Gorelick v. Department of State Highways

• Decision Date: 19 October 1983
• Docket Number: Docket No. 56566
• Citation: 339 N.W.2d 635,127 Mich.App. 324
• Parties: Paul GORELICK, Plaintiff-Appellee, Cross-Appellee, v. DEPARTMENT OF STATE HIGHWAYS, Defendant-Appellant, Cross-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 635

339 N.W.2d 635

127 Mich.App. 324

Paul GORELICK, Plaintiff-Appellee, Cross-Appellee, v. DEPARTMENT OF STATE HIGHWAYS, Defendant-Appellant, Cross-Appellant.

Docket No. 56566.

Court of Appeals of Michigan.

Submitted Jan. 6, 1983.

Decided July 19, 1983.

Released for Publication Oct. 19, 1983.

Pianin, Graber & Paull, P.C. by Michael P. Pianin and Samuel A. Graber, Southfield; and Gromek, Bendure & Thomas by Carl L. Gromek, Nancy L. Bosh and Daniel J. Wright, Detroit, of counsel, for plaintiff-appellee, cross-appellee.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Carl K. Carlsen and Clive D. Gemmill, Asst. Attys. Gen., and George J. Platsis, Sp. Asst. Atty. Gen., for defendant-appellant, cross-appellant.

Before ALLEN, P.J., and BRONSON and WAHLS, JJ.

BRONSON, Judge.

Defendant appeals as of right from a judgment entered in favor of plaintiff, finding that defendant had been negligent in failing to properly maintain a highway at the intersection of South Lapeer Road (M-24) and Kile Road. After reaching its verdict as to liability, the court computed plaintiff's damages at $2,100,000; however, the court ruled that several factors required it to reduce the award to $971,140. Plaintiff cross-appeals from the court's decision to reduce the award. We find no error in the court's determination of liability, but agree with plaintiff that the court erred in relying upon certain factors to reduce the damage award.

Defendant first contends that the court erred in finding that it had a duty to ensure the proper placement of a "pass with care" sign. According to defendant, such a sign is not an integral part of the improved portion of a highway within the meaning of M.C.L. Sec. 691.1402; M.S.A. Sec. 3.996(102); defendant characterizes such signs as being merely advisory or cautionary in nature, rather than mandatory traffic control devices such as stop signs, cf., Lynes v. St. Joseph County Road Comm., 29 Mich.App. 51, 58, 185 N.W.2d 111 (1970). We disagree. This Court has gone beyond a narrow definition of the "improved portion of the highway" proposed by defendant; the term embraces far more than the roadway, shoulder and mandatory signals such as stop signs. Several recent decisions have expressly included within the definition such "cautionary" or advisory devices as warning signs, Greenleaf v. Dep't of State Highways & Transportation, 90 Mich.App. 277, 282 N.W.2d 805 (1979); Salvati v. Dep't of State Highways, 92 Mich.App. 452, 285 N.W.2d 326 (1979), and guardrails, Kurczewski v. State Highway Comm., 112 Mich.App. 544, 316 N.W.2d 484 (1982); Hall v. Dep't of State Highways, 109 Mich.App. 592, 311 N.W.2d 813 (1981), lv. den. 413 Mich. 942 (1982).

Even if, as defendant contends, a "pass with care" sign is merely advisory in nature, such a sign falls within the definition of a "traffic control device" contained in M.C.L. Sec. 257.70; M.S.A. Sec. 9.1870:

" 'Traffic control devices' means all signs, signals, markings, and devices * * * placed * * * by authority of a public body * * * for the purpose of regulating, warning or guiding traffic." (Emphasis added.)

We would go one step further and note that, despite defendant's assertions to the contrary, such a sign is in fact mandatory in nature in that it actually serves to regulate a motorist's right to pass other cars. Plaintiff points out in his brief that a "pass with care" sign not only guides traffic in advising motorists of conditions which may be safer and more conducive to passing, but that such a sign also denotes the end of a no-passing zone, thereby specifically permitting or inviting a motorist to pass. M.C.L. Sec. 257.640; M.S.A. Sec. 9.2340. We conclude that defendant does in fact have a statutory duty to properly place "pass with care" signs. Accordingly, there is no merit in defendant's argument that it had no duty to properly place the sign in question in the present case.

Defendant next raises two separate challenges to the trial court's finding of proximate cause. First, defendant urges that the improper placement of its sign could not even have been a "but for" cause of plaintiff's accident. Defendant insists that, at most, the sign could only have been advanced 30 or 40 feet. From this premise, defendant argues that this slight distance would not have given the motorists in the present case a significantly greater amount of time to pass safely. We disagree.

First, defendant relies heavily upon the testimony of its own expert that the sign was misplaced by only 30 feet; the trial court could properly have relied on the contrary testimony of plaintiff's expert that the sign was 90 to 95 feet out of place. More important, the trial court found that the issue at hand was not the amount of time the motorists might have had to pass once the decision was made to do so; instead, the crucial consideration was the sight distance open to the driver of the other car, Ms. Linda Nascenzi, at the time she first observed the pass with care sign. It was the latter factor which was essential in forming the basis for her decision to venture into the passing lane.

Plaintiff's expert produced evidence that given the placement of defendant's sign a person such as Nascenzi, whose line of vision was 3.5 feet above the ground, could see only 500 feet ahead; cars between 500 and 900 feet away were not visible at that point. This evidence is sufficient to support the factfinder's conclusion that the placement of the sign was causally related to Nascenzi's perception that conditions were safe for passing, and in turn causally related to the accident which caused plaintiff's injuries. The accident was a natural, probable and foreseeable consequence of defendant's act of misplacing its sign, see, Clumfoot v. St. Clair Tunnel Co., 221 Mich. 113, 116, 190 N.W. 759 (1922).

The other aspect of defendant's appeal as to causation focuses upon the trial court's findings of fact as to this issue. According to defendant, the court's findings were both erroneous and incomplete, in that (1) the court made certain findings as to the credibility of witnesses, and (2) the court failed to make sufficient findings to show why the negligence of Nascenzi was not the sole proximate cause of the accident. In reviewing these contentions, we are mindful of the Supreme Court's admonition in Tuttle v. Dep't of State Highways, 397 Mich. 44, 46, 243 N.W.2d 244 (1976), that a trial court's findings of fact may only be found to be clearly erroneous when the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made.

We are unable to find clear error in the trial court's determinations as to the relative credibility of witness Mr. Leo Derderian, on the one hand, and Nascenzi, on the other. The court's findings reveal the factual basis for its decision that the lack of adequate clear sight distance at the point where the "pass with care" sign was located was a proximate cause of Nascenzi's decision to move into the passing lane. Nascenzi's testimony that she did not see plaintiff's car until the moment of impact was corroborated by the testimony of the driver of plaintiff's car, Dr. Marvin Jaffee. He also reported having seen the oncoming car only at the moment of impact.

Derderian, on the other hand, stated that Nascenzi was in the passing lane for a substantial period of time before encountering the oncoming car containing plaintiff. The trial court noted that Derderian's description of the topography at the point of Nascenzi's entry into the passing lane suggests that the latter must have travelled almost a quarter of a mile in the passing lane--a finding which would have been inconsistent with Derderian's own estimate that she had travelled only about 500 feet in that lane. Other factors support the trial court's finding that Derderian's testimony may have resulted from a faulty or incomplete memory of the accident. His deposition reveals that he did not recall certain rather basic aspects of the incident such as the hour of the day, whether the oncoming car containing plaintiff had its lights on, whether the car which Nascenzi attempted to pass was hauling a trailer, and for that matter, whether there were any "pass with care" signs at all in the area. Given the foregoing, we cannot question the court's findings concerning the relative credibility of Nascenzi and Derderian.

Defendant makes much of the evidence that Nascenzi might have been drinking while driving but fails to demonstrate how this aspect of her negligence operates to reduce the credibility of her testimony, as well as that of the driver of plaintiff's car, that neither driver saw the other until the moment of impact. We also note that it is the province of the factfinder to weigh evidence and to believe or disbelieve any testimony. Hazen v. Rockefeller, 303 Mich. 536, 547, 6 N.W.2d 770 (1942); Vial v. Vial, 369 Mich. 534, 120 N.W.2d 249 (1963).

The trial court adequately stated its reasons for disbelieving Derderian's account of what had taken place. The court also amply stated its reason for rejecting the testimony of defendant's expert, Mr. William Lebel, concerning the circumstances of the accident: that all of the expert testimony was based upon "very selective" and unproven assumptions which were not in evidence. In short, we find that the court's factual findings as to the credibility of witnesses were neither incomplete nor clearly erroneous.

Similarly, we reject defendant's claim that the trial court erred in refusing to find Nascenzi's negligence to have been the sole proximate cause of the accident. According to defendant, the court erred in failing to take into account the possibility that drivers such as Nascenzi might begin to pass shortly before the point where a "pass with care" sign is located. Defendant goes on to posit that this was precisely what happened: that consistent with Derderian's testimony--Nascenzi pulled into the...