Beyer v. Fraternal Order of Eagles, Aerie No. 668
Decision Date | 06 May 1983 |
Docket Number | Docket No. 59634 |
Citation | 123 Mich.App. 492,333 N.W.2d 314 |
Parties | Sandra BEYER, Administratrix of the Estate of Carl P. Beyer; and Sandra Beyer, Next Friend of Brenda Beyer, Carla Beyer and Carl Beyer, Plaintiff-Appellant, v. FRATERNAL ORDER OF EAGLES, AERIE NO. 668, Dismissed Defendant, and Chesapeake & Ohio Railway Company, Inc., a foreign corporation, Defendant, and The City of Muskegon, a municipal corporation, Defendant-Appellee. 123 Mich.App. 492, 333 N.W.2d 314 |
Court | Court of Appeal of Michigan — District of US |
[123 MICHAPP 494] White, Spaniola, Stariha, Potuznik, Reider, Brown, Fielstra & Flynn, P.C. by Randall D. Fielstra, Muskegon, for plaintiff-appellant.
Cholette, Perkins & Buchanan by Edward D. Wells, Grand Rapids, for the City of Muskegon.
Before MacKENZIE, P.J., and MAHER and SIMON, * JJ.
Plaintiff appeals as of right from the January 29, 1982, order granting defendant City of Muskegon's motion for summary judgment and the trial court's February 16, 1982, order denying plaintiff's motion for reconsideration.
On February 14, 1979, at about 1:09 a.m., plaintiff's husband, Carl P. Beyer, was driving his own vehicle east on M-46, or Apple Avenue, near the intersection with Ambrosia Street in the City of Muskegon. While crossing railroad tracks that intersected M-46, Carl P. Beyer's vehicle was struck by a train. Mr. Beyer died soon after.
[123 MICHAPP 495] On March 11, 1980, plaintiff filed her complaint initiating this wrongful death action. She alleged that the City of Muskegon (hereinafter city) failed in its duty to maintain M-46 by failing to remove obstructions and snow accumulations near the intersection with the railroad crossing. Plaintiff made similar allegations against the Muskegon Board of County Road Commissioners (hereinafter board).
On April 7, 1980, defendant city answered admitting that the accident occurred on M-46 but denying any negligence on its part. The city asserted plaintiff's decedent's own negligence as an affirmative defense and asserted the right to raise additional affirmative defenses.
On April 17, 1980, defendant board filed a motion for accelerated judgment. In support of that motion, the board stated:
[123 MICHAPP 496] On May 20, 1980, the trial court granted the board's motion for accelerated judgment and dismissed with prejudice the suit against the board.
Following the above dismissal, the case proceeded to discovery with interrogatories and depositions taken in late 1980. On August 19, 1981, the city moved for summary judgment, GCR 1963, 117, based upon a similar assertion of governmental immunity: "Defendant City of Muskegon is immune from liability because the Michigan State Highway Commission has jurisdiction over M-46, the state trunkline highway involved herein." On January 14, 1982, the trial court filed its opinion granting the city's motion.
On January 22, 1982, plaintiff moved for reconsideration. At the hearing on that motion, the trial judge ruled that only the state was liable, not the city. The trial court was not persuaded by plaintiff's argument that Robinson v. Emmet County Road Comm., 72 Mich.App. 623, 251 N.W.2d 90 (1976), was controlling because the city did not mislead plaintiff about its lack of jurisdiction. The trial court stated that plaintiff knew that she was dealing with M-46, a state highway trunkline, when she filed her complaint. The trial court denied the motion to reconsider.
By statute, governmental agencies are immune from tort liability if the agency was engaged in the exercise or discharge of a governmental function. M.C.L. Sec. 691.1407; M.S.A. Sec. 3.996(107). A statutory exception to this general immunity is provided in M.C.L. Sec. 691.1402; M.S.A. Sec. 3.996(102), which states, in part:
(Emphasis added.)
The state has jurisdiction over all state trunkline highways. Const. 1963, art. 5, Sec. 28. By statute, the state must incur all maintenance costs and legal liabilities for state trunkline highways, relieving counties, townships, incorporated cities and villages of these responsibilities. M.C.L. Sec. 250.61; M.S.A. Sec. 9.901. Thus, as this Court has consistently recognized, Robinson, supra; Bennett v. City of Lansing, 52 Mich.App. 289, 217 N.W.2d 54 (1974), despite its contract with the state to maintain M-46, the city was not the appropriate party to sue for damages. Only the state carries that liability.
In Robinson, two young people, a brother and sister, were killed in an auto accident on M-131. The defendant county road commission had a contract with the state to maintain that highway when the accident occurred. The plaintiff alleged that the defendant's failure to duly maintain the highway proximately caused the accident that killed her two children.
In Robinson, the plaintiff filed her complaint about seven months after the accident occurred. The defendant answered within two weeks and moved for summary judgment alleging the accident-causing defect was on a side-portion of the highway which it had no duty to maintain. The motion was denied. About 21 months after the accident, when discovery and the pretrial were concluded, the defendant filed a motion for summary judgment, GCR 1963, 117.2(1), M.C.L. Sec. 250.61; M.S.A. Sec. 9.901. The motion was denied because the defendant failed to include an affidavit [123 MICHAPP 498] specifying the defense it relied upon. Three months later, the defendant resubmitted the motion with a...
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