Potes v. Department of State Highways

Decision Date15 December 1983
Docket NumberDocket No. 67794
Citation128 Mich.App. 765,341 N.W.2d 210
PartiesSherril POTES, Personal Representative of the Estate of Herbert J. Potes, II, Deceased, Plaintiff-Appellant, v. DEPARTMENT OF STATE HIGHWAYS, Defendant-Appellee. 128 Mich.App. 765, 341 N.W.2d 210
CourtCourt of Appeal of Michigan — District of US

[128 MICHAPP 766] Henry M. Hanflik, Flint, for plaintiff-appellant; David Melrus, Flint, of counsel.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Carl K. Carlsen and Jerrold H. Keyworth, Asst. Atty. Gen., for defendant-appellee.

Before HOOD, P.J., and CYNAR and MARUTIAK, * JJ.

PER CURIAM.

Plaintiff appeals as of right from an order of the Court of Claims granting defendant's motion for accelerated judgment, GCR 1963, 116.1.

Plaintiff's decedent, Herbert J. Potes, died as a result of injuries he sustained in an automobile accident which occurred on Ballenger Highway, south of Miller Road, in Genesee County. Plaintiff filed the complaint in the instant case in the Court of Claims, alleging negligent and defective design, construction, and maintenance of a public roadway, and creation of a nuisance. The complaint also made the following averment: "The governmental agency having jurisdiction over said roadway is the State of Michigan, Department of State Highways and Department of Transportation". Concurrently, plaintiff filed a separate action in circuit court against the Genesee County Board of Road Commissioners.

Defendant moved for accelerated judgment pursuant to GCR 1963, 116.1, subds. (1) and (2), maintaining that the state had no jurisdiction over the subject roadway on the date of the accident, and that therefore the court lacked jurisdiction over the subject matter. This motion was accompanied [128 MICHAPP 767] by an affidavit swearing that Ballenger Highway was under the jurisdiction of Genesee County at the relevant time. Plaintiff submitted a counter-affidavit, sworn to by a Genesee County Road Commission official. The counter-affidavit alleged that from 1953-1954, and again from 1968-1969, the state had assumed jurisdiction over the roadway for the purpose of implementing certain expressway projects and that during these time periods the state had relocated, redesigned, and reconstructed the highway prior to restoring jurisdiction to the county.

Before defendant's motion was heard, plaintiffs moved to consolidate this suit with the case pending in Genesee County. Since the Court of Claims judge granted defendant's accelerated judgment motion, he never ruled on the motion to consolidate.

On appeal, plaintiff contends that the trial court should first have consolidated the cases, so that a determination could be made as to which governmental unit was responsible for the alleged design and construction defects. We do not agree. In the wake of the submission of affidavits, there was no longer any dispute that Genesee County had jurisdiction over the road in question at the time of the accident; under these circumstances plaintiff's action against the state was ripe for summary disposition.

M.C.L. Sec. 691.1407; M.S.A. Sec. 3.996(107) provides:

"Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity [128 MICHAPP 768] of the state from tort liability as it existed heretofore, which immunity is affirmed."

The design, construction and maintenance of a highway constitutes the exercise or discharge of a governmental function. Thomas v. Dep't of State Highways, 398 Mich. 1, 247 N.W.2d 530 (1976). The only statutory exception under which the state could be liable is found in M.C.L. Sec. 691.1402; M.S.A. Sec. 3.996(102), which provides in relevant part as follows:

"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 for travel, may recover the damages suffered by him from such governmental agency. The liability, procedure and remedy as to county roads under the jurisdiction of a county road commission shall be as provided in section 21, chapter 4 of Act No. 283 of the Public Acts of 1909, as amended, being section 224.21 of the Compiled Laws of 1948."

Since the roadway at issue is a county road, M.C.L. Sec. 224.21; M.S.A. Sec. 9.121 applies. It provides, in part, as follows:

"It is hereby made the duty of the counties to keep in reasonable repair, so that they shall be reasonably safe and convenient for public travel, all county roads, bridges and culverts that are within their jurisdiction and under their care and control and which are open to public travel."

Plaintiff maintains that, having at one time asserted jurisdiction over the road, the state remains[128 MICHAPP 769] liable for any design or construction defects created at that time, notwithstanding the fact that jurisdiction was relinquished to the county prior to the accident. Defendant argues that the governmental immunity act limits liability to the governmental unit having jurisdiction of the road at the time of the accident. We agree with defendant.

The provisions of the governmental immunity act are to be strictly construed. Bennett v. City of Lansing, 52 Mich.App. 289, 294-295, 217 N.W.2d 54 (1974), lv. den. 399 Mich. 840 (1977). For this reason several panels of this Court have declined to give the term "jurisdiction", as used in M.C.L. Sec. 691.1402; M.S.A. Sec. 3.996(102), an expansive definition. See Austin v. City of Romulus, 101 Mich.App. 662, 300 N.W.2d 672 (1980), lv. den. 411 Mich. 955 (1981); Summerville v. Kalamazoo County Road Comm., 77 Mich.App. 580, 259 N.W.2d 206 (1977), lv. den. 402 Mich. 924 (1978), and Bennett, supra, all declining to find that more than one governmental unit had jurisdiction over a particular road for the purpose of M.C.L. Sec. 691.1402; M.S.A. Sec. 3.996(102).

In the same spirit, we view that statutory exception as parting the immunity curtain only as to the governmental unit having jurisdiction of the subject roadway at the time of the accident. Application of this rule is compatible with the language of M.C.L. Sec. 224.21; M.S.A. Sec. 9.121, which places the duty to keep county roads in reasonable repair exclusively...

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13 cases
  • Zyskowski v. Habelmann
    • United States
    • Court of Appeal of Michigan (US)
    • 7 Abril 1986
    ...The design, construction and maintenance of a road constitutes the exercise of a governmental function. Potes v. State Highway Dep't, 128 Mich.App. 765, 768, 341 N.W.2d 210 (1983). However, a statutory exception to immunity provides that an agency is not immune from liability for improperly......
  • Killeen v. Department of Transp.
    • United States
    • Supreme Court of Michigan
    • 21 Febrero 1989
    ...The Court of Claims granted summary judgment in Killeen, dismissing the complaint on the authority of Potes v. Dep't of State Hwys, 128 Mich.App. 765, 341 N.W.2d 210 (1983), and granted summary judgment dismissing the complaint in Kuripla on the authority of Potes and Killeen. The Court of ......
  • Stanton v. Dachille
    • United States
    • Court of Appeal of Michigan (US)
    • 17 Diciembre 1990
    ...46 Mich.App. 291, 292, 207 N.W.2d 924 (1973). The motion will be treated as one for dismissal on review. Potes v. Dep't of State Highways, 128 Mich.App. 765, 770, 341 N.W.2d 210 (1983). The trial court's grant or denial of such a motion will not be reversed unless clearly erroneous. Warren ......
  • Smith v. Department of Transp.
    • United States
    • Court of Appeal of Michigan (US)
    • 16 Abril 1987
    ...Austin v. City of Romulus, 101 Mich.App. 662, 668-669, 300 N.W.2d 672 (1980), lv. den. 411 Mich. 955 (1981); Potes v. State Hwy Dep't, 128 Mich.App. 765, 341 N.W.2d 210 (1983); Killeen v. Dep't of Transportation, 151 Mich.App. 7, 390 N.W.2d 676 (1986), lv. gtd. 426 Mich. 864 Both Potes and ......
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