Mullins v. Wayne County

• Decision Date: 24 March 1969
• Docket Number: Docket No. 1411
• Citation: 16 Mich.App. 365,168 N.W.2d 246
• Parties: Hassie MULLINS, Special Administratrix of the Estate of Clifford Ray Dutton, Deceased, Plaintiff-Appellant, v. COUNTY OF WAYNE, Board of Wayne County Road Commissioners, a governmental corporation, and Clarence Sell and Lois M. Sell, jointly and severally, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 246

168 N.W.2d 246

16 Mich.App. 365

Hassie MULLINS, Special Administratrix of the Estate of Clifford Ray Dutton, Deceased, Plaintiff-Appellant, v. COUNTY OF WAYNE, Board of Wayne County Road Commissioners, a governmental corporation, and Clarence Sell and Lois M. Sell, jointly and severally Defendants-Appellees.

Docket No. 1411.

Court of Appeals of Michigan.

March 24, 1969.

Rehearing Granted April 24, 1969.

Released for Publication June 3, 1969.

Leave to Appeal Denied Oct. 24, 1969.

David S. DeWitt, Detroit, Thomas Roy Finn, River Rouge, for appellant.

Cary, BeGole, Martin, Bohall & Joselyn, Detroit, for Bd. of Road Comm'rs and County of Wayne.

Alexander, Buchanan & Conklin, Detroit, for Clarence and Lois M. Sell.

Before the Entire Bench.

T. G. KAVANAGH, ^* Judge.

Plaintiff's decedent was killed when the car he was driving collided with a barrier at the terminus of Mortenview Road in Wayne County. Mortenview Road terminated at a dead end where it intersected Brest Road. There was no sign or other warning device advising of the termination of Mortenview Road.

The plaintiff's complaint asserted that the defendant board of County Road Commissioners had a duty to keep and maintain Mortenview Road in a reasonably fit and safe condition for public travel. It asserted that defendants Sell had a duty to maintain their property, which adjoined the terminus of Mortenview Road, in such a manner as not to constitute a trap or hazard to persons lawfully using Mortenview Road. The complaint asserted the defendants Sell breached their duty by erecting an immovable barrier on their property as they did. It asserted defendant board breached its duty by failing to warn against the terminus of Mortenview Road and although it knew or should have known of the trap or hazard created by the barrier erected by defendants Sell, it breached its duty by failure to warn against it. The complaint further asserted that the negligence of the defendants was the cause of the injuries plaintiff suffered. ¹ The defendant board of county road commissioners moved for summary judgment and the trial court granted it.

After considering the matter carefully we are now convinced the trial court erred even as we erred in our prior decision in Mullins v. Wayne County (1966), 4 Mich.App. 359, 144 N.W.2d 829. ²

I.

The prior decision of our court would limit the road authority's obligation under the applicable statute ³ to preservation of the status quo. More specifically, if a road has been built and goes into disrepair, the road authority is obliged to repair it. If it becomes obstructed, the obstruction must be removed without regard to who places it there. If a sign has been erected and falls down, it must be replaced. But, says that opinion that is where the road authority's duty ends.

The prior opinion italicized the words 'to keep in reasonable repair' in the quotation of the relevant portion of the applicable statute (see footnote 3 for text of statute). That 'emphasis supplied' emphasizes the theoretical basis for the court's opinion, I.e., there is a duty to keep in reasonable Repair--to maintain the status quo--but not a duty to construct or keep the road so that it is 'reasonably safe and convenient for public travel'.

Such view was, indeed, once the law in Michigan but it has not been the rule since the enactment of the legislation here under consideration and the construction of that legislation by the Michigan Supreme Court in Joslyn v. City of Detroit (1889), 74 Mich. 458, 42 N.W. 50, ⁴ and Malloy v. Township of Walker (1889), 77 Mich. 448, 43 N.W. 1012, 6 L.R.A. 695. In Joslyn, the Court held that the road authority is liable not only 'for injuries occurring through neglect to keep the streets in repair, but also for such as occur by reason of the neglect of the city to keep its streets in a condition reasonably safe and fit for travel'. In Joslyn an obstruction was permitted to continue in the midst of the road without warning lights. In language which should guide us in this case, the Court declared (74 Mich. p. 461, 42 N.W. p. 51):

'It (the statute) requires everything to be done by the city necessary to make travel upon its streets reasonably safe. If in so doing it becomes necessary to place signals or other safeguards at given points, or give other proper warning, it is the duty of the city to see that it is done or that the street is closed to travel; and that duty is imposed by the express language of the statute, and the injury arising from the neglect of such duty to the citizen will make the municipality responsible to the party injured.'

In Malloy the Court carefully reviewed the history of prior decisions, including those to the effect that negligence in the plan of construction, as distinguished from negligence in the execution of the plan, was not actionable. It held that such earlier case law had been superseded by the enactment of the statutory language then before the court and now before us.

The specific allegation of negligence in Malloy shows that the duty of the road building authority goes beyond the preservation of the status quo, that it does indeed have the affirmative duty to design and construct the road and keep it 'reasonably safe and convenient for public travel'.

The specific claim of negligence in Malloy was that the road authority was negligent in not constructing railings or barriers alongside an embankment. The Michigan Supreme Court concluded that it was for a jury to decide whether railings or barriers were required in the circumstances of the case then at bar. Thus, the Court ruled that even if the surface of the road was perfectly engineered and constructed, the failure to design the road in a reasonably safe manner, including the erection of railings and barriers, could be an act of negligence:

'This statute cannot be given a construction that would relieve a township or other municipality, upon which a burden is cast to keep its highways in repair and reasonably safe for travel, from liability by saying that it had adopted a method of construction and had built according to the plan. Municipalities cannot construct a dangerous and unsafe road,--one not safe and convenient for public travel,--and shield itself behind its legislative powers to adopt a plan and method of building and constructing in accordance therewith. The negligence consists, not in the plan of the work or the manner in which it was done, but in the failure to provide suitable protection against accident after the embankment had been made. The statute is imperative to make a road reasonably safe, and whether it is in that condition of safety and fit for travel must be a question for the jury, under proper circumstances.' Malloy v. Township of Walker, Supra, 77 Mich. p. 462, 43 N.W. p. 1016.

For additional cases holding that the jury may find negligence for failure of the road authority to provide railings or barriers needed to keep the road reasonably safe and convenient for public travel, see Sharp v. Township of Evergreen (1887), 67 Mich. 443, 35 N.W. 67; Ross v. Township of Ionia (1895), 104 Mich. 320, 324, 62 N.W. 401; Hannon v. City of Gladstone (1904), 136 Mich. 621, 99 N.W. 790; Lamb v. Township of Clam Lake (1913), 175 Mich. 77, 140 N.W. 1009; and Carpenter v. Township of Bloomingdale (1924), 227 Mich. 355, 198 N.W. 912.

Harris v. Township of Clinton (1887), 64 Mich. 447, 453, 31 N.W. 425, 426 anticipated Malloy in holding that a jury question was presented as to whether the road authority was negligent in failing 'to place any barrier or Warning' to prevent persons from driving upon and along a highway embankment which was washed and overflowed with water. The Court declared:

'It should be remembered that the risk of driving off the embankment, when obscured by the overflow of water, was no greater than the risk of driving off on a dark night.'

And the risk of driving off the dead-end road in this case of Mullins at 3:10 a.m., the hour of the alleged accident, was no greater than if it had been overflown with water. A short time before Harris v. Township of Clinton, Supra, was decided the Court observed:

'I have no doubt that the defects in highways covered by the act of 1879 ⁵ extends to defects in construction, as well as defects through omission to repair, and to neglect to keep the public highways in a condition reasonably safe and fit for travel by day Or by night; and unless it is so kept, it constitutes a defect in the highway, for which, if injury results, an action will lie.' Carver v. Detroit & Saline Plank-Road Co. (1886), 61 Mich. 584, 590, 28 N.W. 721, 723. (Emphasis supplied.)

That the early and continuing constructions of the statute by the Supreme Court are entitled to be regarded as legislatively approved in the light of the subsequent re-enactments which have not sought to change the applicable language, see McEvoy v. City of Sault St. Marie (1904), 136 Mich. 172, 182, 98 N.W. 1006, 1007.

Joslyn and McEvoy were recently relied on in Kowalczyk v. Bailey (1967), 379 Mich. 568, 571, 153 N.W.2d 660, 662. The Court quoted from McEvoy as follows:

'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 (1889), 74 Mich. 458, 42 N.W. 50, this court deliberately adopted the first construction.'

The Kowalczyk Court referred to the dissenting opinions in Joslyn and McEvoy and observed that ...