In these consolidated cases, the personal representatives of the estates of Lisa Taylor, Kelly Hill, and Jon Schikora appeal as of right from the trial court orders that summarily dismissed their claims against defendant Lenawee County Board of County Road Commissioners arising out of a fatal train-automobile collision at the railroad crossing on Thompson Road in Lenawee County. The personal representatives of the estates of Lisa Taylor and Kelly Hill also challenge the court’s order striking their first amended complaints and awarding sanctions to defendant board of county road commissioners. We affirm the grants of summary disposition and the decision to strike plaintiffs’ amended complaints, but reverse the trial court’s award of sanctions against plaintiffs.
Although defendant board of county road commissioners’ motion for summary disposition was filed pursuant to MCR 2.116(C)(8) and (10), the trial court apparently granted the motion under (C)(10) because it relied on an affidavit stating that the Michigan Department of Transportation (moot), before the fatal accident, had not issued an order requiring the installation of flashing lights or stop signs at the railroad crossing in question. In reviewing de novo the trial court’s decision, we examine the record, review the documentary evidence, grant the benefit of all reasonable doubts and inferences to plaintiffs, and determine whether a record may be developed on which reasonable minds could differ.
Jackson v Detroit,
The trial court summarily dismissed plaintiffs’ claims under MCL 691.1402; MSA 3.996(102), commonly referred to as the defective highway statute, in light of MCL 257.668(2); MSA 9.2368(2). The defective highway statute provides, in pertinent part:
Each governmental agency having jurisdiction over a highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. Any person sustaining bodily injury or damage to his or her property by reason of failure of any governmental agency to keep any highway under its jurisdiction in reasonable repair, and in condition reasonably safe and fit for travel, may recover the damages suffered by him or her from the governmental agency. [MCL 691.1402(1); MSA 3.996(102)(1).]
The narrowly drawn highway exception to governmental immunity contained in MCL 691.1402; MSA 3.996(102) must be strictly construed, and no action may be maintained under the exception unless it clearly falls within the scope of the statute.
Schuerman v Dep’t of Transportation,
The state transportation department with respect to highways under its jurisdiction, the county road commissions, and local authorities with reference to highwaysunder their jurisdiction, may designate certain grade crossings of railways by highways as yield crossings, and erect signs at the crossings notifying drivers of vehicles upon the highway to yield. . . . The erection of or failure to erect, replace, or maintain a stop or yield sign or other railroad warning device, unless such devices or signs were ordered by public authority, shall not be a basis for an action of negligence against the state transportation department, county road commissions, the railroads, or local authorities.
See, generally,
Turner v CSX Transportation, Inc,
MCL 257.668(2); MSA 9.2368(2) clearly states that defendant board of county road commissioners will not be held liable for failure to erect warning signs at railroad intersections “unless such devices or signs were ordered by public authority.” It is uncontroverted that the mdot had not ordered these devices installed before the accident. Thus, under MCL 257.668(2); MSA 9.2368(2), defendant board of road commissioners is not liable for failing to erect warning signs at the railroad intersection where the fatal accident occurred.
According to plaintiffs, the issue before this Court is whether defendant board of county road commissioners’ failure to request that the mdot perform a study with respect to the safety of the railroad intersection created a duty and exception to governmental immunity despite the existence of MCL 257.668(2); MSA 9.2368(2). We find no such duty or exception to governmental immunity. In Turner, supra, this Court rejected the assertion that the railroad had a common-law duty to petition the proper government agency for authority to install additional warning devices because MCL 257.668(2); MSA 9.2368(2) evidenced the Legislature’s intent that liability not be premised upon the absence of warning devices at a railroad crossing unless the railroad failed to follow an order from the proper authority 2 to install these devices. See Turner, supra at 257, n 1. This Court in Turner, supra, also found it instructive that the Edington Court endorsed the grant of summary disposition to the railroad and the road commission where the plaintiff alleged that both failed to request the installation of additional warning devices. Plain tiffs have cited no authority or argument persuading us that the rationale in Turner is inapplicable to defendant board of county road commissioners. See also Melville, supra at 3.
Despite plaintiffs’ rhetoric, their claims against defendant board of road commissioners certainly sound in negligence. When distilled to their most basic elements, plaintiffs’ causes of action against defendant board of county road commissioners are grounded upon their belief that defendant failed to keep the roadway safe for public travel by failing to erect
We base our conclusion in large part on the persuasive reasoning set forth in Melville, supra. Although Melville is an unpublished case, we can find no other case that more precisely addresses the issue confronting this Court. We therefore rely upon and adopt its conclusions that, first, MCL 257.668(2); MSA 9.2368(2) does apply to plaintiffs’ “statutory” cause of action under MCL 691.1402; MSA 3.996(102) and, second, the mere failure to request that safety devices be erected at the intersection does not constitute a separate and distinct cause of action:
Plaintiff contends that the prohibition against negligence claims contained in MCL 257.668(2); MSA 9.2368(2), does not apply to her “statutory” cause of action [under MCL 691.1402; MSA 3.996(102)]. We disagree.
In 1961, MCL 257.668(2); MSA 9.2368(2), was amended by adding a provision that failing to erect or maintain a stop sign at a railroad crossing could not be a basis of a claim of negligence. See1961 PA 179 . At the time of this amendment1909 PA 283 , MCL 242.1 et seq.; MSA 9.591 et seq. was the statute which provided for government liability for failing to maintain roads. That statute said that failing to keep roads in reasonable repair would give rise to an action for “trespass on the case,” the cause of action more commonly known as negligence.1909 PA 283 , § 1, MCL 242.1; MSA 9.591. Thus, when it was added to MCL 257.668; MSA 9.2368, the exemption certainly applied to “statutory” claims based on failing to keep roads reasonably safe.
MCL 242.1 et seq.; MSA 9.591 et seq., was repealed and replaced by MCL 691.1401 et seq.; MSA 3.996(101) et seq. See1964 PA 170 . This statute does not specify that an action under it is for “trespass on the case.” However, to state a cause of action under it, one still must claim a breach of the duty owed, and injury resulting from that breach. We view such a claim as a negligence action. See Li v Feldt (After Remand) [434 Mich 584 , 587-588;456 NW2d 55 (1990)].
Finally, plaintiff contends that she has a claim against the road commission for failing to request that additional warning devices be installed. The trial court found this claim to be without merit, and we agree.
Plaintiff argues that the road commission’s duty to keep the roads reasonably safe for travel [per MCL 691.1402; MSA 3.996(102)] includes a duty to request traffic control devices whenever appropriate. While we do not disagree, we feel the exemption for claims based on the failure to erect devices at a railroad crossing encompasses an exemption from liability for failing to request that such devices be erected. See MCL 257.668; MSA 9.2368.
The statute provides that the failure to erect railroad warning devices cannot be the basis of a negligence action unless the devices were ordered by public authority. MCL 257.668(2); MSA 9.2368(2). Failure to request warning devices cannot be actionable because no order by public authority exists as the statute requires. Edington v Grand Trunk W R Co,165 Mich App 163 , 168-169;418 NW2d 415 (1987); Baughman v [Consolidated Rail Corp],185 Mich App 78 , 80-81;460 NW2d 895 (1990). [Melville, supra at 2-3 (emphasis added).]
Thus, we find that no genuine issues of material fact exist here. On the basis of the reasoning in
Melville, supra,
and
Turner, supra,
defendant board of county road commissioners was entitled to judgment as a matter
The personal representatives of the estates of Taylor and Hill also assert that the trial court erred in striking their first amended complaints that were filed one day after the deadline established at the pretrial conference. We find no abuse of discretion in the trial court’s decision to strike the amended complaints; moreover, even if the court erred, it was harmless error. See
Froede v Holland Ladder & Mfg Co,
Moreover, while the amended complaints each added a new count against defendant board of county road commissioners entitled “Defective Highway,” that count substantially mirrored the original negligence allegations against defendant in plaintiffs’ original complaints, and each complaint referred to both MCL 257.668(2); MSA 9.2368(2) and MCL 691.1402; MSA 3.996(102). 3 Thus, even if the trial court erred in striking the amended complaints, the new count in the amended pleadings would have been subject to summary disposition for the same reasons as the negligence claims in plaintiffs’ original complaints pursuant to our previous discussion.
Finally, plaintiffs assert that the trial court erred in awarding sanctions in favor of defendant board of county road commissioners under MCR 2.114 because plaintiffs raised good-faith arguments and their research revealed some support for their novel proposition. Because we are left with a firm and definite conviction that a mistake has been committed, we believe that the trial court’s grant of sanctions against plaintiffs was clearly erroneous.
Contel Systems Corp v Gores,
First, notwithstanding the cases that we relied upon in affirming the decision of the trial court, we recognize that MCL 257.668(2); MSA 9.2368(2) does
not expressly state that it bars all actions brought under the defective highway statute. Further, plaintiffs relied on
Harrison v Grand Trunk W R Co,
Moreover, although this Court adopts the reasoning in
Melville, supra,
in the absence of any other binding authority on point, and
Melville
rejects most of plaintiffs’ arguments raised on appeal, we acknowledge that (1) plaintiffs were not bound to follow
Melville,
an unpublished opinion, (2) the Michigan Supreme Court has not addressed this issue, and (3) the plaintiff in
Melville
was not objected to sanctions for attempting to raise the same claims that plaintiffs raise here. Thus, good-faith arguments existed that MCL
We therefore affirm the trial court’s summary disposition rulings and its decision to strike plaintiffs’ amended complaints, but we reverse the award of sanctions and remand this matter to the trial court for entry of the appropriate order. We do not retain jurisdiction.
Affirmed in part, reversed in part, and remanded.
Notes
In Melville, this Court determined that, in light of MCL 257.668(2); MSA 9.2368(2), the defendant road commission was entitled to summary disposition with respect to the plaintiff’s claims arising from the commission’s failure to request authorization to erect stop and yield signs at a railroad crossing where a fatal automobile-train collision occurred. See also Edington, supra at 168-169, ns 3 and 4. Although not binding precedent because it is unpublished, the Melville opinion supports our rejection of plaintiffs’ assertion in this case that a cause of action under the defective highway statute is not a negligence action and that MCL 257.668(2); MSA 9.2368(2) is inapplicable to plaintiffs’ claims.
See MCL 469.8; MSA 22.768, which gave the Michigan Public Utilities Commission the discretion to determine whether railroad crossings required additional protective or warning devices. This provision was repealed by
The only new allegation under the defective highway counts stated that the highway in question was defective because people traveling upon the highway could not, because of the highway’s condition and defect, perceive the approaching train in a timely manner as the motorist approached the railroad tracks. The amended complaints did not, however, identify the alleged “defect.”
Carroll, Highway liability law, 68 Mich B J, 24, 30-31 (1989).