Marchyok v. City of Ann Arbor

• Decision Date: 05 November 2003
• Docket Number: Docket No. 242409.
• Citation: 679 N.W.2d 703,260 Mich. App. 684
• Parties: In re Estate of Janis Marchyok, Deceased. Katharine MARCHYOK and Delores Foster, Individually and as Co-Personal Representatives of the Estate of Janis Marchyok, deceased, and Douglas Marchyok, as Next Friend of Patrick Marchyok, Michael Marchyok and Richard Foster, Minors, Plaintiffs-Appellants, v. CITY OF ANN ARBOR, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

679 N.W.2d 703

260 Mich. App. 684

In re Estate of Janis Marchyok, Deceased.

Katharine MARCHYOK and Delores Foster, Individually and as Co-Personal Representatives of the Estate of Janis Marchyok, deceased, and Douglas Marchyok, as Next Friend of Patrick Marchyok, Michael Marchyok and Richard Foster, Minors, Plaintiffs-Appellants, v. CITY OF ANN ARBOR, Defendant-Appellee.

Docket No. 242409.

Court of Appeals of Michigan.

Submitted November 5, 2003, at Lansing.

Decided February 24, 2004, at 9:05 a.m.

Chapman and Associates, P.C. (by Brian J. Richtarcik), Bloomfield Hills, for the plaintiffs.

Robert W. West, Assistant City Attorney, Ann Arbor, for the defendant.

Before: O'CONNELL, P.J., and JANSEN and WILDER, JJ.

JANSEN, J.

In this wrongful death action, plaintiffs Katharine Marchyok, Delores Foster, Patrick Marchyok, Michael Marchyok, and Richard Foster appeal as right from an order granting defendant city of Ann Arbor's motion for summary disposition. We affirm. The present case arises from an accident that occurred at the intersection of Catherine Street and Glen Street in Ann Arbor, Michigan. The decedent was walking west on the sidewalk on the north side of Catherine Street. While the pedestrian signal was showing "walk," the decedent attempted to cross Glen Street. At this same moment, the traffic light for westbound vehicles on Catherine Street turned green. The decedent was struck and killed by a bus turning right on to Glen Street.

Plaintiffs brought suit. Defendant moved for summary disposition, relying on the doctrine of governmental immunity. The trial court granted defendant's motion for summary disposition on the basis of governmental immunity.

Plaintiffs first argue that under M.C.L. § 257.610(a), municipalities must provide such traffic control devices as they deem necessary to regulate traffic and that defendant had notice of the dangerous conditions at the intersection in question yet failed to correct the problem. Plaintiffs contend that this constituted breach of an affirmative duty and created a cause of action against defendant. We disagree.

We review de novo decisions to grant or deny summary disposition. Veenstra v. Washtenaw Country Club, 466 Mich. 155, 159, 645 N.W.2d 643 (2002). And the same standard applies to the interpretation and application of statutes. Eggleston v. Bio-Medical Applications of Detroit, Inc., 468 Mich. 29, 32, 658 N.W.2d 139 (2003).

The Michigan Supreme Court has distinguished statutes that impose a duty to install traffic control devices from those that create causes of action for failing to maintain highways. Nawrocki v. Macomb Co. Rd. Comm., 463 Mich. 143, 181, 615 N.W.2d 702 (2000). An individual can seek to have a municipality held liable under the highway exception to governmental immunity pursuant to M.C.L. § 691.1402. Id. But the duty "implicating the installation, maintenance, repair, or improvement of traffic signs is expressly created" by a separate provision. Id.

The statute imposing the duty to install traffic control devices, M.C.L. § 257.610(a), provides, in relevant part, the following:

Local authorities ... shall place and maintain such traffic control devices upon highways under their jurisdiction as they may deem necessary to indicate and to carry out the provisions of this chapter or local traffic ordinances or to regulate, warn or guide traffic.

Our Supreme Court emphasized the point that municipalities are required to do what they deem necessary to control traffic. Nawrocki, supra at 182, 615 N.W.2d 702. The statute grants municipalities discretion. Id. The statute does not contemplate the "imposition of a duty the breach of which subjects the agencies to tort liability." Id. at 181-182, 615 N.W.2d 702.

Because there is no tort liability for a breach of the duties imposed by M.C.L. § 257.610(a), plaintiffs fail to state a claim on which relief can be granted. Therefore, upon review de novo, we find that summary disposition under MCR 2.116(C)(8) was proper.

Plaintiffs next contend that defendant can be held liable under the highway exception to governmental immunity for the negligent failure to install or maintain traffic control devices. Plaintiffs argue that our Supreme Court's decision in Nawrocki, supra, only excludes the state and county road commissioners from such liability. We disagree.

Summary disposition under MCR 2.116(C)(7) "is proper when a claim is barred by immunity granted by law." Fane v. Detroit Library Comm., 465 Mich. 68, 74, 631 N.W.2d 678 (2001). In order to get past such a motion, the plaintiff must "allege facts justifying the application of an exception to governmental immunity." Id.

M.C.L. § 691.1407(1) grants immunity from tort liability to agencies in "exercising or discharging governmental functions." Weaver v. Detroit, 252 Mich.App. 239, 243, 651 N.W.2d 482 (2002). The act confers broad immunity and its exceptions must be narrowly construed. Nawrocki, supra at 158, 615 N.W.2d 702.

Our Supreme Court has specifically applied this narrow construction to the highway exception provided in M.C.L. § 691.1402. Nawrocki, supra at 158, 615 N.W.2d 702. In Nawrocki, the Court held that the state and county road commissions are only liable for negligence in repairing and maintaining the "`roadbed actually designed for public vehicular travel,'" not traffic control devices. Id. at 180, 615 N.W.2d 702, quoting Scheurman v. Dep't of Transportation, 434 Mich. 619, 631, 456 N.W.2d 66 (1990). And the Court further noted that "traffic signals and signs are not implicated in the broad definition of highway in M.C.L. § 691.1401(e)." Nawrocki, supra at 182 n. 37, 615 N.W.2d 702. In a case involving a municipality, and where a pedestrian was killed by a falling light pole, this Court held "that, as with traffic signals and signs," the plain language of the statute does not support the conclusion that streetlight poles are part of the definition of the term "highway" in M.C.L. § 691.1401(e). Weaver, supra at 245, 651 N.W.2d 482, citing Nawrocki, supra at 180, 182 n. 37, 615 N.W.2d 702.

Plaintiffs cite Cox v. Dearborn Hts., 210 Mich.App. 389, 534 N.W.2d 135 (1995), in support of their argument that traffic control devices are part of the highway for purposes of a municipality's liability for failure to repair and maintain traffic control devices. Our Supreme Court in Nawrocki, supra at 182 n. 37, 615 N.W.2d 702, noted the following:

The dissent accuses us of "shifting" the liability for traffic control devices, including traffic signs, from the state and county road commissions, to local municipalities. While the purpose of our holding today is merely to return to a principled application of the plain language of the highway exception, we are constrained to respond to the dissent's misapprehension of the governmental immunity statute.

Clearly, traffic signals and signs are not implicated in the broad definition of "highway" in M.C.L. § 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." ... 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.

Plaintiffs, in this case, indicated that footnote 37 from Nawrocki, supra, was dicta and that Cox, supra, supported their argument. But this Court in Carr v. Lansing, 259 Mich.App. 376, 384-388, 674 N.W.2d 168 (2003), recently determined that the footnote was more than dicta and implicitly overruled Cox, supra,¹ as follows The [Nawrocki] Court's comments in footnote 37 [of Nawrocki, supra,] are more than mere dicta; they must be read as implicitly overruling Cox. The "governmental immunity statute as a whole" does not permit tort liability for inadequate signage or obstructed sight lines. Nawrocki, supra at 182, 615 N.W.2d 702. See also [Hanson v. Mecosta Co. Rd. Comm'rs, 465 Mich. 492, 502-503, 638 N.W.2d 396 (2002).]

Indeed, in cases decided after Nawrocki, this Court has extended the holding... to municipalities. In Weakley v. Dearborn Hts., 240 Mich.App. 382, 387, 612 N.W.2d 428 (2000), ... this Court held that under the highway exception a municipality had a "duty to provide barriers or warning signs" with regard to points of special hazard. Our Supreme Court ... remanded Weakley for reconsideration in light of Nawrocki. Weakley [v. City of Dearborn Hts.], supra, 463 Mich. 980, 624 N.W.2d 188 (2001). On reconsideration, Weakley v. Dearborn Hts. (On Remand), 246 Mich.App. [322, 328, 632 N.W.2d 177] (2001), this Court cited Cox, supra, but held that the city "did not have a duty to make the sidewalk reasonably safe by placing a barrier or warning device around the portion of the sidewalk that was under repair."

But this Court in Ridley [v. Detroit (On Remand), 246 Mich.App. 687, 691, 639 N.W.2d 258 (2001)], held that [Nawrocki, supra] did not apply to municipalities; consequently, a city could be liable under the highway exception for inadequate illumination because a "streetlight is not a utility pole and is not excluded by definition from the highway exception to governmental immunity." A special panel of this Court .... disagreed with the Ridley panel's analysis. Weaver, supra, 252 Mich.App. at 245,651 N.W.2d 482. The special panel found the distinction the Ridley (On Remand) panel relied on between the state and county road commissions on the one hand, and municipalities on the other hand, to be "insignificant ... [in light of] the central theme of the Supreme Court's decision in Nawrocki... that `the immunity conferred upon governmental agencies is broad, and the statutory exceptions thereto are to be narrowly construed[,]' Nawrocki, supra at 158, 615 N.W.2d 702, [and that] `no action may be...