Austin v. City of Romulus

• Decision Date: 20 November 1980
• Docket Number: Docket No. 47304
• Citation: 300 N.W.2d 672,101 Mich.App. 662
• Parties: Robert Lee AUSTIN and Linda Austin, Plaintiffs-Appellants, v. CITY OF ROMULUS, a Municipal Corporation, and Wayne County Road Commission, a Body Politic, Defendants-Appellees. 101 Mich.App. 662, 300 N.W.2d 672
• Court: Court of Appeal of Michigan — District of US

Page 672

300 N.W.2d 672

Robert Lee AUSTIN and Linda Austin, Plaintiffs-Appellants, v. CITY OF ROMULUS, a Municipal Corporation, and Wayne County Road Commission, a Body Politic Defendants-Appellees.

Docket No. 47304.

101 Mich.App. 662, 300 N.W.2d 672

Court of Appeals of Michigan.

Nov. 20, 1980.

Released for Publication Jan. 29, 1981.

[101 MICHAPP 663] Robert A. Koory, Detroit, for plaintiffs-appellants.

James R. Bailey, Bloomfield Hills, for defendants-appellees.

Before RILEY, P. J., and KAUFMAN and MacKENZIE, JJ.

[101 MICHAPP 664] RILEY, Presiding Judge.

Plaintiff Robert Austin sustained injuries arising out of a motor vehicle accident that occurred in the City of Romulus on June 24, 1976, at the intersection of Wayne and Eureka roads. The alleged cause of the accident was a malfunctioning traffic signal. Plaintiffs instituted this lawsuit against both the City of Romulus and the Wayne County Road Commission and now appeal, as of right, a trial court order dismissing the city from the lawsuit.

Deposition testimony reveals the following facts. According to a Wayne County Sheriff's Department deputy, the department's log contains an entry made at 8:09 a. m. on June 24, 1976, regarding the malfunctioning traffic signals at Wayne and Eureka roads. The deputy further stated that either he or another officer had radioed in to let the department know that the signal was not working. A police report for the accident at issue, made at 1:38 p. m. on June 24, 1976, indicated that there was no red light for northbound Wayne road. In addition, he testified that Romulus does not have its own police department but, instead, has a contract with the Wayne County Sheriff's Department.

A traffic maintenance engineer for the Wayne County Road Commission testified at his deposition that only the commission maintains and repairs traffic signal lights at the intersection in question since there are written agreements that the county will maintain the signals. He also stated that the defective signal at issue was at an intersection of two county roads.

An electrician subforeman with the road commission testified that he arrived to repair the signals at 1:55 p. m. He stated that both the northbound red lights were not working at the intersection[101 MICHAPP 665] but that the green and amber lights were working. The apparent reason for the delay in repairing the traffic signal was that the report to the electrician indicated only that a red light was out, and he thought that one of the red lights would still be operating.

On December 5, 1978, defendant City of Romulus filed a motion for summary judgment pursuant to M.C.L. § 691.1402; M.S.A. § 3.996(102), based upon a claim of governmental immunity and lack of jurisdiction over the roadways involved. Finding that it was undisputed that the accident had occurred on recognized county roads and that the Wayne County Road Commission was the governmental agency having jurisdiction over the highways in question, the court granted the motion. Plaintiffs appeal that decision and order.

The issue before this Court is, essentially, whether more than one governmental agency may have jurisdiction over a highway under M.C.L. § 691.1402; M.S.A. § 3.996(102). Our starting point is M.C.L. § 691.1407; M.S.A. § 3.996(107), which provides that:

"Sec. 7. Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed heretofore, which immunity is affirmed."

In short, Romulus is not liable for the negligence of its employees while engaged in the exercise of a governmental function, unless some exception can be found. Plaintiffs contend that the exception is [101 MICHAPP 666] found in M.C.L. § 691.1402; M.S.A. § 3.996(102), which, in pertinent part, provides as follows:

"Sec. 2. 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 liability, procedure and remedy as to county roads under the jurisdiction of a county road commission shall be as provided in section 21, chapter 4 of Act No. 283 of the Public Acts of 1909, as amended, being section 224.21 of the Compiled Laws of 1948."

We note, in passing, that "(t)raffic signals which control the flow of traffic are an integral part of the improved portion of the highway", Lynes v. St. Joseph County Road Comm., 29 Mich.App. 51, 59, 185 N.W.2d 111 (1970), so that the above-cited exception to the immunity statute is applicable in the instant case.

Since both roads at issue are admittedly county roads, M.C.L. § 224.21; M.S.A. § 9.121 is also applicable in this case. It provides, in part, as follows:

"Sec. 21. * * * It is hereby made the duty of the counties to keep in reasonable repair, so that they shall be reasonably safe and convenient for public travel, all county roads, bridges and culverts that are within their jurisdiction and under their care and control and which are open to public travel. The provision of law respecting the liability of townships, cities, villages and corporations for damages for injuries resulting from a failure in the performance of the same duty respecting roads under their control, shall apply to counties adopting such county road system." (Emphasis added.)

[101 MICHAPP 667] Although plaintiffs concede the fact that the roads in question are county roads under the jurisdiction of the Wayne County Road Commission, they argue that, because Const.1963, art. 7, § 29, reserves to cities and other units of government "reasonable control" over its highways, streets and alleys, the city also had jurisdiction over the intersection in question. Their contention is that M.C.L. § 691.1402; M.S.A. § 3.996(102) does not prevent more than one governmental unit from having jurisdiction over any particular road.

To buttress their claim that the city and road commission have concurrent jurisdiction over the intersection in question, plaintiffs raise the following facts. The City of Romulus commonly notifies the road commissioner of highway related problems such as malfunctioning traffic signals. The city often patrols such problem areas, protecting the affected area until a repair person arrives. Based on these facts, plaintiffs would have us find that both the city and the road commission had jurisdiction over the intersection.

We disagree with plaintiffs' contention. Neither the statutes controlling this case nor case law interpreting them support such a result. In Bennett v. City of Lansing, 52 Mich.App. 289, 217 N.W.2d 54 (1974), plaintiff was injured as a result of a malfunctioning traffic signal at the intersection of two state trunkline highways. It was uncontroverted that the city, through its Board of Water and Light, had agreed to undertake the maintenance and repair of the traffic light. The city and the board moved for summary judgment on the ground that they were immune because the State Highway Department had jurisdiction over the highways in question. Affirming the trial court's order granting the motion, we held:

[101 MICHAPP 668] "Therefore, the state trunkline highways here in question are within the jurisdiction of the State Highway Department and not the municipal corporation. It has been held that the provisions of 1964 PA 170 must be strictly construed. Johnson v. Michigan, 32 Mich.App. 37, 188 N.W.2d 33 (1971). Given that rule of construction, since the highways were not within the jurisdiction of the defendant municipal corporation, the § 2 exception does not apply, thus the § 7 governmental immunity is available." 52 Mich.App. 289, 294-295, 217 N.W.2d 54.

The Court further noted that there could be no serious dispute that the City of Lansing and its municipal utility were engaged in the exercise of a governmental function in operating the traffic lights:

"In the present case, however, the traffic control light was within the scope of the state's responsibility and jurisdiction; this Court having determined, in the words of Lynes v. St. Joseph County Road Commission, 29 Mich.App. 51, 59, 185 N.W.2d 111, 114 (1970), that:

" 'Traffic signals which control the flow of traffic are an integral part of the improved portion of the highway.'

See also Williams v. Department of State Highways, 44 Mich.App. 51, 205 N.W.2d 200 (1972).

"The trial court properly granted the motion for summary judgment * * *. While at first blush it seems odd that the state must answer for the omission of a local unit of government, it must be remembered that if local units of government were not absolved of liability with respect to maintenance of state trunkline highways, local units of government would be less willing to undertake the responsibility of said maintenance on behalf of the state."

Although distinguishable from the case at bar, Bennett is highly relevant in the present context. First, the Court refused to give an expansive definition[101 MICHAPP 669] to "jurisdiction" under M.C.L. § 691.1402; M.S.A. § 3.996(102). We refused to acknowledge concurrent jurisdiction by the State Highway Commission and the municipality through which the highway passed, even though the city, through its municipal utility, had agreed that it would undertake to repair the traffic light in question. Second, the Court expressed an important reason for declining to find concurrent jurisdiction, namely, the predictable...