McKee by McKee v. Michigan Dept. of Transp.

Citation132 Mich.App. 714,349 N.W.2d 798
Decision Date04 May 1984
Docket NumberDocket No. 56827
PartiesDavid McKEE, Susan McKee, Kimberly McKee and Gregory McKee, by their friend, Susan McKEE, Plaintiffs-Appellees, Cross-Appellants, v. MICHIGAN DEPARTMENT OF TRANSPORTATION, Defendant-Appellant, Cross-Appellee.
CourtCourt of Appeal of Michigan (US)

Canyock & Thumm, P.C. by Lawrence P. Canyock, Utica, and Gromek, Bendure & Thomas by Mark R. Bendure, Detroit, for plaintiffs-appellees, cross-appellants.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Carl K. Carlsen, Asst. Atty. Gen., and George J. Platsis, Sp. Asst. Atty. Gen., for defendant-appellant, cross-appellee.

Before ALLEN, P.J., and BEASLEY and CLEMENTS, * JJ.

BEASLEY, Judge.

Defendant, Michigan Department of Transportation, appeals as of right from a Court of Claims judgment which awarded plaintiffs $5.6 million in damages for negligence and intentional nuisance. Plaintiffs cross-appeal.

Plaintiffs, David and Susan McKee, brought suit on their own behalf and on behalf of their two children, Kimberly and Gregory, to recover for injuries received when their automobile struck a lighting standard located off the shoulder of I-94 near the Frontenac overpass in the City of Detroit. The McKees were returning to their home in Grosse Pointe from Springfield, Illinois. The collision with the pole occurred at approximately 3:30 a.m. on May 15, 1974, when David McKee attempted to avoid hitting a disabled vehicle owned by Thomas Williams which had come to rest in the center and lefthand lanes of I-94 with its lights out. It had been raining steadily and puddles of water had formed on the road.

According to David McKee's testimony, immediately after the accident he noticed that Susan had been thrown from the car onto the pavement, Gregory was on the car floor with blood on his face, and Kimberly lay on the back seat, thrashing her legs. Kimberly was the most severely injured; much of the left hemisphere of her brain was destroyed when the light standard penetrated the car.

Plaintiffs claimed that defendant's responsibility arose from negligent design and maintenance of the I-94 shoulder, the lighting standard's encroachment on the shoulder and the failure to warn motorists of the lack of skid resistance in the righthand lane due to the parabolic design of the road cross-section.

Plaintiffs alleged that the infrangible lighting standard was erected so as to encroach on the narrow shoulder and that this left an inadequate usable shoulder for foreseeable and intended emergency uses of the shoulder. Plaintiffs further contended that the shoulder and lighting standard designs were obsolete and in nonconformance with recognized highway design standards in 1957, when the plans for this section of the expressway were approved, and in 1958, when this section was opened to traffic.

After nearly 10 months of trial, the court issued a 67-page opinion, concluding that the light pole's placement on the shoulder, in conjunction with the other features, constituted a nuisance which had been intentionally erected and maintained by defendant. The court further concluded that the roadway was not reasonably safe and that defendant was negligent in three separate respects: (1) the inadequate width of the shoulder, (2) the encroachment of light poles on the shoulder, and (3) the failure to warn of the hazards of water accumulation in the righthand lane due to its parabolic design. The trial court found that these acts were a proximate cause of the injuries sustained by plaintiffs and, therefore, found defendant liable for those injuries. Defendant appeals both the finding of liability and the amount of damages. Plaintiffs cross-appeal the court's failure to award prejudgment interest.

Defendant first contends that the highway's shoulder width and light pole placement are not actionable under M.C.L. Sec. 691.1402; M.S.A. Sec. 3.996(102). Defendant argues that the state's liability for repair and maintenance of highways only includes "the improved portion of the highway designed for vehicular travel". 1 As shoulders were not designed for vehicular travel, defendant claims the light poles were not hazardous to highway travel. Therefore, according to defendant, there can be no liability for the shoulder width and pole placement based on defendant's statutory duty to repair and maintain highways.

The relevant part of M.C.L. Sec. 691.1402; M.S.A. Sec. 3.996(102) provides:

"Each governmental agency having jurisdiction over any highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. Any person sustaining bodily injury or damage to his property by reason of failure of any governmental agency to keep any highway under its jurisdiction in reasonable repair, and in condition reasonably safe and fit for travel, may recover the damages suffered by him from such governmental agency. * * * The duty of the state and the 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 law is well-established that the shoulders of a highway are designed for vehicular use and, thus, the state is obligated to maintain them in reasonable repair "so that they are reasonably safe for their intended use as adjuncts of the paved portion of the highway". 2

Defendant next argues that, as a matter of law, shoulder width and light pole placement cannot be the proximate cause of plaintiffs' injuries. Defendant cites Dawson v. Postal Telegraph-Cable Co. 3 and other cases in support. Dawson cited 82 A.L.R. 395 as authority, stating that a company lawfully maintaining poles at or near a public highway is not liable to persons' striking such " 'unless it is erected on the traveled portion of the highway or in such close proximity thereto as to constitute an obstruction dangerous to anyone properly using the highway, and the location of the pole is the proximate cause of the collision' ". 4 Under the particular facts in Dawson, that court found the location of the poles was not the proximate cause of the injury. In the instant case, however, there was considerable testimony that if the light pole had been placed several inches farther back, the light pole would not have penetrated the passenger compartment.

The question of proximate cause is one of fact to be determined by the trier of fact. 5 Under GCR 1963, 517.1, a finding of fact by a court sitting in a bench trial is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. 6 As the testimony was such to support the court's conclusion that, along with the width of the shoulder and the design of the roadway, the placement of the light pole was a proximate cause of the accident, we find no clear error. 7

Defendant's third argument is that the duty to repair and maintain highways does not include altering existing highways or highway plans. As there was testimony that the design of the shoulder, including placement of the light poles, conformed with urban freeway standards at the time of design and construction, negligence cannot be found based on the plan or design, defendant contends. Further, defendant argues that, since I-94 was designed and constructed well in advance of the imposition of liability on the state for alleged defects, to impose liability for such is an improper retroactive application of a duty.

The statute in question, M.C.L. Sec. 691.1402; M.S.A. Sec. 3.996(102), was enacted in its present form in 1964, 1964 P.A. 170. Thus, contrary to defendant's argument, tort liability for negligently maintained highways was in effect prior to 1974, when the accident occurred. The tort liability includes liability for failure to correct defects arising from the original design or construction of highways; a continuing duty to "maintain the highway in reasonable repair". 8 Furthermore, the trial court imposed liability on defendant based on a finding of nuisance, which, as a judge-made exception to governmental immunity, came into existence well before the accident in question. 9 Thus, there is no retroactivity problem in the imposition of liability on defendant.

The liability issue in the within case concerns whether the highway was in reasonable repair and reasonably safe. Defendant may be held liable for design and construction defects of I-94 even if the highway was in compliance with the standards existing when it was constructed in 1957. In addition, there was evidence that the design did not meet the 1957 standards.

Fourth, defendant claims that the trial court erred as a matter of law in holding defendant responsible under the nuisance theory. The trial court determined that the light pole location and shoulder width constituted both a nuisance per se and an intentional nuisance in fact, both of which constitute exceptions to governmental immunity. The court reasoned that:

"While a light pole, by itself, may not be a nuisance per se, an obstruction encroaching into a refuge and emergency lane on an interstate freeway is a nuisance per se. The result to the McKee family would have been the same if the obstruction was a bridge abutment, steel sign post, flag pole or any other roadside obstruction of like character. It is not a light pole that damaged the McKee family, it was the nature of the light pole, i.e., a fixed object encroaching into the emergency lane. A highway roadside obstruction is a structure whereby its very nature is a nuisance per se at all times and under any circumstances on I-94, regardless if it is located at or...

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