Meek v. TRANSPORTATION DEPT., Docket No. 202971.
| Decision Date | 22 May 2000 |
| Docket Number | Docket No. 202971. |
| Citation | 240 Mich. App. 105,610 N.W.2d 250 |
| Parties | Suzanne MEEK, Personal Representative of the Estate of Richard Dean Meek, Deceased, Plaintiff-Appellee, v. DEPARTMENT OF TRANSPORTATION, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Schreier & Weiss, P.C. (by Sherwin Schreier, Mark Schreier, and Alyce M. Haas), Royal Oak, for the plaintiff.
Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, and Brenda E. Turner and Harold Martin, Assistant Attorneys General, Escanaba, for the defendant.
Before: McDONALD, P.J., and DOCTOROFF and NEFF, JJ.
Defendant, Michigan Department of Transportation, appeals as of right from a judgment for plaintiff, Suzanne Meek, as personal representative of the estate of Richard Meek, deceased, following a bench trial in this wrongful death action under the highway exception to governmental immunity, M.C.L. § 691.1402(1); MSA 3.996(102)(1). We affirm.
The basic facts in this case are undisputed. The decedent, Richard Meek, was killed in a single-vehicle accident on a freeway connector ramp in Detroit at approximately 6:30 p.m. on April 16, 1992, when the Mobil Oil tanker truck he was driving struck a nine-inch barrier curb, overturned, and caught fire.
Meek was an experienced tanker driver. On the night of the accident, he was en route to make fuel deliveries and had just filled the tanker with 9,000 gallons of gasoline. He was traveling on eastbound I-94 in the city of Detroit. It had been raining and the pavement was wet. Meek turned off eastbound I-94 onto the connector ramp to southbound I-96.1 The ramp has a vertical incline and, at the crest, declines into a horizontal curve. At the beginning of the incline are two signs, reading "Ramp 35 mph," which is an advisory speed. Meek was traveling in the left lane of the two-lane connector ramp, at approximately forty to forty-five miles an hour. The right side of the ramp had a paved shoulder. The left side of the ramp was bordered by a gutter pan, approximately two feet wide, with a flat-faced barrier curb, nine-inches high and six inches wide, along the top.
According to an eyewitness, as Meek entered the curve in the ramp, the tanker slid to the left. The left rear tire hit the barrier curb and the tanker overturned on its left side. It slid down the connector ramp and hit a second nine-inch barrier curb, rupturing the front compartment of the tank. The gasoline ignited, causing an explosion and fire.
Meek died in the accident. The cause of death was listed as blunt force injury to the chest and smoke and soot inhalation. Although his principal injuries were only broken ribs, Meek's body was charred and partially dismembered in the wreckage.
Meek's wife, Suzanne, filed this wrongful death action on behalf of Meek's estate, claiming that defendant failed to design, construct and maintain the highway so that it was reasonably safe and convenient for public travel.2 It was plaintiff's contention that Meek's death was caused by the defective design and construction of the connector ramp: the barrier curbs in the outside lane, the lack of adequate shoulders, inadequate superelevation (banking), inadequate signing, a vertical curve that precedes a horizontal curve, and an inadequate radius.
Defendant claimed that the alleged defects were not within the highway exception to governmental immunity because the barrier curb was not included in the portion of the highway designed for vehicular travel and that defendant had no duty to make a reasonably safe ramp even safer by increasing the curve radius and superelevation or adding curve signs. Further, there was no evidence that a curve sign would have prevented the accident. Defendant alleged that Meek's excessive speed was a superseding cause of the accident, thereby absolving defendant of liability.
The court found in favor of plaintiff and awarded a judgment of $4,276,329, including $1,500,000 for conscious pain and suffering and $1,500,000 to Suzanne for loss of society and companionship. However, the court found Meek to be forty-five percent comparatively negligent, largely because of excessive speed, and reduced the judgment to $2,351,981.3
Defendant first claims that it has no liability under the highway exception to governmental immunity with respect to the barrier curb because curbing falls outside defendant's scope of duty to maintain the improved portion of the highway. We disagree. Whether a duty arises under the highway exception is a question of law, subject to review de novo. Pick v. Szymczak, 451 Mich. 607, 612, 615, 548 N.W.2d 603 (1996); Simko v. Blake, 448 Mich. 648, 655, 532 N.W.2d 842 (1995).
The highway exception to governmental immunity is set forth in M.C.L. § 691.1402(1); MSA 3.996(102)(1), which at the time of the incident at issue,4 provided:
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 or her 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 or her from the 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 extent of the highway exception has been the subject of much debate in the appellate courts. Pick, supra at 624, 548 N.W.2d 603. Nevertheless, the Supreme Court has "found the legislative purpose for the highway exception clear: `to enhance the safety of public travel upon state-owned highways.'" McIntosh v. Dep't of Transportation, 234 Mich.App. 379, 382, 594 N.W.2d 103 (1999), quoting Chaney v. Dep't of Transportation, 447 Mich. 145, 154, 523 N.W.2d 762 (1994). This purpose is a guiding factor in interpreting the highway exception. Id.
The Court in Chaney, supra at 155, 523 N.W.2d 762, indicated that the holding of Roy v. Dep't of Transportation, 428 Mich. 330, 340, 408 N.W.2d 783 (1987), was "that a bicycle path adjacent to, but separate and detached from, a highway was not part of the improved portion of that highway designed for vehicular travel." However, the Court went on to note, Chaney, supra at 157, 523 N.W.2d 762, that the holding of Gregg v. State Highway Department, 435 Mich. 307, 458 N.W.2d 619 (1990), was "that a bicycle path running between the traveled portion of a highway and its paved shoulder comprised part of the improved highway `designed for vehicular travel.'"
The Court in Chaney, supra at 157-158, 523 N.W.2d 762 explained the holding in Gregg, supra, was that although highway shoulders were not normally traveled roadbed, they were nevertheless intended and designed for vehicular travel. "We held that the highway exception must be tempered by common experience, and that certain installations located beyond the traveled or paved roadway `are essential to a safe modern highway' so as not to be excluded from the highway exception." Chaney, supra at 158, 523 N.W.2d 762 quoting Gregg, supra at 315, 458 N.W.2d 619.
More recently, in Pick, supra at 621, 548 N.W.2d 603, the Supreme Court stated that a bright-line rule limiting governmental responsibility for public roadways to factors that are physically part of the roadbed itself required an improperly stringent reading of the highway exception. The Court held that "a duty is imposed on governmental agencies to provide traffic control devices or warning signs at, or in regard to, points of hazard affecting roadways within their jurisdiction." Id. at 624, 548 N.W.2d 603. In so holding, the Court expressly rejected a myopic focus on the phrase "the improved portion of the highway" and set forth what it believed was a more "workable principle" for applying the highway exception. Id. at 622, 624, 548 N.W.2d 603.
We define "point of hazard" (or "point of special danger") as any condition that directly affects vehicular travel on the improved portion of the roadway so that such travel is not reasonably safe. To be a point of hazard for purposes of the highway exception, the condition must be one that uniquely affects vehicular travel on the improved portion of the roadway, as opposed to a condition that generally affects the roadway and its surrounding environment. We reemphasize, however, that such conditions need not be physically part of the roadbed itself. [Id. at 623, 548 N.W.2d 603.]
In this case, given the physical construction of the connector ramp at issue, we conclude that the barrier curb must be considered part of the improved portion of the highway designed for vehicular travel and comes within the highway exception to governmental immunity. The ramp is, in effect, a single continuous installation, from the right shoulder to the barrier curb at the left. To legally dissect the highway at the point where the gutter pan meets the barrier curb and to find that the barrier curb is not part of the improved portion of the highway designed for vehicular travel is contrary to the tenor of case precedent and the legislative purpose underlying the highway exception. Such a dissection would also fly in the face of common sense and of physical reality, as is clearly illustrated in the photograph that was admitted at trial as defendant's Exhibit 112 and is attached to this opinion as Attachment A.
The barrier curb at issue is contiguous with and attached to the gutter pan, which borders the outermost travel lane around the curve of the...
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