Johnson v. State

• Decision Date: 26 March 1971
• Docket Number: No. 2,Docket No. 9803,2
• Citation: Johnson v. State, 188 N.W.2d 33, 32 Mich.App. 37 (Mich. App. 1971)
• Parties: James C. JOHNSON and Barbara C. Johnson, Plaintiffs-Appellants, v. The STATE of Michigan, Defendant-Appellee
• Court: Court of Appeal of Michigan

Page 33

188 N.W.2d 33

32 Mich.App. 37

James C. JOHNSON and Barbara C. Johnson, Plaintiffs-Appellants, v.The STATE of Michigan, Defendant-Appellee.

Docket No. 9803.

Court of Appeals of Michigan, Division No. 2.

March 26, 1971.

Leave to Appeal Denied July 9, 1971.

Released for Publication July 2, 1971.

Paul J. Clulo, Sinclair, Edwards & Clulo, Midland, for plaintiffs-appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol.Gen., Myron A. McMillan, Asst. Atty. Gen., for defendant-appellee.

Before QUINN, P.J., and BRONSON and O'HARA, ^* JJ.

QUINN, Presiding Judge.

The court of claims granted defendant's motion for summary judgment on the basis plaintiffs had failed to state a claim upon which relief could be granted.GCR 1963, 117.2(1).Plaintiffs appeal.

About 6:30 A.M., September 15, 1969, Barbara Johnson was operating a Volkswagen automobile in the southernmost lane of the westbound lanes of US--10, a state trunkline four lane divided highway.The pavement was dry and atmospheric conditions were normal.In negotiating a curve to her right at a speed of 60 to 65 miles per hour, the automobile Barbara Johnson was driving left the pavement for some reason not apparent from the record.In attempting to return to the paved portion of the road from the shoulder, which was six inches lower than the paved portion, Barbara Johnson lost control of the Volkswagen when its wheels struck the six inch concrete, and the accident ensued.

Alleging that the highway was defective because the shoulder was six inches lower than the pavement and that this condition had existed for six months, plaintiffs asserted liability against the state under M.C.L.A. § 691.1402(Stat.Ann.1969 Rev. § 3.996(102)).Contending that the state was liable only for defects in the improved portion of the highway designed for vehicular travel, which did not include the shoulder, defendant asserted it was not liable.

The immunity of the state from tort liability arising out of the maintenance of state trunkline highways was established in McDowell v. State Highway Commissioner(1961), 365 Mich. 268, 112 N.W.2d 491.To the extent prescribed in P.A.1964, No. 170 (M.C.L.A. §§ 691.1401 et seq.(Stat.Ann.1969 Rev. § 3.996(101) et seq.)), this immunity is waived.The statute must be strictly construed.Johnson v. Board of County Road Commissioners of Ontonagon County(1931), 253 Mich. 465, 235 N.W. 221.

M.C.L.A. § 691.1402, Supra, provides in part:

'The duty of the state and county road commissions to repair and maintain highways, and the liability therefor, shall extend only to the improved portion of the highway designed for vehicular travel and shall not include sidewalks, crosswalks or any other installation outside of the improved portion of the highway designed for vehicular travel.'

The shoulders of a highway are designed for vehicular traffic...