Hall v. State, Michigan Dept. of Highways and Transp.

• Decision Date: 21 September 1981
• Docket Number: Docket No. 49144
• Citation: 109 Mich.App. 592,311 N.W.2d 813
• Parties: Leonard L. HALL, Plaintiff-Appellant, Cross-Appellee, v. STATE of Michigan, MICHIGAN DEPARTMENT OF HIGHWAYS AND TRANSPORTATION, Defendant-Appellee, Cross-Appellant. 109 Mich.App. 592, 311 N.W.2d 813
• Court: Court of Appeal of Michigan — District of US

Page 813

311 N.W.2d 813

Leonard L. HALL, Plaintiff-Appellant, Cross-Appellee, v. STATE of Michigan, MICHIGAN DEPARTMENT OF HIGHWAYS AND TRANSPORTATION, Defendant-Appellee Cross-Appellant.

Docket No. 49144.

109 Mich.App. 592, 311 N.W.2d 813

Court of Appeals of Michigan.

Sept. 21, 1981.

Released for Publication Nov. 4, 1981.

[109 MICHAPP 594] Peter R. Barbara & Associates, P. C. by Darrel Peters, Detroit, for plaintiff-appellant, cross-appellee.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., and Carl K. Carlsen and Myron A. McMillan, Asst. Attys. Gen., for defendant-appellee, cross-appellant.

Before KELLY, P. J., and BRONSON and DANIELS, ^* JJ.

KELLY, Presiding Judge.

Plaintiff, Leonard L. Hall, appeals as of right from an opinion and order of the lower court, which awarded him a judgment of $150,998.86, for the negligence of defendant, cross-appellant State of Michigan, Department of Highways and Transportation. The judgment was based upon a finding that the defendant was negligent in the maintenance of a highway guardrail, the design of which could cause serious injuries to occupants of any vehicle striking the guardrail head-on. The trial court also found the plaintiff's negligence in permitting his vehicle to leave the highway just prior to the collision to constitute 75% of the responsibility for his injuries and thus reduced the total damages to the above-noted figure.

The plaintiff's cause of action arose from a one-car accident which occurred on February 18, 1973. During trial, the plaintiff's amended complaint alleged, inter alia, that defendant was negligent in failing to maintain Interstate 94 (I-94) in a reasonably[109 MICHAPP 595] safe manner by failing to correct a known hazard caused by the defective design of the guardrail struck by plaintiff's vehicle. The complaint also alleged that the guardrail constituted an intentional nuisance.

At the site of the plaintiff's accident, I-94 is a four-lane divided highway running east and west. The lanes are separated by a 40-foot wide median. Testimony during trial indicated that, at the time of the accident, the highway pavement was clear of ice or snow.

In the early hours of February 18, 1973, plaintiff was driving eastbound on I-94. As he approached the Michigan Avenue overpass in Jackson County, plaintiff apparently fell asleep at the wheel of his automobile. His vehicle left the pavement, traveled about 450 feet down the center of the median, and then went up the slight slope on the opposite side of the median where it struck the end of a guardrail. The guardrail struck by plaintiff's car had been installed to protect westbound traffic from possible collision with the bridge pier located in the center of the median. This guardrail was over 30 feet from the eastbound lanes.

Upon impact, the terminal end of the steel guardrail was driven through the automobile, entering just behind the right front tire, then crossing the passenger compartment and penetrating the driver's door. The guardrail traumatically amputated plaintiff's right leg a few inches below the knee. The plaintiff also suffered a severe fracture of his right femur near the hip joint. A passenger in the car was uninjured.

Substantial expert testimony was heard regarding the relative safety of the guardrail struck by the plaintiff with respect to other more recent designs. In its fact-findings, the lower court found [109 MICHAPP 596] that the guardrail design was standard and considered acceptable when installed and continued to be viewed as acceptable until 1966. The court found that by 1967 defendant was aware that the end treatment used on the guardrail was dangerous and posed a substantial risk of injury or death to anyone striking it. ¹ Based upon this fact-finding, the court found negligence in "failing to install the turned-down and buried guardrail-end treatment or other known safer designs for the several years that the knowledge existed preceding this accident". According to the trial court, the fact that plaintiff struck the departure end of a guardrail meant to protect westbound traffic was not significant, since cars traveling on high-speed highways could easily cross the median. The lower court also found plaintiff negligent in having fallen asleep at the wheel and permitting his vehicle to leave the highway. On appeal, the plaintiff raises two issues. The defendant, as cross-appellant, asserts three additional allegations of error.

I.

The plaintiff first argues that the lower court erred in reducing its total damage award, based upon a finding that plaintiff's negligence was 75% of the accident's cause. It specifically is alleged [109 MICHAPP 597] that the public policy considerations underlying the Supreme Court decisions in Funk v. General Motors Corp., 392 Mich. 91, 220 N.W.2d 641 (1974), and Tulkku v. Mackworth Rees Division of Avis Industries, Inc., 406 Mich. 615, 281 N.W.2d 291 (1979), and this Court's decision in Tulkku v. Mackworth Rees Division of Avis Industries, Inc., (On Remand ) 101 Mich.App. 709, 301 N.W.2d 46 (1980), require us to find that because the guardrail was a defective "safety device", the plaintiff's contributory negligence may not be applied to reduce his final award. We do not accept the proposed extension of the "safety device" rationale in this context.

In the above decisions, it was held that the defendant could not raise the defense of contributory negligence as a bar to a plaintiff's negligence action if the defendant had failed in its duty to provide adequate safety devices. Stambaugh v. Chrysler Corp., 96 Mich.App. 166, 171-172, 292 N.W.2d 510 (1980); Tulkku, supra, 406 Mich. 623, 281 N.W.2d 291. ² We agree with the rationale and public policy consideration behind this limitation on the use of contributory or comparative negligence. However, the public policy to foster a contractor's or manufacturer's efforts to provide a safe working environment for plaintiff is not equally applicable to the facts of this case. In Wade v. State Highway Comm., 92 Mich.App. 234, 238-239, 284 N.W.2d 522 (1979), this Court addressed the question of whether contributory negligence was available as a defense to an [109 MICHAPP 598] action for injuries to a motorist caused by the allegedly negligent design of a bridge:

"In Funk (v. General Motors Corp., 392 Mich. 91, 220 N.W.2d 641), supra, the Court held that the defense of contributory negligence is inapplicable where a defendant employer breaches its duty to provide safety equipment resulting in injury to a plaintiff employee. The rationale behind this decision is evident from the following quote:

" 'Workmen such as the present plaintiff, who ply their livelihoods on ladders and scaffolds, are scarcely in a position to protect themselves from accident. They usually have no choice but to work with the equipment at hand, though danger looms large. The legislature recognized this and, to guard against the known hazards of the occupation, required the employer to safeguard the workers from injury caused by faulty or inadequate equipment. If the employer could avoid this duty by pointing to the concurrent negligence of the injured worker in using the equipment, the beneficial purpose of the statute might well be frustrated and nullified.' Koenig v. Patrick Construction Corp., 298 N.Y. 313, 318-319, 83 N.E.2d 133, 135 (1948). Id., at 113-114 (220 N.W.2d at 651).

"The plaintiff contends that the breach of the statutory duty to maintain highways in a reasonably safe condition, MCL 691.1402; MSA 3.996(102), is in the same category as above thus rendering the doctrine of contributory negligence inapplicable. We disagree.

"Initially we point out that a motorist who misuses a highway is answerable for his own negligence which could operate to bar recovery. Detroit Bank & Trust Co. v. Dep't of State Highways, 55 Mich.App. 131, 222 N.W.2d 59 (1974). Moreover, the critical factor in Funk, supra, was the employee's lack of choice in undertaking hazardous on-the-job activity. Here that factor is absent. The decedent could have used an emergency phone which was located some 500 feet away or could have waited for traffic to clear before moving from his position of safety. The record supports the lower court's finding that the decedent's injuries were caused by his own negligence."

[109 MICHAPP 599] Because the prohibition against the use of contributory negligence has been limited to cases involving a safe working environment, we hold that the trial court did not commit error in applying the plaintiff's negligence to reduce its award.

II.

The plaintiff also alleges as error the lower court's finding that the defective guardrail did not constitute an intentional nuisance. In Buckeye Union Fire Ins. Co. v. Michigan, 383 Mich. 630, 636, 178 N.W.2d 476 (1970), the Supreme Court identified the factors necessary for a finding of nuisance:

"Primarily, nuisance is a condition. Liability is not predicated on tortious conduct through action or inaction on the part of those responsible for the condition. Nuisance may result from want of due care (like a hole in a highway), but may still exist as a dangerous, offensive, or hazardous condition even with the best of care."

In Rosario v. City of Lansing, 403 Mich. 124, 132-133, 268 N.W.2d 230 (1978), the Supreme Court, citing Bluemer v. Saginaw Central Oil & Gas Service, Inc., 356 Mich. 399, 411, 97 N.W.2d 90 (1959), classified nuisances as follows:

" 'From the point of view of their nature, nuisances are sometimes classified as nuisances per se or at law, and nuisances per accidens or in fact. A nuisance at law or a nuisance per se is an act, occupation, or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings. Nuisances in fact or per accidens are those which become nuisances by reason of circumstances and surroundings, and an act may be found to be a nuisance as a matter of fact where the...