Marchyok v. City of Ann Arbor

679 N.W.2d 703, 260 Mich. App. 684
CourtMichigan Court of Appeals
DecidedFebruary 24, 2004
DocketDocket 242409
StatusPublished
Cited by10 cases

This text of 679 N.W.2d 703 (Marchyok v. City of Ann Arbor) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marchyok v. City of Ann Arbor, 679 N.W.2d 703, 260 Mich. App. 684 (Mich. Ct. App. 2004).

Opinions

JANSEN, J.

In this wrongful death action, plaintiffs Katharine Marchyok, Delores Foster, Patrick Marchyok, Michael Marchyok, and Richard Foster appeal as of right from an order granting defendant city of Ann Arbor’s motion for summary disposition. We affirm.

The present case arises from an accident that occurred at the intersection of Catherine Street and Glen Street in Ann Arbor, Michigan. The decedent was walking west on the sidewalk on the north side of Catherine Street. While the pedestrian signal was showing “walk,” the decedent attempted to cross Glen Street. At this same moment, the traffic light for westbound vehicles on Catherine Street turned green. The decedent was struck and killed by a bus turning right on to Glen Street.

Plaintiffs brought suit. Defendant moved for summary disposition, relying on the doctrine of governmental immunity. The trial court granted defendant’s motion for summary disposition on the basis of governmental immunity.

[686]*686Plaintiffs first argue that under MCL 257.610(a), municipalities must provide such traffic control devices as they deem necessary to regulate traffic and that defendant had notice of the dangerous conditions at the intersection in question yet failed to correct the problem. Plaintiffs contend that this constituted breach of an affirmative duty and created a cause of action against defendant. We disagree.

We review de novo decisions to grant or deny summary disposition. Veenstra v Washtenaw Country Club, 466 Mich 155, 159; 645 NW2d 643 (2002). And the same standard applies to the interpretation and application of statutes. Eggleston v Bio-Medical Applications of Detroit, Inc, 468 Mich 29, 32; 658 NW2d 139 (2003).

The Michigan Supreme Court has distinguished statutes that impose a duty to install traffic control devices from those that create causes of action for failing to maintain highways. Nawrocki v Macomb Co Rd Comm, 463 Mich 143, 181; 615 NW2d 702 (2000). An individual can seek to have a municipality held liable under the highway exception to governmental immunity pursuant to MCL 691.1402. Id. But the duty “implicating the installation, maintenance, repair, or improvement of traffic signs is expressly created” by a separate provision. Id.

The statute imposing the duty to install traffic control devices, MCL 257.610(a), provides, in relevant part, the following: [687]*687Our Supreme Court emphasized the point that municipalities are required to do what they deem necessary to control traffic. Nawrocki, supra at 182. The statute grants municipalities discretion. Id. The statute does not contemplate the “imposition of a duty the breach of which subjects the agencies to tort liability.” Id. at 181-182.

[686]*686Local authorities . . . shall place and maintain such traffic control devices upon highways under their jurisdiction as they may deem necessary to indicate and to carry out the provisions of this chapter or local traffic ordinances or to regulate, warn or guide traffic.

[687]*687Because there is no tort liability for a breach of the duties imposed by MCL 257.610(a), plaintiffs fail to state a claim on which relief can be granted. Therefore, upon review de novo, we find that summary disposition under MCR 2.116(C)(8) was proper.

Plaintiffs next contend that defendant can be held liable under the highway exception to governmental immunity for the negligent failure to install or maintain traffic control devices. Plaintiffs argue that our Supreme Court’s decision in Nawrocki, supra, only excludes the state and county road commissioners from such liability. We disagree.

Summary disposition under MCR 2.116(C)(7) “is proper when a claim is barred by immunity granted by law.” Fane v Detroit Library Comm, 465 Mich 68, 74; 631 NW2d 678 (2001). In order to get past such a motion, the plaintiff must “allege facts justifying the application of an exception to governmental immunity.” Id.

MCL 691.1407(1) grants immunity from tort liability to agencies in “exercising or discharging governmental functions.” Weaver v Detroit, 252 Mich App 239, 243; 651 NW2d 482 (2002). The act confers broad immunity and its exceptions must be narrowly construed. Nawrocki, supra at 158.

Our Supreme Court has specifically applied this narrow construction to the highway exception pro[688]*688vided in MCL 691.1402. Nawrocki, supra at 158. In Nawrocki, the Court held that the state and county road commissions are only hable for negligence in repairing and maintaining the ‘ “roadbed actually designed for public vehicular travel,” ’ not traffic control devices. Id. at 180, quoting Scheurman v Dep’t of Transportation, 434 Mich 619, 631; 456 NW2d 66 (1990). And the Court farther noted that “traffic signals and signs are not implicated in the broad definition of highway in MCL 691.1401(e).” Nawrocki, supra at 182 n 37. In a case involving a municipality, and where a pedestrian was killed by a falling light pole, this Court held “that, as with traffic signals and signs,” the plain language of the statute does not support the conclusion that streetlight poles are part of the definition of the term “highway” in MCL 691.1401(e). Weaver, supra at 245, citing Nawrocki, supra at 180, 182 n 37.

Plaintiffs cite Cox v Dearborn Hts, 210 Mich App 389; 534 NW2d 135 (1995), in support of their argument that traffic control devices are part of the highway for purposes of a municipality’s liability for failure to repair and maintain traffic control devices. Our Supreme Court in Nawrocki, supra at 182 n 37, noted the following:

The dissent accuses us of “shifting” the liability for traffic control devices, including traffic signs, from the state and county road commissions, to local municipalities. While the purpose of our holding today is merely to return to a principled application of the plain language of the highway exception, we are constrained to respond to the dissent’s misapprehension of the governmental immunity statute.
Clearly, traffic signals and signs are not implicated in the broad definition of “highway” in MCL 691.1401(e); MSA 3.996(101)(e): “ ‘Highway’ means a public highway, road, or [689]*689street that is open for public travel and includes bridges, sidewalks, trailways, crosswalks, and culverts on the highway. The term highway does not include alleys, trees, and utility poles.” . . . However, because traffic control devices are clearly not implicated in the broad definition of “highway,” there can be no “shifting” of liability from the state and county road commissions to local municipalities.

Plaintiffs, in this case, indicated that footnote 37 from Nawrocki, supra, was dicta and that Cox, supra, supported their argument. But this Court in Carr v Lansing, 259 Mich App 376, 384-388; 674 NW2d 168 (2003), recently determined that the footnote was more than dicta and implicitly overruled Cox, supra,1 as follows:

The [Nawrocki] Court’s comments in footnote 37 [of Nawrocki, supra,] are more than mere dicta; they must be read as implicitly overruling Cox.

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Marchyok v. City of Ann Arbor
679 N.W.2d 703 (Michigan Court of Appeals, 2004)

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Bluebook (online)
679 N.W.2d 703, 260 Mich. App. 684, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marchyok-v-city-of-ann-arbor-michctapp-2004.