Lead Opinion
This is a line-drawing case, both literally and figuratively. We are asked to decide whether a parallel-parking lane, designated exclusively as such by painted lines on the highway, is “designed for vehicular travel” within the meaning of the highway exception
I. FACTS AND PROCEDURAL HISTORY
In 2011, plaintiff, Helen Yono, visited the village of Suttons Bay and parked in a space specifically designated for parallel parking along the northbound side of M-22, a highway under the jurisdiction of defendant, the Michigan Department of Transportation (the Department). When returning to her car, she stepped into a depression in the area designated as a parallel-parking space, fell, and suffered injuries. She filed suit in the Court of Claims, alleging that the Department
The Department moved for summary disposition under MCR 2.116(C)(7), claiming that it was entitled to governmental immunity. The Department acknowledged its duty, set forth in MCL 691.1402(1), to maintain the “improved portion of’ M-22 that is “designed for vehicular travel,” but argued that Yono’s injury had not occurred on that portion of the highway because the parking lane was not designed for vehicular travel. Plaintiff countered that the entire roadbed, from one curb to the other, was designed for vehicular travel; as a result, she claimed that she had pleaded in avoidance of governmental immunity. For the court’s review of defendant’s motion, each party submitted an affidavit from an expert who was a highway engineer.
The Court of Claims denied the Department’s motion for summary disposition. The court reasoned that plaintiff had alleged an injury that occurred “in the portion of the road. . . designed for vehicular travel because [a] vehicle would have to travel to get to the parking spot. . . .”
A divided Court of Appeals affirmed.
The dissent would have held that any vehicular travel in the parallel-parking lane “is merely ‘momentary’ and under limited circumstances” and that this momentary use does not “transform the purpose of its design” into vehicular travel.
This Court ordered oral argument on the Department’s application for leave to appeal.
On remand, the Court of Appeals again affirmed the Court of Claims and concluded that plaintiff had pleaded in avoidance of governmental immunity.
This Court granted the Department’s application for leave to appeal.
II. STANDARD OF REVIEW
We review de novo the question whether the Department is entitled to summary disposition under MCR 2.116(C)(7) on the basis of governmental immunity.
III. ANALYSIS
In 1964, the Legislature enacted GTLA “to make uniform the liability of municipal corporations, politi
The first sentence of MCL 691.1402(1) articulates the general duty of a governmental agency: “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.”
*648 the duty of a governmental agency to repair and maintain highways, and the liability for that duty, extends only to the improved portion of the highway designed for vehicular travel and does not include sidewalks, trailways, crosswalks, or any other installation outside of the improved portion of the highway designed for vehicular travel.[32 ]
When interpreting GTLA, courts must keep in mind that “the immunity conferred upon governmental agencies is broad, and the statutory exceptions thereto are to be narrowly construed.”
In Nawrocki v Macomb Co Rd Comm, this Court held that the fourth sentence of MCL 691.1402(1) “narrows the duty of. . . the state . . . with regard to the location of the dangerous or defective condition,” but not with regard “to the type of travel or traveler.”
In Grimes, the Court concluded that the improved shoulder of a highway was not designed for vehicular travel within the meaning of the highway exception because “travel” does not encompass the incremental movement that accompanies a vehicle’s movement from the travel lanes onto the shoulder.
To be designed as a travel lane and therefore to be designed for vehicular travel, the Court explained,
This case presents a question more difficult than the one at issue in Grimes, but both focus on what constitutes vehicular travel.
The Court of Appeals attempted to distinguish use from design, but its analysis focused too narrowly on the highway’s initial design, rather than the highway’s design at the time of the injury. The panel used a hypothetical example to illustrate the importance of a highway’s initial design: “A governmental entity might have designed a particular highway to support vehicular travel for its full width, but might have later decided to limit the traffic to a narrow portion in the center of the highway for safety reasons or even to facilitate parking for businesses.”
By focusing on the highway’s design at the time of its initial construction, rather than its design at the time of the injury, the Court of Appeals ignored the Department’s ongoing duty to ensure that the highways of this state are safe for vehicular travel.
Consider a situation familiar to all Michigan drivers: highway repairs. Suppose a state highway develops a sinkhole within a travel lane that renders the lane unsafe for travel. As the Department repairs the defect in the highway, it might place traffic-control devices—including barricades, signage, and paint markings—to authorize drivers to travel along what had initially been designed as the highway’s shoulder. That shoulder—not the closed lane under repair— would then have been redesigned “for vehicular travel” within the meaning of MCL 691.1402(1), albeit temporarily. Once the repair is complete, the traffic-control devices would be removed, the paint lines would again designate the area as a shoulder, and the design of the highway would again have changed and reverted back to its initial design as a shoulder.
As a result, and contrary to the Court of Appeals’ analysis, we must consider how the Department had designed the highway at the time of the alleged injury.
“[0]ne basic principle . . . must guide our decision today: the immunity conferred upon governmental agencies is broad, and the statutory exceptions thereto are to be narrowly construed.”
Our holding does not suggest that the highway exception requires that the area in question be designed exclusively for vehicular travel. For example, signage might indicate particular hours during which a designated parking lane is to be used as an additional travel lane. Or a street in a residential neighborhood, with no designated parking lane, might be designed for both curbside parking and vehicular travel.
For these reasons, we reverse the judgment of the Court of Appeals and remand this case to the Court of Claims for entry of summary disposition in favor of defendant.
MCL 691.1402(1).
MCL 691.1401 et seq.
Nawrocki v Macomb Co Rd Comm, 463 Mich 143, 158; 615 NW2d 702 (2000).
MCL 691.1402(1).
Defendant’s expert, one of its development engineers, averred that the parallel-parking lane where plaintiffs injury occurred “is not considered part of the traveled way” and instead is separated from the travel lanes by a buffer zone. Plaintiffs expert averred that the entire paved surface consists of travel lanes, that the parallel-parking lane is dual purpose for travel and parking, and that “the only difference between the differently labeled travel lanes is the type of paint marks or striping and the measured widths of the travel lanes.”
Yono v Dep’t of Transp, 299 Mich App 102; 829 NW2d 249 (2012) (Yono I).
Id. at 111.
Id.
Id. To support this proposition, the majority claimed that the Michigan Vehicle Code allows drivers “to use that type of area as a travel lane when the highway has ‘unobstructed pavement not occupied by parked vehicles of sufficient width for 2 or more lines of moving vehicles in each direction!.]’ ” Id. at 111-112, quoting MCL 257.637(1)(b).
Id. at 111.
Id. at 116 (Talbot, P.J., dissenting).
Id. at 117 (alteration in original).
Id.
Yono v Dep’t of Transp, 495 Mich 859 (2013).
Yono v Dep’t of Transp, 495 Mich 982, 982-983 (2014).
Yono v Dep’t of Transp (On Remand), 306 Mich App 671, 675, 685-686; 858 NW2d 128 (2014) (Yono II).
Id. at 692, quoting Yono I, 299 Mich App at 110.
Yono II, 306 Mich App at 693-694.
Id. at 695-696.
Id. at 695.
Yono v Dep’t of Transp, 497 Mich 1040 (2015).
Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999).
Whitman v City of Burton, 493 Mich 303, 311; 831 NW2d 223 (2013).
1964 PA 170, title. Approximately three years before GTLA’s enactment, this Court had abolished common-law governmental immunity for municipalities. Williams v Detroit, 364 Mich 231; 111 NW2d 1 (1961). As amended by 2002 PA 400, GTLA’s title now provides that it is an act “to malee uniform the liability of municipal corporations, political subdivisions, and the state, its agencies and departments, officers, employees, and volunteers thereof.. . when engaged in the exercise or discharge of a governmental function . .. .”
MCL 691.1401(b), as amended by 2012 PA 50, defines “governmental function” as “an activity that is expressly or impliedly mandated or authorized by constitution, statute, local charter or ordinance, or other law.” The prior version of the statute, as amended by 2001 PA 131, differed only in that this definition appeared in Subdivision (f) instead.
Nawrocki, 463 Mich at 156, citing Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 618; 363 NW2d 641 (1984).
Nawrocki, 463 Mich at 158 (emphasis omitted).
MCL 691.1402(1), as amended by 2012 PA 50, provides in full:
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. A person who sustains bodily injury or damage to his or her property by reason of failure of a governmental agency to keep a highway under its*647 jurisdiction in reasonable repair and in a condition reasonably safe and fit for travel may recover the damages suffered by him or her from the governmental agency. The liability, procedure, and remedy as to county roads under the jurisdiction of a county road commission shall be as provided in section 21 of chapter IV of 1909 PA 283, MCL 224.21. Except as provided in [MCL 691.1402a], the duty of a governmental agency to repair and maintain highways, and the liability for that duty, extends only to the improved portion of the highway designed for vehicular travel and does not include sidewalks, trailways, crosswalks, or any other installation outside of the improved portion of the highway designed for vehicular travel. A judgment against the state based on a claim arising under this section from acts or omissions of the state transportation department is payable only from restricted funds appropriated to the state transportation department or funds provided by its insurer.
This statute has only minor differences from the prior version, as amended by 1999 PA 205, which are not relevant to our decision.
Id.
MCL 691.1401(c), as amended by 2012 PA 50, defines “highway” as “a public highway, road, or street that is open for public travel. Highway includes a bridge, sidewalk, trailway, crosswalk, or culvert on the highway. Highway does not include an alley, tree, or utility pole.” The prior version of the statute, as amended by 2001 PA 131, differed in that the definition appeared in Subdivision (e) instead and used plural forms for “bridge,” “sidewalk,” etc.
MCL 691.1402(1).
Id.
Nawrocki, 463 Mich at 158 (emphasis omitted).
Id. at 171.
Id.
Grimes v Dep’t of Transp, 475 Mich 72, 91; 715 NW2d 275 (2006).
The parties do not ask us to revisit Grimes, but the dissent claims that Grimes’s holding “must not be permitted to obscure or supplant the
Grimes, 475 Mich at 89-90.
Id. at 90.
Id. at 89.
Id.
Id. at 90.
Id. at 89.
This more general understanding of vehicular travel stands in opposition to that of the dissenting opinion, which focuses on an individual’s travel route. MCL 691.1402(1) directs the Court to look not at a person’s actual journey from one point to another, but instead to the way in which the road was designed and whether that design was generally intended for vehicular travel.
Id. at 90.
Yono II, 306 Mich App at 695-696.
Id. at 696.
Id. By using the phrase “proposed markings,” the Court of Appeals suggested that the only potentially relevant paint markings are those predating the highway’s construction.
MCL 691.1402(1).
See Yono II, 306 Mich App at 696-696.
The Michigan Vehicle Code provides an explicit connection between a highway’s traffic-control devices and the Department’s design for a highway. MCL 257.608 gives the Department, in conjunction with the State Police, the authority to “adopt a manual and specifications for a uniform system of traffic-control devices .. . for use upon highways within this state.” MCL 257.611(1) gives those traffic-control devices legal effect for enforcing the Department’s intended design of a highway by providing that “[t]he driver of a vehicle. . . shall not disobey the instructions of a traffic control device . .. .”
See MCL 257.608.
The manual defines “traveled way” as “the portion of the roadway for the movement of vehicles, exclusive of the shoulders, berms, sidewalks, and parking lanes.” Manual on Uniform Traffic Control Devices (2011 Michigan MUTCD), p 22.
The similar circumstance of angled on-street parking helps to illustrate the single purpose delineated by the paint markings at issue in this case. Where the Department or a local road authority has provided angled on-street parking for drivers, it is evident that the highway is not designed for vehicles to use the entire width of the paved surface for travel, even when unobstructed. We do not see any substantive difference between specifically delineated angled-parking spaces and parallel-parking spaces.
In Yono I, the Court of Appeals supported its conclusion that the entire roadbed was designed for vehicular travel by citing MCL 257.637(l)(b), which allows the driver of a vehicle to “overtake and pass upon the right” another vehicle when “unobstructed pavement not occupied by parked vehicles [is] of sufficient width for 2 or more lines of moving vehicles in each direction . .. .” Yono I, 299 Mich App 111-112. However, this only applies “when the vehicles are moving in substantially continuous lanes of traffic,” MCL 257.637(l)(b), and MCL 257.637(2) provides that a driver may not “pass another vehicle upon
Grimes, 475 Mich at 90. The dissent observes that “the lines delineating the parking spots ... specifically invite a vehicle to drive over this portion of the highway” and contrasts this invitation to that of a shoulder, “which, as its own paint markings and other designators make clear, is not designed as part of an intended route, but instead is designed to run alongside that route and provide temporary accommodation for emergently stopped or disabled vehicles.” Post at 661-662. We are not persuaded. The act of parking—like the act of pulling onto the shoulder of a highway—is only incidental to travel. In each circumstance, the responsible governmental agency has separated the part of the highway designed for vehicular travel from the part of the highway where vehicles cease or begin traveling. Moreover, the responsible governmental agency specifically invites motorists to engage in incidental movement when going into and out of both shoulders and parking spaces.
There is no allegation in this case, nor do we think there reasonably could be, that the distance one might travel from the right lane onto the
The dissent distinguishes the often unplanned movement involved in a vehicle’s use of a shoulder from the often planned movement involved in its use of a parking lane. But this distinction is inconsistent with its broad definition of “travel” and shows why its rationale is ultimately inconsistent with Grimes. The dissent claims that a parking lane is designed for travel because travel does not end until the vehicle comes to a complete stop, while criticizing this opinion for suggesting otherwise. But, to be faithful to Grimes, we must recognize that travel necessarily ends before a vehicle reaches a complete stop along a shoulder. That a shoulder stop is often unplanned and a parking stop is often planned does not matter. Grimes informs us that a highway’s design for vehicular travel does not encompass the incidental movement required to bring a vehicle to a stop along a shoulder. That holds equally true for a portion of the highway designed solely for parking, as the paint markings at issue here illustrate.
Post at 663.
Post at 664.
Post at 660, quoting Random House Webster’s College Dictionary (2005).
Nawrocki, 463 Mich at 158.
Id. at 158-159, citing Scheurman v Dep’t of Transp, 434 Mich 619, 629-630; 456 NW2d 66 (1990) (opinion by Riley, C. J.).
Because no fact questions remain regarding the highway’s design, we do not reach the issue of how to resolve fact questions on a motion for summary disposition involving governmental immunity under MCR 2.116(C)(7).
This may have been the factual situation in Nawrocki, and, if so, it would distinguish the facts oí Nawrocki from those of the present case. But whether the design of the highway in Nawrocki can be distinguished from the highway design here is irrelevant because our opinion in Nawrocki did not address the only question at issue in this case:
The dissent posits that, under this holding, the governmental agency will sometimes have an obligation to maintain the improved portion of the highway “as to a parking-designated portion of a highway” and sometimes not. Post at 669. This is because we and the dissent have different understandings of what constitutes vehicular travel, not because our decision is somehow inconsistent with our prior precedent. Our decision today is entirely consistent with Grimes. Whether the governmental agency has an actionable duty to maintain the improved portion of the highway in reasonable repair depends on whether that portion is designed for vehicular travel, and this will always depend on the nature of the location at issue.
Dissenting Opinion
(dissenting). I respectfully dissent. I agree with the majority on a number of points: that the immunity conferred by the governmental tort liability
It is important, at the outset, to remember precisely what the controlling inquiry is: whether the alleged defect was located in “the improved portion of the highway designed for vehicular travel. . . .” MCL 691.1402(1). The majority, relying on Grimes, 475 Mich at 73-74, uses different language to frame this question, asking “whether a parking lane is a ‘travel lane’—and therefore ‘designed for vehicular travel’— within the meaning of the statute.” Grimes did, of course, use the phrase “travel lane” in articulating its holding; the statute, however, does not, nor does it otherwise address or differentiate between types of “lanes.” And as this Court has made clear, we must tread very carefully when using terminology foreign to the statute in analyzing its scope: our interpretation must always start with and remain governed by “a close examination of the statute’s plain language” and not “merely attempt [] to add still another layer of judicial gloss to those interpretations of the statute
When construing that plain language in light of the facts of this case, I fail to see why the location of the alleged defect at issue fell outside “the improved portion of the highway designed for vehicular travel.” There is no dispute here that this defect was located in an “improved portion of the highway”; the only question is whether that portion of the highway was, at the time of the injury, “designed for vehicular travel.” The paint markings on the roadbed designated this portion of the highway for parallel parking, and I agree with the majority that this evidences it was designed for at least that use.
The GTLA does not define “travel.” The word’s lay definitions vary in breadth, but they commonly comprise and contemplate a planned and purposeful progression from an origin to a destination—or, in terms particularly relevant here, the passage along a route from one point to another. As a verb, for instance, to “travel” is, variously, to “go,” “move,” or “pass” “from one place or point to another”; to “take a trip”; to “proceed or advance”; “to move in a fixed course, as a piece of mechanism”; and “to journey or traverse (a specified distance).” Random House Webster’s College Dictionary (2005). When used as a noun, as it is in the highway exception, “travel” is, for instance, “the coming and going of people or conveyances along a route,” and “movement or passage in general,” with “passage” being “the route or course by which a person or thing passes or travels.” Id. “Route,” in turn, is “a course, way, or road for passage or travel,” and “a customary or regular line of passage or travel”; “course,” similarly, is “a direction or route taken or to be taken,” and “advance or progression in a particular direction.” Id.
Accordingly, under the plain meaning of the highway exception’s terms, a portion of a highway is “designed for vehicular travel” if it is designed, or intended, for a vehicle’s planned and purposeful progression from origin to destination—that is, to provide a route for a vehicle’s passage from one point to
An improved portion of the highway designated for parallel parking falls comfortably within this reading of the statute’s plain language. By designating a location for the parking of a vehicle, this portion of the highway is designed to provide the beginning and ending segments of the highway’s intended route(s). A vehicle’s passage through these beginning and ending segments constitutes a part of its “travel” as much as that vehicle’s passage through various other segments of an intended route, such as those designated for thoroughfare, merging, turning, and so forth—none of which the defendant contends, or our caselaw indicates, would fall outside “the improved portion of the highway designed for vehicular travel.” Indeed, the lines delineating the parking spots, like those marking
The majority acknowledges and articulates much of this: namely, that a portion of a highway designated for parallel parking “specifically invites drivers to end their journeys there and, sometime later, begin new journeys,” whereas “[t]he shoulder of a highway is designed as a temporary breakdown or emergency area” and “is not intended or designed to be part of a traveler’s journey from one location to another.” Nonetheless, the majority concludes that this parking-designated portion of the highway is, like a shoulder, not designed for vehicular travel because “parking . . . is only incidental to travel and does not itself constitute travel.” This conclusion is seemingly premised on two core points: (1) the belief that “[i]n common English usage, a parking lane is closer to being a travel lane’s antonym than its synonym” because “ [t] o park is to stop” but “to travel is to go” and “[w]e travel to our destination” but only “park once we have arrived” at it; and (2) the notion that “the momentary ingress and egress necessarily accompanying parallel parking” does not constitute “travel” under Grimes because that case “rejected the notion that ‘travel’ should be ‘broadly construed to include traversing even the smallest distance ....’” I find neither point convincing.
First, as noted, focusing on whether the term “parking lane” is closer to being the synonym or the antonym
This feeds into the majority’s second offered reason: that, under Grimes, a vehicle’s entry into and exit from a “parking lane” is not “travel” because that movement, like a vehicle’s momentary use of a shoulder, involves “the same basic action” of “traversing a short distance.” For the reasons discussed, I cannot view these movements as “the same basic action” for purposes of the highway exception. It is true that, in making a brief detour onto a shoulder, a vehicle might go through the same physical actions it would in using a parallel-parking spot, with the only difference being the paint markings over which the vehicle passes in
Grimes did not offer an affirmative definition of “travel.” It acknowledged that to “travel” is commonly understood to mean “to go from one place to another” and declined to read that common understanding in its “broadest and most literal sense” such that it would necessarily “include the shortest incremental movement by a vehicle on an improved surface”—as when, for instance, “in an emergency ... a motorist momentarily swerves onto the shoulder . . . .” Id. at 89 & n 51 (quotation marks and citation omitted). Grimes did not, however, purport to define “travel” on the basis of this single illustration, nor did it suggest that “travel” should be understood as comprising only movements of a certain length or duration. Rather, what Grimes made clear through this illustration was that “travel” could not be construed so broadly as to categorically include every movement a vehicle does or could make on an “improved portion of the highway,” as doing so would leave no meaning to the phrase “designed for vehicular travel” and would ignore the Legislature’s express focus on design rather than use:
If “travel” is broadly construed to include traversing even the smallest distance, then it must follow that every area*667 surrounding the highway that has been improved for highway purposes is “designed for vehicular travel” since such improved portions could support even momentary vehicular “travel.” Under plaintiffs’ interpretation, then, every “improved portion of the highway” is also “designed for vehicular travel.” This interpretation renders these phrases redundant and contravenes a settled rule of statutory interpretation. It also conflates two disparate concepts: design and contemplated use. That vehicular traffic might use an improved portion of the highway does not mean that that portion was “designed for vehicular travel.” Therefore, in an effort to give meaning to every word of the highway exception and to honor the Legislature’s expressed intent, we reject plaintiffs’ construction of the highway exception. [Id. at 90.]
Thus, as Grimes explained, “an intentionally sloped grassy median” running between the northbound and southbound lanes of a highway cannot be considered “designed for vehicular travel” simply because it has been “shaped in that fashion for any number of highway-related purposes” and “could support even momentary vehicular ‘travel.’ ” Id. at 90 & n 53. And, per Grimes, the same holds for the shoulder of a highway.
At no point did Grimes suggest that this reasoning or result depended on how far a vehicle could drive on the grassy median, or shoulder, or other improved
The majority stresses that the highway exception is to be construed narrowly. I agree. See, e.g., Nawrocki, 463 Mich at 149-150. It cannot, however, be construed more narrowly than the Legislature intended, as expressed through the plain language it chose. See id. at 150-151. For the reasons discussed, I am unable to
The majority says this is “a line-drawing case.” The lines it purports to draw, however, do not match those I see in the statute, in our precedent, or on the road. Accordingly, I dissent and would affirm the denial of the defendant’s motion for summary disposition.
The majority notes that “we are not free to disregard” Grimes’s holding, including its use of the phrase “travel lane.” I, of course, agree that Grimes cannot be disregarded here, nor do I think it should be; I do not take issue with that case’s ruling that shoulders are not designed for vehicular travel, and—as set forth infra—I find its reasoning fully compatible with and supportive of my conclusion that parking-designated portions of a highway are so designed. Reaching that conclusion requires no disregard of Grimes or its chosen terminology— just a proper understanding of its meaning and role in our interpretive exercise, as discussed above.
In remanding this case for entry of an order granting the defendant’s motion for summary disposition, the majority concludes that these paint markings evidence, as a matter of law, that this portion of the highway was designed exclusively for parallel parking. It remains unclear to me why these markings necessarily have that legal effect—that is, what authority makes clear that the presence of these markings designates this portion of the highway for parallel parking to the complete
The majority alludes to a “more general understanding of vehicular travel” that “stands in opposition to” the one I offer here. I am uncertain what that is, exactly; as the above makes clear, however, I agree that, for purposes of the highway exception, what matters is not the “actual” path a vehicle may or does end up taking over the improved portions of a highway, but the route(s) the highway was designed to provide for that vehicle in progressing from one point to another.
The majority notes that the definitions of “travel” discussed above “connote movement, not starting or stopping a journey,” but I see no such distinction in those definitions. The acts of starting and stopping a journey, of course, always involve movement. And as discussed, the definitions of “travel” contemplate passage, movement, along a route from one point to another. Nowhere do those definitions suggest that
Nor do I understand the practical implications of such a construction of “travel.” When is a vehicle deemed to have completed its travel—to have, as the majority put it, arrived at its destination—if not at the point where its route reaches a designated end point? What, if not those designated points, marks the start and end of the travel? Does the travel, for instance, simply end when the vehicle is in closest proximity to the location to which its driver ultimately plans to go after parking and exiting the vehicle? If the driver proceeds further'—down the street, around a corner, and so on—in search of an available parking spot, is none of that part of its travel? And if it is, why, then, does the travel continue that far but then suddenly cease when the vehicle reaches some certain, but unspecified, proximity to the available spot? I see nothing in the definitions of “travel,” or in Grimes, that would invite these questions, let alone suggest their answers.
I thus agree with the majority that the “digression is what makes the difference,” in that a vehicle is digressing from its intended route when it uses a shoulder, but is proceeding along that route when using a parking-designated portion of the highway. Both portions of the highway, as the majority notes, may he used by a vehicle in “com[ing] to a complete stop,” but only the parking-designated portion is designed to be used by a vehicle as a part of its passage along a route from one point to another. Indeed, if a vehicle’s passage between points goes as designed, the vehicle never makes use of the shoulder; that passage always will, however, and must, begin and end with use of a parking space. The critical distinction is in the design. The majority rejects this distinction—and the corresponding notion that a “parking lane” is, unlike a shoulder, just another type of “travel lane”—by repeating that parking “is only incidental to travel. . . .” But this simply offers the conclusion in support of itself. It does not explain why use of a parking-designated portion of a highway is “incidental” to, or a “digression” from, travel when it—unlike use of a shoulder—is an intended and required part of a vehicle’s route from one point to another. Nor does it explain why, in light of this distinction in design, a vehicle should be considered to have been “specifically invite[d]” by the governmental agency to “cease or begin traveling” when using a shoulder in the same way it has when using a parking-designated portion of the highway. Or why “the paint markings at issue here,” distinct as they may be from the solid white line designating a shoulder, should nonetheless be taken to “illustrate” this equivalence. For all the reasons discussed herein, I agree that the parking-designated portion of the highway is designed for the beginning and ending stages of travel; the shoulder, however, is
In light of this emphasis on design rather than use, I struggle with the majority’s suggestion that, under a “faithful” reading of Grimes, it simply “does not matter” “[t]hat a shoulder stop is often unplanned and a parking stop is often planned . . . .” Ignoring that distinction, in my mind, is no more compatible with Grimes than ignoring the difference between a vehicle driving down the shoulder and one driving on a portion of the highway designated for thoroughfare. For both the thoroughfare- and parking-designated portions of the highway, the governmental agency has planned, and thus designed, them to be used as part of the vehicle’s route; the shoulder’s usage has not been so planned.
Grimes, for instance, did not suggest that the highway exception’s coverage of a shoulder may depend on how far or safely the shoulder’s design permitted a vehicle to drive over it; its assessment of these improved portions of a highway was categorical.
This reading also comports with the majority’s example of an improved portion of the highway that is normally designated as a shoulder, but has been temporarily redesignated as part of the highway’s vehicular route while repairs are underway on another improved portion of the highway. The redesignation renders that portion of the highway “designed for vehicular travel”—a conclusion that depends not on what length of the shoulder has been redesignated, but instead on the fact that, through such redesignation, vehicles have been invited to drive over that portion of the highway as part of their passage from one point to another.
What of other types of paint markings that may be used to designate a portion of the highway for parking, for instance? What is the effect of other potential designators, such as parking meters on the curb? And what if the parking-designated portion is not clearly or completely delineated; how are its boundaries—and the corresponding scope of the governmental agency’s obligations—determined? Somewhat similarly, if a portion is designated exclusively for parking at some times of the day but not others, does the governmental agency’s immunity depend on during which of those time periods an injury was suffered? And are there now other segments of a highway’s intended vehicular route that, by similar analogy to Grimes, can also be broken off and carved out from the governmental agency’s duty to maintain and repair? How should that assessment be made, and according to what criteria? Is it any segment of the route whose intended vehicular use can be characterized as “momentary,” “incremental,” “short,” or some other such descriptor? At what length does a segment of a route become “incremental,” and how should the segment’s beginning and ending points be determined?