Suttles v. Department of Transportation

578 N.W.2d 295, 457 Mich. 635

• Court: Michigan Supreme Court
• Decided: June 9, 1998
• Docket: Docket Nos. 106119, 106359, Calendar Nos. 10-11
• Status: Published

Opinions

Mallett, C.J.

In these combined cases, we granted leave to determine whether the highway exception to governmental immunity applies to accidents involving pedestrians. MCL 691.1402(1); MSA 3.996(102)(1). In Sutiles, the Court of Appeals affirmed the trial court’s grant of defendant’s motion for summary disposition. 216 Mich App 166; 548 NW2d 671 (1996). In Brown, the Court of Appeals, by peremptory order, reversed the trial court’s denial of defendant’s motion for summary disposition. Because the factual record in Suttles is unclear, we would remand the case with instructions to the trial court. We would affirm the decision of the Court of Appeals in Brown because it correctly applied Mason v Wayne Co Bd of Comm’rs, 447 Mich 130; 523 NW2d 791 (1994).

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A. SETTLES v DEP’T OF TRANSPORTATION

On March 15, 1992, plaintiff’s decedent got out of the passenger side of an automobile that was parked outside a church on Saginaw Street in downtown Flint, Michigan. She alleges that she slipped and fell because of an unnatural accumulation of ice and snow on the highway next to the curbed parking area. Her personal representative originally filed a complaint in the Genesee Circuit Court against the city of Flint. The city filed a motion for summary disposition, alleging that before the accident the state of Michigan had jurisdiction over Saginaw Street because it was a designated state trunk line. The circuit court granted the city’s motion. Plaintiff then refiled the complaint in the Court of Claims, naming the state of Michigan, Department of Transportation, as defendant. The Court of Claims granted defendant’s motion for summary disposition pursuant to MCR 2.116(C)(7) and this Court’s opinion in Mason, supra. Plaintiff appealed, and the Court of Appeals affirmed the Court of Claims order dismissing plaintiff’s complaint on governmental immunity grounds.

B. BROWN v DEP’T OF TRANSPORTATION

On July 1, 1993, plaintiff’s next Mend was struck and injured while attempting to cross the intersection of M-119, West Bluff Street, and State Street in the city of Harbor Springs, Michigan. M-119 is a part of the state trunk line in Harbor Springs that runs in an east-west direction. State Street runs north-south and West Bluff Street runs east-west until it dead ends into M-119, which, at the intersection in dispute, angles in a northerly direction into West Bluff Street. At all times relevant to this appeal, State and West Bluff Streets were under the jurisdiction of the city of Harbor Springs.

As plaintiff’s next friend and her companion approached the intersection on M-119 while heading toward downtown Harbor Springs, they intended to cross the intersection by way of the crosswalk installed as part of the traveled portion of the M-119 highway.¹ As plaintiff’s next Mend attempted to traverse the M-119 crosswalk, she was struck by an automobile traveling westbound on M-119. Plaintiff alleges that the intersection design was unreasonably dangerous because it is necessary for vehicular traffic heading south on State Street and attempting to turn left on eastbound M-119 to proceed into the intersection to adequately view oncoming traffic. Plaintiff claims the state owed a duty to plaintiffs next friend because it was foreseeable that an injury to a pedestrian would occur as a result of the negligently designed intersection.

Plaintiff filed the instant action against the city of Harbor Springs in the Emmet Circuit Court and against the Department of Transportation in the Court of Claims. The two cases were consolidated in the circuit court. The city and department moved for summary disposition pursuant to MCR 2.116(C)(7) and (8), which the trial court denied.² The Court of Appeals reversed by peremptory order, relying on this Court’s decision in Mason, supra. We granted leave to appeal in both cases,³ consolidated for the purpose of this appeal, to address whether the Legislature intended to include pedestrians within the highway exception to governmental immunity.

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A

It is well settled in this state that governmental agencies are immune from tort liability while engaging in a governmental function unless an exception applies. MCL 691.1407; MSA 3.996(107); Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 618; 363 NW2d 641 (1984). It is also well settled that the exceptions are to be narrowly construed. Id.; Reardon v Dep’t of Mental Health, 430 Mich 398, 411; 424 NW2d 248 (1988). Here, this Court is again faced with the task of interpreting the highway exception to governmental immunity. MCL 691.1402(1); MSA 3.996(102)(1).⁴

In Sutiles, the trial court granted defendant’s motion for summary disposition pursuant to MCR 2.116(C)(7). In Brown, the lower court granted defendant’s motion for summary disposition pursuant to MCR 2.116(C)(7) and (8). In determining whether a plaintiff’s claim is barred by governmental immunity, we must consider all documentary evidence, including any pleadings, depositions, admissions, or any other documentary evidence submitted by the parties. Wade v Dep’t of Corrections, 439 Mich 158, 162; 483 NW2d 26 (1992); Gibson v Grand Rapids, 162 Mich App 100; 412 NW2d 658 (1987). In order to survive a motion for summary disposition under MCR 2.116(C)(7), the plaintiff must allege facts in the complaint “justifying application of an exception to governmental immunity.” 439 Mich 163.

A motion pursuant to MCR 2.116(C)(8) tests the legal sufficiency of the complaint and allows only consideration of the pleadings. Id. Under both (C)(7) and (8) motions, courts must accept all well-pleaded facts as true and construe them in a light most favorable to the nonmoving party. Id. at 162-163. A motion under MCR 2.116(C)(8) may only be granted where the claims alleged are so clearly unenforceable as a matter of law that no factual development could possibly justify recovery. Id. at 163.

B

We acknowledge that the notion of governmental immunity, its interpretation, and its practical application have been difficult at times, stemming in part from the decisions of this Court and from the confusing nature of the statute itself.⁵ The history of governmental immunity has been well documented in prior decisions of this Court, but, we believe, the facts of these cases require a brief look at the history once again. This Court concisely set forth the history underlying the highway exception to governmental immunity in Scheurman v Dep’t of Transportation, 434 Mich 619, 629; 456 NW2d 66 (1990):

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, crosswalks 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 specifically 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 . . . .” [Emphasis in original.]

We find this synopsis of the history underlying the highway exception instructive. The 1879 enactment articulated a broad exception to immunity that allowed “any person” a cause of action for an injury sustained on or by any of the areas listed. The 1887 amendment increased the scope of the liability to include sidewalks, perhaps the only area not provided for in the original exception. With the codification of governmental immunity in 1964, the highway exception was significantly narrowed and no longer allowed liability for the state and county for injuries incurred in three specific areas: (1) sidewalks, (2) crosswalks, or (3) any other installation outside the improved portion of the highway designed for vehicular travel.

The import of this specific limitation indicates, we believe, the Legislature’s intent to significantly limit a pedestrian’s ability to recover. With this background in mind, we proceed with these cases, while keeping to our mandate of interpreting the exceptions to governmental immunity narrowly. See Ross and Reardon, supra.

c

Today we address the specific question whether pedestrians are covered by the highway exception to governmental immunity. A review of MCL 691.1402(1); MSA 3.996(102)(1) and previous decisions of this Court lead us to conclude that pedestrians may come within the exception in limited situations.

Recent decisions of this Court provide guidance in this area. In Roy v Dep’t of Transportation, the plaintiff⁶ was injured while riding his bicycle on a bicycle path adjacent to a portion of 1-275. Id. at 332. The plaintiffs bicycle hit a “bump” that allegedly posed a danger to bicyclists and which was covered by weeds that had been previously cut and piled by the defendant. As a result, the plaintiff suffered severe injuries. Id.

The issue presented in Roy was whether a bicycle path that ran parallel to, but detached from, the traveled portion of the roadway was part of the highway, so as to fall within the highway exception to governmental immunity. We held, under the facts of that case, that the plaintiffs claim was barred by governmental immunity. In reaching that result, we noted:

Section 2 [MCL 691.1402(1); MSA 3.996(102)(1)] does not reveal a legislative purpose to protect bicyclists in general, as suggested by the Court of Appeals. Indeed, the 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. [Id. at 341 (emphasis added).]

A case that presented both an issue and set of facts similar to Roy was Gregg v State Hwy Dep’t, 435 Mich 307; 458 NW2d 619 (1990). The plaintiff in Gregg was injured when his fourteen-speed racing bicycle hit a pothole and overturned. Again, we considered whether the bicycle path in that case was part of the highway so as to fall within the highway exception to governmental immunity. We held that because the bicycle path in Gregg was part of “the west shoulder of [the] highway,” unlike Roy where the path was not a part of, but ran parallel to, the roadway, the plaintiffs claim fell within the exception. Id. at 310.

Justice Brickley utilized the following rationale from Roy to support this Court’s finding that the plaintiff’s claim in Gregg was not barred by governmental immunity:

“[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.]

“[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.]” [Gregg, supra at 312.]

We concluded in Gregg-.

[N]ot 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 inteipretative 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 316, quoting Roy, supra at 341 (emphasis in original).]

The crux of the analysis we utilized in Roy and Gregg applies to the facts of these cases as well. We noted that “ ‘the statute does not offer general protection to pedestrians or motorists without regard to location.’ ” Gregg, supra at 312, quoting Roy, supra at 341.⁷

We more recently addressed the applicability of the highway exception to an injured pedestrian in Mason v Wayne Co Bd of Comm’rs. There, the plaintiff alleged that the county was liable for failing to install school warning signs near an elementary school in Detroit. A majority of this Court rejected that argument because “[t]he plaintiffs’ action . . . [did] not present a special danger to vehicles. The highway exception abrogates governmental immunity at ‘points of special danger to motorists ....’” Id. at 135, quoting Grof v Michigan, 126 Mich App 427, 434; 337 NW2d 345 (1983); Comerica Bank of Kalamazoo v Dep’t of Transportation, 168 Mich App 84, 86; 424 NW2d 2 (1987). We noted that because the limiting sentence of the highway exception⁸ excluded “specific installations whose only rational purposes narrowly service the unique needs of pedestrians,” it indicated “a [legislative] conclusion that pedestrians and users of these installations have been sufficiently protected by the separation of them from motorists, without any need to impose a duty of maintenance and repair enforced by liability for resultant injuries.” Mason, supra at 136-137.

The following analysis from Mason supports this interpretation:

[Tjhe phrase “designed for vehicular travel” can only be reasonably interpreted to mean “intended for vehicular travel.” The explicit removal of exclusively pedestrian installations from the highway exception, coupled with the express language of the provision itself, permits but one conclusion: Pedestrians who trek upon Michigan highways must and do venture beyond the protective mandates of MCL 691.1402(1); MSA 3.996(102)(1).

The exclusion of crosswalks from the highway exception is consistent with the idea underlying the highway exception — that drivers of vehicles should be able to keep their minds on the traffic, and should not have to worry that dangerous surprises lie ahead. Pedestrians are situated differently than vehicular traffic, which may approach obstacles in the highway too quickly to avoid them, or may avoid obstacles only by jeopardizing traffic in the adjoining lanes.

This legislative line drawing is also explicable on the ground that expanding the right to sue past a certain point does not prevent accidents, and amounts to nothing more than an expanded obligation to pay. The Legislature may well have concluded that governmental liability for injuries to pedestrians crossing the street will not enhance vehicular safety. [Id. at 137-138.]

In Roy and Gregg, we indicated that we examined not the class of individual, but the area on which the individual traveled. As long as the individual was injured on the improved portion of the highway and was not injured in any of the three areas listed in MCL 691.1402(1); MSA 3.996(102)(1), we have consistently held that that individual stated a cause of action so as to avoid governmental immunity.

In light of this, we now turn to the facts of these combined cases in an effort to further the legislative purpose underlying the highway exception to governmental immunity, keeping in mind our mandate to construe the conditions and restrictions of the statute narrowly.⁹

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Plaintiff Suttles contends that as long as a person is on the improved portion of the highway and is not within the specifically exempted areas of crosswalks, sidewalks, or other pedestrian installations, the government is not entitled to immunity. Plaintiff Brown alleges that because of a design defect at the intersection in question, the defendant breached its duty to maintain the improved portion of the highway safe for vehicular travel.

Plaintiff Suttles got out from the passenger’s side of the vehicle in which she was traveling and was injured when she allegedly slipped and fell on an unnatural accumulation of ice and snow. The record is replete with varying accounts regarding the specifics surrounding plaintiff’s injury. For example, in her deposition taken before her death, the plaintiff indicated, at one point, that she was on the improved portion of the highway at the time she fell. Later, she indicated that she was on the curb or sidewalk when she was injured.

There was also conflicting testimony regarding the location of the ice and snow. The plaintiff indicated the accumulation was both on the sidewalk and on the improved portion of the highway. The plaintiff’s personal representative testified in his deposition that he found the plaintiff laying on the sidewalk next to the ice and snow that had been piled on the sidewalk and spilled over onto the curb. The accounts regarding snowfall on the day in question also conflicted.

Finally, the maintenance workers and the security personnel from the office building located immediately adjacent to the area where plaintiff was injured also testified. The city of Flint’s street maintenance supervisor testified as well. These individuals gave different accounts regarding whose responsibility it was to remove snow and ice, and the origin, size, and location of the snow accumulation in this case.

To the extent the answers to these and other issues relate to the duty, if any, owed to plaintiff by defendant at the time of her injury, they must be resolved by the trial court on remand.¹⁰ If plaintiff is found to have been injured on the sidewalk, then neither the county nor the state owed her a duty under the highway exception to governmental immunity. MCL 691.1402(1); MSA 3.996(102)(1). If, however, plaintiff was injured in the traveled portion of the highway because of defendant’s negligence, then she may have pleaded a cause of action within the highway exception to governmental immunity.¹¹

The record indicates the vehicle in which the plaintiff was traveling parallel parked along the curb in a portion of the highway that had been specifically designated for parking by an alcove-like curbed area. This Court’s holding in Mason provided that if a plaintiff is injured on a sidewalk, in a crosswalk, or on any other installation outside the improved portion of the highway designed for vehicular travel, no duty is owed to that plaintiff by the state or a county. If, on remand, it is determined that plaintiff was on the sidewalk when she fell, the analysis is simple: The defendant did not owe a duty to her.

If, however, it is found that the plaintiff fell and was injured by a defect in the improved portion of the highway, then she may have pleaded a cause of action so as to avoid governmental immunity.¹² Hence, we would reaffirm the analysis adopted in Gregg, which allowed suit by a nonvehicular traveler who was injured on the improved portion of the highway designed for vehicular travel. We would leave it to the trial court on remand to ascertain the answers to these questions.

We reiterate, however, that the immediately preceding discussion should not be interpreted to mean the defendant is automatically liable to the plaintiff even if it is found that she was injured on the improved portion of the highway designed for vehicular travel. Plaintiff must still demonstrate the requisite elements of a negligence cause of action. If on remand the trial court determines that the plaintiff has sufficiently pleaded a cause of action so as to avoid governmental immunity, the existence of a duty owed to plaintiff by defendant has been established. Plaintiff must then prove defendant breached that duty, and that the breach was the proximate and factual cause of her injury.

Plaintiff Brown’s next friend was injured when she was struck by an automobile while crossing M-119 on a crosswalk. The mandate of MCL 691.1402(1); MSA 3.996(102)(1) is clear: Neither the state nor a county owes a duty to a pedestrian while the pedestrian is in a crosswalk. This issue was decided by this Court in Mason, and we would specifically reaffirm that holding today.¹³ Because it is undisputed that plaintiff’s next friend was injured while she was in the crosswalk, neither the state nor the county owed her a duty. Summary disposition under MCR 2.116(C)(7) and (8) was therefore proper.¹⁴

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For the foregoing reasons, we would reverse Sutiles and remand the case to the trial court with instructions for further factual development, and we would affirm the Court of Appeals decision in Brown.15

Boyle, J., concurred with Mallett, C.J.

1 This Court has previously held that the Legislature intended to use applicable terms in the governmental tort immunity act with the same meaning as they have in the motor vehicle code, MCL 257.1 et seq.; MSA 9.1801 et seq. See Roy v Dep’t of Transportation, 428 Mich 330, 338; 408 NW2d 783 (1987).

The motor vehicle code, MCL 257.10; MSA 9.1810, defines “Cross-walk” as

(a) That part of a roadway at an intersection included within the connections of the lateral lines of the sidewalks on opposite sides of the highway measured from the curbs, or in the absence of curbs from the edges of the traversable highway.

(b) Any portion of a highway at an intersection or elsewhere distinctly indicated for pedestrian crossing by lines or other markings on the surface.

Crosswalks as defined above are not to be confused with a “pedestrian overhead walkway.” MCL 257.627a(3); MSA 9.2327(1)(3). See also Mason, supra at 136, n 5.

2 It appears from the record that the trial court granted in part and denied in part the city of Harbor Springs motion for summary disposition. The city has not taken part in this appeal.

3 454 Mich 895, 896 (1997).

4 The highway exception provides:

Each governmental agency having jurisdiction over a highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. A person sustaining bodily injury or damage to his or her property by reason of failure of a governmental agency to keep a highway under its jurisdiction in reasonable repair, and in condition reasonably safe and fit for travel, may recover the damages suffered by him or her from the governmental agency. The liability, procedure and remedy as to county roads under the jurisdiction of a county road commission shall be as provided in section 21 of chapter IV of Act No. 283 of the Public Acts of 1909, as amended, being section 224.21 of the Michigan Compiled Laws. The duty of the state and county road commissions to repair and maintain highways, and the liability for that duty, extends only to the improved portion of the highway designed for vehicular travel and does not include sidewalks, crosswalks, or any other installation outside of the improved portion of the highway designed for vehicular travel. A judgment against the state based on a claim arising under this section from acts or omissions of the state transportation department is payable only from restricted funds appropriated to the state transportation department or funds provided by its insurer.

5 The Court of Appeals majority in Suttles noted the confusing nature of the statute as well:

The express language of the highway exception indicates that the duty of highway authorities to repair and maintain the highways “shall extend only to the improved portion of the highway designed for vehicular travel.” The provision then states that such duty “shall not” extend to three types of installations: (1) “sidewalks”; (2) “crosswalks”; and (3) “any other installation outside of the improved portion of the highway designed for vehicular travel.” (Emphasis added.)

This language is confusing for several reasons. First, its structure implies that installations 1, 2, and 3 are exclusions from the highway exception. Yet, it is difficult to fathom how “sidewalks,” unlike “crosswalks,” could be construed as part of the “improved portion of the highway designed for vehicular travel,” even absent their explicit exclusion from the highway exception. Second, the “any other installation” language of the third exclusion to the highway exception follows a specific enumeration of terms that by implication also describe installations “outside of the improved portion of the highway designed for vehicular travel”; “crosswalks,” however, clearly do not fit this description. In other words, it is unclear why “sidewalks” are expressly excluded from the highway exception and it is equally unclear why “crosswalks” are implicitly described as installations “outside of the improved portion of the highway designed for vehicular travel.” [Id. at 168-169.]

6 The injured plaintiff and his wife filed suit against the Department of Transportation. The plaintiffs wife’s claim was derivative only.

7 In Gregg at 311, n 3, this Court specifically noted the fact that the plaintiff was “entitled to travel on the improved portion” of the highway. Stated otherwise, the plaintiff was an intended and permitted user of the improved portion of the highway.

8 The duty of the state and the county road commissions to repair and maintain highways, and the liability for that duty, extends only to the improved portion of the highway designed for vehicular travel and does not include sidewalks, crosswalks, or any other installation outside of the improved portion of the highway designed for vehicular travel. [MCL 691.1402(1); MSA 3.996(102) (1). ]

9 This foEows Chief Justice Riley’s analysis in Scheurman, supra at 630, n 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.

10 In every instance where a plaintiff alleges a cause of action based on the highway exception to governmental immunity, MCL 691.1402(1); MSA 3.996(102)(1), the court must engage in a two-step analysis. The first step requires a determination whether the plaintiff has pleaded a cause of action in avoidance of governmental immunity. First, a court must determine whether the plaintiffs accident occurred on the improved portion of the highway designed for vehicular travel. The next question that must be answered under the first step is whether the plaintiff’s injury occurred on a sidewalk, in a crosswalk, or on “any other installation outside of the improved portion of the highway designed for vehicular travel.” Id. Under the latter inquiry, if the injury occurred in any of the three delineated areas, the plaintiff’s claim does not fit within the exception to governmental immunity, i.e., the plaintiff’s claim is barred. However, if the injury occurred in an area of the improved portion of the highway, other than in one of the three specifically excluded areas, the plaintiff has pleaded a cause of action circumventing governmental immunity and the plaintiff may proceed with the negligence cause of action.

Under the second step, a plaintiff must prove a cause of action under traditional negligence principles. Concepts such as the “intended and permitted user” language derived from Gregg apply to the negligence analysis and bear on whether a defendant owed a duty to the plaintiff or whether the plaintiff was comparatively negligent. See Mason, supra at 136, n 5. A plaintiff, in order to recover, must satisfy both legs of this analysis.

11 This opinion should neither be interpreted as overruling the established line of authority that a governmental agency’s failure to remove natural accumulations of ice and snow does not automatically constitute negligence on the part of that governmental agency, see Reese v Wayne Co, 193 Mich App 215, 217; 483 NW2d 671 (1992), and cases cited therein, nor should it be interpreted as establishing a cause of action under the highway exception on the basis of unnatural accumulations of ice and snow. Because neither question is properly before us today, we need not address either one.

12 We note plaintiff’s complaint is, perhaps purposefully, ambiguous regarding where she fell. It could be read to allege a fall on the improved portion of the highway or on the sidewalk. In addition, as noted earlier, plaintiff’s deposition testimony in this regard was contradictory.

13 The author notes that the position taken here may seem inconsistent with that of the dissent in Mason, supra at 139, which this author signed. Given the majority holding in Mason and the clear language of MCL 691.1402(1); MSA 3.996(102)(1) concerning the lack of duty for injuries sustained in crosswalks, the author recognizes that Mason is controlling.

14 The dissent would allow plaintiff’s decedent to maintain a cause of action against the state for an injury sustained on the improved portion of the highway, her case premised on an alleged defect in the design of the intersection at which she was injured. We find this interpretation of the highway exception to be both overbroad and unsupported by the law of this state. Indeed, the dissent does not cite a single case to support its contention. This omission is not based on neglect, but instead on a lack of legal authority. No decision of this Court that has recognized a cause of action for a design or construction defect in a highway involved a pedestrian. See Killeen v Dep’t of Transportation, 432 Mich 1; 438 NW2d 233 (1989); Peters v State Hwys Dep’t, 400 Mich 50; 252 NW2d 799 (1977); Carver v Detroit & Saline Plank Rd Co, 61 Mich 584; 28 NW 721 (1886). The dissent’s interpretation would establish a previously unrecognized cause of action for individuals outside the class of persons the highway exception was designed to protect.

15 Since we reaffirm our decision in Mason that pedestrians in crosswalks are not covered by MCL 691.1402(1); MSA 3.996(102)(1), we need not address plaintiff Brown’s allegation that there is a design defect at the intersection where plaintiff’s next friend was injured.