Scheurman v. Department of Transportation

456 N.W.2d 66, 434 Mich. 619

• Court: Michigan Supreme Court
• Decided: May 7, 1990
• Docket: Docket Nos. 81739, 82567, (Calendar Nos. 10-11)
• Status: Published

Opinions

Riley, C.J.

We granted leave to appeal in these two cases, consolidated for purposes of this appeal, to decide whether the highway exception¹ to governmental immunity² imposes upon the state or the counties the duty to: (1) install street lighting, and (2) remove, or cause to be removed, vegetation growing on private property which obstructs the view of motorists approaching an intersection.

With regard to the state and the counties, the liability created by the highway exception statute extends "only to the improved portion of the highway designed for vehicular travel and shall not include sidewalks, crosswalks or any other installation outside of [sic] the improved portion of the highway designed for vehicular travel.” MCL 691.1402; MSA 3.996(102). We conclude that the above quoted language refers only to the traveled portion, paved or unpaved, of the roadbed actually designed for public vehicular travel. We conclude, further, that neither street lighting nor vegetation growing on private property adjacent to a road can be classified as being part of the improved portion of the highway designed for vehicular travel. Therefore, we hold that § 2 is inapplicable to the Department of Transportation and the Wayne County Road Commission. Accordingly, we reverse the decision of the Court of Appeals in Scheurman and affirm the decision of the Court of Appeals in Prokop.

I. FACTS AND PROCEEDINGS

A. SCHEURMAN v DEPARTMENT OF TRANSPORTATION

On May 15, 1983, at approximately 10:15 p.m., the plaintiff’s decedent, Geraldine Rogocki, was killed when she was struck by a car as she attempted to cross Eight Mile Road. While most of Eight Mile Road has streetlights, that part of the highway where the accident occurred is not illuminated. At the accident scene, Eight Mile Road is a state trunk line, M-102, located in the City of Detroit.

Although M-102 is a state trunk line, the City of Detroit has installed all of the street lighting along that part of the highway within its city limits.³ Furthermore, Detroit owns all the streetlights and poles along M-102 and pays for the electricity used by the lights.⁴ However, the city must get approval from the Department of Transportation before it can install streetlights along state trunk lines.⁵

The plaintiff sued in the Court of Claims, complaining that the lack of adequate street lighting along Eight Mile Road constituted a defect in the road for which the Department of Transportation should be held liable.

After extended discovery, on May 1, 1986, the court held an evidentiary hearing, and on June 20, 1986, granted summary disposition in favor of the defendant. On appeal, the Court of Appeals reversed the decision of the Court of Claims, holding that street lighting "would be an integral part of the improved portion of the highway . . . .”⁶ The defendant sought leave to appeal, which we granted on April 7, 1989.⁷

B. PROKOP v WAYNE COUNTY ROAD COMMISSION

On July 14, 1982, plaintiff Lisa Marie Prokop was riding her bicycle in a westerly direction on the sidewalk along Schoolcraft Road, a state trunk line. Schoolcraft comes to a "T-type” intersection with Columbia Street, a county road. At the southeast corner of the intersection, there was a six-foot hedge growing on private property. As the plaintiff approached the Columbia Street intersection, the traffic light displayed green, and she proceeded into the intersection.⁸

At the same time, a van traveling northbound on Columbia Street approached the Schoolcraft intersection. As the plaintiff was crossing Columbia Street, the van began to turn east onto School-craft and struck the plaintiff, causing her injury. The visibility of both the plaintiff and the driver of the van was obstructed by the hedge to the extent that neither one saw the other until it was too late to avoid the collision.

The plaintiff sued the Wayne County Road Commission, alleging that it failed to keep Columbia Street in a condition reasonably safe for travel by allowing the hedge to exist, thus obscuring the vision of traffic approaching the intersection.⁹ On July 30, 1986, the circuit court granted the defendant’s motion for summary disposition. The Court of Appeals agreed that the road commission had no duty to trim, or cause the property owner to trim, the hedge. Accordingly, it affirmed the decision of the circuit court.¹⁰ The plaintiff sought leave to appeal, which we granted on April 7, 1989.¹¹

II. ANALYSIS

A

We begin our analysis by revisiting over two decades of Michigan case law and legislative history on the matter of governmental immunity. In Williams v Detroit, 364 Mich 231; 111 NW2d 1 (1961), this Court abolished common-law governmental immunity.¹² Responding to the Williams decision, the Legislature enacted the governmental immunity negligence act in 1964.¹³ However, § 7¹⁴ was found to exceed the scope of the title of the act and was declared an unconstitutionally enacted provision. Maki v East Tawas, 385 Mich 151; 188 NW2d 593 (1971). This infirmity was corrected by the Legislature when it enacted 1970 PA 155, § 7(1), which granted immunity from tort liability to all governmental agencies when engaged in governmental functions. With the legislative decree of immunity on the books, this Court abrogated common-law sovereign immunity in Pittman v City of Taylor, 398 Mich 41; 247 NW2d 512 (1976). Finally, in McCummings v Hurley Medical Ctr, 433 Mich 404, 411; 446 NW2d 114 (1989), we observed that the current statute grants immunity only under circumstances defined by the Legislature, and that sovereign or governmental immunity is not a " 'characteristic of government.’ ”

In recent years, this Court has sought to interpret the current immunity statute and its exceptions in a manner consistent with the intent of the Legislature. In doing so, we have consistently held that the immunity conferred upon governmental agencies is a " 'broad grant of immunity’ with 'four narrowly drawn statutory exceptions.’ ”¹⁵ Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 618; 363 NW2d 641 (1984) (Brickley, J., participating). The above quoted language is cited with approval in Reardon v Dep’t of Mental Health, 430 Mich 398, 411; 424 NW2d 248 (1988) (Brickley, J., participating), and also in Hadfield v Oakland Co Drain Comm’r, 430 Mich 139, 146; 422 NW2d 205 (1988).¹⁶

Thus, we again apply the rule of strict statutory construction when interpreting an exception to the immunity act. Reardon, Hadfield, and Ross, supra. See also 3 Sands, Sutherland Statutory Construction (4th ed), § 62.01, p 113.¹⁷ It is against this backdrop that we turn to the statutory exception in question.¹⁸

B

The cases before us today center on the highway exception statute, MCL 691.1402; MSA 3.996(102). The origin of the statute is the enactment of 1879 PA 244; 1 How Stat 1442, which imposed liability upon municipalities "in favor of any person 'sustaining bodily injury upon any of the public highways or streets in the state, by reason of neglect to keep such public highways or streets, and all bridges, cross-walks. and culverts on the same in good repair, and in a condition reasonably safe and fit for travel ....’” Roy v Dep’t of Transportation, 428 Mich 330, 336-337; 408 NW2d 783 (1987). With the passage of 1887 PA 264; 3 How Stat 1446c, the Legislature amended the statute and expanded its scope of liability to include sidewalks. Id. at 337.

However, when the Legislature codified governmental immunity in 1964, it speciñcally reduced the purview of the highway exception statute. Section 2 of the governmental immunity act expressly excludes the state and the counties from liability for "sidewalks, crosswalks or any other installation outside of [sic] the improved portion of the highway designed for vehicular travel.” MCL 691.1402; MSA 3.996(102). Furthermore, the duty of the state and the counties created under § 2, "shall extend only to the improved portion of the highway designed for vehicular travel . . . .”¹⁹

The relevant portion of § 2 provides:_

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. . . . 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 highway exception waives the absolute immunity of governmental units with regard to defective highways under their jurisdiction. As discussed above in part ii(a), we regard §2 as a narrowly drawn exception to a broad grant of immunity. As such, there must be strict compliance with the conditions and restrictions of the statute.²⁰ 39 Am Jur 2d, Highways, Streets, and Bridges, §§ 343-344, pp 725-726. No action may be maintained under the highway exception unless it is clearly within the scope and meaning of the statute. Id. at § 346, p 729.²¹

As noted, the duty imposed by the statute upon the state and county road commissions is restricted to the "improved portion of the highway designed for vehicular travel . . . .” In Roy, supra at 339, we observed that the limited scope of the term "highway” found in § 2 parallels the common understanding of the word. We are in accord with the conclusion reached in Roy. Therefore, we hold today that the phrase "improved portion of the highway designed for vehicular travel” refers only to the traveled portion, paved or unpaved, of the roadbed actually designed for public vehicular travel.²² Roy, supra.

The purpose of the highway exception is not to place upon the state or the counties an unrealistic duty to ensure that travel upon the highways will always be safe. Looking to the language of the statute, we discern that the true intent of the Legislature is to impose a duty to keep the physical portion of the traveled roadbed in reasonable repair.

We now turn our attention to the present actions to determine whether the failure of the state to install lighting or the failure of Wayne County to remove the obstruction complained of fall within the purview of § 2.

1. SCHEURMAN v DEPARTMENT OF TRANSPORTATION

The plaintiff argues that liability arises under the highway exception statute because the failure to provide street lighting along that part of Eight Mile Road where the accident occurred constitutes a breach of the duty to maintain the highway in a reasonably safe manner for public travel. The defendant counters with the argument that street lighting falls outside the "improved portion of the highway designed for vehicular travel,” and that MCL 247.651b; MSA 9.1097(lb)²³ excludes the state from the duty to provide street lighting along roads that are not freeways. While, as defendant argues, the fact that the Legislature, in §651b, specifically exempted the state from having to provide lighting along state trunk lines is perhaps some evidence that street lighting is not required in order to make a highway "reasonably safe and convenient for public travel,” we do not believe this to be dispositive of the question. Nor do we believe that it is the issue here. We are persuaded that in this case the issue is whether § 2 is inapplicable because the duty it creates to make roads safe, and the liability for the failure to do so, extends only to the improved portion of the highway designed for vehicular travel.

Here, the plaintiff concedes that streetlights are not a part of the improved portion of a highway per se. However, the duty of the state imposed under § 2 extends only to the "improved portion of the highway designed for vehicular travel” as defined above. Consequently, 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. See Alpert v Ann Arbor, 172 Mich App 223; 431 NW2d 467 (1988); Zyskowski v Habelmann (On Remand), 169 Mich App 98; 425 NW2d 711 (1988).

For the above reasons, we hold that the duties of the state and the counties under § 2 do not include the installation and maintenance of street lighting.²⁴ Thus, the defendant is not subject to liability for the alleged lack of adequate street lighting along Eight Mile Road.

2. PROKOP v WAYNE COUNTY ROAD COMMISSION

In Prokop, the plaintiff argues that by not removing a six-foot hedge, located on private property, that obstructed the view of travelers, the county failed to maintain the intersection in a condition "reasonably safe and fit for public travel . . . .” We disagree. While plaintiff relies on Cryderman v Soo Line R Co, 78 Mich App 465; 260 NW2d 135 (1977), lv den 402 Mich 867 (1978), we are persuaded that the Cryderman Court’s affirmance of the liability of the road commission pursuant to § 2 was erroneous.

Cryderman involved a wrongful death action arising out of a car/train accident. The Court upheld an instruction that the jury could consider the failure of the Chippewa County Road Commission to enter into a "clear vision area”²⁵ agreement with the railroad as constituting a breach of duty owed to the plaintiffs.²⁶ The Court opined that the duty imposed under § 2 extended "to clear vision areas which lie beyond the improved portions of the highway proper.” Cryderman at 476.

This broad view of the highway exception statute is contrary to our decision today, as well as to our decision in Roy, supra. Therefore, we modify the decision of the Court of Appeals in Cryderman to the extent that the duty of the county road commission imposed under § 2 extends only to the traveled portion of the roadbed actually designed for public vehicular travel. Thus, the argument that Cryderman calls for the imposition of liability upon the Wayne County Road Commission is without merit.

Plaintiff also alleges that the county has a duty to enforce MCL 239.5; MSA 9.525, which provides in part:

It shall be the duty of every owner, occupant or person having charge of lands in this state, to cut or trim, or cause to be cut or trimmed, to a height not exceeding four and one-half feet and a width not exceeding three feet, all hedges or hedge rows along or on the public highway or adjacent thereto in each and every year ....

Again, we disagree. Clearly, the statutory duty to trim hedges is imposed upon the person owning or occupying the property, not upon the county. Similarly, we reject the claim that the county has a duty to enforce a comparable Redford Township ordinance.²⁷ We agree with the general rule that governmental agencies are not liable for the failure to investigate or enforce an ordinance violation. Randall v Delta Charter Twp, 121 Mich App 26, 31; 328 NW2d 562 (1982). See also 57 Am Jur 2d, Municipal, County, School, and State Tort Liability, § 211, p 223; anno: Liability of municipality or other governmental unit for failure to provide police protection, 46 ALR3d 1084.

In sum, the indisputable fact is that the hedge in question was on private property and had no connection with the roadbed or public travel thereon. 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 . . . .” See anno: Governmental liability for failure to reduce vegetation obscuring view at railroad crossing or at street or highway intersection, 22 ALR4th 624, § 7, pp 643-647. Therefore, as with our decision today in Scheurman, supra, strict compliance with the conditions and restrictions of the statute precludes the inclusion of the obstruction complained of within the § 2 duty of Wayne County. Thus, liability may not be imposed upon the defendant for a hedge, located on private property, which obstructed the view of travelers.

III. CONCLUSION

The duty imposed upon the state and the counties by the Legislature pursuant to § 2 of the governmental immunity act extends "only to the improved portion of the highway designed for vehicular travel . . . Here, the respective defendants are the Michigan Department of Transportation and the Wayne County Board of Road Commissioners. In both cases, the installations complained of cannot be regarded as being part of the improved portion of the highway designed for vehicular travel. 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 traffic.²⁸ Therefore, we conclude that the highway exception statute is inapplicable to the defendants in the matters before us today.²⁹

Accordingly, we reverse the decision of the Court of Appeals in Scheurman, and we affirm the decision of the Court of Appeals in Prokop.

Cavanagh and Griffin, JJ., concurred with Riley, C.J.

1 MCL 691.1402; MSA 3.996(102).

2 MCL 691.1401 et seq.; MSA 3.996(101) et seq.

3 The affidavit of Toufic N. Jildeh, an Electrical Utilities Unit Leader for the Michigan Department of Transportation, states "[t]hat the State of Michigan does not initiate the location of street lights on Eastbound Eight Mile Road between Van Dyke and Groesbeck [the site of the accident], but instead such initiation is within the control of the local municipality [Detroit].”

4 Again, the affidavit of Mr. Jildeh states "[t]hat the installation of street lighting, the maintenance of street lighting, and the payment of same, for Eastbound Eight Mile Road between Van Dyke and Groesbeck is the responsibility of the local municipality and such local municipality pays for the installation of lightpoles, light fixtures and for the electricity used.”

5 At the evidentiary hearing, Mr. James Tripp, a Detroit Public Lighting Department supervising inspector of overhead lines and safety, testified that to his knowledge, the Department of Transportation had never denied the City of Detroit a requested permit for street lighting.

6 Scheurman v Dep’t of Transportation, 162 Mich App 774, 779; 413 NW2d 496 (1987). However, the Court went on to state that its "holding does not address the merits of whether street lighting was actually required at the accident site.” Id. at 783.

7 432 Mich 890 (1989).

8 There is testimony that the traffic light was malfunctioning at the time of the accident. The driver of the vehicle that struck the plaintiff also claims that he had a green light.

9 Plaintiff also sued the Department of Transportation in the Court of Claims, which suit was consolidated with the present action before the circuit court and is still pending. Further, plaintiff sued Redford Township, where the accident occurred, in the Wayne Circuit Court. The court granted summary disposition, with prejudice, in favor of the township. Finally, plaintiff reached an out-of-court settlement with both the property owner and the driver of the van.

10 Prokop v Wayne Co Bd of Road Comm’rs, 168 Mich App 119; 424 NW2d 10 (1988).

¹¹

12 The decision of the Williams Court was limited to the abolition of governmental immunity for municipalities. It did not abolish the sovereign immunity of the state, counties, townships, or villages. See Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 604-605; 363 NW2d 641 (1984).

13 MCL 691.1401 et seq.; MSA 3.996(101) et seq., effective July 1, 1965. This act has been amended by 1970 PA 155, 1978 PA 141, and 1986 PA 175.

14 MCL 691.1407; MSA 3.996(107).

15 The four statutory exceptions are MCL 691.1402; MSA 3.996(102), MCL 691.1405; MSA 3.996(105), MCL 691.1406; MSA 3.996(106), MCL 691.1413; MSA 3.996(113).

In this opinion, we withhold comment on the subject of common-law exceptions to immunity.

16 In Hadfield, supra at 146, Justice Brickley quoted Ross, supra at 618, for the proposition that the immunity conferred upon governmental agencies is a " 'broad grant of immunity’ with 'four narrowly drawn exceptions.’ ”

However, today Justice Brickley apparently reverses his view regarding the interpretation of the statutory exceptions by writing "this Court should not employ a canon of strict construction to negate the fundamental legislative purpose underlying the highway exception to immunity.” Post, p 640.

The fact is that this Court’s uniform interpretation of the statutory exceptions reflects the Legislature’s desire to "make uniform the liability of ” and "to define and limit” governmental liability. (Emphasis added.) Preamble to the governmental immunity act, MCL 691.1401 et seq.; MSA 3.996(101) et seq. Thus, for us to hold otherwise would create uncertainty regarding the interpretation of the statutory exceptions to the act.

Finally, we reject the dissent’s interpretation of the "legislative purpose underlying the highway exception” statute. This point is addressed in part irb), p 631, and in n 22.

17 [T]he rule [of strict construction] has been most emphatically stated and regularly applied in cases where it is asserted that a statute makes the government amenable to suit. . . .

[T]he standard of liability is strictly construed even under statutes which expressly impose liability on the sovereign.

18 We acknowledge Endykiewicz v State Hwy Comm, 414 Mich 377; 324 NW2d 755 (1982), which states that the highway exception, § 2, need not be strictly construed as being in derogation of the common law after the state abrogated its common-law immunity. However, this case is distinguishable.

Endykiewicz interprets the damages sentence of the statute which provides, "[a]ny person sustaining bodily injury or damage to his property . . . may recover the damages suffered by him . . . .” The Court said that this sentence was ambiguous, therefore, it should not be interpreted to limit a plaintiff’s damages. Thus, the dispositive issue in the case centered on the amount of damages after liability had attached. It offers no insight as to the interpretation of the standard of liability imposed upon a governmental unit. Id. at 382.

Furthermore, "our purpose is to ascertain and effectuate the legislative intent at the time it passed the act.” Reardon, supra at 407. At the time the governmental immunity act became effective, the state was still shielded by sovereign immunity. Thus, the Court should have strictly construed the immunity act. To this limited extent, we modify Endykiewicz.

19 The dissent chooses to ignore this unequivocal limitation upon the liability of the state and the counties when it writes, "nothing in the wording of § 2 suggests an intent to limit the liability of governmental agencies to only certain factors that are necessary to safely maintain the improved portion of the highway.” Post, p 639.

The statute clearly indicates more than an intent to limit the liability of the state and the counties, it expressly provides that state and county liability "shall extend only to the improved portion of the highway designed for vehicular travel . . . .” (Emphasis added.)

20 Another seemingly obvious reason to construe the highway exception narrowly is the language of the specific § 2 phrase that we are interpreting today. The Legislature provided that the duty of the state and the counties "shall extend only to . . . .” (Emphasis added.) Common sense suggests that the "only” implies that the Legislature intended the duty to be strictly construed.

21 See also 40 CJS, Highways, § 249, p 279, “The liability of the state is limited by the terms of the statute under which it is assumed and by the conditions prescribed, the statutes being subject to strict construction.”

22 Here again, the dissent argues that our interpretation departs from the statutory language:

In a departure from the language of the statute, the majority apparently draws the line between the surface of the improved portion and, on the other hand, conditions affecting travel on the surface of the improved portion originating separately from the roadbed itself. The majority’s analysis immunizing state or county authorities from liability for any unsafe conditions, the source of which do not originate on the surface of the roadbed, contravenes the plain meaning of the statutory language of § 2 and its principal import. [Post, p 642.]

The fact is that it is the dissent that departs from the language of the statute. The dissent would have us believe that § 2 provides liability for any conditions affecting travel on the surface of the improved portion of the highway, regardless of whether those conditions originate on the surface of the roadbed or not. Such an -expansive interpretation of liability goes far beyond that which § 2 provides. The statute provides that liability "shall extend only to the improved portion of the highway,” it does not contemplate "conditions, the source of which do not originate on the surface of the roadbed . . . .”

23 MCL 247.651b; MSA 9.1097(lb) provides in part:

Maintaining 0f state trunk line highways shall include, by way of enumeration but not limitation, snow removal, street cleaning and drainage, seal coating, patching and ordinary repairs, erection and maintenance of traffic signs and markings, freeway lighting for traffic safety in cities and villages having a population of less than 30,000 and the trunk line share of the erection and maintenance of traffic signals, but shall not include street lighting, resurfacing, new curb and gutter structures for widening. On and after January 1, 1970, maintaining of state trunk line highways shall include all freeway lighting for traffic safety. [Emphasis added.]

24 The state still has a duty to maintain street lighting along freeways pursuant to MCL 247.651b; MSA 9.1097(lb).

25 See MCL 469.6; MSA 22.766.

26 The Court upheld the instruction notwithstanding its observation that ''[t]he procedure authorized by [MCL 469.6; MSA 22.766] does not impose a mandatory obligation on the part of railroad and public highway authorities to enter such agreements.” Cryderman at 475.

27 The Redford Township ordinance limits the height of shrubbery growth to two feet where it would constitute a hazard "to pedestrians, drivers of motor vehicles or other persons while engaged in the lawful use of the sidewalks, roads or streets . . .

28 Contrary to our decision today, the dissent would offer a greatly expanded interpretation of the highway exception statute. Furthermore, the dissent implies that any immunity currently enjoyed by the state and county highway authorities should be abolished and replaced with an ordinary negligence analysis by asserting "the law of negligence provides adequate safeguards against the imposition of unwarranted liability.” Post, p 650. This is an interpretation with which we cannot agree.

Section 2 is one of four statutory exceptions to the governmental immunity act. It is not a statute standing alone, but rather it is part of an entire legislative scheme that defines and limits the liability of our governmental agencies. As we said in Ross, supra at 618, this "evidences a clear legislative judgment that public and private tortfeasors should be treated differently.” The report of the California Law Commission illustrates this point:

"The problems involved in drawing standards for governmental liability and governmental immunity are of immense difficulty. Government cannot merely be liable as private persons are for public entities are fundamentally different from private persons. . . . Only public entities are required to build and maintain thousands of miles of streets, sidewalks and highways. Unlike many private persons, a public entity often cannot reduce its risk of potential liability by refusing to engage in a particular activity, for government must continue to govern and is required to furnish services that cannot be adequately provided by any other agency. ...” 4 California Law Revision Comm Reports, Recommendations & Studies, p 810 (1963). [Ross, supra at 618-619.]

It is for these reasons that we reject the notion that "the law of negligence provides adequate safeguards against the imposition of unwarranted liability.” In Michigan, the governmental immunity act is the vehicle that provides safeguards against unwarranted liability. Today, we again interpret § 2 in a manner consistent with the spirit of the act, and in a manner which adheres to the concerns addressed by the California Law Commission.

29 We acknowledge Tuttle v Dep’t of State Hwys, 397 Mich 44, 45-46; 243 NW2d 244 (1976), in which 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.” However, in concentrating solely on the specific facts of the case, the decision of the Court was predicated on the finding that the highway department failed to carry out its own work orders, which called for the installation of a traffic signal at the intersection, after it determined that the existing stop control was not sufficiently noticeable.

We note that the relevant part of the opinion only addresses the elements of duty, breach of duty, and proximate cause. Nowhere in the opinion does the Court interpret the highway exception statute. Nor does it discuss whether a traffic signal falls within the "improved portion of the highway designed for vehicular travel.”

Similarly, in Salvati v State Hwy Dep’t, 415 Mich 708; 330 NW2d 64 (1982), the plurality decision 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, 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.