*1 v of OF TRANSPORTATION v DEPARTMENT SUTTLES OF TRANSPORTATION v DEPARTMENT BROWN 5, (Calendar Argued Nos. 106359. November Docket Nos. Brown, Rehearing granted in 11-12). 1998. Decided June Mich 1207. representative personal Suttles, of the estate himself and as
Rex
Pansy Suttles, deceased, brought an
in the Genesee Cir-
action
of
city
Flint, alleging
against
was
that the decedent
of
cuit Court
injured
slipped
getting out of a vehicle on
and fell while
when she
a
ice and snow on a street next to
accumulation of
an unnatural
Ransom, J.,
court,
granted
parking
The
Robert M.
area.
curbed
summary disposition, finding that the state
defendant’s motion
designated
jurisdiction
state trunk
because the street was
had
complaint
plaintiff
in the Court of Claims
then refiled the
line. The
court,
Department
Transportation.
against
Peter D.
of
The
summary disposition
Houk, J., granted
motion for
the defendant’s
Comm’rs,
Wayne
2.116(C)(7) and Mason v
Co Bd
under MCR
of
P.J.,
Appeals,
and
The Court
Markman,
J.,
181267).
dissenting),
(Docket
No.
affirmed
J.
(Murphy,
Hoekstra,
appeals.
The
DeRusha, minor, brought
Abby
Kathy Brown,
an
as next friend
city
against
of Harbor
Emmet Circuit Court
action in the
Department
against
Springs
and in the Court of Claims
Abby
Transportation, alleging
she was
when
that
crossing
by
at a
a street in a crosswalk
automobile while
struck
an
was foresee-
negligently
and that the
intersection
court,
court. The
in the circuit
The cases were consolidated
able.
summary
Pajtas, J.,
the defendant’s motions for
M.
denied
Richard
P.J.,
Appeals,
disposition.
D. E.
and
The Court of
Holbrook,
Taylor,
order, relying
by peremptory
J., dissenting),
reversed
(Neff,
J.
Jr.,
Commr’s,
(1994)
Wayne
where the defect occurred. government’s language law that the statute defines and case duty by indicating portions maintain and of the road it must what repair, occurs. owes a or where the not to whom it Suttles, reversed and remanded.
Brown, equal affirmed division. (1996) App 166; reversed. 216 Mich 548 NW2d for the Lemer), Joshua A. Ellias, (by & P.C. Cohen in Suttles. plaintiff-appellant Scott R. Pylman, (by L.L.P. Mills, Nims & Gruel, plaintiff- Brooks), and Brion J. Melton in Brown. appellant Thomas L. Attorney General, Kelley,
Frank J. E. Turner and and Brenda General, Solicitor Casey, Mich Opinion by Mallett, C.J. Attorneys
Harold J. Martin, Assistant General, the defendant. granted C.J. In these cases, combined we
Mallett, highway exception leave to determine whether the governmental immunity applies involving
to accidents
pedestrians.
3.996(102)(1).
MCL
Appeals
Sutiles, the Court of
affirmed the trial court’s
grant
summary disposition.
of defendant’s motion for
App
(1996).
166;
i A. SETTLES v DEP’T OF TRANSPORTATION got On March decedent out of passenger parked side of an automobile that was Saginaw outside a church on Street in downtown Michigan. alleges slipped Flint, She that she and fell because of an unnatural accumulation of ice snow on parking next to the curbed area. personal representative originally Her filed a com- plaint against city in the Genesee Circuit Court city summary Flint. The disposition, filed a motion for alleging Michigan that before the accident the state of *4 jurisdiction Saginaw had over Street because it was a designated granted state trunk line. The circuit court city’s complaint motion. Plaintiff then refiled the Dep’t v of Opinion Mallett, C.J. Michigan, naming the of Claims, Court of state
in the Transportation, Department of as defendant. granted for sum- defendant’s motion of Claims Court disposition 2.116(C)(7) mary pursuant and to MCR supra. Plaintiff Mason, in Court’s Appeals appealed, of affirmed and the Court plaintiff’s complaint dismissing Claims order Court of immunity grounds. governmental on B. BROWN DEP’T OF TRANSPORTATION v July plaintiff’s next Mend was struck
On attempting while the intersection and cross in M-119, Street, West and Street of city Bluff State Michigan. part Springs, Harbor M-119 is a of Springs trunk in Harbor that runs an the state line Street east-west direction. State runs north-south it dead ends West Bluff Street runs east-west until dispute, M-119, which, into at the intersection northerly angles in a into Bluff Street. direction West appeal, At all times relevant to this State West city jurisdiction Streets Bluff were under Springs. Harbor companion plaintiff’s
As
next
friend and her
heading
approached on
while
intersection M-119
Springs, they intended to
toward downtown Harbor
way
the crosswalk
cross
intersection
portion of the M-119
installed as
of the traveled
attempted
highway.1
to tra-
As
next Mend
previously
Legislature
has
held that the
intended
use
This Court
immunity
applicable
tort
act with the same
terms
they
seq.;
meaning
code,
et
MSA
as
have in the motor vehicle
MCL 257.1
330, 338;
seq.
Roy
Transportation,
See
9.1801 et
NW2d 783
257.10;
9.1810,
code,
“Cross-walk”
vehicle
defines
The motor
MCL
as
*5
640
Opinion by Mallett, C.J. by crosswalk, verse the M-119 she was struck an traveling automobile alleges westbound on M-119. Plaintiff design unreasonably that the intersection necessary dangerous because it is for vehicular traffic heading attempting on and south State Street to turn proceed left on M-119 eastbound to into the intersec- adequately oncoming tion to view traffic. Plaintiff plaintiffs claims the owed state next friend pedes- because it was foreseeable that an to a negligently trian occur would as a result of the designed intersection. against city
Plaintiff filed the action instant the of Springs Harbor against in the Emmet Circuit Court and Department Transportation the of Court of Claims. The two cases were consolidated in the city department circuit The court. and moved for summary disposition pursuant 2.116(C)(7) to MCR (8), which trial court denied. The Court of Appeals by peremptory relying reversed order, on this supra. granted Court’s in Mason, decision We leave to appeal purpose cases,3 both consolidated for the appeal, Legislature to address whether (a) part roadway That of a at an intersection within included opposite connections lateral lines of the sidewalks on sides curbs, measured from the or in the absence of edges highway. curbs from the traversable (b) Any portion of a at an intersection or elsewhere dis-
tinctly pedestrian crossing markings indicated lines or other on the surface. “pedestrian Crosswalks as defined above are not be confused with walkway.” Mason, 257.627a(3); 9.2327(1)(3). overhead MCL MSA See also supra at n 5. appears granted part It record trial court city part Springs summary disposition. denied in of Harbor motion for city appeal. has not taken in this Opinion Mallett, within the pedestrians include intended to immunity. exception governmental n A governmental in this state that well settled It is liability while engag- immune from tort are agencies unless an function in a ing Ross v Con 691.1407; MCL applies. *6 618; 420 Mich Rehearing), (On Co sumers Power well settled that It is also (1984). NW2d 641 363 Id.; Rear narrowly construed. be exceptions are to 424 398, 411; 430 Mich Health, Dep’t Mental don of faced with again Court is Here, this (1988). NW2d 248 to exception gov highway interpreting of the task immunity. MCL ernmental 3.996(102)(1).4 provides: exception highway The highway having jurisdiction agency over a governmental Each repair so that it is reason- in reasonable maintain the
shall
ably
person sustaining
public
bod-
A
for
travel.
safe and convenient
by
property
a
ily injury
damage
of failure of
her
reason
to his or
or
jurisdiction
keep
agency
governmental
under its
to
reasonably
repair,
and fit for
safe
and in condition
reasonable
travel, may
by
damages
from the
him or her
suffered
recover
remedy
procedure
liability,
agency.
as
county
county
jurisdiction
road commission
roads under
chapter
provided
Act No. 283 of
IV of
in section
shall be as
amended, being
224.21 of the
section
Acts of
as
the Public
county
road
Michigan Compiled
state and
Laws. The
highways,
and the
and maintain
commissions
only
duty,
to the
extends
sidewalks, cross-
and does not include
for vehicular travel
any
walks,
installation outside
or
other
against
judgment
highway designed
A
vehicular travel.
arising
from acts or omis-
this section
a claim
under
state based on
only
payable
transportation department
of the state
sions
depart-
transportation
appropriated
state
to the
restricted funds
provided
its insurer.
ment or funds
Mich Opinion by
Mallett,
granted
In Sutiles,
the trial court
defendant’s
summary disposition pursuant
motion for
to MCR
2.116(C)(7).
granted
Brown,
In
the lower court
summary disposition pursuant
defendant’s motion for
2.116(C)(7)
(8).
determining
to MCR
whether a
by governmental immunity,
claim is barred
documentary
we must consider all
evidence, includ-
ing any pleadings, depositions,
any
admissions, or
documentary
parties.
other
evidence submitted
Wade v
Corrections,
A 2.116(C)(8) motion to MCR tests the legal sufficiency complaint and allows pleadings. consideration of (C)(7) Id. Under both (8) accept well-pleaded and motions, courts must all light facts as true and construe them in a most nonmoving party. favorable to the Id. at 162-163.A *7 may 2.116(C)(8) only granted motion under MCR be clearly where the claims are so unenforceable development as a matter of law that no factual could possibly justify recovery. Id. at 163.
B acknowledge governmental We that the notion of immunity, interpretation, practical applica- its and its tion stemming part have been difficult at times, from the decisions of this Court and from the confus- Dep’t v of Opinion Mallett, history of The govern the statute itself.5
ing nature of prior well immunity been documented mental has the of but, believe, we facts Court, decisions of history look at the once require a brief these cases history concisely the Court set forth This again. highway the underlying Transportation, immunity in Scheurman of 629; NW2d 66 (1990): Mich excep today highway the before us center on The cases statute, 691.1402; 3.996(102). origin The of MCL tion 244; PA 1 How Stat the is the enactment of 1879 statute liability upon municipalities imposed “in favor 1442, which bodily injury upon any pub any person ‘sustaining of of the state, by neglect of highways lic or streets in the reason keep streets, bridges, public highways all or and cross- such Appeals majority confusing The in Suttles noted the nature Court of as well: statute language highway exception express the indicates that the of highway highways maintain the authorities to and portion highway improved designed “shall extend the provision such for travel.” The then states that “shall vehicular “sidewalks”; (2) types (1) not” to three of installations: extend “any “crosswalks”; (3) other installation outside of designed highway for vehicular travel.” (Emphasis added.) First, confusing language its for several reasons. structure This high- implies 1, 2, are from installations and 3 exclusions “sidewalks,” way exception. Yet, it is difficult to fathom how unlike “improved portion “crosswalks,” be as could construed designed travel,” highway vehicular even absent their of explicit Second, “any highway exception. from the exclusion language third exclusion to the other exception installation” specific implica- terms that follows a enumeration of improved portion of “outside of the tion also describe installations “crosswalks,” however, designed travel”; vehicular why words, description. clearly In other it is unclear fit this do not highway exception expressly excluded “sidewalks” are implicitly why equally are described unclear “crosswalks” it is as “outside of the installations at 168-169.] for vehicular travel.” [Id. *8 644 Mich 635
Opinion by Mallett, C.J. good repair, walks in and in and culverts on the same reasonably Roy fit for condition safe and travel v Dep’t Transportation, 330, 336-337; Mich 408 NW2d of passage 264; With the of 1887 PA How3 Stat 1446c, Legislature expanded amended statute and scope liability its to include sidewalks. Id. at 337.
However, Legislature governmental when the codified immunity 1964, specifically purview it reduced the of the exception statute. Section of the immunity expressly act excludes the state and the counties liability “sidewalks, any for crosswalks or other instal- lation outside of of the [sic] designed 691.1402; vehicular for travel.” MCL 3.996(102). Furthermore, the state the coun- only § ties created under “shall extend to the highway designed for . . vehicular travel . .” [Emphasis original.] synopsis history underlying
We find this exception instructive. The 1879 enactment immunity articulated a broad “any person” allowed a cause of action an by any sustained on or of the areas The listed. scope liability amendment increased perhaps provided include sidewalks, area not exception. original for in the governmental immunity With the codification highway excep- significantly longer tion was narrowed and no county injuries allowed for the state specific (1) (2) incurred in three areas: sidewalks, (3) any crosswalks, or other installation outside the highway for vehicu- lar travel. import specific of this indicates, limitation we Legislature’s significantly
believe, the intent limit a pedestrian’s ability background to recover. With this proceed keeping in mind, we cases, with these while Opinion Mallett, *9 exceptions gov- the to interpreting mandate of to our Reardon, immunity narrowly. See Ross and ernmental supra.
c whether Today specific question we address the to by highway exception the are covered pedestrians immunity. 691.1402(1); A review of MCL of this previous decisions MSA 3.996(102)(1) may come pedestrians us to that Court lead conclude in limited situations. exception within in provide guidance of this Court Recent decisions Transportation, plaint Roy Dep’t v area. In bicycle bicycle his a riding while on iff6 was of 1-275. Id. at 332. The adjacent portion to path a posed a bicycle “bump” that allegedly hit plaintiffs by weeds bicyclists which was covered to danger piled previously by cut and the defend had been that injuries. result, suffered severe ant. As a Id. Roy bicycle presented in was whether a
The issue
the trav-
parallel to,
from,
that ran
but detached
path
roadway
part
highway,
was
eled
exception
govern-
within
to
so as to fall
immunity.
under
of that
held,
We
the facts
mental
by
was
case,
plaintiffs
govern-
that the
claim
barred
immunity.
result,
that
we noted:
reaching
mental
not
3.996(102)(1)]
does
Section
[MCL
protect bicyclists
general,
legislative purpose
reveal
Indeed,
statute
by
Appeals.
suggested
as
the Court
pedestrians
general protection to
or motor-
does
offer
Department
injured plaintiff
against
wife filed suit
and his
The
only.
plaintiffs
Transportation.
was
The
wife’s claim
derivative
Opinion Mallett, regard ists without to location. The statute announces a and maintain so improved portion designed for travel is vehicular reasona- bly public safe and convenient travel. The criterion used Legislature travelers, was not based on the class of they (emphasis but the road on which at travel. [Id. added).] A case that presented both an and set issue of facts Roy similar to was Gregg Dep’t, State Hwy Mich 307; 458 NW2d Gregg injured when fourteen-speed bicycle his racing hit a pothole and overturned. we Again, considered bicycle path whether the that case was highway so as to fall within the highway *10 immunity. We held that because the bicycle path in Gregg of “the west shoulder highway,” unlike Roy path where the was not [the] part of, a parallel to, but ran roadway, plain the tiffs claim exception. fell within the Id. at 310. Brickley
Justice utilized the following rationale from Roy support to this Court’s finding that plaintiff’s claim Gregg by in was not barred govern- mental immunity: immunity govern- to found in of the “[T]he § immunity apply bicycle mental paths. act does not to [highway exception immunity] apply to does to ‘an
installation outside of designed path bicycle for vehicular travel.’ A is not travel, for vehicular in the common sense of relating ‘vehicular’ as to motor vehicle. Mich [428 340.] general protection pedes- statute does not offer to “[T]he regard trians or motorists without to location. The statute announces a maintain so Opinion Mallett, portion designed vehicular travel is for that the public reasonably travel. The crite- and convenient safe Legislature was on class of not based rion used they travelers, which travel. Mich but the road on [428 supra [Gregg, at 312.] 341.]” in Gregg-. We concluded bicycle sepa- Roy path that was did concern [N]ot roadway apart and the shoulder of rate and path highway, motor it on which vehicles but concerned any enter reason. Further- have no occasion to would analysis Roy supports more, different result in our analysis Roy, said: concluding in we this case. In our inteipretative interpretation fits within “This each express wording of clues identified above. It satisfies the limits the created to less than the full § which there policy highway. It does not frustrate the announced in other bicyclists by protecting requiring them to use statutes of bicycle roads, paths, provided, preference where paths exposed bicycles bicycle on are not to the because from, mixing bicycle and vehicular hazards which arise supra Roy, quoting travel." at at 341 means [Id. (emphasis original).] analysis we Roy The crux utilized as Gregg applies to the facts of cases well. We these “ protec does general noted that ‘the statute not offer without pedestrians regard tion to or motorists ” Roy, at Gregg, supra quoting supra location.’ at 341.7 applicability
We
addressed the
recently
more
*11
injured pedestrian
an
in Mason
highway
There,
plaintiff
v
Co Bd
Comm’rs.
Wayne
of
Gregg
311,
3,
specifically
n
Court
noted the fact that the
at
this
improved portion”
highway.
of the
was “entitled
travel on
permitted
otherwise,
was an intended and
user of
Stated
improved portion
highway.
Mich
Opinion by Mallett, county
failing
that was liable for
to install
warning signs
elementary
school
near an
school in
majority
rejected
argu-
Detroit. A
of this Court
plaintiffs’
“[t]he
ment because
. [did]
action . .
present
special danger
to vehicles. The
exception abrogates
immunity
at
‘points
special danger
to motorists ....’”
Id. at
quoting
Michigan,
App
Mich
434;
Grof v
(1983);
interpretation: [Tjhe phrase “designed only for vehicular travel” can be
reasonably interpreted to mean “intended for vehicular explicit exclusively pedestrian travel.” The removal highway exception, coupled installations from the with the express language provision itself, permits but one upon highways conclusion: Michigan Pedestrians who trek county 8 The of the state and the road commissions highways, duty, and maintain and the for that extends highway designed to the vehicular sidewalks, crosswalks, any travel and does not include or other installation outside of the vehicular travel. [MCL 3.996(102) (1).] *12 Opinion Mallett, beyond protective mandates of and do venture must 3.996(102)(1). 691.1402(1); MSA MCL exception highway from the The exclusion of crosswalks excep- underlying highway with the idea is consistent keep able to their of vehicles should be tion —that drivers worry traffic, that dan- not have to on the and should minds surprises are situated differ- gerous lie ahead. Pedestrians may approach ently traffic, obstacles which than vehicular may them, quickly or avoid highway to avoid in the too adjoining only by jeopardizing lanes. traffic in the obstacles explicable drawing also on the legislative line is This point past expanding right a certain ground to sue that accidents, nothing more prevent and amounts to does not may expanded pay. Legislature obligation to an than injuries governmental that have concluded well crossing will not enhance vehicu- pedestrians the street safety. at lar 137-138.] [Id. examined indicated that we Gregg, we Roy
In area on which individual, but the the class of as the individual long As traveled. individual highway injured on three areas listed any was not we have consist- 3.996(102)(1), MCL a cause of action stated ently that that individual held immunity. as to avoid so these the facts of this, we now turn to light legislative further the in an effort to cases combined exception govern purpose underlying mandate to in mind our immunity, keeping mental statute and restrictions the conditions construe narrowly.9 Scheurman, supra Riley’s analysis at This foEows Chief Justice
630, n 20: seemingly reason to construe obvious Another phrase specific narrowly language § is the Mich
Opinion by Mallett, C.J.
m person long Plaintiff Suttles contends that as as a on the and is not specifically exempted within the areas of crosswalks, pedestrian gov- sidewalks, or installations, other *13 immunity. ernment is not entitled to Plaintiff Brown alleges design that because of a defect at the intersec- question, duty tion the defendant breached its to maintain the safe for vehicular travel.
A got passenger’s Plaintiff Suttles out from the side of traveling the vehicle in which she was and was injured allegedly slipped when she and fell on an unnatural accumulation of ice and snow. The record replete varying specif- regarding with accounts plaintiff’s injury. surrounding example, ics For in her deposition plaintiff taken before death, her indi- point, cated, at one that she was on the at the time Later, she fell. she indicated that she was on the curb or sidewalk when injured. she was testimony conflicting regarding
There was also plaintiff location of the ice and snow. The indicated the accumulation was both on the sidewalk and on highway. The personal representative deposition testified in his that plaintiff laying he found the on the sidewalk next to interpreting today. Legislature provided duty we are The that the (Emphasis the state and the counties “shall extend . . . to .” added.) suggests “only” implies Common sense that Legislature strictly intended the to be construed. Opinion Marrett, C.J. sidewalk on the piled had been snow that the ice and regard- The accounts onto the curb. spilled over also conflicted. day question on the ing snowfall security and the workers the maintenance Finally, located immedi- building from the office personnel was plaintiff where the area ately adjacent street maintenance city of Flint’s also testified. gave individuals well. These testified as supervisor it responsibility whose regarding different accounts size, and origin, and the ice, to remove snow in this case. accumulation of the snow location issues these and other the answers to To the extent by defend duty, any, if owed relate to the they be resolved injury, her must ant at the time of is found to remand.10 If the trial court on sidewalk, then neither injured on the have been high- her a under county nor the state owed 10 every plaintiff alleges a of action based on where a cause instance immunity, MCL *14 the two-step analysis. step engage 3.996(102)(1), The first must in a the court plaintiff pleaded requires a the has cause of a determination whether immunity. First, governmental a court must deter- action in avoidance of improved portion plaintiffs occurred on the mine whether the accident question highway designed The next that must be for vehicular travel. the injury step plaintiff’s occurred on under the first is whether answered “any crosswalk, sidewalk, outside of the or on other installation a in a highway designed improved portion vehicular travel.” Id. Under of the injury any inquiry, of the three delineated if the occurred the latter governmen- areas, plaintiff’s claim does not fit within However, immunity, i.e., if is barred. claim tal highway, other than in area of the occurred in an pleaded areas, plaintiff specifically has a excluded one of the three immunity plaintiff circumventing governmental and the action cause of may negligence proceed cause of action. with the plaintiff prove step, must a cause of action under second Under the per- Concepts principles. negligence as the “intended and such traditional analysis apply negligence Gregg language to the mitted user” derived duty plaintiff or whether owed a to the bear on whether a defendant Mason, supra comparatively negligent. n A plaintiff at 5. See the plaintiff, was analysis. recover, satisfy legs both of this must order Mich
Opinion by Mallett, C.J. way exception governmental immunity. MCL 3.996(102)(1). plaintiff If, however, injured portion highway was in the traveled negligence, may because of defendant’s then she have pleaded excep a cause of action within the governmental immunity.11 tion to plain- The record indicates the vehicle in which the parallel traveling parked along tiff was the curb in a portion specifically that had been des- ignated parking an alcove-like curbed area. holding provided plain- This Court’s in Mason if any tiff is on a in a sidewalk, crosswalk, or on other installation outside the highway designed for vehicular travel, no is plaintiff by county. owed to that the state or a If, on remand, it is determined that was on the analysis simple: sidewalk when fell, she is defendant did not owe a to her.
If, however, it is found that the
fell and
injured by
improved portion
a defect in the
highway,
may
pleaded
then she
have
a cause of
governmental
immunity.12
action so as to avoid
analysis adopted
Hence, we would reaffirm the
Gregg,
which allowed suit
a nonvehicular traveler
interpreted
This
should
overruling
neither be
as
the estab
authority
lished line of
agency’s
that a
failure to remove nat
ural
automatically
accumulations of ice and
neg
snow does not
constitute
ligence
governmental agency,
on the
of that
Wayne Co,
see Reese v
App 215, 217;
(1992),
Mich
therein,
who was on the way designed vehicular travel. We would leave it on remand to ascertain the answers to the trial court questions. to these immediately preced- reiterate, however, that the
We interpreted ing be to mean the discussion should not automatically liable to the even defendant is injured if it is found that she was on highway designed for vehicular travel. requisite Plaintiff must still demonstrate the elements negligence If remand the trial cause of action. on sufficiently court determines that the has pleaded a cause of action so as to avoid duty plaintiff by immunity, the existence of a owed to Plaintiff must then defendant has been established. duty, prove that and that the defendant breached proximate breach was the and factual cause of her injury.
B injured next friend was when she Plaintiff Brown’s crossing an automobile while M-119on was struck 691.1402(1); The mandate of MCL MSA a crosswalk. county 3.996(102)(1) clear: Neither the state nor a pedestrian pedestrian while is in owes a to a This was decided this Court in a crosswalk. issue specifically that hold and we would reaffirm Mason, today.13 undisputed ing Because it is she was in the cross- next friend was while may position seem inconsistent notes that the taken here author Mason, supra signed. which this author with that of the dissent in at language majority holding in clear of MCL Mason and the Given injuries concerning 3.996(102)(1) lack of recognizes controlling. crosswalks, that Mason is the author sustained *16 654 Mich 635
Opinion J. Taylor, walk, county neither the state nor the owed her a duty. Summary disposition under 2.116(C)(7) MCR (8) proper.14 was therefore
w reasons, For the we would foregoing reverse Sut iles and remand the case to the trial court with instructions for further factual development, and we would affirm Appeals the Court of in decision Brown.15 J., concurred with
Boyle, Mallett, J. in (concurring only Sutiles). Sutiles, I Taylor, concur in opinion’s the lead result and most of its analysis. separately only I write clarify to I applicability believe that highway exception to immunity, MCL 691.1402(1); MSA turns on 3.996(102)(1), the location of the alleged defect, not the location where the alleged injury occurred. plaintiff’s The dissent would allow decedent to maintain a cause of against action the state for an sustained on the highway, premised design her case an on defect in the injured. interpretation intersection at which she was We find this highway exception unsupported by to be both overbroad and the law of Indeed, single support this state. the dissent does not cite a case to its neglect, contention. This omission is not based on but instead on a lack of authority. legal recognized No decision Court that has a cause of design pedes action for a or construction defect in a involved a Dep’t Transportation, 1;
trian. See Killeen v
432 Mich
Weaver, I in and I with the pari). agree concur result I separately disagree in Brown. I write because with opinion’s that neither the holding the lead Brown county a pedestrian state nor a owes while pedestrian a crosswalk. Riley’s I continue to with Justice dissent agree 607, 632-656; Pick v Szymczak, NW2d (1996), which held that the highway impose statute does not defects in or construction. Because I design believe that *17 county state or is bound to fix a design or construc only tion defect when that defect would leave the physical surface of the road in disrepair and therefore I unsafe, plaintiff would hold that the in Brown did plead a claim that immunity. avoids Cavanagh’s I Nonetheless, agree with Justice opinion plaintiff’s injury Brown that when a occurs in a crosswalk, but the alleges that the defect was improved portion of the highway, plaintiffs claim go should forward. I J. dissent from the opinion’s lead rea
Cavanagh, and soning conclusion in Brown Dep’t Transpor tation. I find that the reasoning of the lead opinion departs from the language statute, of the and I am any unable to conclude that support there is in the prior statute or case law two-part for the test articu lated in footnote opinion. of the lead MCL states in 3.996(102)(1) part: relevant person bodily injury sustaining
A damage or to his or her property by governmental agency reason of failure of a to keep jurisdiction repair, under its in reasonable reasonably travel, may and in condition safe and fit for damages gov- recover the suffered him or her from the Mich Dissenting Opinion Cavanagh, J. county duty agency. . . . The of the state
emmental repair highways, and the and maintain road commissions to only improved portion liability duty, to the for that extends highway designed and does not for vehicular travel of the any sidewalks, crosswalks, installation or other include improved portion highway designed of the outside of the [Emphasis for vehicular travel. added.] portion as relates to statute, I find this of the it language statute, Under Brown, to be clear. may govern- person” damages recover “from the “a agency” agency breached its mental where that “duty repair highways” and the ... and maintain “liability duty, for that extends to the highway designed for vehicular duty travel . . . .” The for that does not “repairing] [ing]” sidewalks, extend to and maintain any crosswalks, or other installation outside the for vehicu- allege lar in Brown did not travel. Because repair that the state had a or maintain a cross- but instead that the state had a walk, preceding and maintain the intersection crosswalk, which was highway, plaintiffs go claim should forward.
The lead has taken the statute has *18 holding meaning twisted its into an awkward though states that even may may person if defective,
road be not recover injured traversing Plaintiff in this while a crosswalk. allege maintain case did not that the state failed to alleged condition; rather, in a safe she the crosswalk highway designed that the for vehicular travel was not safe. The mere mention plaintiffs claim, of a crosswalk should not defeat v Dissenting Opinion by Cavanagh, J. especially plaintiff alleged where the has a defect in of the road. design
Plaintiff that the of the intersection preceding the crosswalk was defective because it vio- industry design lated standards relative to and site requirements distance for intersections. Furthermore, years preceding Abby injuries, in the six DeRusha’s there were at least six vehicle-to-vehicle accidents resulting design sight from the same distance Abby’s injuries. Contrary defects that contributed to Legislature, opinion’s to the intent of the the lead holding recovery injuries would allow sustained by passengers alleging of the vehicles the same defect alleged by Abby deny recovery DeRusha, but would Abby crossing DeRusha because she was street at a crosswalk. Legislature high intended that the focus of the
way exception should be on the nature or location of
person
the claimed defect, not on the status of the
place
or the
where the
occurred. I can
accept
opinion’s
interpretation
the lead
strained
Roy Dep’t
of the statute. Indeed, the decision in
Transportation, 428 Mich 330, 341; NW2d 783
(1987), supports
proposition.
“The criterion used
Legislature
was not based on the class of trav
they
elers, but on the road on which
travel.”
Wayne
While the lead
relies on Mason v
Co
(1994)
Comm’rs,
Bd
447 Mich 130;
Dissenting Opinion allege crosswalk, in the a defect Brown did alleged of in the a defect rather she highway. opinion’s agree conclusion with the lead I cannot erroneously alleged on where the it focuses because persons who are and the class occurred focusing injured, than on where rather defect opinion’s reasoning, “First, a Under the lead occurred. accident must determine whether court occurred on ques-
designed travel. The next for vehicular plaintiff’s injury occurred tion ... is whether (emphasis Ante at n 10 on a . . . crosswalk.” support challenge added). find the lead I two-part language It test in the of the statute. for this simply support for the test Flirthermore, is not there. support prior Finally, in our case law. is not found policy public grounds, as the test is not founded on jaywalkers. discussion about infra, noted prior law will illustrate A brief review of our case bicycle my supra, path point. Roy, In we held that a adjacent separate high- from, detached to, but way improved portion was not road primary for vehicular travel. The focus alleged stated, “[t]he We on the location of the defect. Legislature was not based on the criterion used ” they the road on which travel. travelers, class but (emphasis added). Id. at 341 Dep’t Transportation, 434 Mich In Scheurman v (1990), on where the 619; NW2d 66 we focused that the failure to occurred. We stated defect subject along lighting line did not install a state trunk potential government “the because the physical lights trav falls outside the structure of n Dissenting Opinion by Cavanagh, J. actually paved portion or of the roadbed
eled public designed for vehicular travel.” Id. at 633. Dep’t, Gregg Hwy 307; v State *20 (1990), again focused on where the NW2d 619 we alleged was case, occurred. In that defect bicycle pothole when his struck a located bicycle path demarking white lines a within two paved portion preceding the road and its within the plaintiff, paved held that even shoulder. We bicyclist though a motorist, and not a was member bicy protected, to be of the class of travelers and path was of the road cle designed Id. at 312.
for vehicular travel.
Transportation Dep’t,
Chaney
145;
447 Mich
(1994), again
Dissenting Cavanagh, J. in cross- counties for defects added). (emphasis This . . at 135 walks . Id. clearly on the location of the focus was Court’s injury. gov- rather than the location defect, liability not because immune from ernment was injured, when she was was in a crosswalk improved por- was outside the but because the defect in a crosswalk. tion of the road or statutory language and our case It is clear from the duty by government’s law that the statute defines the telling portions it must maintain it what of the road repair, to whom it owes a or where the injury occurs.1 opin-
Finally, question prudence of the lead I jaywalkers. holding it ion’s as it relates to While comparative recognizes negli- true that this state *21 jaywalker permitted gence, a would be to recover case, under the same facts as this whereas someone completely lawfully crossing at a crosswalk would be recovery. public policy barred from From a stand- point, it seems obvious to me that the focus should alleged Rather, not be on where the occurred. properly was, the focus is on where the defect opinion single a The lead asserts that “the dissent does not cite case support claim, apparently, that, Ante at its n 14. The contention.” pedestrian I because have not cited a case which a allowed to road, design recover because defect in the support my However, opinion holding. both the lead there is no opinion pedestrians were allowed to recover. See cite cases which Gregg, supra. dating opinion generously cases The lead has also cited design 1886 in which this Court held that a defect is actionable. back to may already pedestrian Ante at n both that a 14. This Court has held design recover and that a in this defect is actionable. The difference design pedestrian is allowed to recover because case is that a defect vehicular travel. in the of the road Suttles Dissenting Opinion by Cavanagh, J. least, prior express case law and the according
at terms of the statute. stated, respectfully
For the reasons I dissent from Brown.2 the decision of the lead As to the case, I concur in the result opinion. reached lead Brickley Kelly, JJ., Cavanagh, concurred with J. Despite majority justices agree my analysis the fact that a with *22 injury, the location of the claimed defect controls over the location of the precluded litigating it is unfortunate that Brown is her single justice acknowledge case for the mere fact that a fails to recovery defect, long allowing design line Court’s of cases for a as noted opinion. 654, 14, citing allowing recovery even the lead Ante at n cases design dating for a defect as far back as 1886.