Moser v. City of Detroit

• Decision Date: 23 June 2009
• Docket Number: Docket No. 283922.
• Citation: 772 N.W.2d 823,284 Mich. App. 536
• Parties: MOSER v. CITY OF DETROIT.
• Court: Court of Appeal of Michigan — District of US

772 N.W.2d 823

284 Mich. App. 536

MOSER v. CITY OF DETROIT.

Docket No. 283922.

Court of Appeals of Michigan.

Submitted March 10, 2009, at Lansing.

Decided June 23, 2009, at 9:00 a.m.

Fieger, Fieger, Kenney, Johnson & Giroux, P.C. (by Ven R. Johnson and Heather A. Jefferson), Southfield, for Robert S. Moser, II.

Michael A. Cox, Attorney General, B. Eric Restuccia, Solicitor General, and Ronald

W. Emery, Assistant Attorney General, for the Department of Transportation.

Before: WILDER, P.J., and METER and SERVITTO, JJ.

SERVITTO, J.

Defendant Michigan Department of Transportation appeals as of right the circuit court's order denying its motion for summary disposition. Because the fascia of the bridge is a part of the improved portion of the highway designed for vehicular travel, we affirm.

Plaintiff was injured when a chunk of concrete fell from the fascia of an overpass (the Cass Avenue Bridge) and crashed through his windshield as he drove on I-75 below Cass Avenue. Although Cass is a city-owned street, defendant has contractually agreed to maintain and repair all of its bridge's structure; the city maintains only the Cass Avenue roadway surface. The parties stipulated that defendant had exclusive control and jurisdiction over the bridge and to the dismissal of the city and the county defendants. Defendant then moved for summary disposition pursuant to MCR 2.116(C)(7), asserting that plaintiff's claims were barred by governmental immunity. According to defendant, the highway exception to governmental immunity, MCL 691.1402, only imposes liability for failing to maintain and repair the improved portion of the highway designed for vehicular travel, and the fascia of the bridge is not a part of that improved portion. The circuit court denied the motion, opining that a bridge, which is included in the definition of "highway," for which defendant is liable for repairing and maintaining, includes the fascia in its superstructure and is therefore part of the improved and traveled portion of the highway.

We review de novo a trial court's decision on a motion for summary disposition. Spiek v. Dep't of Transportation, 456 Mich. 331, 337, 572 N.W.2d 201 (1998). The applicability of the highway exception to governmental immunity is a question of law subject to de novo consideration on appeal. Stevenson v. Detroit, 264 Mich. App. 37, 40-41, 689 N.W.2d 239 (2004).

A governmental agency is generally immune from tort liability "if the governmental agency is engaged in the exercise or discharge of a governmental function." MCL 691.1407. However, statutory exceptions to governmental immunity do exist and include what is commonly called "the highway exception." The purpose of this exception is to enhance the safety of travel on public highways. Chaney v. Dep't of Transportation, 447 Mich. 145, 154, 523 N.W.2d 762 (1994). MCL 691.1402(1) articulates the highway exception:

[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.... The duty of the state and the county road commissions to repair and maintain highways, and the liability for that duty, extends only to the improved portion of the highway designed for vehicular travel and does not include sidewalks, trailways, crosswalks or any other installation outside of the improved portion of the highway designed for vehicular travel....

"Highway" is defined in MCL 691.1401(e) 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." The highway exception to immunity is narrowly construed. Grimes v. Dep't of Transportation, 475 Mich. 72, 78, 715 N.W.2d 275 (2006).

A governmental agency must have jurisdiction over a highway for it to be liable under the highway exception for breaching its duty to maintain a highway in reasonable repair. Carr v. City of Lansing, 259 Mich.App. 376, 381, 674 N.W.2d 168 (2003). In Markillie v. Livingston Co. Bd. of Rd. Comm'rs, 210 Mich.App. 16, 22, 532 N.W.2d 878 (1995), this Court held that the word "jurisdiction" in MCL 691.1402(1) "is synonymous with `control.'" In this case, defendant has exclusive control over the maintenance and repair of the structure, except for the very surface of Cass Avenue, and the parties do not dispute that defendant has control and jurisdiction over the bridge itself. The only question before this Court is whether the crumbling fascia of the structure constitutes a defect in the highway for which the state is liable.

According to defendant, the highway exception permits a claim in avoidance of governmental immunity only when the defect causing injury or damage arose from a condition in the improved portion of the highway designed for vehicular travel. Defendant contends that the fascia is not a part of the bridge deck and thus not a part of the driving surface, such that the highway exception is inapplicable. We disagree.

In Grimes, supra at 91, 715 N.W.2d 275, the Court held that "only the travel lanes of a highway are subject to the duty of repair and maintenance specified in MCL 691.1402(1)." Accordingly, it held that the shoulder of the road is outside the scope of the state's duty to repair and maintain the highway. Id. In Nawrocki v. Macomb Co. Rd. Comm., 463 Mich. 143, 162, 615 N.W.2d 702 (2000), our Supreme Court opined on the liability of the state and counties with respect to highway conditions: "if the condition is not located in the actual roadbed designed for vehicular travel, the narrowly drawn highway exception is inapplicable...." Id. at 180, 615 N.W.2d 702. Conversely, "[t]he state and county road commissions' duty, under the highway exception, is ... implicated upon their failure to repair or maintain the actual physical structure of the roadbed surface, paved or unpaved, designed for vehicular travel, which in turn proximately causes injury or damage." Id. at 183, 615 N.W.2d 702.

Of note, the Nawrocki Court indicated that "if the condition proximately causing injury or property damage is located in the improved portion of the highway designed for vehicular travel, not otherwise expressly excluded, the state or county road commissions' statutory duty under the highway exception is implicated." Id. at 171, 615 N.W.2d 702. The definition of "highway" in MCL 691.1401(e) includes bridges, the bridge at issue was designed for vehicular travel, and bridges are not expressly excluded in the explanation in MCL 691.1402(1) of those areas to which the duty of the state and the county road commissions to repair and maintain highways extends. The only areas specifically...