Johnson-McIntosh v. City of Detroit, No. 244349 (Mich. App. 4/29/2004)

• Decision Date: 29 April 2004
• Docket Number: No. 244349.
• Citation: Johnson-McIntosh v. City of Detroit, No. 244349 (Mich. App. 4/29/2004) (Mich. App. 2004)
• Parties: DENISE JOHNSON-McINTOSH and ALVIN McINTOSH, as Next Friends of DAESHA JOHNSON, a Minor, Plaintiffs-Appellees, v. CITY OF DETROIT, Defendant-Appellant, and TOMMY NATHAN McGEE, JR., and TOMMY NATHAN McGEE III, Defendants.
• Court: Court of Appeal of Michigan

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DENISE JOHNSON-McINTOSH and ALVIN McINTOSH, as Next Friends of DAESHA JOHNSON, a Minor, Plaintiffs-Appellees, v. CITY OF DETROIT, Defendant-Appellant, and TOMMY NATHAN McGEE, JR., and TOMMY NATHAN McGEE III, Defendants.

No. 244349.

Court of Appeals of Michigan.

April 29, 2004 at 9:00 a.m.

Appeal from the Wayne Circuit Court, LC No. 01-124542-NZ.

Before: Cooper, P.J., and Griffin and Borrello, JJ.

COOPER, P.J.

Defendant city of Detroit appeals as of right from the trial court's order denying its renewed motion for summary disposition pursuant to MCR 2.116(C)(7) and MCR 2.116(C)(8). Defendant asks that this Court's decision in Weaver v Detroit¹ be applied retroactively, and to therefore determine that defendant was governmentally immune from liability for its failure to maintain an inoperative traffic signal. We reverse, but only because we believe that we are required to do so by this Court's previous majority decision in Marchyok v Ann Arbor.²

I. Facts and Procedural History

On June 25, 2001, Tommy Nathan McGee III was driving southbound on Pennington Road in the city of Detroit with Daesha Johnson as his passenger. McGee drove through the intersection of West Seven Mile Road, and as a result of an inoperative traffic signal, collided with another vehicle and then ran into a tree. Johnson was injured and brought suit through her next friends against defendant city of Detroit, alleging a breach of duty under MCL 691.1402a to maintain and repair all installations, including traffic signals, on portions of county highways outside the improved portion designed for vehicular travel.³

Defendant responded to plaintiffs' claims with its initial motion for summary disposition. Defendant asserted that plaintiffs' claims were barred by governmental immunity under MCL 691.1402(1). Defendant, relying on Nawrocki v Macomb Co Road Comm, contended that municipalities are immune from liability for injuries caused by defective traffic signals.⁴ The trial court denied defendant's initial motion without prejudice, finding that, as Nawrocki involved claims against a county, it was inapplicable to the facts of this case.

This Court subsequently rendered its opinion in Weaver, explicitly extending the Nawrocki holding with regard to streetlight poles to municipalities. As a result, defendant filed a renewed motion for summary disposition based on governmental immunity, asserting that municipalities are now governmentally immune from tort liability arising from defective traffic signals. The trial court determined that if Weaver were applied, defendant would be governmentally immune from liability. However, the trial court declined to apply Weaver, as this Court did not expressly rule that the decision was to apply retroactively.

II. Legal Analysis

We review a trial court's determination regarding a motion for summary disposition de novo.⁵ A motion under MCR 2.116(C)(7) "tests whether a claim is barred because of immunity granted by law, and requires consideration of all documentary evidence filed or submitted by the parties."⁶ A motion under MCR 2.116(C)(8) tests the legal sufficiency of a claim based on the pleadings alone and should be granted only if the factual development of the claim could not justify recovery.⁷

The majority in Marchyok found that a municipality is immune from liability under the highway exception for injuries caused by defective traffic control devices by erroneously extending Nawrocki's ruling regarding the limitations on a state or county road commission's liability to a municipality, in direct contravention of Nawrocki.⁸ Absent an exception, a governmental agency is immune from tort liability for injuries caused while the agency was engaged in a governmental function.⁹ A governmental function is "an activity that is expressly or impliedly mandated or authorized by constitution, statute, local charter or ordinance, or other law."¹⁰ The grant of governmental immunity is broad, and its exceptions are narrowly construed.¹¹

In this case, plaintiffs alleged that defendant was liable under the highway exception to governmental immunity, which provides:

Except as otherwise provided in section 2a, 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 who sustains 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 a 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, trailways, crosswalks, or any other installation outside the improved portion of the highway designed for vehicular travel.¹²

A municipality's duty with regard to county highways is established in MCL 691.1402a.

Except as otherwise provided by this section, a municipal corporation has no duty to repair or maintain, and is not liable for injuries arising from, a portion of a county highway outside of the improved portion of the highway designed for vehicular travel, including a sidewalk, trailway, crosswalk, or other installation. This subsection does not prevent or limit a municipal corporation's liability if both of the following are true:

(a) At least 30 days before the occurrence of the relevant injury, death, or damage, the municipal corporation knew or, in the exercise of reasonable diligence, should have known of the existence of a defect in a sidewalk, trailway, crosswalk, or other installation outside of the improved portion of the highway designed for vehicular travel.

(b) The defect described in subdivision (a) is a proximate cause of the injury, death, or damage.¹³

"Highway" is defined, for purposes of the statute, as "a public highway, road, or street that is open for public travel and includes bridges, sidewalks, trailways, crosswalks, and culverts on the highway."¹⁴ Specifically excluded from the definition are "alleys, trees, and utility poles."¹⁵

The panel in Marchyok rejected the plaintiff's reliance on Cox v Dearborn Heights,¹⁶ by finding, based on Carr v Lansing, that Nawrocki implicitly overruled Cox.¹⁷ In Cox, this Court analyzed the scope of a municipality's liability under the highway exception. This Court determined that the highway exception expressly limited only the liability of state and county road commissions to injuries resulting from defective conditions on the improved portion of the highway designed for vehicular travel.¹⁸ A municipality's liability was limited solely by the first sentence of the exception. Therefore, a municipality has a duty to maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel.¹⁹

Carr and Marchyok indicate that Nawrocki completely overrules Cox; however, we cannot agree. In Nawrocki, our Supreme Court overruled precedent imposing a duty on county road commissions "to provide adequate warning signs or traffic control devices at known points of hazard."²⁰ The phrase "improved portion of the highway designed for vehicular travel" in the highway exception is narrowly construed and only extends the duty of state and county road commissions "to repair and maintain the actual physical structure of the roadbed surface, paved or unpaved, designed for vehicular travel."²¹ State and county road commissions are, therefore, immune from liability for injuries arising from a defective traffic control device, because those devices are not part of "the improved portion of the highway designed for vehicular travel."²²

In response to the dissent, the Nawrocki majority stated that its holding did not "shift" liability for traffic control devices from state and county road commissions to municipalities.²³

Clearly, traffic signals and signs are not implicated in the broad definition of "highway" in MCL 691.1401(e); MSA 3.996(101)(e): "`Highway' means a public highway, road, or street that is open for public travel and includes bridges, sidewalks, trailways, crosswalks, and culverts on the highway. The term highway does not include alleys, trees, and utility poles." MCL 691.1402; MSA 3.996(102) creates an exception to governmental immunity for the state or county road commissions' failure to maintain and repair the "improved portion of the highway designed for vehicular travel." Thus, there is a gap that exists between the "improved portion of the highway designed for vehicular travel," and the broader confines of "highway," defined in subsection 1(e). MCL 691.1402a; MSA 3.996(102a) seeks to fill this gap, at least with respect to county highways. However, because traffic control devices are clearly not implicated in the broad definition of "highway," there can be no "shifting" of liability from the state and county road commissions to local municipalities.²⁴

The duty to repair and maintain those portions of county highways outside the improved portion designed for vehicular travel fell on municipalities under MCL 691.1402a before the Nawrocki decision, and therefore, did not "shift" onto municipalities thereafter.²⁵ As Nawrocki expressly limited its own application to the duties of states and counties, Nawrocki does not overrule Cox, implicitly or otherwise.

Subsequent to Nawrocki, a special panel of this Court²⁶ determined in Weaver that municipalities, like counties, are immune from tort liability for the negligent maintenance of streetlight poles.²⁷ The panel in Marchyok erroneously relied on dicta in Weaver that traffic control devices are not part of the statutory definition of highway. Although Weaver limited a municipality's liability under the highway exception, it also did not...