Listanski v. Canton Township

551 N.W.2d 98, 452 Mich. 678

Opinions

Cavanagh, J.

The instant cases present the issue whether townships can be held liable under MCL 691.1402; MSA 3.996(102) for injuries occurring on public sidewalks abutting county roads within the townships’ boundaries. After analyzing this issue, we agree with the special panel in Williams v Redford Twp [Williams IT],1 which adopted the holding and reasoning of Williams v Redford Twp [Williams I],2 and held that townships have jurisdiction over public sidewalks located along county roads within the township sufficient to support a cause of action against the township under the highway exception for failure to maintain them in reasonable repair.

I. FACTS AND PROCEDURAL HISTORY

A. FACTS

1. LISTANSKI

On August 25, 1989, Ethel Listanski was injured on a sidewalk adjacent to a county road³ located in Canton Township. Ethel and Raymond Listanski brought suit against the township,⁴ alleging that the sidewalk was not in reasonable repair, and thus the township was liable for their damages. However, the trial court granted the township summary disposition on the ground of governmental immunity. The Court of Appeals affirmed, holding that the township did not have jurisdiction over the sidewalk, and therefore the highway exception to governmental immunity did not apply. Listanski v Canton Charter Twp, 206 Mich App 356; 523 NW2d 229 (1994).

2. WILLIAMS

On March 20, 1990, Judith Williams was injured on a sidewalk in Redford Township located along a road over which Wayne County has jurisdiction. She brought suit against the township for failure to reasonably maintain the sidewalk. ⁵ The circuit court dismissed the suit against the township, finding that the township had no duty to construct and repair or maintain sidewalks. The Court of Appeals initially affirmed the summary judgment in favor of Redmond Township, saying it was required⁶ to do so by Listanski. Williams I.

3. MOCERI

On April 26, 1990, Priscilla Moceri was injured in Canton Township on a sidewalk that runs adjacent to a county highway. Priscilla and Leo Moceri sued the township for damages arising out of its failure to maintain the sidewalk. The circuit court denied Canton Township’s motion for summary disposition on plaintiffs negligence action. The Court of Appeals reversed because it was constrained to do so by Lis-tanski. Moceri v Canton Charter Twp, 207 Mich App 814; 524 NW2d 458 (1994).

B. PROCEDURAL HISTORY

The Court of Appeals consolidated Williams and Moceri and convened a special panel pursuant to Administrative Order No. 1994-4 to resolve the con flict between the reasoning of the panels in Williams I and Moceri and the decision in Listanski. The special panel vacated the prior opinions in these two cases, reversed the grant of summary disposition in Williams, affirmed the circuit court’s denial of summary disposition in Moceri, and remanded. The special panel held that “a township does have a duty to maintain sidewalks pursuant to MCL 691.1402(1); MSA 3.996(102)(1) and MCL 691.1401(e); MSA 3.996(101)(e), even sidewalks along county or state roads.” Williams II.

This Court granted leave to appeal in all three cases, ordering them to be argued together.

H. JUSTICE WEAVER’S OPINION

In hastily arriving at her conclusion, Justice Weaver fails to address the analogous reasoning and holding of Jones v Ypsilanti, 26 Mich App 574; 182 NW2d 795 (1970), wherein that Court held that cities are exposed to liability for injuries occurring on sidewalks running along a state road.⁷ Contrary to Justice Weaver’s assertion that the highway exception statute’s intent is plain and does not hold local governmental agencies liable for injuries occurring on sidewalks abutting state or county roads within their boundaries,⁸ even the Jones Court recognized an ambiguity over twenty-five years ago when it stated, “It would indeed have been preferable if the statute [§ 2] had spelled out the legislative intent more fully, and thereby rendered unnecessary this labor of construction to close what would otherwise have been an unintended loophole in the law.” Id. at 582.

Before analyzing the analogous issue in Jones, the Court restated the defendant’s argument:

Defendant urges that the 1963 constitution places jurisdiction of state trunkline highways in the state highway department; that highways are defined so as to include sidewalks; that the state has the exclusive responsibility to maintain state trunkline highways and accepts all legal liability for them; and that, therefore, defendant city is relieved of all liability for defects in sidewalks adjacent to Michigan Avenue as it passes through the city. [Jones at 576 (citations omitted).]

We emphasize that this argument directly tracks the reasoning that Justice Weaver employs to hold that the defendant townships are not liable in these cases. However, we find that reasoning untenable because, as the Jones Court so eloquently stated, “This interpretation oversimplifies the question that is before the Court.” Id. We posit that it is an oversimplification primarily because the highway exception does not clearly set forth local governmental liability for sidewalks abutting state or county roads.

Justice Weaver’s position that the Legislature made its intent plain in the language of the highway exception is unsupportable. The exception limits the liability of the state and counties to the improved portion of the road designed for vehicular travel, and provides that they will not be liable for sidewalks that abut these roads. However, the statute does not explicitly provide that local governmental agencies are liable for sidewalks abutting state or county roads within their boundaries.⁹ Thus, we find Justice Weaver’s analysis inadequate for the resolution of the issue before this Court.

Like the Jones Court, this Court must consider an extensive analysis and historical review of the constitution, statutes, and common law regarding a township’s liability for sidewalks before it dismisses the plaintiffs’ argument.¹⁰ Of particular importance, the Court noted in Williams II that Const 1963, art 7, § 29 left control of township streets and public places to the control of townships. Additionally, the Court also noted that subsection 2(1) provides that townships are responsible for maintaining their sidewalks. Thus, the highway exception’s provision of state or county jurisdiction over sidewalks that abut state or county roads does not clearly or necessarily eliminate the local municipalities’ longstanding jurisdiction over sidewalks that run through their boundaries.

hi. JUSTICE RILEY’S OPINION

Justice Riley goes one step further than Justice Weaver and correctly recognizes that townships would be liable for negligently maintained sidewalks if they had jurisdiction over sidewalks within their boundaries. However, we believe she errs when she concludes that townships do not have jurisdiction.

She reasons that because the county would have to approve any construction, repair, or maintenance of the sidewalks by the township in the county’s right of way, then townships do not have sufficient control over the sidewalks to establish the requisite jurisdiction.¹¹ Although Justice Riley acknowledges that Jones requires a different result, she summarily discards a twenty-six-year-old decision of the Court of Appeals. Similarly, her analysis ignores both the Williams I and Williams II decisions, which completely and persuasively refute her exclusive jurisdiction proposition.

IV. WILLIAMS I

After an extensive analysis of the Michigan Constitution, statutes, and case law, the Court in Williams I stated:

We conclude that townships historically have been responsible for the maintenance and repair of sidewalks within their jurisdictional boundaries and that the statutes transferring jurisdiction over township roads to counties and requiring townships to obtain the approval of the governmental authority having jurisdiction over the highway being improved by the installation or repair of a sidewalk before the improvement is made were not intended to, and did not, transfer the township’s duty to maintain sidewalks to the state or county, or relieve the township from liability for the failure to discharge that duty. [Id. at 802.]1¹²1

The Court emphasized that “townships have continued to retain the authority to build and maintain sidewalks along roads within their geographical jurisdiction, notwithstanding that pursuant to the McNitt act, the townships do not have jurisdiction over the roads themselves.” Id. at 807.

V. WILLIAMS II

As further support for the Williams I holding, the Williams II Court noted that recent decisions of this Court support the plaintiffs’ position. In Mason v Wayne Co Bd of Comm’rs, 447 Mich 130, 136, n 6; 523 NW2d 791 (1994), a case which decided a different issue under the highway exception, Justice Boyle (Brickley, Riley, and Griffin, JJ., concurring), opined on the sidewalk liability issue:

It appears that the purpose of this . . . sentence, ... is to allocate responsibility for sidewalks and crosswalks to local governments, including townships, cities, and villages. This had been the arrangement before 1964 (when the statute at issue was enacted). [Id. (emphasis added).]

Justice Boyle

also advanced the same interpretation in Chaney v Transportation Dep’t, 447 Mich 145, 172, n 2; 523 NW2d 762 (1994), wherein she stated:

The duty to maintain and repair sidewalks and crosswalks falls on local governments, including cities, villages, and townships. See Mason v Wayne Co Bd of Comm’rs, 447 Mich 130, 136, n 6; 523 NW2d 791 (1994). [Id. (emphasis added).]

In addition to Justices Boyle, Riley, and Brickley, Justices Levin and Mallett also appear to agree that townships have a duty to maintain and repair sidewalks within their boundaries. In Justice Levin’s dissent in Chaney (Mallett, J., concurring), he stated:

The responsibility for repair and maintenance of sidewalks and crosswalks, under the 1879/1887 and subsequent statutes, had been imposed on townships and cities. [Id. at 202.]

Thus, townships are liable for injuries occurring on sidewalks that abut state or county roads as a result of their negligent failure to maintain their sidewalks in reasonable repair.

VI. conclusion

After analyzing the Michigan Constitution, statutes, and common law on this issue, we believe that the Legislature intended municipalities to retain reasonable control over sidewalks within their boundaries, as long as the control pertains to local concerns and does not interfere with the state or counties’ control over their highways. The Legislature’s reenactment of legislation providing the township with authority to construct and maintain sidewalks years after the McNitt act demonstrates that it did not intend the McNitt act to transfer the duty to maintain sidewalks to the county. Further, our conclusion is consistent with public policy and the overall legislative scheme. It treats townships the same as cities, and ensures that those persons injured on township sidewalks abutting a county road are not within the only class of persons without a remedy against a governmental agency. Because we believe the Legislature intended townships to be subject to liability for injuries occurring as a result of a failure to maintain sidewalks within their boundaries, we would remand these cases to their respective circuit courts for trial.

Brickley, C.J., and Levin and Mallett, JJ., concurred with Cavanagh, J. Boyle, J. I agree with the result and rationale insofar as they apply to townships.

Footnotes

1

210 Mich App 60; 533 NW2d 10 (1995).

2

207 Mich App 801; 524 NW2d 458 (1994).

3

The Listanskis have asserted before this Court that the road in question was not a county road. However, they are precluded from asserting this on appeal because at the trial court the Listanskis conceded that “The county is responsible for the roadway.”

4

The Listanskis also sued the owner of the residence adjacent to the sidewalk, but that suit is not before us.

5

Williams also brought suit against Wayne County. The trial court dismissed Wayne County. Williams has not appealed that order.

6

Administrative Order No. 1994-4, 445 Mich xci, requires a subsequent Court of Appeals panel to follow the rule of law established by a prior published decision of the Court of Appeals.

7

In doing so, Justice Weaver cursorily stated:

In this case, the question of a city’s liability, as opposed to a township’s, is not at issue. Therefore, I do not address whether I would overrule Jones. However, I see no reason for cities to be held liable for injuries sustained on sidewalks adjacent to county or state roads. [Post at 695.]

8

Justice Weaver opines that evidence that would show that townships have historically had jurisdiction over public sidewalks within their boundaries is not relevant to a determination of the application of the Legislature’s waiver of governmental immunity, asserting that the “Legislature has made its intent plain.” She continues: “Because the highway exception statute is clear, there is no need to go beyond the four comers of the statute and examine the historical liability for sidewalks.” Post at 695. However, as discussed in our opinion, this position, in our view, is incorrect.

9

Although Justice Weaver acknowledges the plaintiffs’ argument that a township has jurisdiction over any sidewalk that passes through its boundaries, she summarily dismisses it, stating “I would find that the governmental entity that has jurisdiction over the road also has exclusive jurisdiction over the adjacent sidewalk. Thus, under MCL 691.1402(1); MSA 3.996(102)(1) a township can be held liable only for injuries sustained on a sidewalk adjacent to a township road, not for those occurring on sidewalks adjacent to county or state roads.” Post at 694 (emphasis added).

10

We agree with Williams I that

[i]t appears to have been the clear intent of the Legislature, in incorporating the older statutes regarding municipal liability for recovery of damages due to defects in highways, including sidewalks within the municipality’s jurisdiction, to retain township liability where formerly applicable. Thus, under § 2, a township may be held liable for defects in sidewalks within its jurisdiction.

The contrary interpretation, which assigns to the county total jurisdiction over all roads within a township, including those portions, such as sidewalks, as to which the county owes no duty and has no liability, renders the application of § 2 to townships virtually nugatory. Because the Legislature specifically included townships in the municipalities to which liability for highway defects attaches, we cannot conclude that this contrary interpretation correctly construes the Legislature’s intent. If the townships were relieved of all responsibility for not only roads but all installations within the right of way of roads taken over by the county under the McNitt act, then there would have been no reason for the Legislature to include townships in § 2, or for townships to have been included in Const 1963, art 7, § 29. [Note 2 supra at 812-813.]

Thus, we reject and find no support for the townships’ argument that when the Legislature repealed MCL 242.1; MSA 9.591 in 1964 PA 170 (the current governmental immunity act), it meant to abolish the liability that it had historically imposed on townships and other municipalities.

Additionally, there is no reason in logic or policy for the Legislature to have, in 1986, retained city responsibility to repair and maintain sidewalks along city roads, but eliminated city and township responsibility for repair and maintenance of sidewalks along state or county roads. See Ross v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984). We note that cities like Detroit, Grand Rapids, Lansing, and Traverse City are not relieved of responsibility or liability for sidewalks in the right of way of city streets. Thus, we would not attribute to the Legislature an intent to relieve Detroit of responsibility for maintaining, and liability for failure to maintain, sidewalks along 8 Mile, Woodward Avenue (state roads), 7 Mile, 6 Mile, Greenfield and Outer Drive (county roads), when it undisputably did not relieve Detroit of responsibility and liability respecting sidewalks along city streets such as Livemois, Wyoming, Schaefer (Tireman to 8 Mile in Detroit), Evergreen, Puritan (5’/2 Mile), Curtis (6>/2 Mile), Parkside, Mark Twain and countless other city streets in Detroit. (These roads are labeled state, county, or city roads on the basis of information provided by the City of Detroit Transportation Department.)

11

This argument is unpersuasive. There are a number of reasons to require state or county approval of construction, repair, or maintenance of township sidewalks, none of which supports the conclusion that townships do not have control of, or liability for, the sidewalks. For example, the state or county may have plans for the road that would affect the sidewalk in its right of way, i.e., building additional lanes. Unless the township is required to seek state or county approval, large sums of money may be expended to construct, repair, or maintain a sidewalk that will have to be removed when the planned additional lanes are installed. Also, the state and county have an interest in assuring that the sidewalks are located at a sufficient distance from the improved portion of the highway and shoulders so that the sidewalks are safely located and will not add to the burden and cost of maintaining the improved portion of the highway.

12

For a more in-depth analysis, see Williams I.