Robinson v. Emmet County Road Commission, Docket No. 23519

CourtCourt of Appeal of Michigan (US)
Citation72 Mich.App. 623,251 N.W.2d 90
Docket NumberDocket No. 23519
PartiesJoyce Elaine ROBINSON, Administratrix of the Estate of Linda Joy Robinson and Brian C. Robinson, Plaintiff-Appellant, v. EMMET COUNTY ROAD COMMISSION, Defendant-Appellee.
Decision Date09 December 1976

Page 90

251 N.W.2d 90
72 Mich.App. 623
Joyce Elaine ROBINSON, Administratrix of the Estate of Linda
Joy Robinson and Brian C. Robinson, Plaintiff-Appellant,
Docket No. 23519.
Court of Appeals of Michigan.
Dec. 9, 1976.
Released for Publication Feb. 28, 1977.

Page 92

[72 Mich.App. 627] Thomas R. Rensberry, P. C. by Fred E. Foster, Gaylord, for plaintiff-appellant.

Hugh B. McVicher, Jr., Harbor Springs, for defendant-appellee.

Before R. B. BURNS, P. J., and D. E. HOLBROOK and T. M. BURNS, JJ.

D. E. HOLBROOK, Judge.

Plaintiff appeals as of right from the trial court's grant of defendant's motion for summary judgment. The litigation arose after a tragic automobile accident which took the lives of [72 Mich.App. 628] two young people. Plaintiff maintains that defendant's negligent maintenance of the highway where the accident occurred caused the accident. Defendant maintains that the state was responsible for any liability arising out of the maintenance of said highway and that furthermore the county was expressly excused by statute, M.C.L.A. § 250.61; M.S.A. § 9.901.

The underlying facts are undisputed. On January 3, 1971 two young people, brother and sister, were killed in an automobile accident on M-131, just east of Harbor Springs. On that date, the defendant, Emmet County Road Commission, was by contract with the State of Michigan, maintaining the road in question. Plaintiff contends that during a snow storm which covered the roadway with snow, the automobile driven by Linda Robinson struck a chuck hole causing the car to go out of control and into the oncoming lane where it was struck by another vehicle.

The procedural background in the instant case is crucial and will be recited in detail. On July 27, 1971 the plaintiff (mother) in her capacity as administratrix of the two children's estates filed this lawsuit. On August 10, 1971 defendant appeared, answered the complaint, and brought a motion for summary judgment on the basis that the defect was off the traveled portion of the highway and therefore the county had no duty to keep it in proper repair. This motion was denied. 1 In its answer, defendant reserved the right to file affirmative defenses. On March 21, 1972 defendant did file an affirmative defense, the contributory negligence of the deceased.

The case proceeded to discovery with interrogatories[72 Mich.App. 629] submitted by both sides. One deposition was taken and finally on August 11, 1972 a pretrial conference was held. 2 Both sides declared their satisfaction with the pleadings and their readiness for trial. However, on October 5, 1972 defendant filed another motion for summary judgment, on the basis that plaintiff had failed to state a claim upon which relief can be granted. GCR 1963, 117.1, 117.2(1). The motion indicated that it was based on M.C.L.A. § 250.61; M.S.A. § 9.901. No affidavit was attached indicating precisely what defense was relied on, and accordingly the motion was denied. On January 9, 1973 the motion was again filed with the proper affidavit setting forth the claim that the highway in question was a state trunkline highway and that by virtue of M.C.L.A. § 250.61; M.S.A. § 9.901, the county road commission had no responsibility therefor. On January 9, 1973 the statute of limitations had already run against the State of Michigan, M.C.L.A. § 691.1411(2); M.S.A. § 3.996(111)(2). On September 30, 1974 a new trial judge, who had succeeded the original judge who had resigned, denied the defendant's motion on the basis that it did not conform with the court rule. A third motion on the issue was then filed on November 21, 1974, with a new affidavit, and

Page 93

that motion was argued by counsel and granted by the trial court on March 6, 1975.

Plaintiff should have brought an action against the state for improper maintenance of the highway in question. M.C.L.A. § 691.1402; M.S.A. § 3.996(102), 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 [72 Mich.App. 630] 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 problem of "jurisdiction" over state trunkline highways is clarified in Const.1963, art. 5, § 28, which states:

"There is hereby established a state highway commission, which shall administer the state highway department and have jurisdiction and control over all state trunkline highways and appurtenant facilities, and such other public works of the state, as provided by law."

The final act which provides for recovery against the state is M.C.L.A. § 250.61; M.S.A. § 9.901, which provides in part:

"On and after January 1, 1960, the cost of constructing, improving and maintaining trunk line highways shall be met entirely by the state, and the counties, townships and incorporated cities and villages shall thereafter be relieved of all expenses and legal liabilities in connection therewith."

Although plaintiff does attempt to argue as to the nature of the highway in question, the trial court found it was a state trunkline highway. There has been no showing of any reason to upset this finding and we decline to do so.

Plaintiff could have maintained an action against the state. Instead, plaintiff brought this action against the county who had contracted to maintain the highway. M.C.L.A. § 250.61; M.S.A. § 9.901 appears to relieve the county of all legal obligations and liabilities with respect to maintenance of [72 Mich.App. 631] this state trunkline highway. See Bennett v. City of Lansing, 52 Mich.App. 289, 217 N.W.2d 54 (1974); Moyer v. Wayne County Road Commission, 52 Mich.App. 285, 217 N.W.2d 53 (1974). These decisions interpreting this statute are somewhat troubling. A county is apparently free to contract with the state in order to perform the state's obligations and at the same time to be free of liability for its negligent acts. This removes the county from any requirement of accounting to those injured by its negligent acts while undergoing a contracted-for operation. However, our Court has held the county is, by statute, excused from any liability.

"It would not, therefore, seem logical that the Legislature would relieve all counties of legal liabilities for maintaining trunkline highways in one section of a statute, M.C.L.A. § 250.61; M.S.A. § 9.901, supra, and then in the very next section, M.C.L.A. § 250.62; M.S.A. § 9.902, supra, give the State Highway Commission the power to contract with the county for the maintenance of the trunkline highway without intending that the county would not be liable for negligent maintenance.

"We hold that the State Highway Commission does not divest itself of jurisdiction over state trunkline highways by the maintenance agreements involved. Therefore, possible negligent acts of other governmental units in maintaining state trunkline highways will not render such units liable." (Footnote omitted.) Moyer, supra, at 287-288, 217 N.W.2d at 54.

In another decision decided the same day, our Court explained the apparent rationale:

"This, of course, does not leave plaintiffs without a remedy, since they can continue their action against the proper defendant, the State Highway Department. While at first blush it seems odd that the state must answer for the omission of (a) local unit of government, it

Page 94

must be remembered that if local units of government[72 Mich.App. 632] were not absolved of liability with respect to maintenance of state trunkline highways, local units of government would be less willing to undertake the responsibility of said maintenance on behalf of the state." Bennett, supra, at 295-296, 217 N.W.2d at 58.

Bennett is particularly applicable since, as here, the case was argued on the basis of governmental immunity. The Court explained the nature of the cause of action as follows:

"By constitutional mandate the State Highway Commission was given 'jurisdiction and control over all state trunkline highways'. We perceive that the term jurisdiction as used in the statute must logically be read to be coextensive with the same term used in Const.1963, art. 5, § 28. Therefore, the state trunkline highways here in question are within the jurisdiction of the State Highway Department and not the municipal corporation. It has been held that the provisions of 1964 P.A. 170 must be strictly construed. Johnson v. Michigan, 32 Mich.App. 37, 188 N.W.2d 33 (1971). Given that rule of construction, since the highways were not within the jurisdiction of the defendant municipal corporation, the § 2 exception does not apply, thus the § 7 governmental immunity is available." Bennett, supra, at 294-295, 217 N.W.2d at 57-58.

In Bennett the action was brought against the City of Lansing. The Court concluded that since the highways were not within the jurisdiction of the defendant municipal corporation, the § 2 (M.C.L.A. § 619.1402; M.S.A. § 3.996(102)), exception did not apply, and therefore governmental immunity, by virtue of § 7 (M.C.L.A. § 691.1407; M.S.A. § 3.996(107)), was available to the city as a defense.

A compelling argument can be made that the statute merely grants immunity to the county for its failure to act. That is, the county has no duty to maintain state trunkline highways. However, it [72 Mich.App. 633] can be argued that once the county by contract has undertaken to maintain the roads, in spite of its statutory protection, a new duty is then created which obligates the county to act with due care. See Prosser, Torts (4th ed.), § 56, pp. 338-350 (3d ed., § 54, pp. 334-346). This argument has been rejected in Michigan. Bennett, supra;...

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