Hutchinson v. Allegan County Bd. of Road Com'rs

• Decision Date: 21 January 1992
• Docket Number: Docket Nos. 131429,131430
• Citation: 481 N.W.2d 807,192 Mich.App. 472
• Parties: David HUTCHINSON, Plaintiff-Appellant-Cross-Appellee, v. ALLEGAN COUNTY BOARD OF ROAD COMMISSIONERS and Van Buren County Board of Road Commissioners, jointly and severally, Defendants-Appellees-Cross- Appellants. (On Remand)
• Court: Court of Appeal of Michigan — District of US

Page 807

481 N.W.2d 807

192 Mich.App. 472

David HUTCHINSON, Plaintiff-Appellant-Cross-Appellee, v. ALLEGAN COUNTY BOARD OF ROAD COMMISSIONERS and Van Buren County Board of Road Commissioners, jointly and severally Defendants-Appellees-Cross- Appellants. (On Remand)

Docket Nos. 131429, 131430.

Court of Appeals of Michigan.

Submitted Nov. 13, 1991, at Grand Rapids.

Decided Jan. 21, 1992, at 9:20 a.m.

Released for Publication April 13, 1992.

Chambers, Steiner, Mazur, Ornstein & Amlin, P.C. by Angela J. Nicita, Detroit, for plaintiff-appellant-cross-appellee.

Smith, Haughey, Rice & Roegge by Jon D. Vander Ploeg, Grand Rapids, for defendants-appellees-cross-appellants.

Before DOCTOROFF, P.J., and HOLBROOK and FITZGERALD, JJ.

ON REMAND

HOLBROOK, Judge.

I

This case arises from a personal injury action against defendants and involves the highway exception to governmental immunity. M.C.L. Sec. 691.1402; M.S.A. Sec. 3.996(102).

On August 17, 1986, plaintiff was driving along Baseline Road, which divides Allegan and Van Buren Counties. The accident occurred when plaintiff apparently fell asleep, causing his vehicle to cross the center lane and enter a drainage ditch located approximately 4- 1/2 feet from the side of the road. The ditch serves as a draining conduit for the road surface. In his complaint, plaintiff alleged improper design and maintenance of a drainage ditch and failure to place guardrails on the edge of the road adjacent to the ditch.

Defendants moved for summary disposition, arguing that the highway exception to governmental immunity was inapplicable because the ditch was not part of the improved portion of the highway designed for vehicular travel. Defendants also claimed that the facts did not support any theory that they should have installed guardrails.

The Van Buren Circuit Court granted defendants' motion in part, concluding as a matter of law that the ditch was not within the improved portion of the highway designed for vehicular travel. The court denied defendants' motion with regard to their second argument, finding that the issue whether defendants should have erected a guardrail was a question of fact for a jury to decide. ¹

Plaintiff filed a claim of appeal and defendants filed a claim of cross appeal with this Court. Both claims were dismissed pursuant to an order of the Court of Appeals, Holbrook, Jr., P.J., and Griffin and Murphy, JJ., dated November 16, 1989, Docket No. 119312, and subsequent claims for delayed appeal were denied, order of the Court of Appeals, Danhof, C.J., and Cynar and Shepherd, JJ., dated February 1, 1990, Docket Nos. 123750, 123937. The parties then sought leave to appeal to our Supreme Court. In lieu of granting leave to appeal, the Supreme Court remanded the case to this Court, 435 Mich. 870, 458 N.W.2d 55, as on leave granted for consideration in light of Scheurman v. Dep't of Transportation, 434 Mich. 619, 456 N.W.2d 66 (1990), and Gregg v. State Hwy. Dep't, 435 Mich. 307, 458 N.W.2d 619 (1990). 435 Mich. 870 (1990). The cases were consolidated by the Court of Appeals. We now affirm the circuit court's order.

II

Plaintiff contends that the circuit court erred in granting defendants' motion for summary disposition, because the ditch that plaintiff drove into was allegedly part of the improved portion of the highway designed for vehicular travel.

A motion under MCR 2.116(C)(8) tests the legal sufficiency of a claim by the pleadings alone. Parkhurst Homes, Inc. v. McLaughlin, 187 Mich.App. 357, 360, 466 N.W.2d 404 (1991). The court must accept as true all well-pleaded factual allegations, as well as any conclusions that can be reasonably drawn from them. Ashley v. Bronson, 189 Mich.App. 498, 501, 473 N.W.2d 757 (1991). The motion can be granted only if the claim is so clearly unenforceable as a matter of law that no factual development could establish the claim and justify recovery. Terrell v. LBJ Electronics, 188 Mich.App. 717, 719, 470 N.W.2d 98 (1991).

Summary disposition for failure to state a claim upon which relief can be granted is appropriate where a plaintiff attempts to state a cause of action against a governmental entity entitled to immunity. Canon v. Thumudo, 430 Mich. 326, 344, 422 N.W.2d 688 (1988). M.C.L. Sec. 691.1402; M.S.A. Sec. 3.996(102) sets forth statutory exceptions to governmental immunity from tort liability and provides that the duty of state and county road commissions to repair and maintain highways extends only to the improved portion of the highway designed for vehicular travel. The highway exception is a narrowly drawn exception to a broad grant of immunity. Scheurman, supra, 434 Mich. p. 630, 456 N.W.2d 66.

In Scheurman, the plaintiff's decedent was killed when she was struck by a car while attempting to cross a road. Most of the road had lights, but the area where she attempted to cross was not illuminated. Our Supreme Court indicated that the highway exception did not include street lighting because the lights fell outside the paved portion of the road designed for public vehicular travel. Id., p. 633, 456 N.W.2d 66.

Scheurman involved the consolidated case of Prokop v. Wayne Co. Bd. of Road Comm'rs, 434 Mich. 619, 456 N.W.2d 66 (1990). The plaintiff in Prokop was hit by a van when she attempted to ride across an intersection on her bicycle. The view of the plaintiff and of the driver of the van was obstructed by a hedge growing on private property. The Supreme Court ruled that the hedge had no connection to the improved portion of the highway. Id., p. 635, 456 N.W.2d 66.

In Gregg, supra, the plaintiff was injured when the bicycle he was riding struck a pothole on a designated bicycle path located on the inner edge of the paved shoulder of the road. The Court in Gregg held that the bicycle path was part of the improved portion of the road, stating that modern vehicles often travel on the shoulder of a highway. Id., 435 Mich. pp. 315-318, 458 N.W.2d 619.

Comparing these decisions to this case, we cannot say that the ditch was part of the improved portion of the highway designated for vehicular travel. Although it runs parallel to the road, the ditch is not part of the "traveled portion, paved or unpaved, of the roadbed actually designed for public vehicular travel." Scheurman, supra, 434 Mich. p. 631, 456 N.W.2d 66. Like the lights in Scheurman and the hedge in Prokop, the ditch is not part of the improved roadbed actually designed for or traveled upon by vehicular traffic. Unlike the bicycle path in Gregg, the ditch was not designated for vehicular travel and was not along the inner edge of the shoulder. Narrowly construing M.C.L. Sec. 691.1402; M.S.A. Sec. 3.996(102), we conclude that the ditch was not part of the improved portion of the highway designed for vehicular travel.

Plaintiff relies upon cases that interpret the improved portion of the highway as including improvements of the highway that serve as integral parts of the highway, such as signs and shoulders. See Salvati v. Dep't of State Hwys., 415 Mich. 708, 405 N.W.2d 856 (1982); Roux v. Dep't of Transportation, 169 Mich.App. 582, 426 N.W.2d 714 (1988). Plaintiff claims that the ditch is also an integral part of the highway because it serves as a drainage culvert for the road's surface, allowing motorists to proceed along the highway without hydroplaning and losing control.

Nevertheless, the circuit court correctly rejected this argument because plaintiff did not seek recovery for the failure of the ditch to properly drain water from the road, but sought recovery on the basis that the ditch posed a danger to vehicles leaving the road. In Anderson v. Macomb Co. Road Comm., 143 Mich.App. 735, 372 N.W.2d 651 (1985), the plaintiff was injured when the vehicle in which she was a passenger went over the roadside curb and struck a utility pole located two feet from the curb. This Court distinguished between liability involving traffic signs, which is premised upon the message the sign was to convey to assist safe travel, and liability based on the design of the highway system. This Court held that the utility pole was not within the improved portion of the highway for purposes of M.C.L. Sec. 691.1402; M.S.A. Sec. 3.996(102). Id.

Likewise, the ditch in this case was not part of the improved portion of the road. We do not pretend that the ditch failed to contribute to the cause of plaintiff's injuries, but remain focused on the fact that the state has waived its governmental immunity with regard to only those improved portions of the highway designated for vehicular travel. Id. Consequently, because plaintiff did not seek recovery for the ditch's failure to properly drain water from the road, summary disposition of plaintiff's claim was appropriate.

Plaintiff also contends that summary disposition was improper because the ditch is within the shoulder of the roadway, thereby imposing an obligation on defendants to safely maintain it. Plaintiff maintains that the shoulder area should be calculated according to the standards of the American Association of State Highway and Transportation Officials (AASHTO), which would include the ditch as part of the shoulder.

The AASHTO standards are intended as guidelines and are not mandatory. The duty to maintain highways in reasonable repair includes shoulders and areas within the reach of a vehicle without any of its wheels leaving the shoulder. Carney v. Dep't of Transportation, 145 Mich.App. 690, 696- 699, 378 N.W.2d 574 (1985). This so-called four-wheel rule does not define the shoulder area with mathematical precision, but establishes the duty to maintain a shoulder in reasonable repair such that the average vehicle would be reasonably safe in the event that it became necessary to drive on the shoulder or the vehicle accidentally deviated from the portion of the road designated for travel. Pomeroy v. Dep't of Transportation, 175 Mich.App. 556, 560-561, 438 N.W.2d 264 (1988). We find that...