Anderson v. Macomb County Road Com'n

• Decision Date: 09 September 1985
• Docket Number: Docket No. 76699
• Citation: 143 Mich.App. 735,372 N.W.2d 651
• Court: Court of Appeal of Michigan — District of US
• Parties: Sherry ANDERSON, Plaintiff-Appellant, v. MACOMB COUNTY ROAD COMMISSION, Defendant-Appellee, and City of Roseville, Detroit Edison Company, and Michigan Bell Telephone Company, Defendants.

Page 651

372 N.W.2d 651

143 Mich.App. 735

Sherry ANDERSON, Plaintiff-Appellant, v. MACOMB COUNTY ROAD COMMISSION, Defendant-Appellee and City of Roseville, Detroit Edison Company, and Michigan Bell Telephone Company, Defendants.

Docket No. 76699.

Court of Appeals of Michigan.

Submitted April 3, 1985.

Decided June 19, 1985.

Released for Publication Sept. 9, 1985.

John J. Gretch & Assoc., P.C. by Michael R. Osaer, Sterling Heights, for plaintiff-appellant.

Peterson & Hay, P.C. by William L. Hay, Mt. Clemens, for the Macomb County Road Com'n.

Before BRONSON, P.J., and J.H. GILLIS and ALLEN, JJ.

PER CURIAM.

Plaintiff brought this action in the circuit court against the Macomb County Road Commission, the City of Roseville, Detroit Edison Company, and Michigan Bell Telephone Company for negligence in the placement and maintenance of a utility pole with which a car plaintiff was riding in collided. Michigan Bell was dismissed when it was determined that it did not own the utility pole. The remaining defendants brought separate motions for summary judgment, which were granted by the trial court. Plaintiff appealed as of right from the orders granting summary judgment to the City of Roseville and the Macomb County Road Commission. A motion to dismiss brought by the City of Roseville was granted by this Court on December 6, 1984. Plaintiff also sought leave to appeal from the order granting summary judgment to Detroit Edison, but leave was denied pursuant to an order dated September 28, 1984. Thus, only the propriety of the order granting summary judgment to the Macomb County Road Commission is presented for our consideration.

The facts are not in dispute. On July 10, 1981, plaintiff was a passenger in a vehicle driven by Lamont Convery. While driving north on Utica Road in the City of Roseville, Convery lost control of his vehicle. The automobile skipped a curb and struck a utility pole located 24 inches from the curb. As a result of the accident, plaintiff was permanently paralyzed below her neck.

The sole question presented through this appeal is whether the statute by which the state waived its sovereign immunity and allowed itself to be sued extends to utility poles located two feet from the roadside curb. The relevant statute reads in pertinent part as follows:

"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 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." M.C.L. Sec. 691.1402; M.S.A. Sec. 3.996(102).

As noted by this Court in cases too numerous to list, the ambiguity inherent in this statute concerns the meaning of the modifier "improved" as it relates to the phrase "portion of the highway designed for vehicular travel". Despite the generally expansive meaning given the term by many decisions of this Court, we find none which would require the conclusion that the state or its subdivisions must maintain in reasonable repair a utility pole located two feet from the roadside curb. In so concluding, we rely both upon our analysis of the cases construing the phrase "improved portion of the highway" and upon the rule that a statute which is in derogation of the common law, such as M.C.L. Sec. 691.1402; M.S.A. Sec. 3.996(102), must be strictly construed. Tibor v. Dep't of State Highways, 126 Mich.App. 159, 162, 337 N.W.2d 44 (1983).

We begin by acknowledging the observation of the Court in Detroit Bank & Trust Co v Dep't of State Highways, 55 Mich.App. 131, 222 N.W.2d 59 (1974), that "[a] highway is the composite of many components: slabs of poured concrete, shoulders, usually of gravel, markings, traffic control signals, speed control signs." 55 Mich.App. 134, 222 N.W.2d 59. Among the first cases to recognize that M.C.L. Sec. 691.1402 was intended to include more than simply the paved portion of the highway was Johnson v. Michigan, 32 Mich.App. 37, 188 N.W.2d 33 (1971). The Johnson Court held that the plaintiff could sue the state for injuries received when plaintiff lost control of her vehicle while attempting to return to the paved portion of the road from a shoulder which was six inches lower than the road. The Court based its conclusion on the fact that, although not of the same character as the paved portions of a highway, the shoulder is also designed for vehicular traffic. 32 Mich.App. 39, 188 N.W.2d 33.

In Bennett v. City of Lansing, 52 Mich.App. 289, 217 N.W.2d 54 (1974), a malfunctioning traffic light was held to be part of the "improved portion" of the highway. In so concluding, the Bennett Court relied upon the observation from Lynes v. St. Joseph County Road Comm, 29 Mich.App. 51, 59, 185 N.W.2d 111 (1970), that "[t]raffic signals which control the flow of traffic are an integral part of the improved portion of the highway". In Cryderman v. Soo Line R. Co, 78 Mich.App. 465, 260 N.W.2d 135 (1977), the Court found that the duty to maintain highways reasonably safe and fit to travel extended to "clear vision areas which lie beyond the improved portions of the highway proper". 78 Mich.App. 476, 260 N.W.2d 135.

In Salvati v. Dep't. of State Highways, 415 Mich. 708, 330 N.W.2d 64 (1982), the Supreme Court found traffic signs to be included as an aspect of the improved portion of the highway, with the following observation:

"A traffic sign, once erected, becomes an integral part of the physical structure of the highway, and thus the duty to maintain a highway in reasonable repair encompasses the maintenance of traffic signs. A governing unit may incur liability under the broad concept of 'traffic sign maintenance' in the following ways: for failing to properly maintain a sign placed on the roadway, O'Hare v Detroit, 362 Mich 19; 106 NW2d 538 (1960); for failing to erect any sign or warning device at a point of hazard, Bonneville v Alpena, 158 Mich 279; 122 NW 618 (1909); Mullins v Wayne County, 16 Mich App 365; 168 NW2d 246 (1969); for positioning an improper system of signs on the roadway, National Bank of Detroit v Dep't of State Highways, 51 Mich App 415; 215 NW2d 599 (1974); or for placing a sign which inadequately informs approaching motorists of a hazard, Lynes v. St Joseph County Road Comm, 29 Mich App 51; 185 NW2d 111 (1970)." 415 Mich. 715, 330 N.W.2d 64. (Footnote omitted.)

A line of cases which is more factually analogous to the case before us are those involving guardrails. In Detroit Bank & Trust Co. v. Dep't of State Highways, supra, the Court found that the guardrail constructed on the median between a divided highway was an aspect of the "improved portion" of the highway. The Court noted that "[t]he median did not magically appear between the paved portions of the divided highway" but, rather, was created by the state and the guardrail in the middle was manufactured to the highway department's specifications and installed by their contractors. 55 Mich.App. 134, 222 N.W.2d 59. Detroit Bank & Trust was relied upon by the Court in Van Liere v. State Highway Dep't, 59 Mich.App. 133, 229 N.W.2d 369 (1975), where a gust of wind blew a car from the highway into a guardrail which was adjacent to the shoulder of the road. 59...