Gregg v. State Highway Department

458 N.W.2d 619, 435 Mich. 307

• Court: Michigan Supreme Court
• Decided: July 16, 1990
• Docket: 84395, (Calendar No. 10)
• Status: Published

Opinions

Rrickley, J.

We decide in this case whether the highway exception to governmental immunity¹ exposes the defendants to liability for injuries suffered by a cyclist because of a defect in a designated bicycle path on the inner portion of the paved shoulder of a state highway. The Court of Appeals relied on our decision in Roy v Dep’t of Transportation, 428 Mich 330; 408 NW2d 783 (1987), to affirm summary disposition in the defendant’s favor. We hold that governmental immunity does not bar the cause of action set forth in the plaintiffs’ complaint and reverse the decision of the Court of Appeals.

i

The plaintiff alleged he suffered injuries from a bicycle accident on September 10, 1985. The plaintiff apparently went for a ride that evening on his fourteen-speed racing bicycle. He traveled on the west shoulder of State Highway M-35 in Ford River Township, Delta County, at approximately twenty-seven miles per hour.

The plaintiff’s bicycle struck a pothole, and rider and bicycle overturned. Plaintiff’s complaint alleged a litany of injuries resulting from the accident, including head and back injuries, a broken collar bone, and broken ribs.

The plaintiff filed a complaint in the Court of Claims, alleging that the state had ownership, jurisdiction, and responsibility for the maintenance of highway M-35, and charging that the state had failed to inspect, repair, and warn users of defects in the bicycle path. The complaint further alleged that these negligent acts and omissions constituted the proximate cause of his injuries.

The Highway Department moved for summary disposition asserting governmental immunity and citing our decision in Roy v Dep’t of Transportation in support. It contended that, consistent with Roy, its duty to maintain highways did not extend to bicycle paths. The Court of Claims agreed with defendant’s arguments and granted summary disposition. The Court of Appeals affirmed the decision without further analysis, agreeing "that summary disposition was proper in light of our Supreme Court’s recent opinion in Roy v Dep’t of Transportation . . . .”

The plaintiff submitted a photograph of the accident scene with his brief, indicating a pothole located within two white lines. The lines demark a bicycle path running parallel to and seemingly between the traveled portion of the highway and its paved shoulder. The defendants have not contested the accuracy of this photograph.

Because this case was decided on summary disposition, we agree with the defendant that "the only facts before the Court are those allegations as set forth in the Complaint.” The plaintiff alleged in his complaint that he was injured on a "designated bicycle path on the west shoulder of said highway . . . .” Our analysis, therefore, is based on the assumption that the bicycle path at issue comprised part of the inner portion of the shoulder closest to the roadway.

ii

A

The defendant argues that nonmotorists are not protected parties under §2 of the governmental immunity act and that such protection is afforded only to "vehicular travel.” The defendant notes that the Motor Vehicle Code defines vehicles as motor vehicles. Hence a bicyclist must be excluded from protection under § 2.²

We think a straightforward reading of the statute clearly and adequately refutes the defendant’s assertions. The statute extends the immunity exception to "[a]ny person sustaining bodily injury or damage to his property . . . .” (Emphasis supplied.) The plaintiff certainly qualifies as one to whom the duty to maintain safe highways extends and the waiver of immunity applies.

However, the "vehicular travel” language of § 2 seized upon by the defendant clearly does not limit the class of travelers who may recover damages for injuries due to defects on the improved portion. The words "designed for vehicular travel” describe and define the "improved portion of the highway” to which the duty of the governmental agency "to keep any highway under its jurisdiction . . . safe and fit for travel” applies.³ MCL 691.1402; MSA 3.996(102).

B

Defendant also contends that exception to immunity under §2 does not extend to the instant case. In defendant’s view, the path was not designed for "vehicular travel” because the shoulder of the road exists solely for "emergency accommodation.”

In Roy, supra, we held that bicycle paths adjacent to, but not a part of, a highway did not comprise part of the improved portion designed for vehicular traffic and hence did not remove governmental immunity from suit. We concluded in Roy:

[T]he exception to immunity found in § 2 of the governmental immunity act does not apply to bicycle paths. The [highway exception to immunity] does not apply to an "installation outside of the improved portion of the highway designed for vehicular travel.” A bicycle path is not designed for vehicular travel, in the common sense of "vehicular” as relating to motor vehicle. [428 Mich 340.]

We further stated:

[T]he statute does not offer general protection to pedestrians or motorists without regard to location. The statute announces a duty to repair and maintain the highway so that the improved portion designed for vehicular travel is reasonably safe and convenient for public travel. The criterion used by the Legislature was not based on the class of travelers, but the road on which they travel. [428 Mich 341.]

The trial court and Court of Appeals erred in granting summary disposition in this case on the basis of Roy. In the instant case, unlike Roy, the plaintiff has alleged the bicycle path and the location of the defect occurred on the shoulder of the highway immediately adjacent to its regularly traveled portion. The defect here did not occur on an installation, as in Roy, separated and "detached” from the improved portion. The allegedly defective bicycle path in this case unquestionably comprised part of the highway. " 'Shoulder’ means that portion of a highway . . . .” MCL 257.1501(k); MSA 9.3200(l)(k). (Emphasis added.)

Neither the defendants nor the dissent contends that this paved shoulder is not part of the improved portion of the highway. However, they do contend that the highway’s shoulder does not comprise that part of the improved portion of the highway "designed for vehicular travel.” Framed this way, the crucial issue involves whether the paved shoulder of the road is "designed for vehicular travel.”

The dissent cites Goodrich v Kalamazoo, 304 Mich 442; 8 NW2d 130 (1943), a case decided under a predecessor statute in support of the argument that the Legislature in enacting §2 of the current statute did not intend the shoulder of the road to be excepted from the statute’s general grant of immunity. Goodrich concerned a fourteen-foot-wide paved road bounded by approximately "three-foot” wide "dirt and gravel” shoulders. The plaintiff struck a tree that was "about 30 inches from the edge of the pavement” and therefore a part of the shoulder of the road. Id. at 444. Since the dirt and gravel shoulder was only approximately three feet in width and apparently had at least one tree growing on it, it is not surprising that the court found the shoulder not to be a part of the " 'traveled’ portion of the road.” Id. at 446.

We would not disagree that a three-foot-wide dirt and gravel shoulder adorned with an occasional tree is not "designed for vehicular travel” under today’s statute or any statute. As in Goodrich, we would probably conclude that such a shoulder was also not part of the "improved portion” of the highway.⁴ Similarly, it does not seem surprising that when the Court of Appeals began analyzing shoulder-accident cases under our current immunity exception statute, it made no reference to Goodrich.

In Johnson v Michigan, 32 Mich App 37; 188 NW2d 33 (1971), lv den 385 Mich 762 (1971), the Court of Appeals observed correctly we think, that the shoulder from which the plaintiff was returning to the traveled portion of the road, like shoulders generally, was "designed for vehicular traffic although not of the same character as vehicular traffic on the paved portion of the highway.” Id. at 39. Other Court of Appeals panels, without exception, have followed that precedent. See Van Liere v State Hwy Dep't 59 Mich App 133; 229 NW2d 369 (1975), and McKee v Dep’t of Transportation, 132 Mich App 714; 349 NW2d 798 (1984).

The dissent accurately points out that the Legislature has been quick to correct the result of Court of Appeals decisions that have extended the §2 exception to governmental immunity. We find it persuasive that the Legislature has not included in those correcting amendments the result of an uninterrupted line of cases extending from 1971 that conclude that a shoulder is designed for vehicular travel.

The dissent points to §59a of the Michigan Vehicle Code, which describes the shoulder of the road, as "not designed for vehicular travel but maintained for temporary accommodation of disabled or stopped vehicles . . . MCL 257.59a; MSA 9.1859(1). Post, p 321. That the Legislature did not in our view intend this to be a definition of vehicular travel under § 2 of the governmental immunity act is made evident by another section of the Motor Vehicle Code which states: "'Shoulder’ means that portion of a highway or street on either side of the roadway which is normally snowplowed for the safety and convenience of vehicular traffic.” MCL 257.1501(k); MSA 9.3200(l)(k). (Emphasis supplied.)

Moreover the contention that the Legislature did not intend to include highway shoulders under the § 2 exception has an obvious flaw: it flies in the face of common experience. Any motorist who has ever experienced a highway emergency understands that shoulders are essential to a safe modern highway. To get on or off a shoulder to stop, park, or leave standing a vehicle, motorists must travel on the shoulder.

At the high speeds of modern vehicles, such an endeavor often results in significant travel, "in the ordinary sense,” on the shoulder of a highway. Indeed, it seems quite extraordinary, if not fictional, to assume that vehicles do not travel on shoulders or that shoulders are not designed for vehicular travel, albeit of a temporary sort.

More technically, the Motor Vehicle Code is quite precise in its definitions. It defines roadway quite narrowly as "that portion of a highway improved, designed, or ordinarily used for vehicular travel.” MCL 257.55; MSA 9.1855. On the other hand, it defines "[h]ighway or street ... [as the] entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel.” MCL 257.20; MSA 9.1820, and MCL 257.64; MSA 9.1864. (Emphasis supplied.) If the Legislature had intended liability for the failure to maintain safe roadways only, it seems the Legislature would have done just that. It did not.

The conclusion that shoulders do not comprise part of a highway’s improved portion, taken to its logical extreme, could lead to illogical results. Such outcomes seem incongruous with a statute that plainly commands highway authorities to safely repair and maintain highways for public travel. Such outcomes surely do not "clearly express[] [the] intent of the Legislature . . . .” Post, p 318.

Finally, not only did Roy concern a bicycle path that was separate and apart from the roadway and the shoulder of the highway, but it concerned a path on which motor vehicles would have no occasion to enter for any reason. Furthermore, our analysis of Roy supports the different result in this case. In concluding our analysis in Roy, we said:

This interpretation fits within each of the interpretative clues identified above. It satisfies the express wording of § 2 which limits the duty created there to less than the full highway. It does not frustrate the policy announced in other statutes of protecting bicyclists by requiring them to use bicycle paths, where provided, in preference to roads, because bicycles on bicycle paths are not exposed to the hazards which arise from mixing bicycle and vehicular means of travel. [Id. at 341. Emphasis supplied.]

The "mixing bicycle and vehicular means of travel” is precisely what has occurred here. The white lines in this case drawn along the border of the road may have been designed to confine bicycle travel, but could not possibly have been designed to prohibit vehicular travel consistent with the shoulder’s statutory purpose of accommodating disabled vehicles.⁵

hi

Because the plaintiff is one of the "class of travelers” included in § 2 and because the area of the road designated for bicycle travel comprised part of the improved portion of the highway designed for vehicular travel as defined in that statute, we reverse the judgment of the Court of Appeals and remand the case to the Court of Claims for proceedings consistent with this opinion.

Levin, Cavanagh, and Archer, JJ., concurred with Brickley, J. Boyle, J., concurred in the result only.

1 MCL 691.1402; MSA 3.996(102) provides in pertinent part:

Each governmental agency having jurisdiction over any 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 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 from such governmental agency. . . . 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.

2 MCL 257.79; MSA 9.1879 defines a vehicle as "every device . . . excepting devices exclusively moved by human power . . . .” MCL 257.4; MSA 9.1804 defines a bicycle as a "device propelled by human power . . . .”

3 Similarly, and contrary to dicta in Roux v Dep’t of Transportation, 169 Mich App 582; 426 NW2d 714 (1988), the language and purpose of the highway immunity statute implies that the standard of care imposed on highway authorities applies to persons and not the vehicles in which they travel. It allows recovery to "[a]ny person sustaining bodily injury or damage to his property” and requires maintenance of highways "reasonably safe and convenient for public travel.” Therefore, although the exception to immunity limits the duty of the state to "the improved portion of the highway designed for vehicular travel,” the standard of care allows a cause of action for persons — both motorists and nonmotorists — entitled to travel on the improved portion.

4 We distinguished Goodrich in Ballinger v Smith, 328 Mich 23, 27-33; 43 NW2d 49 (1950), a case interpreting a statute requiring parked vehicles to display lamps on a highway. We held in Ballinger that the duty to display lamps on the highway encompassed a vehicle parked on a shoulder "intended for the use of vehicular traffic in an ordinary and reasonable manner.” Id. at 32. The Court rejected Goodrich as controlling, noting that the "fact that [a tree thirty inches from the edge of the pavement] was left in [that] position necessarily leads to the conclusion that the place it occupied was not designed or maintained for traffic.” Ballinger, supra at 32-33.

5 We think this question would be closer if the bike path had been on the outer fringes of the shoulder, thereby making vehicular travel thereon unlikely, especially if the shoulder was wide enough to accommodate both an automobile and the bike path.