Peterson v. Department of Transp.

• Decision Date: 02 February 1987
• Docket Number: 82957,Docket Nos. 78840
• Parties: Linda L. PETERSON, Plaintiff-Appellant, v. DEPARTMENT OF TRANSPORTATION, Defendant-Appellee. Linda L. PETERSON, Plaintiff-Appellee, Cross-Appellant, v. DEPARTMENT OF TRANSPORTATION, Defendant-Appellant, Cross-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 414

399 N.W.2d 414

154 Mich.App. 790

Linda L. PETERSON, Plaintiff-Appellant, v. DEPARTMENT OF TRANSPORTATION, Defendant-Appellee.

Linda L. PETERSON, Plaintiff-Appellee, Cross-Appellant, v. DEPARTMENT OF TRANSPORTATION, Defendant-Appellant, Cross-Appellee.

Docket Nos. 78840, 82957.

Court of Appeals of Michigan.

Submitted April 9, 1986.

Decided Oct. 6, 1986.

Released for Publication Feb. 2, 1987.

Albert N. Deaner, Manistee, and Running, Wise, Wilson, Ford & Phillips, by William L. Wise and T.J. Phillips, Jr., Traverse City, for plaintiff-appellant.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Carl K. Carlsen, James J. Kobza and Thomas J. Killeen, Jr., Assts. Atty. Gen., for defendant-appellee in Docket No. 78840.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Carl K. Carlsen and Brenda E. Turner, Assts. Atty. Gen., for defendant-appellant, cross-appellee in Docket No. 82957.

Before MAHER, P.J., and T.M. BURNS and BELL, ^* JJ.

MAHER, Presiding Judge.

Plaintiff was seriously injured on September 9, 1982, when the vehicle she was driving on M-55 in Manistee County went out of control and struck a tree. On February 1, 1983, plaintiff commenced this negligence action against defendant, alleging that it violated its statutory duty to maintain the road in reasonable repair and in a condition reasonably safe and fit for travel. M.C.L. Sec. 691.1402; M.S.A. Sec. 3.996(102). Plaintiff later sought, but was denied, leave to amend her pleadings to add a count of intentional nuisance. ¹ The trial court, sitting without a jury, found in favor of plaintiff and awarded her damages in the amount of $7,256,905. ² Defendant appeals as of right, challenging the trial court's finding of liability and the amount of damages. Plaintiff cross-appeals from the award of damages.

I

All governmental agencies, state and local, remain statutorily liable for injuries arising out of the failure to maintain a highway in reasonable repair. Ross v. Consumers Power Co. (On Reh.), 420 Mich. 567, 591, 363 N.W.2d 641 (1984). M.C.L. Sec. 691.1402; M.S.A. Sec. 3.996(102) provides in pertinent part:

"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 reasonable repair, and in condition reasonably safe and fit for travel, may recover the damages suffered by him from such 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."

This statutory duty extends to the maintenance of conditions that affect the safety of motorists using the improved portion of the highway designed for vehicular travel. Moerman v. Kalamazoo County Road Comm., 129 Mich.App. 584, 592, 341 N.W.2d 829 (1983).

In the instant case, the trial court found defendant negligent for (1) allowing the tree to grow within close proximity to the highway and (2) allowing a two-to-five-inch drop-off between the surface of the road and the shoulder. The court further found that both the tree and the drop-off were dangerous conditions of which defendant had notice prior to the accident.

On appeal, defendant challenges the trial court's finding that it had notice of the drop-off and also challenges the court's conclusion of law that defendant was negligent in not removing the tree. This Court will not set aside the trial court's findings of fact unless they are clearly erroneous. MCR 2.613(C). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Tuttle v. Dep't of State Highways, 397 Mich. 44, 46, 243 N.W.2d 244 (1976).

No governmental agency is liable for injuries by virtue of M.C.L. Sec. 691.1402, unless it knew or should have known of the existence of the defect and had reasonable time to repair the defect before the injury took place. M.C.L. Sec. 691.1403; M.S.A. Sec. 3.996(103). Notice may be shown by: (1) actual notice; (2) existence of the defect for over thirty days, which establishes a conclusive presumption of notice; or (3) evidence showing that the agency should have discovered and repaired the defect in the exercise of reasonable diligence, i.e., constructive notice. Beamon v. City of Highland Park, 85 Mich.App. 242, 245, 271 N.W.2d 187 (1978), lv. den. 405 Mich. 831 (1979).

In this case, there is no evidence that defendant had actual notice of the defect, nor was there testimony presented in relation to how long the defect had been present. Although Richard Blast, the supervising engineer of the Department of Transportation Safety Unit Programs, testified that it would take a minimum of two to three months for the edge of the road to erode two inches, this is not evidence that the two-to-five-inch drop-off existed for thirty days. Thus, the trial court's finding that defendant had notice of the defect cannot be allowed to stand unless we can say that defendant should have discovered and repaired the defect in the exercise of reasonable diligence. Beamon, supra. The trier of fact must have been presented with evidence from which it is reasonable to infer that defendant had constructive notice of the defect. Beamon, supra, pp. 245-246, 271 N.W.2d 187.

Defendant argues that since there is no evidence that the drop-off existed prior to the day of the accident, it must have been created the same day by one of the many logging trucks which frequently travel the road. In this case, the cause of the drop-off is not determinative of defendant's liability, but bears directly on the issue of notice. If defendant was correct that the drop-off was created the same day as plaintiff's accident, we could not say that the defect was sufficiently long-standing to support a verdict of constructive notice. There is insufficient evidence, however, to support the theory that a logging truck created the drop-off on the day of the accident. A view of the scene immediately after the accident revealed no tire tracks from a logging truck, but, rather, only the tire marks from plaintiff's vehicle. Defendant's theory is simply not reasonable in light of the evidence of other possible causes. There was testimony that the drop-off could have been caused by natural erosion combined with routine traffic. There was also testimony that a Manistee County Road Commission broom sweeper could have worsened an existing drop-off. Given the fact that the drop-off existed on the day of the accident, it is reasonable to infer that it had existed for some time.

There was testimony that the Manistee County Road Commission makes periodic observations of the road, specifically looking for drop-offs. These examinations took place at least on a weekly basis, sometimes several times a week or as often as once a day. Therefore, there was evidence from which the trier of fact could reasonably infer that defendant, in the exercise of reasonable diligence, should have discovered and repaired the defect. We cannot say that the trial court's finding of notice is clearly erroneous.

Defendant also argues that the trial court's conclusion that the presence of the tree rendered the highway defective is contrary to law. Relying on Moerman v. Kalamazoo County Road Comm., supra, and Carney v. Dep't of Transportation, 145 Mich.App. 690, 378 N.W.2d 574 (1985), lv. den. 424 Mich. 889 (1986), defendant argues that it cannot be held liable for plaintiff's injuries because the vehicle did not strike the tree without any of its wheels leaving the shoulder of the road.

The statutory duty to repair and maintain highways extends to the maintenance of conditions that affect the safety of motorists using the improved portion of the highway designed for vehicular travel. See Moerman, supra, 129 Mich.App. p. 592, 341 N.W.2d 829, and the cases cited therein. In Moerman, the plaintiff alleged that the statutory duty included removing a tree located near the shoulder of the road. Thus, the Court was called upon to determine whether the tree affected the safety of motorists using the shoulder of the road. The Court resolved the issue by adopting a "four-wheel" rule:

"If the tree was positioned such that the average vehicle could have struck the tree without any of the vehicle's wheels leaving the shoulder, the tree would affect the safety of motorists using the shoulder. Under such circumstances, the defendant's duty to keep the road reasonably safe would extend to the maintenance of the tree." ³ Moerman, supra, p. 593, 341 N.W.2d 829.

In Carney v. Dep't of Transportation, supra, pp. 696-697, 378 N.W.2d 574, another "tree case," this Court followed the "four wheel" rule stating:

"In this case, plaintiff's automobile was out of control and had completely departed from the road when it struck the tree. The tree was not within reach of a vehicle with all four wheels on the shoulder. We must bear in mind the Legislature's restriction of defendant's duty 'only to the improved portion of the highway designed for vehicular travel'. MCL 691.1402. The particular allegations of negligence which are based solely on defendant's failure to remove or guard the tree do not, in our view, constitute a viable claim under MCL 691.1402."

The Carney panel, however, went beyond the Moerman holding in finding no violation of the statutory duty:

"Additionally, we have reviewed the photographic exhibits admitted at trial. This was a country road lined by numerous trees and other vegetation. Defendant's duty to maintain...