegetation removed, remove, to be or cause property private growing which obstructs on approaching an intersection. of motorists view regard counties, the and the to the state With statute created high- "only to the extends designed way travel and shall for vehicular any other instal- sidewalks, or crosswalks include improved portion of the [sic] lation outside highway travel.” MCL for vehicular We conclude 3.996(102). MSA 691.1402; quoted language to the traveled refers above portion, designed actually unpaved, paved the roadbed conclude, travel. We vehicular vegetation further, growing nor that neither street property adjacent private can to a road being part of the as be classified highway designed travel. for vehicular inapplicable to the Therefore, Department § we hold that is Wayne Transportation and the Accordingly, County we reverse Road Commission. Appeals in Scheurman of the Court of decision Appeals the Court of and affirm the decision of Prokop.
I. FACTS AND PROCEEDINGS v DEPARTMENT OF TRANSPORTATION SCHEURMAN A. approximately May 15, 1983, 10:15 at On p.m., Rogocki, plaintiff’s was decedent, Geraldine the killed when she was struck as she at- a car MCL 691.1401 MCL et 691.1402; MSA seq.; 3.996(102). 3.996(101) et seq. *5 Opinion Riley, J.C. Eight tempted most of Mile Road. While to cross part streetlights, Eight has Mile Road illumi- occurred is not where the accident Eight scene, is a Mile Road nated. At the accident City of line, M-102, in the trunk located state Detroit. City
Although line, of state trunk M-102 is a lighting the street has installed all of Detroit along city part within its of Furthermore, the street- Detroit owns all limits.3 lights poles along pays for the M-102 and city lights.4 electricity However, used Department get approval from the of Trans- must streetlights along portation before it can install trunk lines.5 state Claims, in the Court of com- sued adequate
plaining street lack along Eight a defect in the Mile Road constituted Transportation Department of road for which the held should be liable. discovery, May 1, 1986, on
After extended hearing, evidentiary 20, June court held an and on granted summary disposition favor Appeals appeal, re- defendant. On the Court Jildeh, Utilities Unit The affidavit of Toufic N. an Electrical Michigan Department Transportation, Leader for the the State of Eastbound site of the of the local states "[t]hat lights Michigan on does not initiate the location of street Eight Dyke Mile Road between Van and Groesbeck [the accident], the control but instead such initiation is within municipality [Detroit].” 4Again, the affidavit of Mr. Jildeh states the installation "[t]hat payment lighting, lighting, street of the maintenance of street and the same, Eight Dyke and for Eastbound Mile Road between Van responsibility municipality and such Groesbeck is the of the local municipality lightpoles, light pays fixtures for the installation of local electricity and for the used.” evidentiary hearing, Tripp, a Detroit Public At the Mr. James inspector Lighting Department supervising of overhead lines and Transporta safety, knowledge, Department of testified that to his requested permit City had denied the of Detroit a for street tion lighting. never Transportation Scheurman Claims, holding Court of the decision of the versed part integral an lighting "would be that street . . . .”6 The the highway which we appeal, sought leave defendant 7, 1989.7 granted April ROAD COMMISSION B. v WAYNE COUNTY PROKOP *6 Prokop 14, 1982, Lisa Marie plaintiff July On on in a direction westerly riding bicycle was her Road, trunk a state along Schoolcraft the sidewalk intersection "T-type” line. Schoolcraft comes to At Street, road. the south- county with Columbia intersection, there was a six-foot east corner the plaintiff As hedge growing private property. on intersection, Street approached the Columbia proceeded she green, and light displayed traffic into the intersection.8 time, northbound traveling a van
At the same the Schoolcraft approached on Columbia Street crossing Colum- was plaintiff intersection. As Street, turn east onto School- began the van to bia her causing injury. plaintiff, craft and struck the the driver of plaintiff visibility both to the extent hedge the van by was obstructed too late the other until was that neither one saw to avoid the collision. Road Com- Wayne County plaintiff sued
mission,
keep
it failed to
Columbia
alleging
for travel
reasonably
in a condition
safe
Street
exist,
obscuring the
thus
allowing
hedge
6
774, 779;
App
Transportation,
Dep’t
Mich
413
162
Scheurman v
(1987). However,
on to state that
its
the Court went
NW2d 496
"holding
was
the merits of whether street
does not address
actually required
the accident site.” Id. at
at
II. ANALYSIS
A
revisiting
our
over
two
begin
analysis
We
his-
Michigan
legislative
decades of
case law and
governmental
on the matter
tory
immunity.
Detroit,
Williams v
111 NW2d
(1961),
govern-
this Court
abolished
common-law
to the Williams
Responding
mental
immunity.12
decision,
Legislature
enacted the
However,
negligence
act
1964.13
scope
was found to exceed the
of the title of the
act
declared
an
en-
unconstitutionally
and was
*7
9
Department
Transportation in
Plaintiff also sued the
of
the Court
Claims,
present
of
which suit was
with the
action before
consolidated
Further,
pending.
the circuit court
Township,
The court
the
with both the
Redford
and is still
sued
occurred,
Wayne
the accident
in
where
Circuit Court.
granted summary disposition,
prejudice,
with
in
of
favor
township. Finally, plaintiff
reached an out-of-court settlement
property
owner and the driver of the van.
10
Comm’rs,
Prokop
119;
Wayne
App
v
Co Bd of
168
424
Road
Mich
(1988).
10
NW2d
11
(1989).
432
890
Mich
12The decision of the
of
Williams Court was limited to
abolition
governmental
immunity
municipalities. It
not
did
abolish the
state, counties,
sovereign immunity
Ross v Consumers Power Co
townships,
villages.
or
See
(On
567, 604-605;
Rehearing),
420 Mich
(1984).
14 3.996(107). 691.1407;MSA MCL 627 V TRANSPORTATION SCHEURMAN provision. Tawas, 385 Mich v East Maki acted infirmity This was corrected 1970 188 593 NW2d Legislature 155, PA when enacted 7(1), granted immunity tort engaged agencies governmental in all when to governmental legislative de- With the functions. immunity books, this Court abro- cree sovereign immunity gated in Pittman common-law City Taylor, 512 41; 247 398 Mich NW2d v (1976). McCummings Hurley
Finally,
Medical
v
(1989),
404,
Ctr,
411; 446
114
we
Mich
NW2d
grants immunity
the current statute
observed that
only
Legisla-
circumstances defined
under
sovereign
governmental
immu-
ture,
nity
and that
”
"
government.’
is
a 'characteristic
sought
years,
to inter
In
this Court has
recent
excep
immunity
pret
and its
the current
statute
in manner
with
intent
tions
Legislature.
consistent
consistently
doing so,
held
In
we have
upon
conferred
"
grant
immunity’
agencies
with
is a
'broad
”15
exceptions.’
narrowly
statutory
'four
drawn
(On Rehearing),
Co
v
Power
Ross Consumers
(1984)
J.,
567, 618; 363
Mich
NW2d
(Brickley,
quoted language
participating). is cited
above
Dep’t
approval
of Mental
Reardon v
with
(1988)
Health,
398, 411;
Mich
Thus, strict we rule of 3.996(102), 691.1402; statutory exceptions are MCL MSA The four 3.996(105), 3.996(106), 691.1405; 691.1406; MCL MSA MCL MCL 3.996(113). 691.1413; MSA subject opinion, common- In this we withhold comment on the exceptions immunity. law Brickley Ross, Hadfield, 146, quoted supra supra at at Justice govern upon proposition conferred " narrowly agencies grant immunity’ with 'four mental is 'broad ” exceptions.’ drawn *8 628 Mich interpreting exception construction when an to the immunity supra. Reardon, Hadfield, act. Ross, Statutory Sands, See also Sutherland Construc (4th ed), p against § 62.01, tion 113.17 It is this backdrop statutory turn we to the question.18 Brickley However, today apparently Justice reverses his view regarding interpretation statutory exceptions by writing of the employ "this Court negate should not a canon of strict construction to legislative purpose underlying the tion to highway excep- fundamental Post, immunity.” p interpretation The fact is that this statutory Court’s uniform of the exceptions Legislature’s reflects the desire to "make uniform the ” liability governmental of and "to liability. (Empha- define and limit” added.) act, sis Preamble to the MCL 3.996(101) seq.; Thus, seq. 691.1401 et et for us to hold otherwise uncertainty regarding would interpretation create statutory exceptions to the act. Finally, reject interpretation we "legislative the dissent’s purpose underlying highway exception” point statute. This is irb), 631, part p addressed in n 22. rule strict emphatically [T]he [of has been most construction] regularly applied stated and statute makes the in cases where it is asserted that a government amenable to suit. . . . liability strictly standard of [T]he is construed even under expressly impose liability sovereign. statutes which acknowledge Endykiewicz Comm, Hwy We v State (1982), NW2d 755 highway exception, which states that the strictly being need derogation not be construed as of the common abrogated law after the immunity. However, state its common-law distinguishable. this case is Endykiewicz interprets damages sentence of the statute which provides, "[a]ny person sustaining bodily injury damage to his property may damages . . . recover the suffered him . . . .” The ambiguous, therefore, Court said that this sentence was it should not interpreted plaintiff’s damages. Thus, be issue in dispositive to limit a damages the case centered on the amount of after insight had interpretation attached. It offers no as to the liability imposed upon governmental standard of unit. Id. at 382. Furthermore, purpose "our legisla- is to ascertain and effectuate passed Reardon, tive intent at the supra time the act.” at 407. At governmental immunity effective, the time the act became the state Thus, sovereign immunity. was still shielded the Court should strictly have modify Endykiewicz. extent, construed the act. To this limited we *9 629 V TRANSPORTATION SCHEURMAN Opinion Riley, C.J.
B highway today center on the before us The cases 3.996(102). exception 691.1402; statute, MSA MCL origin 1879 the of of the statute is enactment The imposed liability 1442, 244; 1 How PA Stat any person upon municipalities "in 'sus- favor of high- upon public taining bodily injury any of the neglect ways state, to the reason of streets in or keep public highways streets, or and all such bridges, in the same and culverts on cross-walks. reasonably good repair, safe and in a condition Dep’t Transporta- Roy fit for travel ....’” of 330, tion, 336-337; 408 783 NW2d passage 3 Stat of 1887 PA How With the Legislature 1446c, the statute and the amended expanded scope liability of to sidewalks. its include Id. at 337. govern- Legislature
However, when the codified speciñcally it reduced mental highway purview the statute. the of governmental ex- of act Section 2 the pressly the counties from excludes state the any liability "sidewalks, other crosswalks improved portion of of [sic] installation outside designed highway travel.” MCL for vehicular 3.996(102). Furthermore, 691.1402; 2,§ the counties under of the state and created improved portion only to of "shall extend designed highway . . . .”19 for vehicular travel portion § The relevant provides:_ unequivocal upon ignore to this limitation The dissent chooses writes, "nothing liability and the when it state counties liability govern wording suggests limit an the mental intent safely necessary agencies only certain factors are Post, highway.” p improved portion of the maintain the clearly than intent to limit The indicates more an statute counties, provides expressly state liability it of the state and portion liability only improved county to the extend "shall added.) (Emphasis .” . . . for vehicular travel Mich governmental Each agency having jurisdiction any highway over reasonable convenient shall maintain the repair so reasonably is safe and travel. . . . county state and the and repair road commissions to therefor, maintain highways, and the shall extend highway designed for vehicular travel and shall sidewalks, include crosswalks or other installation outside of the highway designed for vehicular travel. highway exception waives the im- absolute munity regard units with to de- *10 highways jurisdiction. fective under their As dis- part regard cussed above in §2 we as a ii(a), narrowly immunity. exception grant drawn to a broad of compli- such,
As there must be strict ance with the conditions and restrictions of the Highways, 2d, statute.20 39 Am Streets, Jur Bridges, pp may §§ 343-344, 725-726. No action be highway exception maintained under the unless clearly scope meaning is within the of the p § 346, statute. Id. at 729.21 duty imposed by upon noted, As the the statute county the state and stricted to the road commissions is re-
"improved portion of the designed Roy, supra for vehicular . travel . . .” In scope 339, at we observed that the limited of the "highway” parallels term § found in 2 the common understanding of the word. We are in accord with Roy. the conclusion reached in Therefore, we hold seemingly Another highway excep obvious reason to construe the narrowly language specific phrase tion interpreting is the of the 2§ that we are today. Legislature provided duty The that the of the added.) only state and the (Emphasis counties "shall extend to . . . .” suggests "only” implies Legislature Common sense that the that the strictly intended the to be construed. CJS, 279, Highways, p See liability also 40 “The of the state is limited the terms of the statute under which it is assumed prescribed, being subject and construction.” the conditions the statutes to strict V TRANSPORTATION SCHEURMAN portion "improved phrase
today highway designed travel” refers vehicular unpaved, portion, paved or to roadbed traveled actually vehicular supra. Roy, travel.22 purpose not to is of upon
place unrealistic or the counties an the state upon highways duty always will ensure that travel to Looking language the the to be safe. statute, Legislature true intent we discern impose keep physi-
is in reasonable of the traveled roadbed cal repair. present ac- now turn our attention to
We failure the state to determine whether the tions County Wayne or the install failure complained of fall remove the obstruction purview § of 2. within OF TRANSPORTATION SCHEURMAN DEPARTMENT plaintiff argues under arises argues interpretation departs again, Here the dissent that our statutory language: from the statute, departure language majority In a from the
apparently portion the surface the roadbed itself. county draws the line between the surface hand, and, affecting on the other conditions travel improved portion originating separately from *11 immunizing majority’s analysis state or conditions, any liability unsafe from for on the authorities roadbed, originate surface of source of which do not meaning statutory plain language of § contravenes the and import. [Post, p principal its 642.] departs language from The fact is that it is the dissent that provides would believe the statute. The dissent have us that § affecting liability of the conditions travel surface highway, improved portion regardless condi- of the whether those -expan- originate or not. an tions on the surface the roadbed Such liability goes provides. interpretation beyond that far which § sive The statute portion liability only provides extend to the "shall "conditions, contemplate highway,” of the does not originate . . . .” on the surface of roadbed of which do not source 434 Mich highway exception statute because the failure provide lighting along part Eight street Mile Road where the accident occurred constitutes duty a breach of the reasonably to maintain the in a safe manner travel. The argument defendant counters with the that street lighting "improved portion falls outside the of the highway designed travel,” for vehicular and that 9.1097(lb)23 247.651b; MCL MSA the state excludes duty provide lighting along street freeways. While, roads that are not as defendant argues, Legislature, the fact that in §651b, specifically exempted having the state from provide lighting along perhaps state trunk lines is lighting required some evidence that street is not highway "reasonably in order to make a safe and public travel,” convenient for we do not believe dispositive question. this to be Nor do we persuaded believe that it is the issue here. We are inappli- that in this case the cable because the issue is whether 2 is it creates to make roads safe, and the so, for the failure to do improved portion high- extends to the way designed for vehicular travel. streetlights
Here, the concedes that are part not a of a per imposed However, se. of the state 9.1097(lb) 247.651b; provides part: MCL Maintaining include, highways 0f state trunk line shall way cleaning limitation, removal, of enumeration but not snow street drainage, coating, patching ordinary seal repairs, signs erection and markings, maintenance of traffic freeway lighting safety villages having for traffic in cities and 30,000 population of less than and the trunk line share of the signals, erection and maintenance of traffic but shall in- lighting, resurfacing, gutter clude street new curb and struc- widening. 1, 1970, January tures for maintaining On and after highways freeway of state trunk line shall include all safety. [Emphasis
for traffic
added.]
*12
633
SCHEURMAN V TRANSPORTATION
Opinion
Riley, C.J.
"improved portion
§ 2
under
extends
to the
for vehicular
travel” as
compliance
Consequently,
defined above.
with the
highway excep-
conditions and
restrictions
negates
lighting
tion statute
the inclusion of street
duty
physical
within
the state because
lights
structure of the
paved portion
falls outside the traveled or
actually designed
of the roadbed
public
Alpert
Arbor,
Ann
vehicular travel. See
v
(1988);
App
Zyskow-
223;
NW2d
(On Remand),
App 98;
ski v
Habelmann
Mich
For the above we hold that the duties of the state and the under 2 do not counties include light- the installation and maintenance of street ing.24 subject liability Thus, the defendant is alleged adequate for the lack of street along Eight Mile Road. PROKOP WAYNE COUNTY ROAD COMMISSION Prokop, plaintiff argues not re-
moving
hedge,
private prop-
a six-foot
located on
erty,
travelers,
obstructed
view
county failed to maintain the intersection in a
"reasonably
condition
safe and fit
disagree.
. . . .”
travel
We
While
relies
Cryderman
App
Co,
Line R
v Soo
Mich
(1977),
(1978),
260 NW2d 135
lv den
Plaintiff also provides 239.5; 9.525, MCL MSA to enforce in part: owner, occupant every It shall be the or state,
person having charge lands in this to cut trim, trimmed, height or or cause to be cut or to a exceeding feet and a width not not along four one-half feet, hedges hedge exceeding three all or rows thereto public highway adjacent
or on the or .... every year in each and disagree. statutory duty Again, Clearly, we hedges imposed upon person owning trim is occupying property, upon county. or not Similarly, reject county the claim that the has we Township comparable duty to enforce a Redford 469.6; MCL MSA 22.766. See notwithstanding upheld its observation The Court the instruction 469.6; procedure authorized does 22.766] that impose highway ''[t]he [MCL mandatory obligation part public of railroad agreements.” Cryderman 475. to enter such at authorities SüHEURMAN V TRANSPORTATION general agree rule that We with ordinance.27 governmental agencies for the fail- are not liable investigate an ordinance viola- ure to or enforce App Twp, 121 Mich Delta Charter tion. Randall v 57 Am Jur 26, 31; 328 See also NW2d Municipal, County, School, 2d, and State Tort municipal- p Liability Liability, § 211, 223; anno: pro- ity unit for failure or other protection, police 46 ALR3d vide hedge indisputable sum, fact is that question private property and had no was on travel with the roadbed connection hedge may interfered have thereon. While compass-range intersection, vision within the with categorized as a defective condition cannot be upon de- "the signed . . . .” vehicular travel See anno: Gov- *14 vegetation liability for failure to reduce ernmental obscuring crossing view at railroad or at street pp 624, 7, intersection, 22 ALR4th 643- today Therefore, as our decision with supra, compliance Scheurman, con- strict with the precludes ditions and restrictions of statute complained of the of the inclusion obstruction duty Wayne County. Thus, § of within the liabil- imposed upon ity may for not be the defendant hedge, private property, located on which ob- structed the view of travelers.
III. CONCLUSION
imposed upon
the state and the coun-
pursuant
Legislature
§to
2 of the
ties
governmental
"only to the
act extends
highway designed
improved portion for
Township
height
shrubbery
ordinance limits the
The Redford
pedestrians,
growth
it would constitute a hazard "to
to two feet where
persons
engaged in the lawful
or other
while
drivers of motor vehicles
use of
sidewalks,
roads or streets . . .
ways. private persons, many public entity Unlike often can- potential liability by refusing engage not a and is reduce its risk particular activity, government govern must continue to required adequately to furnish services that cannot be provided by any agency. other ...” 4 California Law Revision Studies, Reports, p Comm Recommendations & *15 [Ross,supra at 618-619.] reject It is for these reasons that we the notion that "the law of negligence provides adequate safeguards against imposition the liability.” Michigan, governmental immunity unwarranted is Today, the act provides safeguards against liability. the vehicle that unwarranted again interpret spirit 2 in we a manner consistent with the act, of the and in a manner which adheres to the concerns addressed by the California Law Commission. Transportation Scheurman Opinions Boyle Brickley, JJ. and inapplicable highway the statute is today.29 in before us defendants the matters Accordingly, of the we reverse the decision Appeals Scheurman, affirm the in and we Court of Appeals Prokop. in of the Court of decision Cavanagh JJ., concurred with Griffin, and (concurring). join in both the ration- J. Boyle, I opinion, the with ale and result of Chief Justice’s preclude understanding that it does not the application 3.996(102) in 691.1402; MSA of MCL "repair alleging a and maintain” cases failure integral part of, to, if that are installations designed "improved portion highway of the lights signs. travel,” such as traffic vehicular p 637, ante, n 29. See (concurring part dissenting in
Brickley,
part). These consolidated cases address whether
in
acknowledge
Dep’t
Hwys,
Tuttle v
of State
397 Mich
45-
We
(1976),
46;
authorities namely majority, is as stated standard or installations that affect whether services safety improved portion are lo- or travel on However, Scheurman, cated off-road. standing notwith- highway legis- immunity, the lack of impose general duty lative does not on scheme lighting street state authorities install non-freeway, highways. Prokop, trunk line on notwithstanding immunity, the lack of such a to remove off-road visual determination obstructions has not been addressed the Court Appeals. I would affirm the decision in Scheur- Prokop man but would remand in to determine liability. the issue of
i "improved This has examined the Court highway designed lan- for vehicular traffic” 3.996(102)1 guage only 691.1402; of MCL yet clearly few occasions and has understanding present set forth our legislative of its intent. These cases opportunity. "improved por- majority The concludes language only tion” of 2 "refers to the traveled pertinent part: provides in The statute county of the state and the road commissions to therefor, repair highways, and maintain and the shall improved portion highway designed to the extend for vehicular travel and shall not include sidewalks, crosswalks or other installation outside of [sic] highway designed for vehicular travel. SCHEURMAN V TRANSPORTATION Bkickley, paved unpaved, actually portion, of the roadbed p Ante, vehicular travel.” provides majority §2 no cause of holds facts of these cases because "nei- action under the vegetation growing on nor ther street private property adjacent can classi-
to a road be *17 being part improved portion fied as p highway Ante, for vehicular travel.” purpose of I would conclude that the obvious expresses Legislature’s intent to this section impose the county highway a state and au- improved portion thorities to maintain the of a highway in fit and a condition safe and for travel provide liability so. Al- to for the failure to do though Legislature clearly lia- the did intend unimproved bility for a failure to maintain the portion highway in a condition safe and fit nothing wording suggests travel, 2§ the of liability limit an intent to agencies necessary to certain factors that are safely to highway. maintain the many
Because
factors enter into main-
taining
improved portion
highway
of a
fit and
road,
travel,
safe for
such as the surface of the
its
design,
dangerous
and its freedom from
accumula-
unnecessarily poor
ice, snow, water,
tion
visibility
exception
obstructions,
or unnatural
immunity
apply
any
of action
should
cause
arising
alleging negligence
out of such conditions.
immunity
course,
§ under
com-
Of
prise
analytically
interrelated
but
distinct ele-
alleges
plaintiff
Where,
cases,
ments.
as
these
negligence arising out of the condition of the
highway, §
2 does not
authority
county highway
a state or
entitle
immunity.
plaintiff’s
However, a
mere avoidance
necessarily impose liability
does not
on a
negligence.
prove duty, causation, analysis
examin-
and before
At the outset of its
pur-
ing
statutory language
its
to determine
scope,
majority
pose
announces its com-
interpretation of the
mitment
exception
to a strict
derogates
the common-
because
majority’s
sovereign immunity.
common-
law of
derogation analysis
find-
its
law
ing
foreshadows
authorities
However,
em-
this Court should not
these cases.
ploy
negate
of strict construction to
canon
underlying
legislative purpose
fundamental
highway
immunity.
In this connec-
long ago
principle
by Mr.
tion,
articulated
Supreme
Holmes of the United States
Justice
interpretation
regarding statutory
remains
Court
cogent:
general purpose
statute]
is a
"[T]he
[of a
important
meaning
than
rule
[its]
more
aid to
logic
lay
grammar
may
or formal
down.”
Whitridge,
135, 143; 25
197 US
S
United States v
*18
(1905).2
highway exception
406;
L Ed 1082 “The rule statutes require strictly such law are to be construed does not common legislative purpose an obvious adherence to the letter as would defeat scope plainly given measure.” intended to be or lessen the 1, 9; Transportation, Dep’t of 438 NW2d See Killeen v immunity] clearly highway exception un 233 equivocally expresses] "[The legislative person injured by intent that a highway keep’ a fit for travel shall have reason of a 'failure’ 'to cause of action agency.” against Transportation Scheurman Brickley,
II majority’s interpretation ap- restrictive as plied comport to these cases does not with the legislative purpose majority §2. concludes in Scheurman that the state has no to install physical street "because the structure of lights paved por- falls outside the traveled or public actually tion the roadbed p majority’s Ante, vehicular traffic.” 633. In the analysis, light the fact that the source of emanates directly from a structure not on connected to the roadbed itself liability. Similarly, immunizes state from tort majority concludes Prokop that because a visual obstruction exists private property [has] "on no connection with the roadbed or thereon[,] travel ... it can- categorized upon not be as a defective condition highway designed 'the p (emphasis Ante, ....’” vehicular travel supplied).4 my majority shifting view, errs in requirement governmen- § 2
mandate of
from a
agencies
highways
tal
to maintain
"in reasonable
repair
reasonably
and in condition
safe and fit for
eliminating any
travel” to a result
cause of action
may
signifi-
for some factors which
contribute
cantly
improved por-
to unsafe conditions on the
highway.
tion It seems clear even from a
reading
"improved portion”
literal
lan-
guage
distinguish
§of 2 does not
the surface
highway
opposed
as
to conditions other than the
highway
may
surface of the
well foreclose
being "reasonably
safe.” Rather
"improved portion
§ 2 contrasts the
*19
majority
suggests
county
The
also
had no
to trim
obstructing hedges
private
implies
property
on
and
the absence
finding
of such a
bolsters a
under §
designed traffic” in for vehicular outside "sidewalks, other installation crosswalks or highway improved portion de- [sic] of signed (Emphasis supplied.) travel.” for vehicular language "improved portion” § 2 reflects dividing conceptual side, §2 re- line. one On county for state moves remedy conditions that fail to unsafe authorities "improved portion affecting side, traffic.” On the other for vehicular county for remain state and authorities immune any "sidewalks, or other crosswalks conditions . . .” outside . installation departure language statute, In a from the apparently majority draws the line between improved portion and, on the the surface of the affecting sur- hand, other conditions travel originating separately face of the analysis majority’s itself. The from the roadbed immunizing county authorities from liabil- state or ity conditions, of which the source unsafe originate roadbed, on the surface of do not meaning statutory plain contravenes principal import. language §of 2 and its
hi
majority’s analysis
§2
cases that
these
county highway
authorities
immunizes state or
upon
paved
or trav-
conditions created
unsafe
eled
off-pavement
visual obstructions
roadbed
comport
with well-
also does not
precedent developed in
this Court
reasoned
interpreting
Appeals.
§ 2 has
law
Case
the Court
correctly, rejected
my
consistently,
view,
"improved portion”
phys-
arguments equating
with
*20
643
TRANSPORTATION
SCHEURMAN V
by
Opinion
Beickley,
J.
roadbed,
§of 2 to
consonant with the mandate
ical
repair.5
highways in safe and reasonable
maintain
Dep't,
Highway
This Court in Salvati v State
(1982), recognized
708, 715;
64
415 Mich
330 NW2d
authority
incur
could
that
its failure to
highway
signs warning
post
of hazardous
Although
did not
Salvati
conditions.
language
"improved portion”
squarely
address
immunity
that
would
§ the case demonstrates
of
not shield the state for failure
to warn of known
portion.
affecting
improved
conditions
defective
warning signs
apart
paved
or
exist
from
While
highway,
did not hesi
of the
we
traveled
signs
the failure to install such
tate to state
(i.e., expose highway
immunity
au
could remove
resulting
liability)
thorities to
improved portion.6
for accidents
analyzed
first
This Court
Dep’t
Transportation,
language
Roy
§ 2 in
v
(1987).
held in
428 Mich
sented prove showing could no facts the accident resulted affecting on or negligent conditions either portions line Roy vehicular traffic. We commented imposed nonimmunity between limiting language of 2: "improved portion” Indeed, legislative to the extent it shows separation, judgment on the benefits exclu- *21 sidewalks, crosswalks, sion of and other installa- repair, tions from reflects a these installations have been duty of maintenance and pedestrians users of conclusion protected sufficiently motorists, by separation of them from without impose any repair duty need to of maintenance and by liability injuries. enforced for resultant prior specifically Whereas acts included sidewalks, crosswalks, bridges, culverts as sub- ject duty repair to by to maintain and enforced liability, legislation specifically the new excluded "sidewalks, crosswalks or other installation outside of [sic] highway designed for vehicular travel.” legislative purpose Section 2 does not reveal a protect bicyclists general, suggested in as Indeed, Appeals. Court of the statute not offer does general protection pedestrians or motorists regard without a to location. The statute announces repair and maintain the so that improved portion designed for vehicular travel reasonably is safe and convenient for travel. Legislature The criterion used was not travelers, on the based class of but the road on supra, they [Roy, pp Empha- travel. 336-341. supplied.] sis
The
of our
in Roy
essence
distinction
illustrates
maintain
in
safely
highways
SCHEURMAN V
TRANSPORTATION
Brickley,
repair
merely
reasonable
extends not
to the sur-
face of the
roadbed,
conditions on the
duty.
but to the location of the
Appeals
extensively
The Court of
has more
ana-
lyzed
viewpoints
§2, and its
on the definition of
"improved portion
highway”
remain
my
and,
view,
instructive
correct. The Court
meaning
"improved portion”
first addressed the
Lynes
Joseph
App
Comm,
v St
Rd
Mich
Lynes
The trial by equating improved por- "the tion” with portion” (pavement), "traveled con- provide strued the statute to immunity from liability the defendant with injuries proximately caused by negligence the defendant’s in the con- struction and maintenance of traffic control de- statute, construing vices. so the trial court [Id., p Emphasis supplied.] erred. Lynes emphatically rejected Court the de- argument urging *22 fendant’s because the stop sign "improved portion” existed outside the highway: the argument presented defendant, by the accepted by the trial grant- court as the basis for ing the defendant summary judgment, a 691.1402; 3.996(102)] exempts MSA the de- [MCL
fendant
from
in
the instant case because
stop sign
part
the
is not
"improved portion
of the
highway designed
the
for vehicular
travel” is
persuasive.
interpretation
Under defendant’s
statute,
the
keep
the defendant
highways
safe and ñt for travel would be
pavement
limited to the
itself
equip-
and whatever
In a case that sheds Co Miller Oakland here, at issue distinction Comm, Road 215; 204 NW2d App portion of (1972), unimproved a tree driving motorist on and struck a highway fell alleged portion. The had been warned road commission county previously had fallen situated trees similarly action. road, preventive failed to take but had for the judgment granted summary The trial court whether addressed Appeals The Court county. keep for an failure imposes liability agency’s 2§ " fit reasonably 'in safe condition . . .’ failure to remove known for travel and for causing] . . . of the road hazards from the side . . im- falling on '. plaintiff by injury [a] for vehicu- highway designed proved portion supra, Miller, In p ....’” other travel lar words, or not the Court asked whether removing road would absolve a commission unimproved trees on the the im- conditions on resulted unsafe the decision of the reversing proved portion. rejected argu- pointedly trial the Court judge, top tree fell on "that because ment truck, is somehow immu- the defendant plaintiff’s *23 Transportation Scheurman Opinion by Brickley, liability nized from under [§2] because the tree yet argument highway. was not on the This exalts logic.” p specifically, Id., words over 219. More knowledge potential said, Court "Given this keep hazards, road the defendant failed to '. . . in reasonably condition safe and fit for travel . . .’ driving by failing the road on which was potential to remove hazards from the side of the . [Defendant’s road. . . was incurred on improved portion '. . . the de- signed Similarly, for vehicular traffic ....’” Id. Prokop apart the fact that an obstruction exists from the should not immunize a highway agency’s failure to correct a hazard di- rectly affecting safety improved portion.
Cryderman
App
Co,
v Soo Line R
Mich
(1977), represents
factually
On the cases, basis of this line of seems surprising Appeals that the Court of in Scheurman Mich *24 Brickley, part integral lighting of constitutes an
held that the highway improved portion of the notwithstand- posts ing light the off themselves exist that the Prokop, Appeals in in con- of The Court roadbed. trast, prior departed that cases and held immunity precluded a action cause of because the the comprise part hedge of did not obstruction Prokop highway. improved portion of the attempt distinguish the did even to Court not finding immunity many no defendant cases agencies the unsafe existed where conditions portion regardless improved causing the factors of whether originated away the condition off unsafe Similarly, majority’s the itself.7 the from holding roadbed applies § 2 that under actual with the unsafe condition coextensive seriously paved or the traveled of roadbed legislative § mandate of 2 to main- undermines the highways. tain safe Zyskow- interpreting only many 2,§ the cases Of (On Remand), App 98, 169 v Habelmann Mich
ski (1988), suggested 103-104; 425 711 NW2d immunity applies physical the structure of "the itself.”8 road reconsideration,
On
we are convinced
language
an
the 2
evinces
of
imposition
intent
of tort
to limit
The first
of
maintenance cases.
sentence
forth
terms of ”reason-
statute sets
7
Michigan,
App 37;
See Johnson v State
32 Mich
IV Legisla- It is not difficult to understand that the making exception general princi- ture in ple an to the only of would do so to insuring safety improved the extent of on the portions highway, opposed sidewalks, as to paths, bicycle and other installations unrelated to predicat- However, vehicular traffic. the notion of ing statutory liability a scheme on the use of tort exposure as an incentive to maintain safe condi- highways tions on our on the one hand and then sharply restricting corresponding duty the some factors that affect conditions improved portion on the any other, on the stretches plausible explanation legislative of intent. majority’s holding This is the result of the in these two cases. unimaginable Legisla-
It seems almost that the provide ture would intend to governmental highway agencies an incentive for safely maintain highway the roadbed of the but not to maintain visibility unobstructed for vehicular traffic because Mich Brickley, originate from the road- does not the obstruction legisla- Certainly, § not reflect a itself. does bed impose intent unreasonable burdens tive provide highway condi- safe authorities negligence provides However, the of tions. adequate safeguards law against imposition of un- the today’s liability. The ultimate result of warranted alleging of action decision eliminates cause improved portion affecting of the unsafe conditions high- orginate from the do not physical pavement. plain way’s lan- Neither requires guage underlying purpose §2 nor the liability. unjustified restriction this portion” "improved §2 does limitation in gov- suggests, majority mean, not as the to that which makes ernment’s improved, exempted is confined is, roadbed, that is but area of is confined to the improved portion opposed as to the area ad- portion. joining words, other it is spatial limitation, not a limitation on the factors safety to the and conditions improved portion contribute opposed safety as to the of ad- Maintaining joining a safe walks installations. highway requires many off activities facilities including proper road, mixture of the goes into concrete that the roadbed. safety § 2 is on
The focus of the road, *26 services, facilities, of or that location installations of affect conditions travel on the portion.
v Appeals Scheurman, in I believe the Court of holding in that would while correct finding plaintiff’s action, of cause erred in bar Transportation Scheurman Brickley, J. non-freeway line for state trunk liable defendant street plaintiff lighting. con- in Scheurman imposed general duty on the §2 no that ceded state trunk non-freeway lighting on street install Appeals recog- highways. of line The Court 9.1097(lb)9 247.651b; MSA relieved nized that MCL to install authorities from a state lighting. non-freeway street Appeals although cor- However, the Court statutory rectly "[w]hile various stated regulate pay for the costs schemes who must repair, those statutes do and maintenance do not and not mention affect erroneously my it,” then, view, on to in went pertaining to the costs "[t]he statutes assert repairs state trunk line and maintenance of nothing highways to do with defendant’s have making responsibility sure that ultimate highways jurisdiction its are safe.” under App 774, The Court NW2d legal Appeals question in should have resolved this favor where the conceded the defendant’s no highways, non-freeway general light duty to trunk line statute similar and a later-enacted purpose specifically §to 2 relieves state authorities Assuming lighting. providing such these stat- 9.1097(lb)(l) 247.651b(l); provides: MCL transportation department shall bear the entire state maintaining, specifica- standards cost of accordance with and highways including department,
tions of all state trunk line villages highways incorporated except cities and within maintaining purposes local as the cost of additional width for provided city village. For lc shall be borne section purposes except and this act for sections 11 maintain- include, ing highways by way of trunk line shall state removal, limitation, cleaning but not snow street enumeration coating, patching ordinary repairs, drainage, and erection and maintenance seal signs markings, of traffic lighting, resurfacing, . . . include street new curb but shall not gutter widening. [Emphasis added.] structures *27 652 434 Mich Opinion Brickley, J. pari materia, seem be read in would
utes should impose liability illogical for one statute to on highway authorities for an item that another stat- maintaining. from ute relieves the authorities questions duty previously, As stated separate immunity. Therefore, I are from in Scheurman. would concur the result Prokop, totally from a situation different hedge existed, in that Scheurman obstruction creating unsafe condition township portion violated state and a both law10 Appeals ordinance. Court concluded duty . . the "defendant’s improved portion . extended to the and not hedge private property.” obstruction located on App 119, 125; NW2d 239.5; provides:
10 MCL MSA 9.525 owner, every occupant person It shall be the or state, having trim, charge of lands this cut or or cause to trimmed, height exceeding be cut or to a four and one-half exceeding feet, hedges hedge feet and a width not rows each and out for the mings three all or along public highway adjacent or or thereto in every year, except hedges such as shall have set been protection nursery of fruit trees and Trim- stock. hedge lying or brush such rows shall not be left highway, within limits of the but shall be forthwith re- Provided, apply moved: highways That this section shall not to streets or incorporated within cities. Redford, Township provides pertinent Ordinance No. 149 part: permit growth. Unlawful to dense It shall be unlawful for the occupant any person persons, corpora- owner or or or firm or charge parcel any Township
tion in of Redford to shrubbery lot or of land within the permit weeds, grow or allow to thereon which, height density, or trees because of shall pedestrians, constitute a hazard drivers of motor persons engaged vehicles or other sidewalks, while in the use of the lawful Township roads or streets in the of Redford. In all (24) locations, shrubbery twenty-four such inches in and tree limbs shall not shall not exceed (6) height, height, weeds shall not exceed six inches in (6) hang lower than six feet above ground level. SCHEURMAN V TRANSPORTATION Bkickley, say conclusion is "[o]ur on to Court went pro- 239.5; 9.525 which MCL buttressed every trim landowner to it is the vides that hedges *28 along public highway growing to a that are exceeding height feet. We believe not a this statute liability AV2 Legislature’s intent that evidences the hedges motorist’s vi- that obstruct a private landowner, not rest with the should sion county Id. road commissions.” the state or with my Appeals erroneously, view, The Court hedge-trimming its to buttress the statute used argument immunity. It confused
for defendant’s vegetation duty to trim of a landowner the private property county duty of a to with the "improved portion” of a the maintain jurisdiction fit and safe for vehicular under its county Again, in the the has whether end travel. duty the is to take action to abate obstruction county separate question is from whether a immune from liability. imposes duty
Although a 239.5; MSA 9.525 MCL along vegetation to trim on landowners on nothing implies property, private in the statute duty highway authority its is absolved from that a and fit for safe to maintain state statute travel. The existence vehicular anything, city seem, if ordinance would and proceed duty county to should buttress against private to a visual owner’s failure abate improved por- affecting safety obstruction tion of the question highway. whether failing steps negligently by county to take acted hedge could not be answered correct a solely hedge-trimming obstruction township reference to the state Because of the erroneous
statutes. excep- Appeals that the the Court of conclusion of apply did tion to analyze duty case, issue. it did not this Brickley, J. judgment reasons, For I would vacate these Appeals for a Court of remand case extent of defendant’s determination see it that obstruction was corrected carried out. whether that was JJ., Archer, Levin and concurred with Brick- ley,