Roy v. Department of Transp.

• Decision Date: 15 August 1986
• Docket Number: Docket No. 84535
• Citation: Roy v. Department of Transp., 391 N.W.2d 514, 152 Mich.App. 34 (Mich. App. 1986)
• Parties: William G. ROY and Susan M. Roy, his wife, Plaintiffs-Appellants, v. Michigan DEPARTMENT OF TRANSPORTATION, Defendant-Appellee.
• Court: Court of Appeal of Michigan

Page 514

391 N.W.2d 514

152 Mich.App. 34

William G. ROY and Susan M. Roy, his wife, Plaintiffs-Appellants, v.Michigan DEPARTMENT OF TRANSPORTATION, Defendant-Appellee.

Docket No. 84535.

Court of Appeals of Michigan.

Submitted Jan. 13, 1986.

Decided May 20, 1986.

Released for Publication Aug. 15, 1986.

Law Offices of Norman P. Ochs, P.C. by John R. Rinn, Troy, for plaintiffs-appellants.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol.Gen., Carl K. Carlsen and Brenda E. Turner, Asst. Attys.Gen., for defendant-appellee.

Before GRIBBS, P.J., and HOLBROOK and ROUMELL^*, JJ.

HOLBROOK, Judge.

We are called upon to determine if a paved bicycle path that is under state control is included in the highway exception to governmental immunity.The trial court held that it was not and granted defendant's motion for summary judgment.Plaintiffs now appeal as of right.

PlaintiffWilliam G. Roy was injured when he was riding his bicycle on the path and struck a bump that was concealed by freshly cut weeds.He was thrown and suffered a separated shoulder.The arguments in the case center on M.C.L. Sec. 691.1402;M.S.A. Sec. 3.996(102), which provides in pertinent part that:

"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."

The parties argue two sub-issues that involve the construction of this statute.The first is whether a bicycle is a vehicle for purposes of vehicular travel, and the second is whether a bicycle path such as the one involved herein is a part of the improved portion of the highway.We find the second issue to be dispositive.

We hold the dispositive question to be whether the path itself is an "installation outside of the improved portion of the highway".We find that it is not.A bicycle path is closely analogous to the shoulder of the road, which has consistently been held to be included within the highway exception.

"The shoulders of a highway are designed for vehicular traffic although not of the same character as vehicular traffic on the paved portion of the highway.We read the statutory duty of the state with respect to the repair of shoulders to be that the state is obligated to maintain the shoulders in reasonable repair so that they are reasonably safe for their intended use as adjuncts of the paved portion of the highway."Johnson v. Michigan, 32 Mich.App. 37, 39, 188 N.W.2d 33(1971).

In the instant case, the bicycle path runs adjacent to a limited access highway and is similarly an adjunct to that highway.Cyclists have the same rights and responsibilities as motorists when on the road.M.C.L. Sec. 257.657;M.S.A. Sec. 9.2357.However, the Michigan Vehicle Code requires that "[w]here a usable and designated path for bicycles is provided adjacent to a roadway, a bicycle rider shall use that path and shall not use the roadway."M.C.L. Sec. 257.660(3);M.S.A. Sec. 9.2360(3).Furthermore, bicyclists are absolutely prohibited from limited access highways and bicycles are specifically required to be ridden on adjacent paths only.M.C.L. Sec. 257.679a;M.S.A. Sec. 9.2379(1).Thus, where...