Cox by Cox v. City of Dearborn Heights

• Court: Court of Appeal of Michigan
• Writing for the Court: O'CONNELL
• Citation: Cox by Cox v. City of Dearborn Heights, 534 N.W.2d 135, 210 Mich.App. 389 (Mich. App. 1995)
• Decision Date: 28 April 1995
• Docket Number: Docket No. 146132
• Parties: Sarah Elizabeth COX, minor, by Daniel COX, Next Friend, Plaintiff-Appellant, v. CITY OF DEARBORN HEIGHTS, Defendant-Appellee.

Page 135

534 N.W.2d 135

210 Mich.App. 389

Sarah Elizabeth COX, minor, by Daniel COX, Next Friend Plaintiff-Appellant, v. CITY OF DEARBORN HEIGHTS, Defendant-Appellee.

Docket No. 146132.

Court of Appeals of Michigan.

Submitted April 11, 1995, at Detroit.

Decided April 28, 1995, at 9:55 a.m.

Released for Publication July 12, 1995.

Fitzgerald, Cox & Hodgman by Jamil Akhtar, Troy, for plaintiff.

Cummings, McClorey, Davis & Acho, P.C. by Marcia L. Howe, Livonia, for defendant.

Before O'CONNELL, P.J., and WAHLS and HOLOWKA, ^* JJ.

O'CONNELL, Presiding Judge.

Plaintiff Sarah Elizabeth Cox, through her next friend Daniel Cox, appeals as of right the circuit court's order granting summary disposition in favor of defendant City of Dearborn Heights pursuant to MCR 2.116(C)(10). We affirm.

On April 24, 1989, plaintiff was standing on a sidewalk at the intersection of two streets in the City of Dearborn Heights. One of the streets had stop signs for traffic traveling in both directions on that street. On the other street, no stop signs were installed. Plaintiff was injured when an automobile driven by Sonia Lynn White apparently stopped at the appropriate stop sign, failed to observe an automobile approaching on the cross street, proceeded into the intersection, struck the automobile that was traveling in a perpendicular path, and propelled that automobile from the roadway and into plaintiff.

Plaintiff brought suit against the drivers of both cars, the owners of both cars, and Dearborn Heights. Settlement agreements were reached with all defendants except Dearborn Heights. Dearborn Heights (hereinafter defendant) then moved for summary disposition pursuant to MCR 2.116(C)(7), (8), and (10). The circuit court granted defendant's motion pursuant to MCR 2.116(C)(10) after it was learned that plaintiff's proffered expert witness would be unwilling to testify that the intersection in question was unsafe. The lower court implicitly held nonexpert testimony regarding the issue of safety to be inadequate for creating a material factual issue concerning the safety of the intersection. ¹

The gist of plaintiff's complaint, as relevant to the present defendant, is that defendant's failure to install two more stop signs at the intersection constituted a breach of its duty to maintain the highway in a state of reasonable and safe repair, allegations designed to fall within the highway exception, M.C.L. § 691.1402(1); M.S.A. § 3.996(102)(1), to the broad immunity generally afforded governmental agencies. M.C.L. § 691.1407; M.S.A. § 3.996(107).

On appeal, defendant argues that the trial court's rationale for granting summary disposition is correct. Also, defendant, cognizant of this Court's practice of affirming where the right result was reached by the trial court but for the wrong reason, Gray v. Pann, 203 Mich.App. 461, 463, 513 N.W.2d 154 (1994), raises two additional arguments apparently not raised below. First, defendant contends that, as a municipality, any duty it may have extends only to the "improved portion of the highway designed for vehicular travel," M.C.L. § 691.1402(1); M.S.A. § 3.996(102)(1) (which allegedly does not include traffic signs). In the alternative, defendant argues that even if its duty is not limited to the improved portion of the highway designed for vehicular travel, the broader duty of maintaining highways "in reasonable repair ... reasonably safe and convenient for public travel," M.C.L. § 691.1402(1); M.S.A. § 3.996(102)(1), does not include a duty to install adequate traffic control devices.

I

We first address defendant's contention that it may be held liable only for injuries ultimately stemming from improved portions of highways designed for vehicular travel. Generally, all governmental agencies are immune from tort liability for actions taken in furtherance of a governmental function. M.C.L. § 691.1407; M.S.A. § 3.996(107). The term "governmental agency" is defined to include municipal corporations such as defendant city. M.C.L. § 691.1401(a) and (d); M.S.A. § 3.996(101)(a) and (d). However, several "narrowly drawn" exceptions to this immunity exist. Mason v. Wayne Co. Bd. of Comm'rs, 447 Mich. 130 134, 523 N.W.2d 791 (1994). Among these is the highway exception.

The highway exception is set forth in M.C.L. § 691.1402(1); M.S.A. § 3.996(102)(1), which, in relevant part, states that

[e]ach 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 or her 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 or her from the 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.

Additionally, "highway" is defined broadly to include "every public highway, road, and street which is open for public travel and shall include bridges, sidewalks, crosswalks and culverts on any highway." M.C.L. § 691.1401(e); M.S.A. § 3.996(101)(e).

Defendant argues that, as a municipality, it is subject to liability only for injuries resulting from inadequacies of the improved portion of the highway designed for vehicular travel. Although the relevant statute provides such a limitation of liability, this limitation expressly applies only to the state and to county road commissions. M.C.L. § 691.1402(1); M.S.A. § 3.996(102)(1). Defendant argues that the relevant case law reflects an extension of this limitation to municipalities as well. While we concede that the case law, until recently, was somewhat ambiguous with regard to this issue, see, e.g., Bunch v. Monroe, 186 Mich.App. 347, 349, 463 N.W.2d 275 (1990), the Supreme Court's recent statement concerning the matter in Mason, supra, p. 136, n. 6, 523 N.W.2d 791, defeats defendant's position. In Mason, the Supreme Court stated that the limiting sentence in issue "applies only to counties and the state," and went on to elucidate, to some extent, the rationale underlying the disparate treatment afforded municipalities. Id. (emphasis supplied). Therefore, we are constrained to reject defendant's contention. The limitation of liability set forth in M.C.L. § 691.1402(1); M.S.A. § 3.996(102)(1) applies only to the state and to the county road commissions.

Therefore, defendant's duty in the present case is controlled by the first sentence of M.C.L. § 691.1402(1); M.S.A. § 3.996(102)(1), which, to reiterate, provides that "[e]ach 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."

II

Defendant next argues that the duty to maintain its highways "in reasonable repair ... reasonably safe and convenient for public travel," M.C.L. § 691.1402(1); M.S.A. § 3.996(102)(1), does not include a duty to install adequate traffic signs, such as the stop sign allegedly lacking in the present case. While this Court's decision in Pick v. Gratiot Co. Rd. Comm., 203 Mich.App. 138, 141, 511 N.W.2d 694 (1993), appears to support such a contention, we note that the defendant in that case was a county road commission, an entity enjoying the limitation of liability that we, immediately above, have concluded does not encompass the present defendant.

Further, the question in Pick was whether the duty to maintain "improved portion[s] of ... highway[s]" included a duty to install certain traffic signs, while in the present case we must consider whether the duty to maintain highways "in reasonable repair ... reasonably safe and convenient for public travel," M.C.L. § 691.1402(1); M.S.A. § 3.996(102)(1), includes the duty to install adequate traffic control devices.

We hold that a municipality's duty to maintain its highways in reasonable repair so that they are reasonably safe and convenient for public travel encompasses the duty to install adequate traffic signs. To quote at length from Justice Boyle's concurrence in Chaney v. Dep't of Transportation, 447 Mich. 145, 175-176, 523 N.W.2d 762 (1994):

By the early eighties, it was established that "the duty to maintain a highway in reasonable repair encompasses the maintenance of traffic signs." Salvati v. State Hwy Dep't, 415 Mich 708, 715; 330 NW2d 64 (1982.) ⁷ In 1968, the Legislature narrowed liability under the highway exception by excluding trees and utility poles from the definition of "highway" as that term is used in the highway exception. MCL 691.1401(e); MSA 3.996(101)(e). Before the amendment, this section had stated merely that "[t]he term 'highway' shall not be deemed to include alleys." ⁸ Because, at that time, governmental units could be liable for failing to repair and maintain traffic lights and signs, and because the Legislature restricted liability without mentioning signs and traffic lights, it is reasonable to infer ⁹ that it intended that governmental units should be liable for failing to repair and maintain signs and signals.

We are aware that neither Justice Boyle's opinion in Chaney nor Justice Coleman's opinion in Salvati, upon which Justice Boyle relied, garnered the signatures of four justices, and that, as a result, neither opinion constitutes binding precedent under the doctrine of stare decisis. People v. Jackson, 390 Mich. 621, 627, 212 N.W.2d 918 (1973); see also Negri v. Slotkin, 397 Mich. 105, 109, 244 N.W.2d 98 (1976). However, we find the reasoning set forth by Justice Boyle in Chaney to be applicable to the present situation, and, in the absence...