Mitchell v. City of Detroit

• Decision Date: 22 November 2004
• Docket Number: Docket No. 247074.
• Citation: 689 N.W.2d 239,264 Mich. App. 37
• Parties: Lisa MITCHELL, Individually and as Next Friend of Lavale Stevenson, a Minor, Plaintiff-Appellee, v. CITY OF DETROIT, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

689 N.W.2d 239

264 Mich. App. 37

Lisa MITCHELL, Individually and as Next Friend of Lavale Stevenson, a Minor, Plaintiff-Appellee, v. CITY OF DETROIT, Defendant-Appellant.

Docket No. 247074.

Court of Appeals of Michigan.

Submitted July 13, 2004, at Detroit.

Decided October 5, 2004, at 9:10 a.m.

Released for Publication November 22, 2004.

Posner, Posner & Posner (by Samuel Posner), Detroit, for the plaintiff.

Ruth C. Carter, Corporation Counsel, and Joanne D. Stafford, Assistant Corporation Counsel, Detroit, for the defendant.

Before: JANSEN, P.J., and METER and COOPER, JJ.

METER, J.

Defendant appeals as of right from an order denying it summary disposition in this negligence action involving an alleged injury that occurred on a "berm" — a strip of land between a public road and a sidewalk.¹ Defendant argues that the trial court erred in holding that a berm is included in the definition of "highway" in M.C.L. § 691.1401(e) and that, accordingly, the highway exception to governmental immunity applies to this case. Defendant argues that a berm is not in fact considered part of a highway, that the highway exception to governmental immunity does not apply to this case, and that it therefore is immune from tort liability under M.C.L. § 691.1407. We agree and therefore reverse.

I. Facts

In July 1997, LaVale Stevenson, a minor, was riding his bicycle westbound on the south side of Evanston Street in Detroit when an eastbound vehicle approached him. Stevenson jumped over the curb and landed on the berm in order to maintain a safe distance from the vehicle. The Detroit Water Department had done some excavating on the berm earlier that day to fix a water main leak. The water department dug a large hole to work on the leak and, when finished, filled the area with sand. Stevenson's back tire landed in the hole and began sinking. Stevenson sunk up to his chin before a local woman came to his rescue and pulled him out of the hole. Stevenson claimed that there were no warnings or barricades surrounding the hole. Stevenson claimed that, as a result of the incident, he suffered injuries to his entire body, as well as severe psychological injuries.

In 2001, plaintiff, individually and as next friend of Stevenson, sued defendant, alleging that it was negligent in maintaining and repairing the public streets and highways within its jurisdiction. Defendant denied liability, arguing, in part, that governmental immunity applied.

Defendant then filed a motion for summary disposition, arguing that a berm is not included in the definition of "highway" under M.C.L. § 691.1401(e) and that the highway exception to governmental immunity therefore did not apply to this case. Defendant argued that, because the alleged injury occurred on the berm adjacent to Evanston Street, it was immune from tort liability under M.C.L. § 691.1407. Plaintiff responded to defendant's motion for summary disposition by arguing that, according to binding Michigan case law, a berm located next to a street is covered under the highway exception to governmental immunity.

The trial court denied defendant's motion for summary disposition based on governmental immunity, holding that a berm is a natural extension of a sidewalk and is therefore included in the definition of highway under M.C.L. § 691.1401(e).

II. Standard of Review

We review de novo a trial court's grant or denial of summary disposition. Haliw v. Sterling Hts., 464 Mich. 297, 301, 627 N.W.2d 581 (2001). In reviewing a motion brought under MCR 2.116(C)(7), "[w]e consider all documentary evidence submitted by the parties and accept as true the plaintiff's well-pleaded allegations, except those contradicted by documentary evidence." McKiney v. Clayman, 237 Mich.App. 198, 201, 602 N.W.2d 612 (1999). In the instant case, we must review the pleadings and documentary evidence to determine whether the nonmoving party established an exception to governmental immunity. McGoldrick v. Holiday Amusements, Inc., 242 Mich.App. 286, 289-290, 618 N.W.2d 98 (2000). The determination of the applicability of the highway exception to governmental immunity is a question of law subject to review de novo on appeal. Meek v. Dep't of Transportation, 240 Mich.App. 105, 110, 610 N.W.2d 250 (2000).

III. Analysis

The governmental immunity act, M.C.L. § 691.1407, provides that governmental agencies, including municipalities such as defendant, are immune from tort liability whenever they are engaged in the exercise or discharge of a governmental function, except as otherwise provided in the act. Weakley v. Dearborn Hts. (On Remand), 246 Mich.App. 322, 325, 632 N.W.2d 177 (2001). Governmental function is defined, in part, as an "activity that is expressly or impliedly authorized by constitution, statute, local charter or ordinance, or other law." M.C.L. § 691.1401(f). It is not disputed that defendant engaged in a governmental function when its water department took steps to repair the water main break on Evanston Street. What is in dispute is whether one of the statutory exceptions to governmental immunity applies to this case.

In an attempt to avoid governmental immunity, plaintiff relied on the highway exception, M.C.L. § 691.1402, which provides, in relevant part:

[E]ach governmental agency having jurisdiction over a highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. A person who sustains bodily injury or damage to his or her property by reason of failure of a governmental agency to keep a highway under its jurisdiction in reasonable repair and in a condition reasonably safe and fit for travel may recover the damages suffered by him or her from the governmental agency. [M.C.L. § 691.1402(1).]

A "highway" is defined under the act as "a public highway, road, or street that is open for public travel and includes bridges, sidewalks, trailways, crosswalks, and culverts on the highway. The term highway does not include alleys, trees, and utility poles." M.C.L. § 691.1401(e). Defendant argues that the statute should be construed narrowly and that a berm is not within the plain meaning of the definition of a "highway." Plaintiff claims on appeal that a berm is a natural extension of the sidewalk and therefore is included within the definition of a "highway."

In dealing with issues regarding the highway exception, we must abide by the principles that the immunity conferred on governmental agencies is broad and that the statutory exceptions should be narrowly construed, in accordance with their plain language. Nawrocki v. Macomb Co. Rd. Comm., 463 Mich. 143, 149-151, 158, 615 N.W.2d 702 (2000). The Nawrocki Court noted that "such an approach will maintain fidelity to the requirements set forth by the Legislature, while providing the lower courts with a clearer standard to follow when applying the highway exception in individual cases." Id. at 150, 615 N.W.2d 702. The Court further noted that because M.C.L. § 691.1402(1) "is a narrowly drawn exception to a broad grant of immunity, there must be strict compliance with the conditions and restrictions of the statute." Id. at 158-159, 615 N.W.2d 702.

This Court applied the above principles to the highway exception in Weaver v. Detroit, 252 Mich.App. 239, 651 N.W.2d 482 (2002). In Weaver, this Court held that the highway exception to governmental immunity does not apply to streetlight poles, because they are not specifically included within the definition of the term "highway" under M.C.L. § 691.1401(e). Weaver, supra at 245-246, 651 N.W.2d 482. The Weaver Court emphasized the Nawrocki Court's statement that" `the immunity conferred upon governmental agencies is broad, and the statutory exceptions thereto are to be narrowly construed.'" Id. at 245, 651 N.W.2d 482, quoting Nawrocki, supra at 158, 615 N.W.2d 702 (emphasis in Nawrocki). The Weaver Court stated, "we reject as inconsistent with the plain language of the statute the holding ... that a streetlight pole is part of the `highway' because it is not specifically excluded from the definition of `highway' in M.C.L. § 691.1401(e)." Weaver, supra at 246, 651 N.W.2d 482.

The reasoning from Weaver applies with equal force to the instant case. The highway exception to governmental immunity does not apply here because the plain language of M.C.L. § 691.1401(e) does not support the conclusion that berms are included within the definition of the term "highway." Weaver, supra at 245-246, 651 N.W.2d 482. A highway is currently defined as "a public highway, road, or street that is open for public travel and includes bridges, sidewalks, trailways, crosswalks, and culverts on the highway." M.C.L. § 691.1401(e). Alleys, trees, and utility poles have specifically been excluded from the definition of highway. M.C.L. § 691.1401(e). A berm, as it is defined for purposes of the instant case, does not constitute a "highway." The plain language of the statute simply does not support the conclusion that berms are included within the statutory definition of the term "highway."

In support of her argument, plaintiff cites Michonski, supra; Messecar v. Garden City, 172 Mich.App. 519, 432 N.W.2d 311 (1988), and Ali v. Detroit, 218 Mich.App. 581, 554 N.W.2d 384 (1996). We conclude that none of these cases can logically be used to uphold plaintiff's argument. In Michonski, supra at 488, 493-495, 413 N.W.2d 438, this Court allowed the plaintiff to maintain a tort claim against the city for an accident occurring when a light pole located on a berm collapsed. A careful reading of the Court's opinion demonstrates that it relied heavily on the then-existing fact that the city was responsible for maintaining light poles. Id. As noted, this notion no longer holds true. Weaver, supra at 245-246, 651 N.W.2d 482. Moreover, the Michonski decision was issued in 1987 and therefore is not strictly binding on this Court under MCR 7.215(J)(1) (providing that the Court of Appeals must follow...