Prokop v. Wayne County Bd. of Road Com'rs

• Decision Date: 08 June 1988
• Docket Number: Docket No. 94600
• Citation: 424 N.W.2d 10,168 Mich. App. 119
• Parties: Lisa Marie PROKOP, Plaintiff-Appellant, v. WAYNE COUNTY BOARD OF ROAD COMMISSIONERS, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 10

424 N.W.2d 10

168 Mich.App. 119

Lisa Marie PROKOP, Plaintiff-Appellant, v.WAYNE COUNTY BOARD OF ROAD COMMISSIONERS, Defendant-Appellee.

Docket No. 94600.

Court of Appeals of Michigan.

Submitted Nov. 18, 1987.

Decided Jan. 21, 1988.

Released for Publication June 8, 1988.

Sommers, Schwartz, Silver & Schwartz, P.C. by Richard D. Fox, Southfield, for plaintiff-appellant.

Samuel A. Turner, Corp.Counsel, and David A. Perkins, Asst. Corp.Counsel, Detroit, for defendant-appellee.

Before MacKENZIE, P.J., and DOCTOROFF and CLULO, ^* JJ.

PER CURIAM.

Plaintiff appeals as of right from an order of the circuit judge granting defendant road commission's motion for summary disposition, presumably pursuant to MCR 2.116(C)(10).On appeal, we are asked to decide whether the circuit judge erred in ruling that defendant road commission had no duty to trim or to seek to have the property owner trim an obstructing hedge row that was located on private property.We affirm the circuit judge's ruling.

This case arises from a vehicle-bicycle collision that occurred at the "T" intersection of northbound Columbia Street, under the jurisdiction of defendant road commission, and a one-way eastbound service drive to Schoolcraft Road, a state trunk line under the jurisdiction of the Michigan Department of Transportation.

Plaintiff was injured when she was struck by a van as she crossed Columbia Street on her bicycle, proceeding in a westerly direction on the sidewalk adjacent to the service drive.The van had been traveling northbound on Columbia Street, preparing to turn east onto the service drive.Both plaintiff and the driver of the van were unable to see each other due to a six-foot hedge located at the southeast corner of the intersection, adjacent to the sidewalk.The hedge had been placed there by the owners of the corner lot.Despite her obstructed view, plaintiff had proceeded to cross Columbia Street because the traffic signal at the intersection showed green in her direction.As she came to the end of the hedge, she saw the van approaching her but nonetheless coasted onto Columbia Street, on the assumption that the van would stop.However, the van did not slow down, and it struck her.There is evidence that the traffic signal had been malfunctioning for some weeks prior to the accident, continually showing green along the Schoolcraft service drive and red to Columbia Street.However, the van driver insisted in his deposition that the traffic signal was showing him green as he drove through the intersection.

Plaintiff settled with both the driver of the van and the property owner who had allowed the hedge to obscure the vision at the intersection.She then filed an action in Wayne Circuit Court against defendant road commission and in the Michigan Court of Claims against the Department of Transportation.The actions were consolidated in Wayne County with the circuit judge acting as a Court of Claims judge by special assignment.After extensive briefing by both parties, the circuit judge granted defendant road commission's motion for summary disposition, ruling that defendant had no duty to remove obstructions or to seek the removal of obstructions that were located on private property.

On appeal, plaintiff argues that defendant is responsible for any obstruction that renders a highway defective regardless of whether the obstruction is on the improved portion of the highway or on private property.Defendant, in turn, claims that its duty to maintain Columbia Street in a condition reasonably safe and fit for travel does not extend to removing visual obstructions lying beyond the actual right-of-way of the highway and growing on private property.

In general, all governmental agencies are immune from tort liability while engaged in the exercise or discharge of a governmental function, except as provided by statute.M.C.L. Sec. 691.1407;M.S.A. Sec. 3.996(107).In the present case, plaintiff based her claim on M.C.L. Sec. 691.1402;M.S.A. Sec. 3.996(102), which abrogates governmental immunity for injuries arising from defective highways.Tibor v. Dep't of State Highways, 126 Mich.App. 159, 337 N.W.2d 44(1983).In pertinent part, M.C.L. Sec. 691.1402;M.S.A. Sec. 3.996(102) states:

"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....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."(Emphasis supplied.)

According to the plain language of the statute, a road commission's duty applies only to the "improved portion of the highway designed for vehicular travel."There are a multitude of cases in which this language has been interpreted.Generally speaking, appellate decisions have allowed recovery for injuries that were incurred outside of the strict confines of the paved road provided the injuries occurred within the vicinity and were related to the safety of motor vehicle traffic.Thus, causes of actions have survived motions for summary disposition for injuries sustained while on the shoulders of roads, for injuries resulting from defective stop signs and defective traffic signals.SeeTibor, supra, and cases cited there.See alsoAnderson v. Macomb Co. Rd. Comm., 143 Mich.App. 735, 372 N.W.2d 651(1985), and cases cited there.

Significantly, in each of the cases in which the liability of the state or of the county road commission was deemed to extend beyond the paved portion of the road, the defect was either alongside or above the roadway, always within the shoulders of the road.There are no cases in which the improved portion of the roadway was deemed to include privately owned property.Thus, for example, in Moerman v. Kalamazoo Co. Rd. Comm., 129 Mich.App. 584, 593, 341 N.W.2d 829(1983), this Court suggested that the defendant road commission's duty did not include the obligation to remove a tree that was near the road but off of the shoulder.The trial judge had reached that conclusion as a matter of law.A majority of the panel stated:

"In the present case, we need to determine whether the tree affected the safety of motorists using the shoulder of the road.We are uncertain as to whether decedent's vehicle struck the tree while the vehicle was still completely on the shoulder or whether it collided with the tree only after one or more of its wheels had left the shoulder....