Detroit Bank and Trust Co. v. State, Dept. of State Highways, Docket No. 17606

• Decision Date: 15 August 1974
• Docket Number: Docket No. 17606,No. 2,2
• Citation: 222 N.W.2d 59,55 Mich.App. 131
• Parties: DETROIT BANK AND TRUST CO., and Betty J. Alluvot, co- administrators of the Estate of Frank Alluvot, Jr., Deceased, Plaintiffs- Appellees, Continental National American Group, Intervening Plaintiff-Appellee, v. STATE of Michigan, DEPARTMENT OF STATE HIGHWAYS, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 59

222 N.W.2d 59

55 Mich.App. 131

DETROIT BANK AND TRUST CO., and Betty J. Alluvot, co- administrators of the Estate of Frank Alluvot Jr., Deceased, Plaintiffs- Appellees Continental National American Group, Intervening Plaintiff-Appellee, v. STATE of Michigan, DEPARTMENT OF STATE HIGHWAYS, Defendant-Appellant.

Docket No. 17606.

Court of Appeals of Michigan, Division No. 2.

Aug. 15, 1974.

Released for Publication Oct. 9, 1974.

Leave to Appeal Denied Oct. 28, 1974.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Myron A. McMillan, Asst. Atty. Gen., for defendant-appellant.

Bellinson, Doctoroff & Wartell, Detroit, for B & T.

Plunkett, Cooney, Rutt & Peacock, Detroit, for Cont. Nat'l.

Before McGREGOR, P.J., and R. B. BURNS and O'HARA,* JJ.

PER CURIAM.

This is an appeal of right from an award of the Court of Claims based upon the claims of negligence and nuisance on the part of the State of Michigan through its Department of State Highways. The award, which is not relevant to the issues of negligence, nuisance, contributory negligence or proximate cause, was $944,068.35. No issue as to its excessiveness is raised.

Death was virtually instantaneous. It was caused by the end of a guardrail penetrating decedent's car which in turn caused the decedent to be partially ejected from the vehicle. The guardrail is located in the strip separating a divided highway. This area is referred to as the 'median'.

Manifestly the first question to be decided is whether the statute by which the state waived its sovereign immunity and allowed itself to be sued extends to the median. If it does not, the lawsuit ends there and the shield of immunity obtains.

The statute reads in relevant 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 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.' (Emphasis supplied.) M.C.L.A. § 691.1402; M.S.A. § 3.996(102).

We think the difficulty in the position of the state in this and in several prior cases decided by this Court is that it construes the prior underlined excerpt from the statute to use the 'improved portion of the highway designed for vehicular travel' to mean the 'paved' portion used for vehicular travel.

Obviously the median was not designed for vehicular travel at expressway speeds in order to pass other cars to get from place to place or to be used as a crossover. The latter is expressly forbidden by another statute. ¹ But in construing the statute we simply can't read out the words 'improved portion' even though those words are modified and limited by the phrase 'designed for vehicular travel'.

A highway is the composite of many components: slabs of poured concrete, shoulders, usually of gravel, markings, traffic control signals, speed control signs. These stated are exemplary only and not intended to be decisionally limiting.

The median did not magically appear between the paved portions of the divided highway. It was created or constructed by the state. The guardrail in the middle was manufactured to the department's specifications and installed by their contractors. We cannot but conclude that it is an 'improved portion' in the same sense the shoulders were held to be in Johnson v. Michigan, 32 Mich.App. 37, 39, 188 N.W.2d 33, 35 (1971), in which we said:

'The shoulders of a highway are designed for vehicular traffic although not of the same character as vehicular traffic on the paved portion of the highway. We read the statutory duty of the state with respect to the repair of shoulders to be that the state is obligated to maintain the shoulders in reasonable repair so that they are reasonably safe for their intended use as adjuncts of the paved portion of the highway.'

Or as in Lynes v. St. Joseph County Road Commission, 29 Mich.App. 51, 59, 185 N.W.2d 111, 114--115 (1970):

'Traffic signals which control the flow of traffic are an integral part of the improved portion of the highway. The presence or absence of such signals, as well as the conditions in which they are maintained, directly relates to the statutory duty imposed upon the defendant to maintain the highway in a condition safe and fit for travel.'

We add a stern and needed caveat. The state is not an insurer. The motorist who misuses any part of the improved portion of the highway is answerable for his own negligence which could bar his recovery. The asserted negligence of the state must be established as the proximate cause of the claimed injury and damage.

The question of whether decedent's injury and damage was proximately caused by one or more of the acts of negligence alleged is one of fact. See generally Kubasinski v. Johnson, 46 Mich.App. 287, 208 N.W.2d 74 (1973), and cases cited therein. See also 57 Am.Jur.2d, Negligence, § 136, pp. 487--488. The question of whether enough evidence has been adduced to support plaintiffs' claim of proximate causality so as to make the issue one of fact is a question of law for the court. 57 Am.Jur.2d, Negligence, § 137, pp. 489--490.

Consequentially we examine plaintiffs' proofs in this regard. The allegation is that the metal guardrail was negligently designed and constituted a continuing nuisance.

The only eyewitness to the collision testified taht the guardrail was:

'Metal, with a very blunt, relatively rounded end that reminded you of a boxer's glove, just a fist sticking out at you.'

Charles S. Michalski, a traffic engineering consultant, testified quite extensively as to his evaluation of the effect of the defendant's failure to install the extension guardrail called for by its own plans:

'If a single guardrail had been installed, as indicated earlier...