McMillan v. State Highway Com'n

• Decision Date: 16 September 1986
• Docket Number: No. 73474,73474
• Citation: 393 N.W.2d 332,426 Mich. 46
• 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. 426 Mich. 46, 393 N.W.2d 332
• Court: Michigan Supreme Court

Page 332

393 N.W.2d 332

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.

No. 73474.

426 Mich. 46, 393 N.W.2d 332

Supreme Court of Michigan.

Argued Dec. 18, 1985.

Decided Sept. 16, 1986.

William L. Fisher (P13476), Troy; Robert A. Koory (P16146), Goodman, Eden, Millender & Bedrosian, of counsel, Detroit, for Tamara McMillan and Patricia McMillan, plaintiffs-appellants.

Leon S. Cohan (P-12009), Michael D. Gladstone (P-14033), Detroit, for The Detroit Edison Co.

Susan E. Lister (P29072), Richard M. Goodman, P.C., Mark R. Granzotto (P31492), Detroit, Arnold D. Portner (P23954), Portner & Stine, P.C., Birmingham, for Michigan Trial Lawyers Ass'n, amicus curiae.

CAVANAGH, Justice.

The lower courts ruled, as a matter of law, that Detroit Edison owed no duty of reasonable care to an occupant of a vehicle which leaves the traveled portion of the highway and strikes a utility pole located on the median. We reverse.

On January 10, 1976, plaintiff Tamara McMillan ¹ was a passenger in an automobile Plaintiff alleged that the construction of a non-energy-absorbing pole, and its placement within three feet of the traveled portion of the highway, constituted a traffic hazard. Paragraph eight of plaintiff's complaint states that, "Defendants owed a duty to plaintiffs to maintain safe traffic conditions including maintaining a utility pole so as to prevent collision with an automobile and/or to minimize injuries to a passenger in the event of such collision." Paragraph nine stated that the defendant "impliedly warranted the crashworthiness of said utility pole in respect to being equipped with a breakaway feature or energy absorbing material...." Plaintiff concluded that these duties were breached since the pole was not crashworthy and was located in such a manner as to create a traffic hazard.

traveling south on Woodward Avenue in the City of Royal Oak. Woodward is a state-owned highway. At the point in question, the north- and southbound lanes are separated by a grassy median strip. The vehicle was struck by a hit-and-run driver, went out of control, and collided with a utility pole owned by the defendant Detroit Edison Company. The pole was located on the median, approximately three feet from the traveled portion ² of Woodward Avenue.

The district court granted defendant's motion for summary judgment on the basis of our decisions in 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). ³ The circuit court affirmed the judgment on appeal. ⁴ The Court of Appeals granted leave to appeal and affirmed. McMillan v. State Highway Comm., 130 Mich.App. 630, 344 N.W.2d 26 (1983). On reconsideration, we granted leave to appeal and also granted permission to the Michigan Trial Lawyers Association to appear as amicus curiae.

I

We are essentially faced with the question whether the defendant owes any obligation to avoid negligent conduct to the plaintiff for personal injuries under the facts set forth in the complaint and the settled statement of facts. See Moning v. Alfono, 400 Mich. 425, 436-442, 254 N.W.2d 759 (1977).

The answer to this question necessarily includes considerations of duty, proximate cause, and the function of the court and jury. Proximate cause can be thought of as a policy determination which is often indistinguishable from the duty question. Moning, supra, p. 438, 254 N.W.2d 759.

Prosser and Keeton address the interrelationship between duty and proximate cause:

"Once it is established that the defendant's conduct has in fact been one of the causes of the plaintiff's injury, there remains the question whether the defendant should be legally responsible for the injury. Unlike the fact of causation, with which it is often hopelessly confused, this is primarily a problem of law. It is sometimes said to depend on whether the conduct has been so significant and important a cause that the defendant should be legally responsible. But both significance and importance turn upon conclusions in terms of legal policy, so that they depend essentially on whether the policy of the law will extend the responsibility for the conduct to the consequences which have in fact occurred. Quite often this has been stated, and properly so, as an issue of whether the defendant is under any duty to the plaintiff, or whether the duty includes protection against such consequences. This is not a question of causation, or even a question of fact, but quite far removed from both; and the attempt to deal with it in such terms has led and can lead only to utter confusion.

* * *

"It is quite possible to state every question which arises in connection with 'proximate cause' in the form of a single question: was the defendant under a duty to protect the plaintiff against the event which did in fact occur? Such a form of statement does not, of course, provide any answer to the question, or solve anything whatever; but it may be helpful since 'duty'--also a legal conclusion--is perhaps less likely than 'proximate cause' to be interpreted as if it were a policy-free factfinding. Thus, 'duty' may serve to direct attention to the policy issues which determine the extent of the original obligation and of its continuance, rather than to the mechanical sequence of events which goes to make up causation in fact. The question whether there is a duty has most often seemed helpful in cases where the only issue is in reality whether the defendant stands in any such relation to the plaintiff as to create any legally recognized obligation of conduct for the plaintiff's benefit." Prosser & Keeton, Torts (5th ed), Sec. 42, pp. 272-274. (Emphasis supplied.)

The Court of Appeals, citing our earlier decisions in Dawson and Cramer, declined to impose any obligation on the defendant under the circumstances. The court "distilled" the following rule from those decisions:

"[A]ctionable 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.

* * *

"Other jurisdictions have similarly held that a utility company is under no obligation to guard against extraordinary exigencies created when a vehicle leaves the traveled portion of the roadway out of control. Speigel v Southern Bell Telephone & Telegraph Co, 341 So 2d 832 (Fla App, 1977); Oram v New Jersey Bell Telephone Co, 132 NJ Super 491; 334 A2d 343 (1975); Wood v Carolina Telephone & Telegraph Co, 228 NC 605; 46 SE2d 717; 3 ALR2d 1 (1948); Monaco v Comfort Bus Line, Inc, 134 NJL 553; 49 A2d 146 (1946)." 130 Mich App 635-637. (Emphasis supplied.)

In light of the development of the law since our decisions in Dawson and Cramer,

we believe that it is necessary to review these decisions.

DAWSON AND CRAMER

Defendants argue that Dawson and Cramer state that a defendant owes no duty to an occupant of a motor vehicle which collides with a utility pole unless the pole is located on the traveled portion of the highway, or is in such proximity thereto as to constitute an obstruction dangerous to anyone properly using the highway. See Dawson, supra, p. 142, 251 N.W. 352. Plaintiff, supported by amicus curiae, contends that neither Dawson nor Cramer should prohibit a jury from deciding the question of the defendants' negligence.

In Dawson, a car swerved to avoid a turning truck and crashed into a pile of telephone poles. The poles were lying a foot or two off the traveled portion of the highway. The trial court found the pole owners liable.

Although the Dawson Court stated the general rule advanced by Detroit Edison in this case, Dawson was apparently decided on the basis of a finding of a lack of "proximate cause":

"The following statement from 82 ALR 395 [superseded by 3 ALR2d 6] is borne out by many decisions cited therein:

" '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.'

"Even were we to assume, however, that defendant lacked authority or was otherwise negligent in piling its poles in the untraveled portion of the road, we do not believe that plaintiff could recover against defendant. Such action, even if negligent, was not the proximate cause of the accident. 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. (Emphasis supplied.)

The Dawson Court continued:

"We believe the law is correctly stated in Wyatt v. Chesapeake & Potomac Telephone Co., [158 Va 470; 163 S.E. 370 (1932) ]:

" 'Of course it is true that but for the location of this pole there would have been no accident, but its unlawful location and the happening of the disaster leaves the question of causal connection still open.... Probable consequences are to be anticipated and not those which are merely...