378 N.W.2d 574 (Mich.App. 1985), 77526, Carney v. Department of Transp.

Docket Nº:Docket No. 77526.
Citation:378 N.W.2d 574, 145 Mich.App. 690
Opinion Judge:Before RB BURNSand SHEPHERD and JASPER , JJ
Party Name:Kimbra CARNEY, Plaintiff-Appellant, v. Michigan DEPARTMENT OF TRANSPORTATION, Defendant-Appellee.
Case Date:September 16, 1985
Court:Court of Appeals of Michigan

Page 574

378 N.W.2d 574 (Mich.App. 1985)

145 Mich.App. 690

Kimbra CARNEY, Plaintiff-Appellant,


Michigan DEPARTMENT OF TRANSPORTATION, Defendant-Appellee.

Docket No. 77526.

Court of Appeals of Michigan.

September 16, 1985

       Submitted April 11, 1985.

        Released for Publication Dec. 26, 1985.

Page 575

       [145 Mich.App. 693] Jerry L. Sumpter, J.D., P.C. by Richard A. Smith, Cheboygan, for plaintiff-appellant.

       Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Carl K. Carlsen and Myron A. McMillan, Asst. Attys. Gen., for defendant-appellee.

       Before R.B. BURNS, P.J., and SHEPHERD and JASPER [*] , JJ.

       SHEPHERD, Judge.

       Following a bench trial, the Court of Claims entered a judgment of no cause of action on plaintiff's claims of negligent highway design, M.C.L. Sec. 691.1402; M.S.A. Sec. 3.996(102), and intentional nuisance. Plaintiff appeals as of right. We affirm.

       Plaintiff was traveling northward on US-23 when her vehicle veered to the right onto the east shoulder. Plaintiff overadjusted the car leftward to the centerline. She then overcorrected to the right and struck the guardrail to the east of the highway. The car traveled along or possibly on top of the guardrail until it reached an opening where a private driveway intersected the highway. The car proceeded through the opening, struck one of numerous trees in the vicinity, and eventually came to rest at the bottom of a ditch or gully approximately 15 feet below the highway.

       US-23 at the site of plaintiff's accident is a two-lane, paved, state trunk highway. The guardrail which plaintiff struck was located eight and one-half feet from the eastern edge of the northbound lane. It protected motorists from plunging down a steep embankment with a "one: two" slope (a one- foot vertical drop for each two [145 Mich.App. 694] horizontal feet). The driveway opening in the guardrail was approximately 39 feet wide. Plaintiff hit a tree which stood 25 feet from the driveway and 16 feet from the highway.

       In count I of her complaint, plaintiff claimed that she had been injured as a

Page 576

proximate result of defendant's negligence. Plaintiff asserted that defendant breached its duty to maintain the highway in a reasonable, safe and fit manner in the following ways: allowing to remain and failing to remove a large tree located within 20 feet of the highway; failing to guard, protect, or give notice to traveling motorists of a 15-foot fill located at the base of an unprotected tree, and within 20 feet of the traveled highway; failing to guard, protect or give notice of a large tree within 20 feet of the highway; installing a guardrail in such a manner as to channel, funnel or direct an errant automobile into a fixed roadside obstacle, the tree; allowing the driveway to exist and building a guardrail with a gap of 39 feet. In count II, plaintiff claimed that, in breaching its duty as set forth in count I, defendant created and maintained an intentional nuisance in fact.

       The trial court found that the placement of the guardrail was warranted by the steep slope off the eastern side of the road. Defendant was required to permit persons living along that portion of the highway access to the road by allowing the existence of a driveway and by creating an opening in the guardrail for a driveway. The trial court determined that there was insufficient evidence to justify a finding that plaintiff would not have been as severely injured if a barrier had been erected around the tree or if a barrier had been placed along the north edge of the driveway. The trial court further determined that the standards of the [145 Mich.App. 695] American Association of State Highway and Transportation Officials (AASHTO), see, 23 CFR 625 et seq., did not establish minimum safety standards for the placement of barriers, but were mere guidelines or "goals" for state highway departments. According to the trial court, strict compliance with the AASHTO standards was impractical in the instant case due to environmental and financial constraints. Moreover, the trial court found that defendant's placement and maintenance of the guardrail were not contrary to the general principles set forth by AASHTO. The trial court concluded that defendant had not breached its duty to maintain US-23 in a reasonably safe condition.

       In addition, the trial court found that defendant was not liable for maintenance of an intentional nuisance. The court noted that defendant had not negligently or improperly constructed the guardrail so as to purposely direct errant vehicles into the tree. The tree itself provided motorists with no greater hazard than would the placement of barriers around the tree or down the side of the highway.

       Under M.C.L. Sec. 691.1402, defendant may be held liable for failure to maintain a highway in reasonable repair:

       "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 such governmental agency. * * * The duty of the state and the county road commissions to repair and maintain highways, and the liability [145 Mich.App. 696] 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."

       This statutory duty is not limited to the paved portion of the road, but includes proper maintenance of the shoulder and adjacent guardrails. McKee v. Dep't of Transportation, 132 Mich.App. 714, 721, 349 N.W.2d 798 (1984), Moerman v. Kalamazoo County Road Comm., 129 Mich.App. 584, 592, 341 N.W.2d 829 (1983), Hall v. Dep't of State Highways, 109 Mich.App. 592, 311 N.W.2d 813 (1981), lv. den. 413 Mich. 942 (1982). It "extends to the maintenance of conditions that affect the safety of motorists using the improved portion of

Page 577

the highway designed for vehicular travel". Moerman, supra, 129 Mich.App. p. 592, 341 N.W.2d 829. In Moerman, p. 593, 311 N.W.2d 829, this Court held that whether the defendant had a duty to "maintain" a tree turned on whether "the tree was positioned such that the average vehicle could have struck the tree without any of the vehicle's wheels leaving the shoulder". (Emphasis added.) 1

       In this case, plaintiff's automobile was out of control and had completely departed from the road when it struck the tree. The tree was not within reach of a vehicle with all four wheels on the shoulder. We must bear in mind the Legislature's restriction of defendant's duty "only to the improved portion of the highway designed for vehicular travel." M.C.L. Sec. 691.1402. The particular allegations of negligence which are based solely on [145 Mich.App. 697] defendant's failure to remove or guard the tree do not, in our view, constitute a viable claim under M.C.L. Sec. 691.1402. Additionally, we have reviewed the photographic exhibits admitted at trial. This was a country road lined by numerous trees and other vegetation. Defendant's duty to maintain the road in reasonable repair does not entail deforestation of the surrounding countryside.

       Plaintiff's remaining claims involve the design of the guardrail. More particularly, she asserts that the driveway opening was too wide and that the guardrail channeled her car into the unguarded tree. According to plaintiff, these deficiencies violated AASHTO standards which, again in her view, are mandatory and set the minimum standard of care in the field of highway maintenance. Plaintiff also claims that the existence of these conditions constituted an intentional nuisance. The trial court found for defendant on each of these claims.

       "This Court does not set aside the trial court's findings of fact unless they are clearly erroneous. GCR 1963, 517.1; Borkus v Michigan National Bank, 117 Mich. App 662, 670; 324 N.W.2d 123 (1982). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Tuttle v Dep't of State Highways, 397 Mich. 44, 46; 243 N.W.2d 244 (1976); Borkus, supra, [117 Mich.App.] p. 670 [324 N.W.2d 123]." Sasanas v. Manufacturers National Bank of Detroit, 130 Mich.App. 812, 817, 345 N.W.2d...

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