Gregg v. State Highway Dept.

• Decision Date: 16 July 1990
• Docket Number: No. 84395,84395
• Citation: 435 Mich. 307,458 N.W.2d 619
• Parties: Robert B. GREGG and Nancy E. Gregg, Plaintiffs-Appellants, v. STATE HIGHWAY DEPARTMENT, Defendants-Appellees. 435 Mich. 307, 458 N.W.2d 619
• Court: Michigan Supreme Court

Page 619

458 N.W.2d 619

Robert B. GREGG and Nancy E. Gregg Plaintiffs-Appellants, v. STATE HIGHWAY DEPARTMENT Defendants-Appellees.

No. 84395.

435 Mich. 307, 458 N.W.2d 619

Supreme Court of Michigan.

Argued Nov. 8, 1989.

Decided July 16, 1990.

[435 MICH 308] Stupak & Bergman, P.C. by Frank A. Stupak, Jr. and John Bergman, Escanaba, for plaintiffs-appellants.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Brenda E. Turner, Asst. Atty. Gen., Lansing, for defendants-appellees.

OPINION

BRICKLEY, Justice.

We decide in this case whether the highway exception to governmental immunity ¹ exposes the defendants to liability for injuries suffered by a cyclist because of a defect in a designated bicycle path on the inner portion of the paved shoulder of a state highway. The Court of Appeals relied on our decision in Roy v. Dep't of Transportation, 428 Mich. 330, 408 N.W.2d 783 (1987), to affirm summary disposition in the defendant's favor. We hold that governmental immunity does not bar the cause of action set forth in the plaintiffs' complaint and reverse the decision of the Court of Appeals.

I

The plaintiff alleged he suffered injuries from a bicycle accident on September 10, 1985. The plaintiff apparently went for a ride that evening on his fourteen-speed racing bicycle. He traveled on the west shoulder of State Highway M-35 in Ford River Township, Delta County, at approximately twenty-seven miles per hour.

The plaintiff's bicycle struck a pothole, and rider and bicycle overturned. Plaintiff's complaint alleged a litany of injuries resulting from the accident, including head and back injuries, a broken collar bone, and broken ribs.

The plaintiff filed a complaint in the Court of Claims, alleging that the state had ownership, jurisdiction, and responsibility for the maintenance of highway M-35, and charging that the state had failed to inspect, repair, and warn users of defects in the bicycle path. The complaint further alleged that these negligent acts and omissions constituted the proximate cause of his injuries.

The Highway Department moved for summary disposition asserting governmental immunity and citing our decision in Roy v. Dep't of Transportation in support. It contended that, consistent with Roy, its duty to maintain highways did not extend to bicycle paths. The Court of Claims agreed with defendant's arguments and granted summary disposition. The Court of Appeals affirmed the decision without further analysis, agreeing "that summary disposition was proper in light of our Supreme Court's recent opinion in Roy v. Dep't of Transportation ...."

The plaintiff submitted a photograph of the accident scene with his brief, indicating a pothole located within two white lines. The lines demark a bicycle path running parallel to and seemingly between the traveled portion of the highway and its paved shoulder. The defendants have not contested the accuracy of this photograph.

Because this case was decided on summary disposition, we agree with the defendant that "the only facts before the Court are those allegations as set forth in the Complaint." The plaintiff alleged in his complaint that he was injured on a "designated bicycle path on the west shoulder of said highway...." Our analysis, therefore, is based on the assumption that the bicycle path at issue comprised part of the inner portion of the shoulder closest to the roadway.

II

A

The defendant argues that nonmotorists are not protected parties under Sec. 2 and that such protection is afforded only to "vehicular travel." The defendant notes that the Motor Vehicle Code defines vehicles as motor vehicles. Hence a bicyclist must be excluded from protection under Sec. 2. ²

We think a straightforward reading of the statute clearly and adequately refutes the defendant's assertions. The statute extends the immunity exception to "[a]ny person sustaining bodily injury or damage to his property...." (Emphasis supplied.) The plaintiff certainly qualifies as one to whom the duty to maintain safe highways extends and the waiver of immunity applies.

However, the "vehicular travel" language of Sec. 2 seized upon by the defendant clearly does not limit the class of travelers who may recover damages for injuries due to defects on the improved portion. The words "designed for vehicular travel" describe and define the "improved portion of the highway" to which the duty of the governmental agency "to keep any highway under its jurisdiction ... safe and fit for travel" applies. ³ M.C.L. Sec. 691.1402; M.S.A. Sec. 3.996(102).

B

Defendant also contends that immunity under Sec. 2 does not extend to the instant case. In defendant's view, the path was not designed for "vehicular travel" because the shoulder of the road exists solely for "emergency accommodation."

In Roy, supra, we held that bicycle paths adjacent to, but not a part of, a highway did not comprise part of the improved portion designed for vehicular traffic and hence did not remove governmental immunity from suit. We concluded in Roy:

"[T]he exception to immunity found in Sec. 2 of the governmental immunity act does not apply to bicycle paths. The highway exception to immunity does not apply to 'an installation outside of [sic] the improved portion of the highway designed for vehicular travel.' A bicycle path is not designed for vehicular travel, in the common sense of 'vehicular' as relating to motor vehicle." 428 Mich. 340, 408 N.W.2d 783.

We further stated:

"[T]he statute does not offer general protection to pedestrians or motorists without regard to location. The statute announces a duty to repair and maintain the highway so that the improved portion designed for vehicular travel is reasonably safe and convenient for public travel. The criterion used by the Legislature was not based on the class of travelers, but the road on which they travel." 428 Mich. 341, 408 N.W.2d 783.

The trial court and Court of Appeals erred in granting summary disposition in this case on the basis of Roy. In the instant case, unlike Roy, the plaintiff has alleged the bicycle path and the location of the defect occurred on the shoulder of the highway immediately adjacent to its regularly traveled portion. The defect here did not occur on an installation, as in Roy, separated and "detached" from the improved portion. The allegedly defective bicycle path in this case unquestionably comprised part of the highway. " 'Shoulder' " means that portion of a highway...." M.C.L. Sec. 257.1501(k); M.S.A. Sec. 9.3200(1)(k). (Emphasis added.)

Neither the defendants nor the dissent contends that this paved shoulder is not part of the improved portion of the highway. However, they do contend that the highway's shoulder does not comprise that part of the improved portion of the highway "designed for vehicular travel." Framed this way, the crucial issue involves whether the paved shoulder of the road is "designed for vehicular travel."

The dissent cites Goodrich v. Kalamazoo, 304 Mich. 442, 8 N.W.2d 130 (1943), a case decided under a predecessor statute in support of the argument that the Legislature in enacting Sec. 2 of the current statute did not intend the shoulder of the road to be excepted from the statute's general grant of immunity. Goodrich concerned a fourteen-foot-wide paved road bounded by approximately "three-foot" wide "dirt and gravel" shoulders. The plaintiff struck a tree that was "about 30 inches from the edge of the pavement" and therefore a part of the shoulder of the road. Id. at 444, 8 N.W.2d 130. Since the dirt and gravel shoulder was only approximately three feet in width and apparently had at least one tree growing on it, it is not surprising that the court found the shoulder not to be a part of the " 'traveled' portion of the road." Id. at 446, 8 N.W.2d 130.

We would not disagree that a three-foot-wide dirt and gravel shoulder adorned with an occasional tree is not "designed for vehicular travel" under today's statute or any statute. As in Goodrich, we would probably conclude that such a shoulder was also not part of the "improved portion" of the highway. ⁴ Similarly, it does not seem surprising that when the Court of Appeals began analyzing shoulder-accident cases under our current immunity exception statute, it made no reference to Goodrich.

In Johnson v. Michigan, 32 Mich.App. 37, 188 N.W.2d 33 (1971), lv. den. 385 Mich. 762 (1971), the Court of Appeals observed correctly we think, that the shoulder from which the plaintiff was returning to the traveled portion of the road, like shoulders generally, was "designed for vehicular traffic although not of the same character as vehicular traffic on the paved portion of the highway." Id. at 39, 188 N.W.2d 33. Other Court of Appeals panels, without exception, have followed that precedent. See Van Liere v. State Hwy. Dep't., 59 Mich.App. 133, 229 N.W.2d 369 (1975), and McKee v. Dep't. of Transportation, 132 Mich.App. 714, 349 N.W.2d 798 (1984).

The dissent accurately points out that the Legislature has been quick to correct the result of Court of Appeals decisions that have extended the Sec. 2 exception to governmental immunity. We find it persuasive that the Legislature has not included in those correcting amendments the result of an uninterrupted line of cases extending from 1971 that conclude that a shoulder is designed for vehicular travel.

The dissent points to Sec. 59a of the Michigan Vehicle Code, which describes the shoulder of the road, as "not designed for vehicular travel but maintained for temporary accommodation of disabled or stopped vehicles...." M.C.L. Sec. 257.59a; M.S.A. Sec. 9.1859(1). Op. at p. 625. That the Legislature did not in our view intend this to be a definition of vehicular travel under Sec. 2 of the governmental immunity act is made evident by another section of the Motor Vehicle Code which states: " 'Shoulder' means that portion of a highway or street on either side of the roadway which is normally snowplowed for...