Pick v Szymczak

548 N.W.2d 603, 451 Mich. 607

• Court: Michigan Supreme Court
• Decided: June 5, 1996
• Docket: 98142, Calendar No. 7
• Status: Published

Opinions

Cavanagh, J.

This case requires us to revisit the still-unsettled issue of the highway exception to governmental immunity, MCL 691.1402; MSA 3.996(102). Presented for our review in this appeal is the plaintiffs’ claim that defendant Gratiot County Road Commission breached its duty to provide traffic control devices and warning signs, “that Scheurman [v Dep’t of Transportation and] Prokop [v Wayne Co Bd of Rd Comm’rs, 434 Mich 619; 456 NW2d 66 (1990)] are dis-positive that the road commission had a duty to . . . repair and maintain the improved traveled portion of the roadway, but did not have to go outside the roadway proper.” The trial court granted summary disposition for the defendant road commission. We conclude that the trial court erred as a matter of law, and remand for a summary disposition hearing pursuant to MCR 2.116(C)(10).

i

On September 5, 1988, John Pick was driving his car eastbound on Roosevelt Road in Gratiot County. At the crossroads intersection of Roosevelt and Crapo Roads,¹ Pick’s automobile collided with a vehicle being driven by defendant Jan Szymczak.²

A

Plaintiffs’ complaint made the following allegations relevant to this appeal:

21. That pursuant to MCLA 691.1401, et seq.-, MSA 3.996(101) [et seq.][3] . . ., the defendant, Road Commission, is charged with the statutory duties to design, maintain and repair all roadways within its jurisdiction, including Roosevelt Road, Crapo Road, and their intersection, so they are reasonably safe and fit for public travel.

22. That included within the above-described duties was a duty owed by the defendant, Road Commission, to post signs and other traffic control devices and warnings at or before the aforesaid intersection to assure that same was reasonably safe and fit for public travel.

23. That one of the proximate causes of the collision previously described above, and the resulting injuries and damages sustained by the plaintiffs, was the failure of the defendant, Road Commission, to fulfill their aforementioned duties so that the said roadways and intersection were reasonably safe and fit for public travel, and the said defendant’s breaches were in the following particulars:

A. Failing to properly design the aforesaid intersection and roadways to be safe for vehicular traffic.

B. Failing to properly maintain the aforesaid intersection and roadways to be safe for vehicular traffic.

C. Failing to install and provide reasonably necessary traffic control devices at or near the intersection of Roosevelt Road and Crapo Road in Gratiot County, Michigan.

D. Failing to install and provide stop or yield signs at or near the aforesaid intersection.

E. Failing to install and provide warning signs or notices on Roosevelt Road and Crapo Road informing motorists of the approaching crossroad and intersection.

F. Failing to install and provide signs or devices to assure that the aforesaid intersection and roadways were safe for vehicular traffic.

Defendant filed a motion for summary disposition pursuant to MCR 2.116(C)(7), (8) and (10). In its brief in support of that motion, defendant argued:

[T]here is no claim in this matter that any condition existing within the “traveled portion of the roadbed actually designed for vehicular travel” caused either vehicle to go out of control, or leave the roadway ....

Rather, it is the contention of both Plaintiffs . . . that the accident occurred as a result of an alleged “vision obstruction” in the form of an orchard, which was admittedly located on private property, and outside the “improved portion of the roadway designed for vehicular travel.”

After oral argument at the motion hearing, the circuit judge stated that “the issue before the Court is what were the duties of the road commission . . . Noting that questions of duty are questions of law, the circuit court held “that Scheurman [and] Prolcop are dispositive that the road commission had a duty to . . . repair and maintain the improved traveled portion of the roadway, but did not have to go outside the roadway proper.” Accordingly, the court granted defendant’s motion for summary disposition.⁴

The circuit court did not specify which subsection of the court rule it relied on in granting defendant’s motion for summary disposition in either its bench ruling or its written order. The Court of Appeals noted that the circuit court based its grant of summaiy disposition on its holding that defendant “had no duty to maintain areas outside the improved portion of the roadway” and, accordingly, reviewed it as a grant under MCR 2.116(C)(8). 203 Mich App 138, 139; 511 NW2d 694 (1993). We agree, and will review the Court of Appeals decision under the same standard.

B

The Court of Appeals panel cited Scheurman, supra, for the proposition that “the duty [that arises under the highway exception] is narrowly drawn, and extends only to the improved, traveled portion of the roadway of a highway that was designed for vehicular travel; it does not include . . . any other installation outside the improved portion of the highway designed for vehicular travel.” 203 Mich App 140 (citations omitted). The Court of Appeals majority then held as follows:

In this case, it is very clear that the orchards on private property adjacent to the road cannot be classified as being part of the improved portion of the highway designed for vehicular travel. Consequently, the existence of the orchards and their influence as a visual obstruction of the intersection creates no duty on the part of the defendant under the highway exception to governmental immunity.

What is not so clear is whether the improved portion of the highway includes improvements that serve as integral parts of the highway, such as signs and shoulders. See Scheurman, supra at 637, n 29; Salvati v State Hwy Dep’t, 415 Mich 708; 330 NW2d 64 (1982); Hutchinson v Allegan Co Bd of Rd Comm’rs (On Remand), 192 Mich App 472, 477; 481 NW2d 807 (1992). If there is an “integral parts of the highway” exception under the broad concept of “traffic sign maintenance” that includes erecting signs or warning devices at points of hazard, it appears to conflict with the very narrow definition of duty that excluded street lighting in Scheurman. Because we can find no way to distinguish between street lighting and traffic signs, and because both have their physical structure outside the traveled or paved portion of the roadbed, we must conclude that the defendant is not subject to liability for the alleged lack of adequate traffic signs at the intersection of Roosevelt and Crapo Roads.

Affirmed. [203 Mich App 141.]

The dissenting judge on the panel “disagree [d] with the majority’s conclusion that this case is controlled by the limited definition of an improved roadway set forth in Scheurman .... While the Supreme Court in Scheurman, supra at 633, may have clearly stated that there is no duty to provide street lighting because it is not part of the improved portion of a roadway, it did reserve its decision with respect to the duty to post and maintain traffic signs, citing the previous case of Salvati v State Hwy Dep’t, 415 Mich 708; 330 NW2d 64 (1982).” 203 Mich App 142 (citing Scheurman, supra at 637, n 29). In the view of the dissenting judge, the circuit court’s grant of summary disposition should be reversed and the case remanded for trial.

We granted leave and instructed the parties to “include among the issues to be briefed whether a ‘point of hazard’ is created by vegetation growing on private property.” 448 Mich 930 (1995).

n

As a threshold matter, we think it necessary to clarify exactly what claims are at issue in this appeal. Defendant’s brief and oral argument in this Court evidence a mistaken belief that plaintiffs alleged a breach of duty only in regard to the vegetation that allegedly constitutes a visual obstruction at the intersection where the accident occurred.⁵ In fact, as already noted, plaintiffs’ complaint also stated the following claims: defective design of the intersection, failure to provide reasonably necessary traffic control devices or warning signs at the intersection, and, generally, failure to properly maintain the intersection so as to be safe for vehicular traffic. Put another way, plaintiffs’ claim is that a governmental duty arises under the highway exception with regard to any factors that actually affect reasonably safe vehicular travel on the improved portion of a roadway.

Defendant’s position, based on the purported authority of Scheurman and Prokop, is that no duty of any kind arises under the highway exception in cases where the alleged hazard-creating factor is physically outside the improved portion of the roadbed actually designed for vehicular travel.

in

Properly characterizing it as a question of law for the court to decide, the circuit judge, citing Scheurman and Prokop, ruled that defendant had no duty with regard to the alleged visual obstructions cited by plaintiffs because those obstructions are “outside the roadway proper.” We hold that, under the proper interpretation of all relevant language in the highway exception, the circuit court’s ruling was erroneous as a matter of law.⁶ Therefore, the Court of Appeals affirmance, on the same basis, is also erroneous.

The Court of Appeals majority went beyond the reasoning of the circuit court, recognizing the possibility that, at least theoretically, there might be “an ‘integral parts of the highway’ exception under the broad concept of ‘traffic sign maintenance’ that includes erecting signs or warning devices at points of hazard,” but ultimately concluded that such an exception “appears to conflict with the very narrow definition of duty that excluded street lighting in Scheurman” 203 Mich App 141.

We hold today that Scheurman does not establish authoritative precedent for any such “very narrow definition of duty” and that, in any event, the statutory language of the highway exception, read in its entirety, does not support such a narrow definition.

In Scheurman, a three-justice plurality would have held that “compliance with the conditions and restrictions of the highway exception statute negates the inclusion of street lighting within the duty of the state because the physical structure of the lights falls outside the traveled or paved portion of the roadbed actually designed for public vehicular travel.” 434 Mich 633 (opinion of Riley, C.J.). In Prokop, the companion case, in which the plaintiff’s claim was based on the existence of a hedge on private property that obstructed vision at the intersection where the plaintiff was injured, the same plurality concluded: “While the hedge may have interfered with compass-range vision within the intersection, it cannot be categorized as a defective condition upon ‘the improved portion of the highway designed for vehicular travel . . . .’’’Id. at 635. Therefore, the plurality concluded, “liability may not be imposed upon the defendant for a hedge, located on private property, which obstructed the view of travelers.” Id.7

The actual disposition of the plaintiffs’ claims in Scheurman and Prokop was accomplished by Justice Boyle’s concurrence, which stated: “I join in both the rationale and result of the Chief Justice’s opinion, with the understanding that it does not preclude the application of MCL 691.1402; MSA 3.996(102) in cases alleging a failure to ‘repair and maintain’ installations that are integral to, if not part of, the ‘improved portion of the highway designed for vehicular travel,’ such as traffic lights and signs.’’ Id. at 637 (emphasis added).

The concurrence concluded with the following statement: “See ante, p 637, n 29.” Id. This is a reference to note 29 of the plurality opinion, which acknowledged that in Tuttle v State Hwy Dep’t, 397 Mich 44, 45-46; 243 NW2d 244 (1976), “this Court found the defendant liable for a newly opened intersection that ‘was not “reasonably safe and fit for travel” by reason of inadequate signalization.’ ” In that same footnote, the plurality opinion also recognized the relevance of Salvati, supra, stating that

the plurality decision [in Salvati] indicates a willingness by the Court to include the duty to post and maintain traffic signs within the highway exception statute. Again, however, neither of the two opinions [i.e., Tuttle or Salvati], nor any of the cited cases within them, address the issue whether traffic signs fall within the “improved portion of the highway designed for vehicular travel.”

Notwithstanding our decision today, we feel it is inappropriate to express an opinion as to the validity of Tuttle or Salvati at this time. [Scheurman, supra at 637, n 29.]

The Salvati decision actually comprised two three-justice plurality opinions. The lead opinion favored, in lieu of granting leave to appeal, reversal of the judgment of the lower courts, whose rulings were favorable to the plaintiff, and remand for further proceedings; the other plurality favored denial of leave to appeal or, if leave to appeal was granted, affirmance of the lower courts’ judgments.⁸ The six justices unanimously agreed, however, that the governmental duty of maintenance with regard to public roads encompassed a duty to provide warning signs:

A governing unit may incur liability under the broad concept of “traffic sign maintenance” . . . for failing to erect any sign or warning device at a point of hazard, ... or for placing a sign which inadequately informs approaching motorists of a hazard. [Salvati, 415 Mich 715 (Coleman, J., joined by Fitzgerald, C.J. and Ryan, J.).]

A governmental agency having jurisdiction of a highway has the obligation to post traffic signs and to warn motorists at points of special danger. Liability may arise for failing to erect a sign or barrier warning at a point of hazard, or for posting a sign which inadequately warns of an approaching danger. [Id. at 721 (Levin, J., joined by Kavanagh and Williams, JJ.) (citations omitted).]

We recognize that, in a strict sense, the Salvati opinions’ conclusions in regard to the scope of the governmental duty of maintenance of roadways can be characterized as dicta. However, we are convinced that the reasoning underlying their shared conclusion is convincing and faithful to the true intent of the Legislature in providing the highway exception. Therefore, we expressly hold that a duty to provide adequate warning signs or traffic control devices at known points of hazard arises under the highway exception of the governmental tort liability act,⁹ MCL 691.1402; MSA 3.996(102). We also note a more recent conclusion of a majority of this Court: “The highway exception abrogates governmental immunity at ‘points of special danger to motorists . . . .’ ” Mason v Wayne Co Bd of Comm’rs, 447 Mich 130, 135; 523 NW2d 791 (1994) (citation omitted).¹⁰

B

At the time of the incident at issue in this case, the highway exception stated:¹¹

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 the 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.

The historical development of governmental immunity, generally, and the specific development of the highway exception, have been fully detailed elsewhere (albeit from significantly different perspectives), and are unnecessary to our decision in this case. See Scheurman, supra at 626-631; Chaney v Dep’t of Transportation, 447 Mich 145, 184-193; 523 NW2d 762 (1994) (Levin, J., dissenting). We find that the statutory language of the highway exception itself, read in its proper context, is fully adequate for resolution of the precise legal question before us in this case.

The first sentence of this provision establishes the duty to “maintain the highway in reasonable repair so that it is reasonably safe . . . for public travel.” And the duty of maintenance includes the duty to erect adequate warning signs or traffic control devices at a “point of hazard” (or a “point of special danger”). Therefore, if the alleged impediments to safe vehicular travel on Roosevelt and Crapo Roads cited by plaintiffs are points of hazard,¹² then defendant has a duty to warn motorists,¹³ or to otherwise act so as to render travel on the improved portion of the roadway reasonably safe.¹⁴

Defendant and the lower courts in this case have discerned (not, we acknowledge, wholly implausibly) a bright-line rule of decision that limits governmental responsibility for public roadways to factors that are physically part of the roadbed itself. However, such a rule requires an improperly stringent reading of the highway exception, one that focuses solely on the fourth sentence of that statutory section, and specifically on the phrase “the improved portion of the highway.” We expressly disavow this selective reading of the statute. As previously stated by Justice Levin, “In providing, in the fourth sentence of the highway exception, that the duty ‘to repair and maintain highways, and the liability therefor’ shall not extend to ‘any other installation outside of the improved portion of the highway designed for vehicular travel,’ the Legislature did not [abrogate the] duty, and liability therefor, under the first two sentences of the highway exception, to repair and maintain the improved portion of the highway designed for vehicular travel in condition reasonably safe and fit for travel . . . .” Chaney, supra at 193-194.

In gleaning the true scope of the highway exception to governmental immunity from the entire statutory provision and our undeniably fractured case law precedents, we do, in fact, derive some guidance from Scheurman:

It seems clear even from a literal reading that the “improved portion” language of '§ 2 does not distinguish the surface of the highway as opposed to conditions other than the surface of the highway which may well foreclose the highway from being “reasonably safe.” [434 Mich 641 (opinion of Brickley, J.).]

A myopic focus on the phrase “the improved portion of the highway” ignores not only the first two sentences of the highway exception, but also ignores the phrase immediately following it: “designed for vehicular travel.” Vehicular travel does not take place solely on the two-dimensional length and width of the roadway; rather, it occurs in three-dimensional space, and necessarily implicates factors not physically within the improved portion of the roadway itself, factors that can be points of hazard to reasonably safe vehicular travel on the interconnected network of public roadways.

We define “point of hazard” (or “point of special danger”) as any condition that directly affects vehicular travel on the improved portion of the roadway so that such travel is not reasonably safe.¹⁵ To be a point of hazard for purposes of the highway exception, the condition must be one that uniquely affects vehicular travel on the improved portion of the roadway, as opposed to a condition that generally affects the roadway and its. surrounding environment. We reemphasize, however, that such conditions need not be physically part of the roadbed itself.¹⁶

c

We turn now to the other basis for the Court of Appeals majority’s reliance on Scheurman, i.e., that it could “find no way to distinguish between street lighting and traffic signs . . . .” 203 Mich App 141.

The obvious difference between the two, which was expressly acknowledged by the entire Court in Scheurman, is that the defendant in Scheurman was statutorily excluded from the duty to provide streetlights on the relevant roadways. See Scheurman, 434 Mich 632, n 23 (opinion of Riley, C.J.); id. at 651-652 (opinion of Brickley, J.) (both citing MCL 247.651b; MSA 9.1097[lb]).

The other, generally applicable factor that distinguishes street lighting is that darkness is not a condition unique to the three-dimensional space in which vehicular traffic on a roadway occurs.¹⁷

D

In conclusion, we expressly hold that a duty is imposed on governmental agencies to provide traffic control devices or warning signs at, or in regard to, points of hazard affecting roadways within their jurisdiction. And, as already noted, we emphasize that the issue whether a duty arises under this standard is strictly subject to the notice requirement of § 3 of the act, MCL 691.1403; MSA 3.996(103).

We acknowledge that our prior opinions readily evidence “this Court’s badly fractured view of what the Legislature has divined in its efforts to provide this exception,” Chaney v Dep’t of Transportation, supra at 162, n 7 (opinion of Brickley, J.), and that, even in individual cases, we have produced “badly fractured opinions.” Id. at 178 (opinion of Cavanagh, C.J.). In this case, we have attempted to clearly state a workable principle that is faithful to the plain language of the highway exception, read in its proper context, and the intent of the Legislature in providing this exception.

IV

In remanding this case to the circuit court, we make no comment regarding the quality or quantity of the factual evidence presented by the parties. We leave the initial assessment of that evidence to the trial court in the exercise of its inherent discretion to make such evaluations in proceedings pursuant to MCR 2.116(C)(10). See Skinner v Square D Co, 445 Mich 153, 163-170; 516 NW2d 475 (1994) (discussing standards by which courts may assess a plaintiffs proofs relative to causation).

Reversed and remanded.

Brickley, C.J., and Levin and Mallett, JJ., concurred with Cavanagh, J.

1 It is undisputed that the intersection was under the jurisdiction of defendant Gratiot County Road Commission and that it was not controlled by any traffic devices or warning signs.

2 Defendant Szymczak is no longer a party to this appeal. This case deals solely with plaintiffs’ claim against Gratiot County Road Commission. Both drivers were injured. Sally Pick’s sole claim in this case is a derivative claim for loss of consortium.

3 The complaint also cites the statutory duty imposed on “the counties to keep in reasonable repair, so that they shall be reasonably safe and convenient for public travel, all county roads, bridges and culverts that are within their jurisdiction and under their care and control and which are open to public travel.” MCL 224.21; MSA 9.121. However, this statutory provision has not been the subject of any discussion or briefing in the trial court, the Court of Appeals, or this Court. This appeal is based solely on the duty that arises under the highway exception to governmental immunity.

4 This bench ruling subsequently was issued as a written order on January 24, 1991.

5 Defendant is correct, however, that plaintiffs have abandoned their claim that defendant had any duty to remove or trim the vegetation.

6 We wish to emphasize that the only issue properly before us is the legal question whether defendant had any duty relative to the claims set forth in plaintiffs’ complaint. Specifically, on the basis of plaintiffs’ brief and plaintiffs’ counsel’s response to a question at oral argument, we understand plaintiffs’ argument to be that defendant had a duty to warn.

7 I am not unaware that I joined this same plurality opinion. Specifically at issue in Prokop was which governmental entity had jurisdiction to remove the hedge. Justice Riley concluded:

Neither the alleged lack of adequate street lighting nor vegetation growing on private property has any connection to the traveled portion of the roadbed designed for public vehicular travel. [Id. at 636.]

Here, this plaintiff has alleged the existence of a hazard and a direct connection to the traveled portion of the roadbed.

8 The seventh justice, Justice Riley, did not participate in the decision.

9 Justice Boyle’s reference to the majority’s alleged “conclusion that ‘any factors that actually affect reasonably safe vehicular travel on the improved portion of a roadway’. . . state a claim of breach of duty under the highway exception” is a straw man. She quotes from the majority’s restatement of our understanding of plaintiffs’ claim. The actual conclusion we reach is as stated above: “[W]e expressly hold that a duty to provide adequate warning signs or traffic control devices at known points of hazard arises under the highway exception . . . .” (Emphasis added.) And our purposeful inclusion of the word “known” in this holding, along with the two explicit references to the strict applicability of the notice requirement, see infra, p 621, n 14, and p 624, further undermines the critique of the majority’s holding. See Boyle, J., post, p 626.

10 I concurred separately in Mason to distance myself from this same statement only because it was unnecessary to resolution of the precise claim alleged by the plaintiff in that case: a defect in a crosswalk. Such claims are expressly precluded by the statutory language.

11 This provision was amended by 1990 PA 278, § 1, in ways not relevant to this case.

12 Justice Boyle’s discussion of causation and of the substantive merits of the question whether a duty was breached in this case is wholly beyond the scope of the narrow holding of the lower courts, the narrow legal issue actually before this Court, and the equally narrow holding of this majority opinion.

13 Justice Boyle’s creation of a motorist’s duty of due care is an unwarranted engraftment onto a statutory provision that addresses only the duty of the relevant governmental entity.

14 The existence of any such duty is, of course, strictly subject to the notice requirement of the act, MCL 691.1403; MSA 3.996(103), which provides:

No governmental agency is liable for injuries or damages caused by defective highways unless the governmental agency knew, or in the exercise of reasonable diligence should have known, of the existence of the defect and had a reasonable time to repair the defect before the injury took place. Knowledge of the defect and time to repair the same shall be conclusively presumed when the defect existed so as to be readily apparent to an ordinarily observant person for a period of 30 days or longer before the injury took place.

15 We expressly refute plaintiffs’ implied claim that all crossroads intersections intrinsically qualify as points of hazard.

16 Moreover, we note in passing that the “improved portion” restriction contended for by defendant would require governmental agencies to place warning signs in the traveled portion of roadways. This, obviously, cannot have been the intention of the Legislature.

17 We also note in this regard that every vehicle operating upon Michigan highways “at any time from a half hour after sunset to a half hour before sunrise and at any other time when there is not sufficient light to render clearly discernible persons and vehicles on the highway at a distance of 500 feet ahead shall display lighted lamps and illuminating devices . . . .” MCL 257.684; MSA 9.2384. Even the number and required intensity of these headlamps is specified by statute. MCL 257.685; MSA 9.2385.