Furness v. Michigan Public Service Commission, Docket No. 47750
| Decision Date | 10 September 1980 |
| Docket Number | Docket No. 47750 |
| Citation | 299 N.W.2d 35,100 Mich.App. 365 |
| Parties | Harvey FURNESS, Administrator of the Estate of Kevin Furness, Deceased, Plaintiff-Appellant, v. MICHIGAN PUBLIC SERVICE COMMISSION, Michigan Department of State Highways andTransportation, State Highway Commission, and State of Michigan, Defendants-Appellees. 100 Mich.App. 365, 299 N.W.2d 35 |
| Court | Court of Appeal of Michigan — District of US |
[100 MICHAPP 366] Daniel E. Atkins, Marlette, for plaintiff-appellant.
Thomas J. Killeen, Jr., Detroit, for defendants-appellees.
Before T. M. BURNS, P. J., and BEASLEY and DENEWETH, * JJ.
This matter is before us upon an appeal taken as of right from a Summary Judgment of Dismissal pursuant to GCR 1963, 117.2(1) [100 MICHAPP 367] by the Court of Claims, Hon. Ray C. Hotchkiss, J., on October 1, 1979. We affirm.
The case arose out of a car-train collision on June 2, 1978, in which the Plaintiff's decedent, Kevin Furness, suffered fatal injuries. It appears that decedent was a passenger in a motor vehicle being driven on Barrie Road in Colfax Township, Huron County, Michigan. As the vehicle was being driven over a Chesapeake and Ohio Railroad Company grade crossing, at 11:05 p. m., it was struck by an east-bound train. It appears that Barrie Road is a county road.
The civil complaint filed March 8, 1979, asked for monetary damages as relief. The complaint contained specific allegations of negligence and nuisance. The County and the railroad were not named as parties.
The complaint is completely silent of any allegation that defendants improperly designed or revised the warning signs or that defendants considered that extra warning signs should have been ordered and neglected to order the proper authorities to install them.
Defendants responded with a motion for Summary Judgment of Dismissal pursuant to GCR 1963, 117.2(1), inter alia. This motion was predicated upon the proposition that none of the defendants had jurisdictional authority in any of the particulars alleged with regard to this specific railroad crossing. The trial Judge apparently agreed with that position in his terse oral opinion of July 18, 1979, granting the motion. The instant appeal followed the entry of the order of dismissal.
Examination of the many cases involving GCR 1963, 117.2(1), discloses a common theme. In each instance, it is held that motions under subrule 1 amount to a challenge to the pleadings alone. [100 MICHAPP 368] Each of the Plaintiff's well-pleaded allegations must be taken as true. 1 Only where the Plaintiff's claims are so clearly unenforceable as a matter of law that no factual development may possibly justify a right to recovery are such motions granted. See e.g. McMath v. Ford Motor Co., 77 Mich.App. 721, 723, 259 N.W.2d 140 (1977). Further, when, as in the matter at bar, the issue of governmental immunity forms the basis of the motion, the burden is put upon plaintiff to plead facts in avoidance of immunity. See Armstrong v. Ross Twp. 82 Mich.App. 77, 266 N.W.2d 674 (1978).
Given the foregoing tenets, it is clear that the first basis for liability would turn upon whether defendants had jurisdiction over the said grade crossing for repair and/or maintenance purposes. We conclude that they did not.
The only applicable statute concerning the Plaintiff's negligence claims is M.C.L. § 691.1402; M.S.A. § 3.996(102). That statute provides in relevant part as follows:
[100 MICHAPP 369] The plain meaning of that statutory language places the duty to repair and maintain county roads squarely on the Counties themselves and upon no one else. The duty is an exclusive one which cannot be superimposed upon other governmental agencies. Therefore, a governmental unit may not incur liability for negligent repair and maintenance of a highway outside its own jurisdiction. See Summerville v. Kalamazoo County Road Comm'rs, 77 Mich.App. 580, 259 N.W.2d 206 (1977).
Similarly, the duty of providing a safe railroad crossing rests with that governmental agency having jurisdiction over the intersecting highway. See Crydermann v. Soo...
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