Johnson-McIntosh v. City of Detroit

• Decision Date: 05 May 2005
• Docket Number: Docket No. 244349.
• Citation: 266 Mich. App. 318,701 N.W.2d 179
• 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 — District of US

701 N.W.2d 179

266 Mich. App. 318

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.

Docket No. 244349.

Court of Appeals of Michigan.

Submitted September 13, 2004, at Lansing.

Decided May 5, 2005, at 9:25 a.m.

Released for Publication July 26, 2005.

Theophilus E. Clemons, Southfield, for the plaintiff.

Ruth C. Carter, Corporation Counsel, and Joanne D. Stafford, Supervising Assistant Corporation Counsel, Detroit, for the city of Detroit.

Before: OWENS, P.J., and SAAD, BANDSTRA, SMOLENSKI, METER, DONOFRIO, and FORT HOOD, JJ.

DONOFRIO, J.

Pursuant to MCR 7.215(J), this Court convened a special panel to resolve the conflict between the prior opinion in this case¹ and Marchyok v. Ann Arbor, 260 Mich.App. 684, 679 N.W.2d 703 (2004). These cases involve the interpretation of MCL 691.1402(1), the highway exception to governmental immunity, and MCL 691.1402a, which concerns a municipality's duty with regard to county highways. In Marchyok, supra at 691, 679 N.W.2d 703, the Court found that a municipality is immune from liability under the highway exception for injuries caused by defective traffic control devices. The original Johnson-McIntosh panel followed the Marchyok panel's holding and reversed the trial court, but only because it was required to do so pursuant to MCR 7.215(J). Because no basis currently exists in Michigan law for the proposition that a governmental entity, including a municipality, is subject to liability for the failure to repair and maintain traffic control devices, we adopt the holding in Marchyok and reverse the trial court, as the initial Johnson-McIntosh panel concluded.

I. Substantive Facts and Procedure

We adopt the facts and procedural history of the case as set out in Johnson-McIntosh, supra at 801-802, 688 N.W.2d 832:

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. Rd. 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,² 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,³ 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.

3 Plaintiffs also alleged claims against McGee and his father, Tommy Nathan McGee, Jr., as the owner of the vehicle, but these claims are not relevant to this appeal.

4 Nawrocki v. Macomb Co. Rd. Comm., 463 Mich. 143, 172-184, 615 N.W.2d 702 (2000). Nawrocki was consolidated on appeal with Evens v. Shiawassee Co. Rd. Comm'rs. Evens involved a county's liability with regard to defective traffic control devices while Nawrocki involved a defective roadbed. The consolidated appeal will be referred to as Nawrocki throughout.

[Emphasis in original.]

II. Standard of Review

"We review de novo a trial court's decision on a motion for summary disposition under MCR 2.116(C)(7) to determine if the moving party was entitled to judgment as a matter of law." McDowell v. Detroit, 264 Mich.App. 337, 346, 690 N.W.2d 513 (2004). "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."'" Id., at 345, 690 N.W.2d 513, quoting Maskery v. Univ. of Michigan Bd. of Regents, 468 Mich. 609, 613, 664 N.W.2d 165 (2003), quoting Glancy v. City of Roseville, 457 Mich. 580, 583, 577 N.W.2d 897 (1998); see also MCR 2.116(G)(5).

"This Court reviews de novo a trial court's decision to grant summary disposition under MCR 2.116(C)(8)." McDowell, supra at 354, 690 N.W.2d 513, citing Spiek v. Dep't of Transportation, 456 Mich. 331, 337, 572 N.W.2d 201 (1998). "MCR 2.116(C)(8) tests the legal sufficiency of the pleadings standing alone." McDowell, supra at 354, 690 N.W.2d 513, citing Maiden v. Rozwood, 461 Mich. 109, 119-120, 597 N.W.2d 817 (1999). "`The motion must be granted if no factual development could justify the plaintiff's claim for relief.'" McDowell, supra at 354-355, 690 N.W.2d 513, quoting Spiek, supra at 337, 572 N.W.2d 201; see also Maiden, supra at 119, 597 N.W.2d 817.

III. Analysis

Absent an exception, a governmental agency is immune from tort liability if the agency was engaged in a governmental function. MCL 691.1407(1); Maskery, supra at 613, 664 N.W.2d 165. The highway exception to governmental immunity, MCL 691.1402(1), 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 of the improved portion of the highway designed for vehicular travel.

Section 2a, MCL 691.1402a, provides limited immunity for a municipality with regard to the portions of county highways not designed for vehicular travel that fall within its borders. Specifically, MCL 691.1402a(1) provides:

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.

The definition of "highway" for purposes of this statute is found in MCL 691.1401(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.

In Chaney v. Dep't of Transportation, 447 Mich. 145, 158, 523 N.W.2d 762 (1994) (opinion of Brickley, J.), our Supreme Court stated that "the improved portion of a highway designed for vehicular travel" included installations physically located within the roadbed and those installations physically located outside the roadbed "that directly and integrally affect safe vehicular travel on this improved portion." The Supreme Court noted that its decision was consistent with "clear" precedent. Id., citing Gregg v. State Hwy. Dep't, 435 Mich. 307, 458 N.W.2d 619 (1990), and Roy v. Dep't of Transportation, 428 Mich. 330, 408 N.W.2d 783 (1987).

Two years later, the Supreme Court returned to the "still-unsettled issue of the highway exception...." Pick v. Szymczak, 451 Mich. 607, 610, 548 N.W.2d 603 (1996). In determining that county road commissions have a duty to erect traffic signs to ensure that the portion of the road designed for vehicular travel remains reasonably safe, the Supreme Court noted that it was properly interpreting the statute in light of "our undeniably fractured case law precedents...." Id. at 621-622, 624, 548 N.W.2d 603. In Nawrocki, our Supreme Court held that traffic control devices are not included in the definition of "highway" provided in MCL 691.1401(e), and therefore do not fall within the highway exception provided in MCL 691.1402(1). The Supreme Court stated that it had a duty to narrowly construe exceptions to the broad grant of governmental immunity provided in the statute. Nawrocki, supra at 175, 615 N.W.2d 702. While discussing the highway exception, our Supreme Court counseled that the statutory definition of "highway" does not include conditions that may arise from hazards or special dangers that integrally...