Rose v. Mackie, Docket No. 6097

• Decision Date: 23 March 1970
• Docket Number: No. 2,Docket No. 6097,2
• Citation: 22 Mich.App. 463,177 N.W.2d 633
• Parties: Karen ROSE, a minor, by Tessie Rose, her next friend, and Tessie Rose, Plaintiffs-Appellees, v. John C. MACKIE, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 633

177 N.W.2d 633

22 Mich.App. 463

Karen ROSE, a minor, by Tessie Rose, her next friend, and Tessie Rose, Plaintiffs-Appellees, v. John C. MACKIE, Defendant-Appellant.

Docket No. 6097.

Court of Appeals of Michigan, Division No. 2.

March 23, 1970.

Leave to Appeal Denied June 9, 1970.

Released for Publication June 26, 1970.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Ernest E. Adler, Asst. Atty. Gen., for defendant-appellant.

John Safran, Dann, Rosenbaum, Bloom & Kaufman, Detroit, for plaintiffs-appellees.

Before LESINSKI, C.J., and McGREGOR and V. J. BRENNAN, JJ.

McGREGOR, Judge.

This being a motion to dismiss, we take the facts pleaded in the complaint as true and set them forth basically as stated by plaintiffs.

Plaintiff Karen Rose was involved in a head-on collision while in a car driven by Boris Gorski, in January, 1964. The accident occurred while both vehicles were travelling on Highway US--24.

Plaintiffs filed a complaint against defendant, alleging negligence on his part in his position and capacity as state highway commissioner and by him personally. Defendant moved for summary judgment for failure of plaintiff to state a claim upon which relief can be granted. The motion was denied by the circuit judge, and from this defendant appeals.

This action is predicated on two counts. The substance of the first alleges that '* * * John C. Mackie, a State Highway Commissioner, had the administrative duty and responsibility under the General Highway Law, Michigan Statutes Annotated, to 'oversee the art of building, improving and repairing' so that the said Telegraph Road (US--24) would be reasonably safe for traffic by the public and more particularly the said Boris Gorski and his passenger, Karen Rose.' They continue '* * * John C. Mackie negligently failed to fulfill his administrative duty and responsibility in the premises by allowing said road to remain in an unsafe condition after due notice to his agents and servants that such unsafe condition existed.' In another part of the complaint they state:

'That the proximate cause of the accident was the unsafe condition of the said highway due to the fact that just immediately prior to the point of the accident, said highway suddenly narrowed to a two-lane highway from a three- lane highway without sufficient notice to the users of the said highway and particularly the said (complainant) * * *.'

The defendant responds that since the state is immune from liability for such negligence, the defendant shares that immunity. In the alternative, the defendant asserts that, even if defendant is not immune, the complaint does not state a cause of action in negligence.

The substance of the second count is that the highway was construed in a negligent manner and '* * * the said John C. Mackie knowingly, wantonly, and wilfully failed and neglected to make or cause any change to be made in the design and construction of the said highway, notwithstanding that he, his servants, and agents, had on divers occasions been apprised of the menace to life and limb resulting from said hazardous design and construction, and of the need to change and remedy the same.'

Defendant, by way of defense, says that the second count fails to state a claim on which relief can be granted, because defendant's duty (if any) to redesign and reconstruct Highway US--24 at the point of the accident was owed to the public, not to the plaintiffs.

In the first count, the plaintiffs readily admit to the fact that they do not seek to hold the state liable. Although the state removed much of the immunity it formerly had in this area, by legislative enactment (M.C.L.A. § 691.1401 et seq. (Stat.Ann.1969 Rev. § 3.996(101) et seq.)), the change was not effective until July 1, 1965.

The plaintiffs' first count does not merit discussion; since the state is immune from liability for negligence, the defendant as highway commissioner is also immune. Longstreet v. County of Mecosta (1924), 228 Mich. 542, 551, 200 N.W. 248; McDowell v. State Highway Commissioner (1961), 365 Mich. 268, 271, 112 N.W.2d 491.

The plaintiffs aver in their second count that the defendant is liable for wilful and wanton misconduct in the performance of his duties as state highway commissioner. The plaintiffs contend that John C. Mackie was a public official, charged with the performance of ministerial duties, which duties were owed to Karen Rose, individually, and that, because of defendant's notice of the serious condition existing on the highway, and his wilful failure and neglect to make or cause any change to be made in the design of said highway, he should be liable to the plaintiffs for the damages they have sustained.

We note at the outset that in their complaint, the plaintiffs allege that defendant had '* * * the administrative duty and responsibility under the General Highway Law, Michigan Statutes Annotated, to 'oversee the art of building, improving and repairing' * * *.' They do not state from what source they ascribe these duties to the commissioner, or to whom they are owed. The only statutory language approximating the quoted language in the complaint is C.L.1948, § 225.1 (Stat.Ann.1958 Rev. § 9.201):

'There is hereby created and established a state highway department, which shall be charged with the giving of instruction in the art of building,...