Davis v. Chrysler Corp.
| Decision Date | 15 August 1986 |
| Docket Number | Docket No. 79736 |
| Citation | 391 N.W.2d 376,151 Mich.App. 463 |
| Parties | Dorothy DAVIS and Charles Davis, Plaintiffs-Appellants, v. CHRYSLER CORPORATION, Defendant, and City of Detroit, a municipal corporation, and Detroit Public Lighting Department, jointly and severally, Defendants-Appellees. 151 Mich.App. 463, 391 N.W.2d 376 |
| Court | Court of Appeal of Michigan — District of US |
[151 MICHAPP 465] Rhodes, Laramie & Williams, P.C. by Robert E. Laramie, Detroit, for plaintiffs-appellants.
Laurel McGiffert, Asst. Corp. Counsel, Detroit, for defendant.
Before GRIBBS, P.J., and HOOD and DAVIS, * JJ.
Plaintiffs appeal as of right from the circuit court's orders granting defendant City of Detroit's motion for summary judgment pursuant to GCR 117.2(1), now MCR 2.116(C)(8), on plaintiffs' claim brought under the defective highway statute, M.C.L. Sec. 691.1402; M.S.A. Sec. 3.996(102), and denying plaintiffs' motion to amend their complaint to add a count of intentional nuisance. We reverse.
Plaintiff Dorothy Davis was driving her 1980 Dodge Mirada on April 10, 1981, when, allegedly [151 MICHAPP 466] because of a torsion bar failure, she lost control of the car and struck a light pole. She was severely injured in the collision. Plaintiffs filed a complaint against Chrysler Corporation on June 23, 1982, for negligent manufacture and design of the Mirada. They amended their complaint on June 2, 1983, adding the City of Detroit (City) and the Detroit Public Lighting Department (Department) as defendants. Plaintiffs alleged that the City, through the Department, was responsible for the erection of street light poles, one of which plaintiff Dorothy Davis had violently collided with during the accident.
Plaintiffs alleged that the City and the Department breached their duty of care in that they:
Plaintiffs further alleged that this breach of duty proximately caused plaintiff Dorothy Davis's severe injuries and Charles Davis's loss of consortium.
On April 19, 1984, the City 1 moved for summary judgment pursuant to GCR 1963, 117.2(1), based on plaintiffs' alleged failure to state a claim upon [151 MICHAPP 467] which relief can be granted. On May 1, 1984, plaintiffs moved to amend their complaint to add a count of intentional nuisance and both motions were heard on May 11, 1984. The circuit court granted the City's motion for summary judgment and denied plaintiffs' motion to amend, entering orders to that effect on May 29, 1984. Plaintiffs' motion for a rehearing on both decisions was denied by the circuit court on July 13, 1984.
On appeal, plaintiffs first argue that the circuit court erred in granting the City's motion for summary judgment pursuant to GCR 1963, 117.2(1). We agree.
The Legislature has created an exception to governmental immunity where defectively designed or maintained highways cause bodily injury or damage to property:
M.C.L. Sec. 691.1402; M.S.A. Sec. 3.996(102).
[151 MICHAPP 468] The term highway includes:
M.C.L. Sec. 691.1401(e); M.S.A. Sec. 3.996(101)(e).
The defective highway provision, M.C.L. Sec. 691.1402; M.S.A. Sec. 3.996(102), applies not only to the state, but to municipal corporations such as the City of Detroit. M.C.L. Sec. 691.1401(a) and (d); M.S.A. Sec. 3.996(101)(a) and (d).
Thus the issue in the instant case is whether plaintiffs' claim (that the City placed the light pole in question too close to the roadway, improperly designed, selected, installed, maintained, inspected, controlled or tested it, and improperly planned, designed or improved the roadway) fell within the above-cited statutory exception to governmental immunity and thus stated a legally cognizable claim against the City. We find that plaintiffs' allegations did state such a claim.
The state and its counties have no liability for placement and maintenance of utility poles unless they are "on the improved portion of a highway designed for vehicular travel" because these entities have waived their immunity for such installations only within the improved portion of the highway designed for vehicular traffic. M.C.L. Sec. 691.1402; M.S.A. Sec. 3.996(102). Anderson v. Macomb County Road Comm., 143 Mich.App. 735, 741-742, 372 N.W.2d 651 (1985), McKee v. Dep't of Transportation, 132 Mich.App. 714, 720-722, 349 N.W.2d 798 (1984); cf. Carney v. Dep't of Transportation, 145 Mich.App. 690, 695-697, 378 N.W.2d 574 (1985). Thus a utility pole which is on or encroaches upon an improved portion of the highway may occasion [151 MICHAPP 469] suit against the state or a county 2 under the defective highway provision. M.C.L. Sec. 691.1402; M.S.A. Sec. 3.996(102). Also, this Court has recently suggested that light poles may themselves constitute part of the improved portion of a roadway, thus exposing a county having jurisdiction over street lighting to liability for breaching its duty to repair and maintain the street lighting. Zyskowski v. Habelmann, 150 Mich.App. 230, 388 N.W.2d 315 (1986).
In contrast to the state and counties, the liability of municipalities under M.C.L. Sec. 691.1402; M.S.A. Sec. 3.996(102) is not limited to improved portions of highways designed for vehicular travel. Municipalities remain liable for defective construction or maintenance of public highways, roads and streets open for public travel, including bridges, sidewalks, crosswalks and culverts on the highway. 3 See O'Hare v. Detroit, 362 Mich. 19, 24-25, 106 N.W.2d 538 (1960). Their duty encompasses the duty of maintenance and repair of electric street light poles as part of their duty to keep in reasonable repair streets, highways, sidewalks, etc. Mechay v. Detroit, 364 Mich. 576, 578, 111 N.W.2d 820 (1961), and cases cited therein. See also Cabana v. City of Hart, 327 Mich. 287, 42 N.W.2d 97; 19 A.L.R.2d 333 (1950). Moreover, liability for breach of this duty to repair and maintain light poles is not limited to sidewalk travelers. Liability is imposed [151 MICHAPP 470] on a municipality in favor of any person injured by the municipality's breach of its statutory duty. Mechay, supra, 364 Mich at pp. 578-579, 111 N.W.2d 820. Thus, municipalities can be held liable for any breach of their duty to maintain and repair street light poles which proximately causes any person's injuries. 4
In the instant case plaintiffs alleged that a municipality, the City, breached its duty with respect to the light pole and roadway in question by improperly placing the light pole too close to the traveled portion of the roadway, improperly designing, selecting installing, maintaining, inspecting, controlling, or testing the pole, and improperly planning, designing or improving the road, and that this breach proximately caused plaintiffs' injuries. From the record it appears that the circuit court, in distinguishing case law cited by plaintiffs, impliedly found that the light pole was not a proximate cause of the injury because it was not inherently defective, and granted summary judgment for the City on that basis. 5
Although proximate cause is essentially a question of law for the court, Moning v. Alfono, 400 Mich. 425, 440, 254 N.W.2d 759 (1977) 6, the ultimate resolution of proximate causation often involves [151 MICHAPP 471] factual questions. However, determinations of fact are not proper upon a motion for summary judgment for failure to state a claim. GCR 1963, 117.2(1). In ruling on a motion for summary judgment for failure to state a claim, the court considers only the pleadings and accepts as true all well-pled allegations in testing the legal sufficiency of the complaint. McCallister v. Sun Valley Pools, Inc., 100 Mich.App. 131, 135, 298 N.W.2d 687 (1980), lv. den. 411 Mich. 905 (1981). A motion under GCR 1963, 117.2(1) tests only the legal, not the factual, sufficiency of the pleadings and the court should not probe the plaintiff's ability to prove the allegations in the complaint. McCallister, supra, p. 135, 298 N.W.2d 687; Rowe v. Colwell, 67 Mich.App. 543, 547-548, 241 N.W.2d 284 (1976), lv. den. 397 Mich. 840 (1976). On a motion for failure to state a claim, the court should determine whether the plaintiff's claims are so clearly unenforceable that no factual development could possibly justify plaintiff's right to recovery. Martin v....
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