Bennett v. City of Lansing, Docket No. 16201

• Citation: 52 Mich.App. 289,217 N.W.2d 54
• Decision Date: 27 March 1974
• Docket Number: No. 2,Docket No. 16201,2
• Parties: Larry Joe BENNETT and Kathleen Bennett, Plaintiffs-Appellants, v. CITY OF LANSING and the Board of Water and Light, Defendants-Appellees, Boyce Windell Wills and The Penn Central Railroad Company, Defendants
• Court: Court of Appeal of Michigan (US)

Page 54

217 N.W.2d 54

52 Mich.App. 289

Larry Joe BENNETT and Kathleen Bennett, Plaintiffs-Appellants, v. CITY OF LANSING and the Board of Water and Light, Defendants-Appellees, Boyce Windell Wills and The Penn Central Railroad Company, Defendants.

Docket No. 16201.

Court of Appeals of Michigan, Division No. 2.

March 27, 1974.

Released for Publication April 30, 1974.

Camille Sam Abood, Abood, Abood & Abood, P.C., Lansing, for plaintiffs-appellants.

George H. Denfield, Denfield, Timmer & Seelye, Lansing, for city.

Joseph F. Lavey, Lansing, for Bd. of Water & Light.

Before T. M. BURNS, P.J., and V. J. BRENNAN and VanVALKENBURG,* JJ.

VanVALKENBURG, Judge.

Plaintiff Larry Joe Bennett was involved in an automobile accident on July 29, 1971 at the intersection of Grand River and Logan in the City of Lansing. Both highways are admitted to be stated truckline highways. These highways are crossed at their intersection by tracks owned by defendant Penn Central Railroad Company. Traffic at the intersection is controlled by an overhead traffic light which is interconnected with the railroad crossing signals. It is uncontroverted that the City of Lansing agreed that its wholly owned municipal utility, the Board of Water and Light, would undertake the maintenance and repair of the traffic light.

Plaintiffs alleged that one of the causes of the automobile accident was the improper operation of the traffic light caused by a malfunction in the circuitry interconnecting the traffic light and the railroad signals. Plaintiffs alleged that the City of Lansing knew that the traffic light was malfunctioning and that it, through the Board of Water and Light, failed to repair the malfunction or to provide a warning to the motoring public that the light was malfunctioning.

Both the City of Lansing and the Board of Water and Light moved for summary judgment asserting that they were immune from liability by reason of the fact that the State Highway Department had jurisdiction over the highways in question. ¹ The trial court granted summary judgment in favor of the City of Lansing and the Board of Water and Light. ² From that judgment plaintiffs appeal.

The question to be answered is:

IS A MUNICIPAL CORPORATION IMMUNE FROM LIABILITY WITH RESPECT TO INJURIES RESULTING FROM THE FAILURE TO PROPERLY MAINTAIN A TRAFFIC CONTROL LIGHT AT THE INTERSECTION OF TWO STATE TRUNKLINE HIGHWAYS, WHERE SAID MUNICIPAL CORPORATION HAS ASSUMED THE OBLIGATION TO MAINTAIN SAID TRAFFIC CONTROL LIGHT?

This is a question of first impression involving this precise factual situation. While the Supreme Court has been confronted with similar questions on prior occasions, all of the prior decisions related to the state of the law prior to the enactment of 1964 P.A. 170 (M.C.L.A. § 691.1401 et seq; M.S.A. § 3.996(101) et seq). The prior decisions involved the construction and application of the language limiting the liability of local units of government contained in M.C.L.A. § 250.61; M.S.A. § 9.901. See Johnson v. Board of County Road Commissioners of Ontonagon County, 253 Mich. 465, 235 N.W. 221 (1931); Jourdin v. City of Flint, 355 Mich. 513, 94 N.W.2d 900 (1959); Dittmar v. City of Flint, 374 Mich. 688, 133 N.W.2d 197 (1965); Popielarski v. City of Warren, 380 Mich. 651, 158 N.W.2d 491 (1968). M.C.L.A. § 250.61, Supra, relieved local units of government of 'all expenses and legal liabilities in connection (with the construction and maintenance of trunkline highways) as imposed by section 21 of Chapter 4 and Chapter 22 of Act No. 283 of the Public Acts of 1909, as amended, being section 224.21 and sections 242.1 to 242.8 of the Compiled Laws of 1948'; however, since 1964 P.A. 170 repealed Chapter 22 of 1909 P.A. 283, the limitation on liability contained in M.C.L.A. § 250.61, Supra, no longer exists. ³ Since July 1, 1965 the liability of governmental bodies is determined by the wording of 1964 P.A. 170 alone. See Jones v. City of Ypsilanti, 26 Mich.App. 574, 579, 182 N.W.2d 795, 797--798 (1970).

By 1964 P.A. 170 the Legislature restored the defense of governmental immunity to municipal corporations, which was abrogated by Williams v. City of Detroit, 364 Mich. 231, 111 N.W.2d 1 (1961), and carved out the only legislative exceptions to the applicability of the defense of governmental immunity, those being negligent operation of motor vehicles or defective maintenance of highways and public buildings. See McCann v. State of Michigan, 47 Mich.App. 326, 209 N.W.2d 456 (1973).

Section 7 of 1964 P.A. 170, as amended by 1970 P.A. 155, the same being M.C.L.A. § 691.1407; M.S.A. § 3.996(107), provides:

'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.'

Since there is no serious dispute that defendant municipal corporation and its wholly owned municipal utility were engaged in the exercise and discharge of a governmental function, ⁴ the defense of governmental immunity is available to them unless this action falls within one of the legislatively defined exceptions contained in 1964 P.A. 170. ⁵

Section 2 of 1964 P.A. 170, being M.C.L.A. § 691.1402; M.S.A. § 3.996(102), provides in pertinent part:

'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. 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.' (Emphasis supplied.)

It is clear that the general defense of governmental immunity set forth in M.C.L.A. § 691.1407, Supra, is not available to a governmental agency where the injuries arise out of a failure of that governmental agency 'to keep any highway under its jurisdiction' in good repair and fit for safe travel. The question thus reduces itself to whether defendants' failure to repair the traffic control light was a 'failure * * * to keep any highway under its jurisdiction in reasonable repair'.

Const.1963, art. 5, § 28 provides:

'There is hereby established a state highway commission, which shall administer the state highway department and have jurisdiction and control over all state trunkline highways and appurtenant facilities, and such other public works of the state, as provided by law.'

By constitutional mandate the State Highway Commission was given 'jurisdiction and control over all state trunkline highways'. We perceive that the term jurisdiction as used in the statute must logically be read to be coextensive with the same term used in Const.1963, art. 5, § 28. 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 P.A. 170 must be strictly construed. Johnson v State of 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...