Plaintiff-appellant, Earl Van Li-ere, was driving his automobile in an allegedly careful manner, heading east on 1-94 in Calhoun County at about 3:30 p.m. on May 6, 1972, when a "gust of wind” blew his car from the highway and into a guardrail adjacent to the shoulder of the road. Upon hitting the guardrail, the automobile purportedly became "impaled on the guardrail” and rammed into a bridge abutment. Four passengers were in the automobile, and as a result of the occurrence, two died and the other two were seriously injured.
Plaintiff sought to recover damages for the injuries sustained as the result of the negligence of and nuisance created by the defendant-appellee, Michigan State Highway Department. The trial court granted summary judgment on February 13, 1974 for failure to state a claim upon which relief could be granted, GCR 1963, 117.2(1), and plaintiff appealed as of right.
Summary judgment was granted because, in the opinion of the trial judge, a guardrail is not within the exception to governmental immunity created in MCLA 691.1402; MSA 3.996(102). That section provides, in pertinent part:
"The duty of the state and the county road commissions to repair and maintain highways, and the liability therefor, shall extend only to the improved portion of the highway designed for vehicular travel and shall not include sidewalks, crosswalks or any other installation outside of the improved portion of the highway designed for vehicular travel.”
The trial judge determined that a guardrail "is not within the strict language of the statute nor the expansive interpretations that have been given thereto by the appellate court, and therefore, *136 * * * it is not within the meaning of the exception. The accident that is alleged here under no circumstances is within the improved portion of the highway designed for vehicular traffic * * * ”.
In
Johnson v Michigan,
However, soon after the entry of summary judgment in this case,
Detroit Bank & Trust Co v Department of State Highways,
Johnson and Detroit Bank & Trust Co taken together make it clear that the accident forming the basis of the present suit occurred on an "improved portion of the highway”. Accordingly, summary judgment 1 on the ground that governmental immunity barred plaintiffs claim was improperly entered in defendant’s favor.
We pause further to consider another contention *137 advanced by defendant. It was also held by the trial judge in his opinion granting summary judgment for defendant that plaintiff failed to adequately allege proximate cause in his complaint and thus that plaintiffs cause, as filed, contained a second fatal flaw. Defendant supports this interpretation of the allegations in plaintiff’s complaint. Plaintiff maintains that he properly pled proximate cause.
We mention preliminarily that a motion for summary judgment under GCR 1963, 117.2(1) tests only the
legal,
not the factual, sufficiency of the pleadings.
Crowther v Ross Chemical and Manufacturing Co,
We accordingly have scrutinized the complaint, the two relevant portions of which are as follows:
"3. That as a direct and proximate result of the creation of a nuisance and of the negligence of the defendant, Michigan State Highway Department, the vehicle in which the plaintiffs were driver and guest passengers, became impaled upon a guardrail when a gust of wind blew the aforesaid vehicle off the highway and upon the guardrail. Said guardrail directed the aforesaid vehicle into a bridge abutment at 22-1/2 Mile Road in the Township of Marengo, County of Calhoun, State of Michigan.
"4. That as a direct and proximate result of the creation of a nuisance and of the negligence of the defendant, Michigan State Highway Department, the plaintiff * * * [was] severely injured * * * .”
*138 In our judgment, a jury could find it reasonably foreseeable that an automobile might be blown off the road. It could find also that the defendant highway department had a duty to provide a reasonably fit and safe guardrail. If the guardrail was defective in that an automobile striking it would travel down the rail into a nearby bridge abutment, and if, in the exercise of reasonable foresight, the highway department should have known that wind or some other not unlikely subsequent event could cause an automobile to hit the guardrail causing injury in the manner described, then the defect might reasonably be deemed the proximate cause of the injury. If proven, the facts show that plaintiffs injury was the combined product of the negligence of the highway department— failing to provide a safe guardrail — and an accident for which neither plaintiff nor defendant is accountable — the wind.
The facts as alleged by plaintiff, and accepted as true for purposes of this appeal, adequately plead proximate cause. Whether the plaintiff can prove that the injuries were in fact the proximate result of the alleged defective guardrail is another question. That question is one to be decided after the development of the facts, not by summary judgment under GCR 1963, 117.2(1). 2
Plaintiff has made one final request. He seeks to have this Court assign a new judge to hear this case upon remand. We recognize our power to do
*139
so, GCR 1963, 820.1(7), but deem it totally inappropriate to exercise such discretion under these circumstances. Plaintiff has failed to demonstrate that the trial judge, in granting summary judgment for defendant, expressed a conclusion that plaintiff will not prevail on the merits. Compare
People v Jackson,
Reversed and remanded for proceedings not inconsistent with this opinion. Costs to appellant.
Notes
Though defendant moved for summary judgment pursuant to GCR 1963, 117.2(1) for failure to state a claim upon which relief can be granted, the issue of governmental immunity is properly raised by accelerated judgment, GCR 1963, 116.1(5) since the claim made by defendant is that plaintiff's action is barred "because of * * * other disability of the moving party”,
i.e.,
immunity. Nonetheless, mislabeling will not prevent our considering the question presented.
Miller Glass Co, Inc v Kushmaul,
We cite, again
(see Szydlowski v General Motors Corp,
"In a case such as the one now before us, where the resolution of the legal issue may depend greatly upon the factual context, summary judgment on the pleadings is never proper.” (Emphasis supplied.)
We leave open the question whether GCR 1963, 117.2(3) has appropriate application to these facts.
We do not here presume to decide whether a motion filed in the trial court on remand pursuant to GCR 1963, 405 would be appropriate.