Miller v. Oakland County

• Decision Date: 28 September 1972
• Docket Number: Docket No. 11834,No. 2,2
• Citation: 204 N.W.2d 141,43 Mich.App. 215
• Parties: Laura MILLER, Plaintiff-Appellant, v. The COUNTY OF OAKLAND, a municipal corporation, and the Oakland County Road Commission, Division of Oakland County, Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 141

204 N.W.2d 141

43 Mich.App. 215

Laura MILLER, Plaintiff-Appellant, v. The COUNTY OF OAKLAND, a municipal corporation, and the

Oakland County Road Commission, Division of

Oakland County, Defendants-Appellees.

Docket No. 11834.

Court of Appeals of Michigan, Division No. 2.

Sept. 28, 1972.

Released for Publication Feb. 7, 1973.

Odin H. Johnson, Pontiac, for plaintiff-appellant.

Gerald G. White, Pontiac, for defendants-appellees.

Before FITZGERALD, P.J., and QUINN and DANHOF, JJ.

PER CURIAM.

Plaintiff Laura Miller appeals from a summary judgment entered against her dismissing her complaint against Oakland County and the Oakland County Road Commission for failure to state a cause of action.

In plaintiff's amended complaint, she alleged (1) that she was driving on Andersonville Road when a large dead elm tree blew onto the truck she was driving on the road, (2) that the road commission was charged with maintaining the safety of this road, including keeping it free from falling trees, (3) that the road commission was warned that falling trees in the area made driving hazardous on Andersonville Road, (4) that the road commission was negligent in not removing potentially dangerous falling trees from the area, and (5) that, as a result of the negligence of the road commission, plaintiff was seriously injured by the falling tree.

Defendant moved for summary judgment on two grounds: (1) that plaintiff failed to state a claim upon which relief could be granted, inasmuch as M.C.L.A. § 691.1402; M.S.A. § 3.996(102) limits governmental liability for highway accidents when the defect arises on the traveled portion of the roadway; and (2) absent such statutory liability, the governmental agency is protected by sovereign immunity. Plaintiff opposed the defendant's motion for summary judgment and argued that the point of impact between the falling tree and the truck was on the traveled portion of the highway. The trial court granted defendant's summary judgment and subsequently denied plaintiff's motion for rehearing. This appeal followed.

We first deal with the question of whether or not M.C.L.A. § 691.1402; M.S.A. § 3.996(102) imposes liability upon the county road commission for failure to keep a highway under its jurisdiction '* * * in condition reasonably safe and fit for travel * * *' and for failure to remove known hazards from the side of the road which known hazard caused injury to plaintiff by falling on '* * * the improved portion of the highway designed for vehicular travel' and upon plaintiff as she was driving on the road.

M.C.L.A. § 691.1402; M.S.A. § 3.996(102) provides for the statutory liability of governmental agencies for highway defects in the following words:

'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 condition reasonably safe and fit for travel, may recover the damages suffered by him from such governmental agency. * * * The duty of * * * the county road commissions to * * * 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, cross-walks, or any other installation outside of the improved portion of the highway designed for vehicular travel.' (Emphasis added.)

The statute clearly requires the county road commission to maintain the highway '* * * in condition reasonably safe and fit for travel * * *' with the only limitation that the liability '* * * shall extend only to the improved portion of the highway designed for vehicular travel * * *.'

As pointed out by Justice Souris in Kowalczyk v. Bailey, 379 Mich. 568, 571, 572, 153 N.W.2d 660 (1967), the statute, Supra, refers to liability not only for defects in the highways and the streets, but also for failure to remove obstructions on the highway which caused injury to motorists on the highway:

'This act was open to two constructions--one, that it imposed upon municipalities an obligation to use diligence to keep their highways and streets in a condition reasonably safe and fit for public travel; and the other, that it imposed upon municipalities only the obligation to use due diligence to keep their highways and streets in good repair. Under the first construction, there would be an obligation on the part of a municipality to remove obstructions within a reasonable time after it had knowledge or notice of their existence. Under the second construction, there would be no such obligation. In the case of Joslyn v. City of Detroit, 74 Mich. 458 (, 42 N.W. 50) (1889), this court deliberately adopted the first construction.

'It is our conclusion, therefore, that that statute imposed upon cities liability for injuries caused by their negligent failure to remove obstructions in their streets after notice thereof.' (Emphasis added.)

In the case at bar, defendant county road commission would clearly be liable under the principle of Kowalczyk v. Bailey, Supra, if the tree first fell on the street as an obstruction and then plaintiff driver drove into it and was injured. Defendant argues, however, that because the tree fell on top of plaintiff's truck, the defendant is somehow immunized from liability under the statute because the tree was not yet on the highway. This argument exalts words over logic.

M.C.L.A. § 691.1403; M.S.A. § 3.996(103) provides that a governmental agency either knew or should have known about the road hazard before it can be liable under M.C.L.A. § 691.1402; M.S.A. § 3.996(102). Plaintiff specifically alleged in her amended complaint that the defendant had actual knowledge of the potential danger from falling trees because of complaints defendant received from area residents about potential hazards. Given this knowledge of the potential road hazards, the defendant failed to keep '* * * in condition reasonably safe and fit for travel * * *' the road on which plaintiff was driving by failing to remove potential hazards from the side of the road. Furthermore, inasmuch as the tree fell onto the highway and the point of impact between tree and truck occurred on the highway, defendant's liability was incurred on '* * * the improved portion of the highway designed for vehicular traffic * * *.' Defendants...