Hatch v. GRAND HAVEN TP., Docket No. 113286.

• Decision Date: 07 March 2000
• Docket Number: Docket No. 113286.
• Parties: Terry M. HATCH, Plaintiff-Appellee, v. GRAND HAVEN CHARTER TOWNSHIP, Defendant-Appellant.
• Court: Michigan Supreme Court

606 N.W.2d 633

461 Mich. 457

Terry M. HATCH, Plaintiff-Appellee, v. GRAND HAVEN CHARTER TOWNSHIP, Defendant-Appellant.

Docket No. 113286.

Supreme Court of Michigan.

March 7, 2000.

Scheuerle & Zitta (by John R. Scheuerle), Grand Haven, MI, for the plaintiff-appellee.

Plunkett & Cooney, P.C. (by Christine D. Oldani), Detroit, MI, for the defendant-appellant.

Opinion

PER CURIAM.

Plaintiff fell from his bicycle and was injured when the front tire of the bicycle struck a hole in a paved bicycle path in defendant township. He sued the township, alleging liability under the highway exception to governmental immunity.

Defendant moved for summary disposition, maintaining that the bike path was not a "sidewalk" on a highway within the meaning of M.C.L. § 691.1401(e); MSA 3.996(101)(e). The circuit court granted the motion, but the Court of Appeals reversed, finding that the path is on the highway within the meaning of subsection (e) and that it qualifies as a sidewalk for purposes of the highway exception to governmental immunity. We conclude that the bike path did not qualify as a "sidewalk." Thus, governmental immunity applies, and the defendant was entitled to judgment as a matter of law.

I

On September 12, 1995, at about 4:30 p.m., plaintiff was riding his bicycle on a paved bicycle path in defendant Grand Haven Charter Township. The front tire of his bicycle struck a hole in the path, causing him to fall to the pavement. Plaintiff sustained various injuries, including a fractured arm and hip. At the site of plaintiff's fall, the eight-foot-wide path is approximately thirty feet from Lakeshore Drive within the 100-foot road right of way. Photographic exhibits in the record show the path running through wooded lots and parallel to Lakeshore Drive. The path is separated from the roadway by trees, brush, and other forms of vegetation.

Plaintiff brought this action against the township, seeking damages for his injuries. He alleged that defendant negligently maintained the bike path and that he was entitled to recover for his injuries under the highway exception to governmental immunity. MCL 691.1402; MSA 3.996(102).

Following discovery, the defendant moved for summary disposition. It argued that the highway exception did not apply because the path was located outside the improved portion of the highway designed for vehicular travel. The circuit court granted the motion in an oral opinion from the bench, and then elaborated in a written opinion denying plaintiff's motion for reconsideration, explaining:

Plaintiff has recognized the application of governmental immunity by bringing this action under the statutory exception found in 691.1402. However, that exception does not by definition include bicycle paths. Plaintiff argues that there is no difference between a bicycle path and a sidewalk. This Court disagrees. A sidewalk is generally recognized as a paved pathway for pedestrian traffic along side a highway or street. A bike path is a paved path designed and intended for bicycle travel. The fact that bicyclists and rollerbladers may use a sidewalk or pedestrians and rollerbladers may use a bike path does not change the characteristic or purpose of either one any more than the use of a street by pedestrians, bicyclists or rollerbladers make the street a sidewalk or bike path.

This Court does tend to agree with plaintiff in principle that there does not seem much logical difference to making an immunity exception for defective sidewalks but not bike paths that are "on any highway" as both are intended to be used for non-vehicular travel. The Legislature recognized that a distinction exists between sidewalks and bicycle paths in authorizing townships to construct both as public improvements. See M.C.L. § 41.722(1)(g) [MSA 5.2770(52)(1)(g)] Bicycle Paths and (k) Sidewalks. The Legislature had the opportunity to also amend the definition of highways to include bicycle paths "on a highway" but has chosen not to.

Because the Supreme Court has ruled the immunity is broadly given with narrowly drawn exceptions it is improper for this Court to add bicycle paths to the list of exceptions.

The plaintiff appealed, and the Court of Appeals reversed.¹

II

The highway exception to governmental immunity is found in M.C.L. § 691.1402(1); MSA 3.996(102)(1):

Each governmental agency having jurisdiction over a highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. A person sustaining bodily injury or damage to his or her property by reason of failure of a governmental agency to keep a highway under its jurisdiction in reasonable repair, and in condition reasonably safe and fit for travel, may recover the damages suffered by him or her from the governmental agency.... The duty of the state and the county road commissions to repair and maintain highways, and the liability for that duty, extends only to the improved portion of the highway designed for vehicular travel and does not include sidewalks, crosswalks, or any other installation outside of the improved portion of the highway designed for vehicular travel.

The definition of "highway" in M.C.L. § 691.1401(e); MSA 3.996(101)(e) includes sidewalks:²

(e)"Highway" means every public highway, road, and street which is open for public travel and shall include bridges, sidewalks, crosswalks, and culverts on any highway. The term highway does not include alleys, trees, and utility poles. [Emphasis added.]

The Court of Appeals noted that another panel had recently considered the meaning of the phrase "sidewalks ... on any highway" in Stabley v. Huron-Clinton Metropolitan Park Authority, 228 Mich.App. 363, 579 N.W.2d 374 (1998). It involved a "hike-bike trail" that meandered through a park, in some places running parallel to the road, in others running through the wooded interior of the park, and at some points crossing the road that ran through the park. Id. at 364, 579 N.W.2d 374. The Stabley Court looked to dictionary definitions of "sidewalk":

According to Webster's New World Dictionary, a "sidewalk" is "a path for pedestrians, usually paved, along the side of a street." The American Heritage Dictionary: Second College Edition defines "sidewalk" as a "walk or raised path for pedestrians along the side of a road." Random House Webster's College Dictionary (1992) defines "sidewalk" as "a usu. paved walk at the side of a roadway." In Black's Law Dictionary (6th ed.), "sidewalk" is defined as "[t]hat part of a public street or highway designed for the use of pedestrians." [228 Mich.App. at 367, 579 N.W.2d 374.]

The Stabley Court also noted the definition of "sidewalk" in the Motor Vehicle Code as "that portion of a street between the curb lines, or the lateral lines of roadway, and the adjacent property lines intended for the use of pedestrians." MCL 257.60; MSA 9.1860. The Court noted that we have looked to definitions in the Motor Vehicle Code to interpret terms also found in the governmental immunity statute. See Roy v. Dep't of Transportation, 428 Mich. 330, 408 N.W.2d 783 (1987).

The Stabley Court said that the cases have applied the highway exception where the injury is sustained on a sidewalk "adjacent" to or "along" a road. It found that the highway exception did not apply because the injury did not occur on the portion of the trail adjacent to the roadway, but rather on a portion that ran through the wooded interior of the park.

Applying Stabley, the panel in the instant case viewed the phrase "sidewalks... on any highway" as denoting "a paved way dedicated to the use of pedestrians that runs alongside and adjacent to a public roadway and within the right of way of the roadway." 230 Mich.App. at 710, 584 N.W.2d 641.

The Court concluded that the basic requirements were met. The path was located within the right of way of Lakeshore Drive. At the point where plaintiff fell, the path runs alongside and adjacent to the road.

The remaining question was whether the path qualified as a sidewalk. Defendant maintained that the path was created as a bicycle path. See M.C.L. § 41.722(1)(g); MSA 5.2770(52)(1)(g) (authorizing townships to construct, maintain, and improve bicycle paths). The Court said that to the extent that the path was dedicated to the use of bicyclists and not pedestrians it would not appear to be a sidewalk. However, the hike-bike trail in Stabley was the functional equivalent of this path. The photographic exhibits show numerous footprints in the snow³ covering the bicycle path, indicating that pedestrians used it. The Court said that there was no indication that defendants either posted the trail for bicycle use only or restricted access to bicyclists. Since the only difference between the trail in Stabley and the instant path was the label assigned to the paths by the governmental agency having jurisdiction, the Court concluded that the path qualified as a sidewalk at the point where plaintiff was injured, and thus fell within the highway exception.

III

We have held that the highway exception is a narrowly drawn exception to a broad grant of immunity. An action may not be maintained under the highway exception unless it is clearly within the scope and meaning of the statute. Scheurman v. Dep't of Transportation, 434 Mich. 619, 626-627, 630, 456 N.W.2d 66 (1990). Thus, in order for the plaintiff to proceed, the path on which he was injured must constitute a "sidewalk."

It is a fundamental principle of statutory construction that the words used by the Legislature should be given their common ordinary meaning. People v. McIntire, 461 Mich. 147, 153, 599 N.W.2d 102 (1999). As the dictionary definitions of that term cited in Stabley indicate, as commonly understood, a sidewalk is a path for pedestrians along the side of a road. The Legislature has in a number of statutes distinguished between the sidewalks and bike paths, and recognized bicycle paths as a distinct category. MCL 750.419; ...