McMillan v. Michigan State Highway Com'n, Docket No. 65038

• Decision Date: 06 February 1984
• Docket Number: Docket No. 65038
• Parties: Tamara McMILLAN and Patricia McMillan, Plaintiffs-Appellants, v. MICHIGAN STATE HIGHWAY COMMISSION, Oakland County Road Commission, and City of Royal Oak, Defendants, and The Detroit Edison Company, Defendant-Appellee. 130 Mich.App. 630, 344 N.W.2d 26, 51 A.L.R.4th 593
• Court: Court of Appeal of Michigan — District of US

Page 26

344 N.W.2d 26

Tamara McMILLAN and Patricia McMillan Plaintiffs-Appellants, v. MICHIGAN STATE HIGHWAY COMMISSION, Oakland County Road Commission, and City of Royal Oak, Defendants and The Detroit Edison Company, Defendant-Appellee.

Docket No. 65038.

130 Mich.App. 630, 344 N.W.2d 26, 51 A.L.R.4th 593

Court of Appeals of Michigan.

Submitted June 29, 1983.

Decided Nov. 22, 1983.

Rehearing Denied Jan. 5, 1984.

Released for Publication Feb. 6, 1984.

[130 MICHAPP 631] William L. Fisher, Troy, for plaintiffs-appellants.

Michael D. Gladstone, Detroit, for The Detroit Edison Co.

Before CYNAR, P.J., and HOOD and JASON, ^* JJ.

PER CURIAM.

Plaintiffs appeal by leave granted an order by the 52-4 District Court granting defendant Detroit Edison Company's motion for summary[130 MICHAPP 632] judgment, GCR 1963, 117.2(1), and from a subsequent circuit court order affirming that judgment.

Facts are derived from the pleadings and from a settled statement of facts. On the wintry night of January 10, 1976, plaintiff Tamara McMillan was a passenger in an automobile traveling south on Woodward Avenue in the City of Royal Oak. At some point between the intersections of Woodward with 13 Mile and 14 Mile Roads, the vehicle was struck by a hit-and-run driver. The car went out of control, entered the median strip separating the north and southbound lanes of Woodward, and collided with a Detroit Edison utility pole.

In their complaint, plaintiffs alleged that the pole was within three feet of Woodward Avenue traffic and was not constructed of an energy-absorbing or breakaway material. Plaintiffs claimed that defendants owed a duty to maintain safe traffic conditions, including utility poles so placed to prevent collision with an automobile or designed to minimize injuries to a passenger in the event of a collision. Their complaint alleged that defendants had breached this duty wilfully, wantonly, carelessly and negligently.

Alternatively, plaintiffs sued Detroit Edison on a theory of breach of covenant for failure to honor its obligations under a provision contained in a permit obtained by the utility when it installed the lighting pole.

As this litigation progressed, all named defendants other than Detroit Edison were dismissed from the suit by way of summary judgments. The action was also remanded to district court after the amount in controversy was determined to be less than the circuit court's jurisdictional limit. The district court granted summary judgment in [130 MICHAPP 633] favor of Detroit Edison (hereinafter defendant), ruling that defendant "owed no duty to Plaintiffs in regard to the placement or maintenance of the utility pole in question since the utility pole was placed in such a manner as to be wholly outside the traveled portion of the highway and, as such, not a menance to the normal travel on said highway".

On appeal the circuit court judge reached a similar conclusion on the question of defendant's duty, and further ruled that plaintiffs' breach of covenant theory was meritless.

In dismissing plaintiffs' claim against defendant for negligently positioning and constructing its pole, both lower courts relied on two Supreme Court cases, Dawson v. Postal Telegraph-Cable Co., 265 Mich. 139, 251 N.W. 352 (1933), and Cramer v. Detroit Edison Co., 296 Mich. 662, 296 N.W. 831 (1941). In Dawson, the plaintiff's car was driven into a pile of telegraph poles located parallel to and on the untraveled portion of Depot Street in Ann Arbor. The poles had been piled "a foot or two to the north of the boundary of the main traveled part of the highway", and the plaintiff ran into them when her car had to swerve to avoid a collision with a truck that began a left turn without signalling. The Supreme Court noted that the telegraph company was entitled by statute to "enter upon, construct, and maintain lines of telegraph through, along and upon any of the public roads and highways by the erection of necessary fixtures, including posts, etc., provided that such construction shall not incommode the public in its use of the roads". Dawson, supra, 265 Mich. p. 142, 251 N.W. 352.

In determining whether the telegraph company had incommoded the public, the Supreme Court cited the following general proposition from 82 A.L.R. 395:

[130 MICHAPP 634] "It may be stated as a general proposition that a company lawfully maintaining poles in or near a public highway is not liable for the damage to person or property resulting from a road vehicle striking such a pole, 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." Dawson, 265 Mich. p. 142, 251 N.W. 352.

The Court then concluded that, even if the defendant had negligently placed the poles too close to the highway, this negligence was not the proximate cause of the accident because the defendant "could not have foreseen a collision of this kind resulting from an act of negligence by another party, forcing the car in which plaintiff was riding to leave the main portion of the road". Dawson, supra, p. 142, 251 N.W. 352.

In Cramer, the plaintiff drove his car into the defendant's electric light pole at night. The pole was positioned at the end of a median parkway 10 feet 2 inches in width, and was surrounded by three 3-foot unlighted metal posts set a foot back from the curb. The night was clear, the plaintiff had his headlights on, and he was driving between 15 and 19 miles per hour, but he was unable to see either the pole or its surrounding posts until he was too close to stop. He could, however, see bushes behind the pole, and timed his braking for that distance.

The Supreme Court held that the defendant was not guilty of actionable negligence because the pole "was back a short distance from the curb at the east end of the parkway and the posts set between that pole and the curb of the parkway. So situated the posts were not a menace to travel on [130 MICHAPP 635] the highway, and there was no duty on the part of defendant to advertise the presence of the posts by warning signs". Cramer, supra, 296 Mich. p. 667, 296 N.W. 831. The Supreme Court did, however, find the plaintiff negligent because he had failed to turn his car until it was too late to avoid striking the three posts in front of the light pole.

Plaintiffs do not believe that the lower court should have relied on these cases, principally because both are more than 40 years old. While it may be true that some cases do not age gracefully, it is for the Supreme Court to overrule or modify its case law when and if it becomes obsolete. Pending such action, this Court and all lower courts are bound by that authority.

We distill from Cramer and Dawson the following rule: actionable negligence will not be found in a utility company for erection or maintenance of a pole unless it is 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. The lighting pole in this case was located on a grassy median strip, not itself a traveled portion of the roadway, approximately three feet from the paved surface of the road. Under these facts we find that defendant breached no duty to plaintiffs in failing to design the pole in anticipation of the possibility that an automobile, leaving the roadway out of control, would collide with it.

Duty is one of six elements of an action in negligence, Moning v. Alfono, 400 Mich. 425, 437, 254 N.W.2d 759 (1977). The duty is always the same in negligence cases: the actor must "conform to the legal standard of...