Wechsler v. Wayne County Road Commission

Wayne Rd Co Comm ROAD COMMISSION WECHSLER v WAYNE COUNTY 1, 1995, August Decided at Detroit. 165519. Submitted Docket No. 27, 1996, sought. appeal February at 9:10 a.m. Leave to wife, Johnson, brought Patty Ralph and A. husband Wayne County against Circuit Court in the action Commission, damages injuries seeking for sustained Road Ralph Patty in for Johnson’s loss consortium Johnson and of Wick- collision at the intersection connection with a two-car Ralph died while Middlebelt Road. Johnson Goddard Road and Wechsler, personal repre- pending, as was and Louis the action estate, substituted Johnson’s sentative of Johnson’s Ralph driving place plaintiff. Johnson was east on Wick- as turns, Goddard, for left a four-lane road with no center lane intending At the intersec- to make a left turn onto Middlebelt. tion, traveling light for east on Wick-Goddard the traffic cars traffic, red, heavy yellow, green phases. had Because light changes through five before had to wait four or Johnson turning left from he reached the front of the line of vehicles As Johnson was mak- eastbound Wick-Goddard onto Middlebelt. turn, ing a vehicle that was his his vehicle collided with left trial, court, Following a bench westbound on Wick-Goddard. Morcom, J., judgment plain- granted a for the Claudia House lane, tiffs, determining a left- the absence of a left-turn light, turning from onto turn or both for traffic Wick-Goddard a failure to maintain Middlebelt constituted reasonably repair and convenient that it was reasonable so travel, giving liability under the for thus rise to 691.1402(1); immunity. MSA MCL 3.996(102)(1). appealed. The defendant Appeals held: Court preserved governmental aas 1. The defendant raising defense in its answer it as an affirmative defense plaintiffs’ complaint. improperly of a failure considered evidence 2. The trial court negligence on the a left-turn lane as a basis to construct References 345, 346, 2d, Highways 348. Am Jur §§ Highways under and Streets. See ALR Index requires part highway exception of the defendant. The the state constructed, county keep roadway, or a road commission to travel; require it that an safe for vehicular does not existing highway improved, augmented, expanded. No authority statutory language supports concept case provide failure to construct additional lanes of traffic can imposing liability governmental agency having basis for on a jurisdiction highway. over a determining of 3. The trial court erred in that the absence signal liability. respect left-turn was a basis for With to traffic signs signals, highway exception abrogates governmental or immunity points special danger at to motorists. The evidence point in this case does not indicate that the intersection was a danger. special Additionally, adequacy existing traffic signs signals, negligence highway or as it relates to under the law, exception, question generally appropriate is a signals, existing signal such as the at the intersection this in case, may legally merely supe- not be found deficient because rior alternatives were available. Regardless Ralph light disobeyed 4. of whether Johnson a red turning left at the intersection or the second motorist past lane, strayed into center line and Johnson’s a matter court, by left unresolved the trial the absence of a left-turn light proximate lane or a left-turn was not the cause of the case, proximately accident. In either the accident was caused

by one of the two motorists. Reversed. J., dissenting, stated that Wahls, the defendant failed to preserve governmental immunity failing by as a defense to summary disposition immunity raising move for on or based trial, immunity question the issue of that the whether the lane, defendant should have constructed a left-turn as relevant respect to the reasonableness of the defendant’s actions with to obligation highways, properly its to maintain is for the trier of fact, majority properly and that the failed to defer to the trial respect findings court with to the that the of a absence left-turn proximately made intersection unsafe and caused the preserve accident. The defendant failed to the issue of exces- damage moving siveness of the award for remittitur

the trial court. Immunity Highway — Exception. 1. Governmental highway exception governmental immunity The from tort liability requires county having the state or a road commission Co Rd Comm 1996] Opinion op the Court keep highway, highway as con- jurisdiction over a travel; may liability structed, reasonably safe for vehicular expand improve, augment, on a failure be based (MCL 3.996[102][1]). 691.1402[1]; existing highway MSA Exception Highway — Immunity — Traffic 2. Governmental Signals. Signs and highway, sign it relates adequacy on a of a traffic The county has or a road commission claim that the state to a repair, highway is a in reasonable to maintain failed generally appropriate law; signals signs or superior merely legally type may because found deficient not be (MCL 691.1402[1];MSA 3.996[102] were available alternatives [1]). Highway Exception. Immunity — 3. Governmental governmental does not trans- highway having highways agencies jurisdiction of form existing safety; guarantors if an of motorist insurers or into safe, liability may to be maintained so as demonstrating can that the established not be (MCL 3.996[102][1]). 691.1402[1];MSA made safer still Hamburger, and Ste- Granzotto, L. Robert Mark phen Taylor, M. plaintiffs. for the Granholm, Corporation Counsel, M.

Jennifer Mason, E. Ellen Coun- Corporation Assistant and sel, for the defendant. F. M. P.J., and and Wahls

Before: Markman, JJ. Mester,* ac- negligence filed a Plaintiffs P.J.

Markman, in its failed tion, that defendant asserting so that repair "in reasonable maintain and convenient it 3.996(102). The case 691.1402; MSA MCL travel.” Court, Circuit in the the bench tried to was by assignment. Appeals sitting judge, the Court of on * Circuit Opinion op the Court granted which judgment in favor of plaintiffs. We reverse.1

I. FACTS A. UNDISPUTED FACTS Most of the material undisputed. facts are plaintiffs’ decedent, Johnson, Ralph Andrew on his home way from Detroit Air- Metropolitan port, driving his automobile east on Wick-Goddard Road, intending to make a left turn at the inter- section with Middlebelt Road. Traffic at the inter- section was heavy Johnson had to wait through four or five changes of light to reach the front of the line of turning vehicles left. Origi- ten nally, to twelve vehicles had been ahead of him and all made left turns without incident.

The intersection in question is governed by an ordinary light; traffic there is no special signal for turning cars left from eastbound Wick-Goddard onto Middlebelt. Wick-Goddard is a four-lane road with two lanes each direction.

The cars ahead of Johnson had apparently nego- case, On upon the view we take of this we are called to determine proper application statutory of the doctrine of immunity. 691.1407; 3.996(107). MCL gov MSA Because we find the dispositive, ernmental issue we have no occasion to discuss questions appellant. note, however, the other that prepared Ralph raised We do regarding remittitur, likely we would not say pain suffering that an award of $4 million for Johnson, through whom the trier fact determined suffered multiple surgeries progressive in the course of medical deterioration injuries arising accident, attributable to of in this and $2 million for loss spent trying consortium to a wife injured who months to nurse her health, range proofs. husband back to was outside the Palenkas Hosp, v Beaumont Mr. and Mrs. indisputably Johnson enormously during suffered from the accident years the final two of his life. Nor are we convinced that the trial clearly findings court Ralph erred its fact to the effect that subsequent physical problems Johnson’s the proximately were caused Bay City, App accident. Balwinski v (1988). Rd Co Comm v op Opinion the Court signal their left turns when the traffic was tiated traffic, Because of the there were yellow. heavy on spaces going insufficient between vehicles west permit Wick-Goddard to left turns when However, was green. yellow, was when stop, allowing usually the westbound cars would complete eastbound vehicles to then one two turn onto Middlebelt. left turn, making his left Johnson’s vehicle col- van Dodge cargo

lided head-on with a driven at ap- Ronnie The accident occurred Raymond. p.m. 29, 1988. September 7:30 on Sun- proximately earlier, 7:19 set had occurred eleven minutes p.m. p.m. until 9:18 Moonrise was not due to occur precipitation, There was no indication (Detroit other adverse weather conditions Free Press, 30, 1988, September September page 2A). collision,

In consequence Ralph Johnson seriously injured, necessitating succession that, surgeries because of Johnson’s already debili- condition, physical tated led to his eventually wife, death from heart failure. Johnson’s Patty, sued for loss of consortium and there are legal no regarding issues her claim that are not derivative of the claim made by Ralph Johnson. Accordingly, opinion the remainder of this will treat only claim on behalf of decedent Ralph Johnson. Oldani Lieberman, 642, 646;

B. DISPUTED FACTS A disputed fact concerns the manner in which the accident occurred. Ronnie Raymond testified that he was west on Road proceeding Wick-Goddard Ralph when Johnson turned in front of suddenly him and that had reaction Raymond insufficient Opinion of the Court resulting part,

time to avoid the Johnson did not recall what occurred after he collision. For his waiting reached the front of the line of cars Middlebelt, turn left from Wick-Goddard onto but independent several witnesses testified that it was Raymond’s, vehicle, not Johnson’s but rather that immediately crossed the center line before the collision. Decedent testified that he was unable approaching clearly see tractor-trailer his left turn red.2 traffic because there was a

opposite him and that he initiated only signal when the traffic turned c. liability plaintiffs’ theory liability theory predicated Plaintiffs’ on the notion that the intersection is defective because there is no left-turn lane and no left-turn permit that would drivers on Wick-Goddard Road stopped. to make a left turn while all other traffic is D. FINDINGS BY OF TRIER FACT adopted testimony The trier of fact of traffic engineers suggested who that the addition of a phase left-turn to the traffic would reduce by fifty-six the accident rate at such intersections percent according generally accepted that, and desig- criteria, this intersection should have been by Wayne County nated Road Commission as meeting the threshold for installation of such a signal. The trier fact further concluded that plaintiffs establishing met their burden of that the permanent physical The area in is level and there are no visibility tractor-trailer, obstructions to at the The which intersection. plaintiffs’ oncoming traffic, decedent claimed blocked the view of was only temporary clearly part "improved condition and of the portion travel, highway” designed for vehicular for which responsibility Chaney Dep’t defendant has the to maintain. v Transportation, 447 Mich Co Rd Comm op Opinion the Court and fit for travel, or should have known defendant knew condition, this condition was this of proximate resulting of the accident and

cause damages by plaintiffs. injuries suffered precisely however, fact, not resolve did trier of occurred, is, Mr. whether the accident how Raymond’s accident was correct as version of the independent opposed witnesses. that of the

II. ANALYSIS governmental immunity the issue We find judgment, dispositive, court’s and reverse the trial dismissing entry an order the ac- for remand tion. OF

A. PRESERVATION ISSUE plaintiffs’ claim that A threshold issue concerns (governmental no the defense of actionable preserved, immunity) defendant because duty or of lack of did not raise defenses governmental immunity contra below. The record October 1990, 17, dicts this assertion. On timely County answer and affirmative filed its complaint. plaintiffs’ Affirmative de to defenses "Defendant is im fense number eleven asserts: governmental by operation of the doctrine of mune immunity.” obligation fulfilled defendant’s to This governmental immunity plead affirmative as an App Kleiman, 191; 199 Mich defense. Patterson v 500 NW2d 761 (1993), modified on other aff'd but (1994).3 grounds 879 429; 447 Mich 526 NW2d 3 clearly much to focus atten- defendant could have done more The practice liability. would on the issue of threshold Reasonable tion have dictated either a motion 2.116(C) summary disposition, for MCR (7), certainly filing or at the conclusion after the answer before 2.504(B)(2), dismissal, involuntary discovery, MCR or a motion for App Opinion of the Court

B. STATUTORY HIGHWAY EXCEPTION highway exception governmental immu- 3.996(102), nity, provides 691.1402; MCL MSA pertinent part governmental agency ”[e]ach plaintiffs’ proofs completion proofs the close of or the of defense argument. needlessly subjected Both before sides themselves to time- consuming expensive preparation trial and trial because the specifically court was never asked to consider the doctrine. that, merely recognize by pleading governmental immunity We affirmative quired 77 NW2d 96 as an defense, procedurally defendant did the minimum re- preserve Al’s, 644; the issue. Hillman’s v Em 'N 345 Mich (1956). defendant, preserve The dissent would hold that the issue of immunity, having pleaded governmental immunity as responsive pleading, an affirmative defense in its first either had to trial, summary disposition move for trial, duty before for a directed verdict at regarding scope or else introduce evidence at trial plaintiffs’ owed defendant to decedent. We demur. Summary disposition procedural and directed verdict are devices expediting preserved. resolution issues otherwise No author- cited, ity none, purports require and we are aware of either guarantee right appellate motion already order to of an review issue preserved properly by being raised as an affirmative defense responsive pleading. preserve in the first the (1968), Either action will suffice to defense, Lindsay, 676; App Hudson v 13 Mich 164 NW2d 731 grounds (1970); rev’d on other required. through any both are not Nor did defendant waive the issue issue-limiting language pretrial in a conference order. MCR 2.401. Immunity provided by law is an affirmative defense that must be governmental agency’s responsive pleading. raised in a Grand Gibson v Rapids, 100, 103; We have authority, dissent, found no rule or case imposes any this and none is cited requirement precondition additional as a to reliance on defense, summary disposition such as a motion for or a directed situations, might by subsequent verdict. While there be as failure to request to a MCR ing supported incorporating legal theory an instruction such in a case tried jury, might waived, where the issue thereafter be deemed thus 2.516(C), nothing this case was tried bench and constitut alleged, a waiver of the affirmative defense is even let alone controlling by authority. Because the burden of establish ing plaintiffs, waiver would be on this is tantamount to abandonment Detroit, 182, 203; of the claim of waiver. Mitcham v (1959). NW2d 388 Regarding question duty, accurately which the dissent char- govern- acterizes as the issue raised when the affirmative defense of mental is that is a of law for the court. pleaded, Alfono, (1977). Moning 425, 436-437; v Issues evidentiary presentations. of law are not resolved on the basis of Wayne Co Rd Comm Opinion op the Court having any highway jurisdiction shall main- over repair highway it in reasonable so that tain the travel.” safe and convenient for finding the defendant road commission that plaintiffs’ damages, held could be liable expert adopted suggestion made in trial court testimony signal, lane, that a left-turn a left-turn this intersec- or should have been installed at both opinion, explain later in this tion. As we will may agency’s statutory duty the installa- include signals signs. tion of suitable traffic-control However, as a find that the trial court erred we determining that defendant had a matter of law in install a left-turn lane because such instal- plain encompassed lan- lation is not guage within 3.996(102). 691.1402; MSA of MCL "having requires authority The statute high- jurisdiction of a maintain the shall 691.1402(2); way repair.” MCL MSA reasonable 3.996(102)(2) (emphasis supplied). The "main- verb legal of art rather an tain” is not a term but ordinary English that, context, word in this de- keep repair, efficiency, notes "to state a. validity; preserve from failure or decline.” Web- Dictionary, Third International Una- ster’s New bridged p Edition, The fact salient this definition is that it is distinct from the about concept "improve,” "augment,” "expand.” (cid:127) purport Legislature thus did not to demand The governmental agencies having jurisdiction improve existing highways highways, they or enhance widening existing by as lanes or bank- augment existing ing existing they curves; adding highways, lanes; or that as left-turn adding existing highways expanded, new new extending lanes or into travel territory. only requirement only statutory and the ignored, that, if can form basis mandate 215 Opinion op the Court highway liability for tort is to "maintain” the repair. reasonable previously recognized

Thus, this Court has statutory obliga- highway authorities are under no highway to a tion reconstruct whenever some technological safety advancement has been devel- oped. highway exception Rather, the focus of the maintaining already on has in a what been built repair state of reasonable so as to be safe and fit for vehicular travel. Hall v Dep’t Hwys, App 592, 605; of State NW2d 813 authority statutory language case

No no supports concept that failure to construct addi- provide impos- tional lanes of traffic can ing liability for basis governmental agency having aon jurisdiction highway. contrary Rather, over a is the rule. Id. Whether to build a in the expand existing instance, first highway, or whether to political power determination, is a to delegated by make which has not been nity immu- statute or its triers litigation.4 fact civil

A construction of the purports recognize statute that such a transfer give power of problems would rise to serious constitutional pro- 9, § 2, under Const art which power vides that "the of taxation shall never be suspended, away.” surrendered, If contracted required Wayne County judiciary can be left-turn lane construct a at the Wick-Goddard/Mid- Department Transpor- intersection, dlebelt tation can equally compelled expand be 1-96 to along length six lanes its entire in order to relieve particular "improve,” "augment,” "expand” While a decision to advisable, highway may prudent the decision nevertheless is persons expenditure resources, taxpayer entrusted with the the courts. Co Rd Comm Opinion op the Court potential congestion may impa- traffic cause rashly openings tient motorists to seek nonexistent roadway, resulting on the in accidents. Whether expenditure outweigh the benefits of such an its appropriately by costs is a calculation more made officials, accountable the courts. interpretation The far more reasonable highway exception agency having juris is that an keep roadway, diction must a constructed, rea sonably underlying safe for vehicular travel.5 The assumption operators is that of motor vehicles traveling roadways necessary on these will make ordinary efforts to adhere to traffic rules. MCL 9.2327(1). 257.627(1); Accordingly, MSA we find improperly that the trial court considered evidence of failure to construct a left-turn lane as a basis negligence part for on the of defendant. On the hand, other if we concluded that the trial court properly considered evidence of the failure in stall a left-turn in its determination negligent, ordinarily whether defendant was we would be inclined to remand for reconsideration of respect signage this matter with to the issue of only. finding However, in view of our that defen statutory duty dant did not breach its in this case failing signal, to install the left-turn there nois need for us to resolve the issue whether such properly evidence considered.6 3.996(102)(2) 691.1402(2); 5 MCL MSA refers to maintenance highway. language "the” Such reinforces the notion that being highway already being, referenced is the in not the ideal or the possible highway might safest have been constructed. 6 See, e.g., Heights, App 393; Cox v Dearborn 534 (1995), distinguishes NW2d 135 obligations which between the municipalities obligations county and the of state and road commis highways. however, sions in the Arguably, speaks maintenance of Cox (with subject only regard to this sions) county in dictum road commis recognizes and precedent by itself adopt the lack of definitive ing reasoning nonmajority Supreme opinion. of a Court Id. at 396. Comm; 138, 141; See also Pick App v Gratiot Co Rd 511 215 Mich 579 590 App op Opinion the Court C. SIGNALS AND SIGNS respect Though unsettled law is with obligation signs county or a road commission’s state’s install signals suitable traffic-control highways support in a its to maintain pub- "reasonably for condition convenient purposes supra, travel,” 6,n will lic we assume duty exists. of the instant case that some such On assumption, simply this disregard road commissions cannot

danger ignoring liability by and avoid signals. appropriate signs or need to install Alpena, 279; Mich 122 618 Bonneville v 158 NW (1909); Wayne Co, 365; 168 Mullins v NW2d sign installed, it must Once functional condition. O’Hare v maintained (1960); Lynes Detroit, App Joseph Comm, 51; 29 185 Co Mich v St Rd (1970); Dep’t Hwys, 111 Tuttle v of State NW2d (1976). 44; Mich 243 244 An otherwise 397 NW2d sign positioned prop- appropriate erly must or adequately to to the hazard it is so as relate designed Nat’l of Detroit v ameliorate. Bank Dep’t App Hwys, 415; 51 Mich 215 of State (1974). 599 stoplight actually case, installed was this being

positioned correctly, and, functional, was speed type a tions, common to such moderate intersec- appropriate the task. It was suitable appro- which, case where otherwise is the rare priate signs signals installed, or have been judiciary second-guess highway authorities will sign impose liability because better might have been installed._ (1993). rely prudent wholly upon 694 it not to NW2d Pick under assumption We consider analyze on and to this case these circumstances generally duty respect signage does that such with exist. 591 Wayne Co Rd Comm Opinion of the Court governmental The of a agency having jurisdiction highway of a to install appropriate signals signs recently traffic by Michigan Supreme addressed Court in Ma- son v Comm’rs, Co Bd of 447 130; Mich (1994). NW2d 791 tory The Court held that the statu- highway

"abrogates immunity 'points special danger Michigan, to motorists ....”’ App Grof v 126 Mich (1983); 427, 434; 337 NW2d 345 Comerica Dep’t Transportation, App Bank v 84, plaintiffs’ argument 86; 424 NW2d 2 "The prior abrogate governmental that nity decisions immu- including signs,

for all devices,’ 'traffic control expansively.” reads those decisions far too 135. Michigan Supreme previously Court has recognized authorities have discre- signs pursu- tion in the erection of traffic-control although ant 227.608; 9.2308, to MCL MSA "this may capitalized upon discretion not be to shield authority liability from defects.” Dep’t Hwys, Salvati v State (1982);7 supra. Mullins, opinion ap Justice Coleman’s lead in Salvati pears adopted by to have been virtue of the Su preme peremptory Court’s affirmance in Colovos v Dep’t Transportation, 524; 517 (1994), (1995),8 NW2d 803 aff'd 450 Mich 860 Supreme alleged which the Court ruled that "the court, equally justices Salvati was a decision divided three voting participating; on each side accordingly, standing and one not alone, opinion precedential. Estate, neither In re Godoshian 196; App (1981); Petros, People 312 209 App NW2d v 198 Mich 401, 407, (1993). 4; n 8Because, Supreme from peremptory the terms of the Court’s order published opinion, in Colovos and this Court’s this Court can deter applicable decision, mine the tory facts and peremp the reason for the the binding precedent. Crall, People order constitutes a v 444 Mich 463, (1993). 464; 510 NW2d 182 215 Opinion op the Court proximate sign

inadequacy a cause the not of in both and The facts Colovos of the accident.” Supreme essentially identical, and the are Salvati only with in Colovos is consistent Court’s decision importance, opinion. critical Of Justice Coleman’s (1) issue the notions the Colovos reinforces negli- signals existing adequacy vis-a-vis the statutory respect duty gence to main- with the repair highway is a in a state of reasonable tain (2) signage generally of the of law and that one appropriate type legally found deficient will superior merely were avail- because alternatives able.9 Dep’t Hwys, supra the

In Tuttle v of State duty highways held the to maintain the Court properly a failure to install traffic- is breached control device once agency having jurisdiction the determined that a device has such elapsed necessary. case, full In that workweek is highway depart- the date that the state between safeguards ment first determined that additional point particular needed at the date were accident, with the indicated traffic-control yet having been installed. device bar, Middlebelt In the case at intersection of is Road clear, Wick-Goddard Road characterized visibility in all unobstructed relevant direc- Pick, general supra, this Court focused on assertion in Transportation, Dep’t 456 NW2d 66 Scheurman (1990), narrowly drawn and does not include installation outside the portion highway designed improved travel. The vehicular respect acknowledge any Court with Pick to installations whose paved portion refused actionable physical falls the traveled or structure outside designed actually of the roadbed for vehicular travel. panel only did refuse to Not this Court convene conflict resolution original panel pursuant 1994-4 to Administrative Order No. when the Colovos, decision, supra, Supreme in Court’s criticized the Pick but strength summary affirmance lends further to its rationale. App 389; Heights, Accord Cox v Dearborn 1996] Co Rd Comm op Opinion the Court simply tions; there is no evidence on the record point this indicate that intersection constitutes a "special merely junction It of hazard.” is a be- ordinary county tween two roads. sug- Tuttle, in

Unlike the situation there is no gestion Wayne County here that Road Com- mission, accident, at time before this con- cluded that traffic situation warranted addi- separate tional the creation a devices turning lane for cars left from eastbound Wick- signal controlling Goddard or that the the intersec- operate properly. did tion Nor is the intersec- egregious tion all similar to the situation that Tuttle, faced the Court where state department light detérmined a traffic was newly a warranted at constructed be- intersection fifty-five per road, a tween five-lane with a miles speed hour having limit a state trunk line road also fifty-five per speed limit, miles hour observing actually Court the roads were de- signed seventy per for travel at miles hour four directions. Tuttle had extreme factual situa- recognized highest degree tion, a hazard of the only dilatory governmental response. with Id. at 50. case,

In the instant there was a traffic-control intersection; at the no claim made it functioning, visible, was not or even not seen plaintiffs’ by Raymond. decedent Ronnie Under plaintiffs’ facts, version of the ten or twelve driv- waiting decedent, ers vehicles ahead their negotiated successfully turn, the desired left turn appears nothing without incident. This to more ordinary intersection, than an like thousands throughout state, others ists, familiar to all motor- safely driven with the exercise of reasonable care. 215 Opinion op the Court

D. SAFE AND "REASONABLY convenient” findings of the trial principal focus court’s regarding signal, fact left-turn plaintiffs expert proffered by underlying testimony findings, those concerns whether this intersection adding could have made a left-turn been safer signal.10 This error. The highway not, in or by does terms construction, the accepted agency judicial require a over a to maintain having jurisdiction highway humanly so to it as as highway as make safe statute, possible for travel. The MCL public 3.996(102), 691.1402; MSA limits unambiguously the legal duty the road commission’s "to maintain so that it is reason- highway repair reasonable public and for travel.” ably safe convenient concede, must, that of We as we the construction a the of a left-turn lane or installation left-turn made So signal could have this intersection safer. constructing arrangement, a would cloverleaf and would whereby Middlebelt Wick-Goddard Roads placed changes be on different of direc- levels system tion could be achieved means of a ramps, danger. also ameliorate this high- for for only imposing liability

The basis a main- way accident was not as Put reasonably tained so to be safe. another if the as to way, existing highway is maintained so safe, reasonably be liability cannot be established still. by demonstrating it could be made safer gov- does not transform high- agencies having jurisdiction ernmental ways guarantors into of motorist insurers All demands is that safety. statute 10The trial court whether the road could have been also addressed However, given our made earlier the addition of a left-turn lane. safer lane, unnecessary regarding the left-turn it is to discussion aspect trial address that court’s decision. Co Rd Comm Opinion Court reasonably public be road safe travel. MCL 3.996(102). 691.1402; MSA Ordinary on flat intersections terrain are not points "special highways duty hazard,” for which the reasonably maintain in a condition safe public imports obligation and fit for travel extraordinary beyond install traffic-control devices signs stop stop lights. common While the case catastrophic injuries at bar involves to a victim wholly sympathetic, toward whom we are we can- misconstruing justify statutory highways maintain in a condition and fit for obligation travel tantamount to an possible highway to create the safest system. impose Such a construction would bur- a upon public treasury that, den if it tois be imposed, imposed only by representa- must be government. tive institutions lawyers expert Creative and innovative wit- always identify will nesses able practical way and demon- strate some which road could reasonably have been made safer. But the statu- tory comparative test is one. Safer or even highways goals, the safest are laudable but there goals, are costs to benefits, such as well and the Legislature high- seen has fit to limit the of way providing highways authorities are "reasonably guiding principle safe.” The is exception immunity, the general narrowly rule, as an drawn. to the is

Fogarty Dep’t Transportation, v of 200 App (1993); 572, 574; Mich Scheur- Dep’t Transportation, 619, man v of 434 630- Mich (1990). 66 456 NW2d

E. PROXIMATE CAUSE point necessarily Our discussion to this has cen- 579 596 215 Opinion the of Court duty. Duty ais the of actionable tered on issue Moning question the court. of law be decided (1977). 425, 437; 759 Alfono, 400 Mich 254 NW2d v may of this threshold issue But the determination involve an assessment the occurred, relationship of between injury injury in which that and the manner proxi- properly of which a is in- Id. 433-434. Proximate cause mate cause. cludes an evaluation quences at foreseeability conse- of of defendant should be held and whether a consequences. legally responsible Skinner for such Square Co, 163; 516 NW2d v D distinguished is from Proximate cause fact, i.e., for” the defen- cause in whether "but plaintiffs injury would dant’s course action not have occurred. Id.11 conflicting versions of what

As between occurred, proximate pendent strayed reflective of the existence neither is given by the inde-

cause. In version Raymond’s witnesses, Ronnie vehicle line time to the left of center at a proper Ralph on when side of the center Johnson’s vehicle was its waiting line, motion, not in for turn traffic to clear so that left could be signals protect completed. can No amount traffic from with other motorists who motorists collisions cause, Causation, proximate is into cause in fact and divided Skinner, cause, legal proximate supra 162- also known as cause. plaintiff adequately in fact 163. A must cause in order establish legal "proximate a relevant Id. at cause or cause” become issue. Asch, Michigan Supreme Dedes 163. As the Court noted in (1994): 99, 106, 2; n Through proximate all the diverse theories of cause runs thread; wrongful agree

common conduct must be is almost all that defendant’s plaintiffs injury there cause in fact before liability. metaphysical not a one This notion is but ordinary, inquiry into the existence nonexis- matter-of-fact lay people Clearly view it. tence of a causal relation as this would quest Probably it cannot not a for a sole cause. be said antecedent; single usually there it has a causal event many. are Co Rd Comm 597 v Opinion of the Court wrong on of drive the side the Had road. there signal, Ralph a been left-turn from Johnson all appearances would still have been in the same position, ripe injury any should westbound stray driver across the line.12 center Alternatively, Ralph if as Johnson himself testi- fied, he started to make his left after turn strayed red, trafile turned he across the point obligated center line at when he was 12 charges majority any dissent "the has to accord failed disagree. respectfully deference to the trial court at all.” We We have carefully any way rejecting challenging purely avoided even judge fact, People factual made of determination the trial as trier 621, 628; (1973), deeming v Jackson 390 Mich a 212 918 NW2d even single finding "clearly as such erroneous.” That with which we have legal taken issue in trial court’s are verdict conclusions that we novo, People 419, 423; App review de 734 v Conner 209 Mich 531 NW2d (1995). Co, 105, Marquette Mining 135; v Kostamo Iron 405 (1979).Likewise, findings regarding questions 274 NW2d 411 law and fact are reviewed on mixed of appeal de novo as law. issues of Johnson (1982). Corp, 102, 121; Harnischfeger v 414 Mich 323 NW2d 912 Our application conclusion that the trial court in the erred the statu tory "reasonably and fit for travel” standard is well within our proper sphere competence Detroit, responsibility. v Andrews (1995). 450 Mich 874 agree controlling legal We with the dissent that standard is "reasonably whether the is safe and fit for travel.” In this regard, generally it must be borne in mind bodies are liability they from immune tort unless fail maintain highways condition; statutory exceptions general in such a rules narrowly they general are rule. construed in order swallow Dist, App Warren Richardson v Consolidated School 197 Mich 697, exception (1992). 702; particular, public highway narrowly drawn. Id. important point, The dissent overlooks the most which is that question Chrysler construction of a statute is a Corp, of law. Haberkorn v (1995). App Expert testimony 533 373 NW2d to the effect tion unsafe absence that the of a left-turn effort to made the intersec- effectively transform an issue law into Doan, 209, 214; People App one of fact. (1985); v 366 See Mich App NW2d 593 Drossart, 66, 76; People accepted expert’s And we have left-turn intersection Gratiot respect claim true the that installation lane, signal, creation of a left-turn would have made this occupants turning from expert safer for of vehicles left Wick- however, cannot, onto We with Middlebelt. defer to the legal proper to the construction control- ling statutory application standard its to the facts of case. 215 op Opinion the Court Ray- signal, or Ronnie stop to the in obedience light. there ignored Had traffic the red mond also Raymond signal, still Ronnie a left-turn been facing him and traffic had a red have would prevented anything have that would to see we fail Raymond other westbound if a collision through prepared proceed the inter- driver were signal. despite the red section Raymond yet had red, then was If the obligated Ralph right way, was Johnson of right way 257.650; yield MCL to him. of Again, a left-turn to see how we fail 9.2350. MSA signal danger. And, if, have eliminated would temporarily claimed, his view was as Johnson give him tractor-trailer, that did blocked right of turn in violation a left to commence the statutory right way rather, rules; common both safety, Bertrand v care for his own and due sense Inc, 606, 616; 537 NW2d Ford, Alan (1995), prompted until his him to wait would have sight attempting any maneu- before cleared line path require him to cross the that would ver oncoming traffic. proximate cause with a similar lack

There is respect was lane. Plaintiff of a left-turn to the lack part that were other vehicles of cars and of a line purpose making a left-turn lane left turns. The turning protect from rear-end left motorists is to fact, here. collisions, not what occurred which is turning plaintiff who were drivers like the other appropriate the leftmost were able to left purposes heading for their traffic east lanes of two the manner It either incident. without Ralph out his decision Johnson carried which proceeded Raymond left, Ronnie or in which turn Rd Co Comm Opinion op the Court through ultimately intersection, caused collision, not the absence of a left-turn lane.13

III. CONCLUSION Although the relevant facts are somewhat dispute case, in this whichever version of the facts adopted upon, and relied the result must be the same: defendant has not violated its to main- reasonably tain the in a condition public and fit for intersection and vehicular travel. This mundane

ordinary stoplight combination created a safe for Accordingly, travel. the issue whether defendant statutory duty high- breached the way to maintain the question fact, is not a but one of law. Issues by novo, of law are reviewed this Court de any Portage under deferential standard. Feaster v App Schools, 643; Public 534 NW2d 242 (1995). reviewing nonjury particular, In cases in through judicial this Court sifts the evidence a correspondingly sieve of "finer mesh than the one employed jury’s Colovos, on review of a verdict.” supra quoting Pomerville, at Schneider v 49, 54-55; Therefore, might contrary the extent our decision be read as by to factual court, determinations made the trial findings clearly we deem those erroneous. Pick v 511 App Comm, Gratiot Co Rd (1993); supra Tuttle, NW2d 694 52. governmental agency having jurisdiction

A over highway statutory obligation has a to "maintain highway repair the in reasonable so that it fact, analysis appears suggest Our to further a lack of in cause proximate which must be shown in order for In cause be relevant. event, any may lacking, specifically while cause in fact be we find plaintiffs’ injuries consequence were not a foreseeable Accordingly, failure to install a left-turn is no or left-turn lane. there proximate cause. Opinion of the Court public

reasonably travel.” safe and convenient for keep obligation duty road- The way, includes reasonably constructed, for vehicular as applicable agency Accordingly, does not the travel. have a road modify statutory duty to reconstruct or or, case, in this to install a left- as discussed turn lane. governmental agency addition, a fulfills its obligation by providing

statutory traffic-control prudent signs permit ordinarily devices motorists negotiate navigate the road with signals safety. The fact that better reasonable might signs have obviated an accident does aid determining in a court or factfinder whether the actually installed nonethe- traffic-control measures less made perpendicular reasonably highway reasonably Ordinary, safe. intersections flat terrain road on are fully safe when controlled func- stoplight red-yellow-green if the tional even addi- tion of a left-turn tion even safer. would make the intersec- Accordingly, did its defendant not breach keep maintained so to to safe and convenient for alleged Additionally, derelictions travel. design or maintenance of the with refer- signal— to a left-turn lane and a left-turn ence under occurred as testified to of the versions how the accident the various witnesses— proximate were not a cause of this accident. The grant failing judg- in trial court ment for defendant on erred therefore grounds governmental immunity. family his

Plaintiffs’ decedent and have suffered tragedy not, It was a horrendous this case. Wayne tragedy people however, a for which the County fairly responsible. are proceedings for

Reversed remanded further 601 Co Rd Comm by Wahls, J. Dissent opinion. consistent with this We retain no further jurisdiction. J.,

F. M. concurred. Mester, (dissenting). respectfully J. I dissent be- Wahls, cause I would hold that issues of governmental properly pre- were addition, served for this Court’s review. In I would holding hold that the trial court did not err in defendant liable where the whether de- fendant exercised reasonable care was for the trier fact determine.

i Although pleaded governmental defendant im- munity defense, as an affirmative defendant did disposition summary not move for on this at basis addition, trial. In defendant did not raise the issue trial. Neither did defendant raise the issue of duty with the trial court. This Court cannot ad- Vung- dress issues not decided the trial court. Systems, Millpond Corp, terveen Inc v Olde 210 App 34, 38; Mich 320 NW2d Although majority cites Patterson v Klei (1993), nian, 191; aff'd, but modified

(1994), simply that case does not stand for the proposition peal. preserved ap this issue was plaintiff

Rather, that case held need anticipate defendant’s affirmative defense of governmental immunity by pleading gross negli gence complaint. p Id., case, 192. In summary dispo defendant in Patterson moved for immunity, sition on the basis of brought properly which the issue before that trial similarly Here, court. Id. defendant did not move. App 215 by Wahls, J. Dissent Al’s, v Em 'N in Hillman’s addition, In more (1956), defendant did the 644; in its defense raise an affirmative simply than its made in that case The defendant pleadings. submission trial an issue at argument in evidence, was stated and the issue documentary Id., 651, 656. pp order. pretrial court’s the trial contrast, trial focused on Here, at evidence and the defend- of the decedent’s the reasonableness conduct, of a left-turn necessity and the ant’s did not address The evidence signal. lane or any duty owed the decedent defendant whether all.

ii it addition, preserved, if this issue was even to exception It that an dispositive. is clear require govern- to exists governmental its highway under agencies "keep any mental repair, and condition in reasonable jurisdiction MCL and fit travel.” safe v Cox Dearborn 3.996(102)(1); 691.1402(1); MSA 389, 392-393; 534 NW2d Heights, maintaining goal The statutory v unambiguous. Chaney is clear highways 145, 155; 523 Transportation, Dep’t J). (1994) (Brickley, NW2d 762 A has concluded majority requires immunity only governmental highway, agency "maintain” "augment,” "expand” "improve,” but not However, admits majority one. traffic-con- of suitable

includes the "installation” Cox, supra, p Using 395. signs. See signals trol Rd Co Comm J. by Wahls, Dissent majority’s definitions, the previously own "installation” signs

nonexistent would be. an "im- provement,” rather than "maintenance.” adopt majority’s distinction,

Rather than I plain language would follow statute, of the duty keep highways which is that exists to safe and convenient for travel. plaintiffs argue The fact that defendant should have constructed a left-turn lane is rele- vant behavior, to the reasonableness of defendant’s not to the existence of a itself. In the absence summary disposition pursuant of a motion for 2.116(C)(10) MCR or a motion directed ver- regarding dict, I would hold that the decision required whether reasonable care the construction of a left-turn lane at this intersection should have Harper been left to the trier of fact. See Scott v Recreation, Inc, 441, 448; 444 Mich

B argued Plaintiffs also at trial that there should have been a left-turn at this intersection. Regarding majority issue, this concludes: appears nothing This to be more than an ordi- intersection, nary like thousands of others

throughout state, motorists, familiar to all safely driven with the exercise of reasonable care. plain- fact, In there was evidence at trial exercising tiffs’ decedent was reasonable care at deposition Lloyd the time of the accident. The Meyer was read into the record at trial. On the question, Meyer working date was as a truck driver when he witnessed the automobile accident stopped light. Meyer while at a red testified that by Wahls, J. Dissent waiting plaintiffs’ a left to make decedent when struck of the intersection turn in the middle part Meyer that no testified a van. plaintiffs’ wagon decedent driven station oncoming traffic lanes. over into the crossed judg- appellate its An court is not substitute facts court unless the that of the trial ment for clearly opposite preponderate direction. in the Corp Co, Ins American Motorists Arco Industries (1995). Findings 395, 410; 531 NW2d clearly may errone- unless not be set aside fact give particular, appellate In courts should ous. Id. special findings when the trial court’s deference to upon they wit- its assessment are based making finding credibility. In its nesses’ Id. constructed, the ma- the intersection was safe jority deference to has failed to accord trial court at all. majority addition, mischaracterizes expert. merely

testimony plaintiffs’ Rather than made the a left-turn would have state that expert plaintiffs’ safer, that testified intersection made the intersection the absence of such it ad- is critical because unsafe. The difference statute, i.e., the the focus of the whether dresses "reasonably and convenient intersection was 691.1402(1); public MCL MSA for travel.” 3.996(102X1). again, I defer to the trial would Once regarding credibility court’s determination p supra, Arco, 410. witnesses. impose argues majority this case would

The that treasury.” upon public great of "a burden too provide Legislature However, has decided for responsibility highways. this Court to It effectively enforce, abro- rather than to enact 605 v Co Rd Comm by Wahls, J. Dissent gate, legislation. Lansing City Lansing v Twp, (1959); 641; Cox, 804 supra, p 397.

Finally, regarding majority’s analysis proximate again cause, once it contradicts evi- properly dence expert before the trial court. Plaintiffs’ explicitly that,

witness testified "[h]ad a left phase turn been existence at the of Mr. time likely accident, Johnson’s most no accident would special have occurred.” This Court must accord evaluating deference to the trial court credibility supra, p Arco, of witnesses. 410. The majority has failed to accord deference.

m majority argu- did not reach defendant’s high justify ment the award was so as to However, remittitur. I would hold that defendant preserve moving failed to this issue Tate, remittitur in the trial court. McFadden v (1957); Lloyd, 84, 91; Mich 85 NW2d 181 Jamison v (1974); 576; see Receiving Hosp, also McLemore v Detroit (1992) App 391, 401-402; Mich (failure 493 NW2d 441 provide transcript ruling of trial court’s prevents reviewing this Court from of remit- issue titur). This Court cannot defer to the trial court’s superior ability to view the evidence and evaluate credibility if witnesses the trial court opportunity was never afforded the to exercise its Hosp, discretion. See Palenkas Beaumont v (1989); Phillips 527, 443 NW2d 354 Deihm,

I would affirm.

Case Details

Case Name: Wechsler v. Wayne County Road Commission

Court Name: Michigan Court of Appeals

Date Published: Apr 26, 1996

Citation: 546 N.W.2d 690

Docket Number: Docket 165519

Court Abbreviation: Mich. Ct. App.