Salvati v. Department of State Highways

• Decision Date: 23 December 1982
• Docket Number: Docket No. 64143
• Citation: 330 N.W.2d 64,415 Mich. 708
• Parties: Helen SALVATI, Executrix of the Estate of Carmen Salvati, deceased, Plaintiff-Appellee, v. DEPARTMENT OF STATE HIGHWAYS, State of Michigan, Defendant-Appellant.
• Court: Michigan Supreme Court

Page 64

330 N.W.2d 64

415 Mich. 708

Helen SALVATI, Executrix of the Estate of Carmen Salvati, deceased, Plaintiff-Appellee, v. DEPARTMENT OF STATE HIGHWAYS, State of Michigan, Defendant-Appellant.

Docket No. 64143.

Supreme Court of Michigan.

Dec. 23, 1982.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Thomas J. Killeen, Jr., Asst. Atty. Gen., Detroit, for the defendant.

COLEMAN, Justice.

Preferential icing is a meteorological phenomenon in which ice forms on a bridge deck at a time when the surface of the bridge approaches is clear and dry. This intermittent, unpredictable and often rapidly developing condition occurs through the interplay of a complex of factors, among them relative humidity, ambient air and bridge deck temperatures, and wind velocity and direction. ¹

In this wrongful death case, we are asked to determine whether the trial judge clearly erred in finding that the two "watch for ICE on bridge" signs erected by defendant at the approach to the Interstate-75 bridge over Goddard Road were inadequate to warn passing motorists, in particular plaintiff's decedent, of a possible preferential icing hazard. GCR 1963, 517.1.

I

The pertinent facts are not in dispute.

On February 17, 1972, at approximately 6:20 a.m., plaintiff's decedent, Carmen Salvati, was instantly killed when the automobile he was driving collided with a tractor-trailer which earlier had jackknifed on the I-75 bridge over Goddard Road near Detroit. When the accident occurred, the bridge was icy and hazardous, although the bridge approaches were clear and dry. A salt patrol provided by the Wayne County Board of Road Commissioners, pursuant to a contract with defendant, routinely operated on I-75 in the area of the Goddard Road bridge on weekday mornings from 6 a.m. to 7:30 a.m. ² On the morning in question, it had passed over the bridge shortly before 6 a.m. without detecting any ice. Ten to fifteen minutes later, the driver of the salt truck saw that ice was starting to form on bridges farther along the route, so he immediately began to salt and doubled back to apply salt to bridges which only a short time before had been dry. By the time he reached the Goddard Road bridge, Mr. Salvati's fatal accident had already occurred.

At the time of the accident, two reflectorized signs bearing the legend "watch for ICE on bridge" were positioned 1000 feet in advance of the bridge, one 12 feet off the right shoulder, the other 10 1/2 feet off the left shoulder. ³ The posted speed limit on I-75 was 70 mph.

Trial was conducted in the Court of Claims in February, 1978. At trial, one of plaintiff's expert witnesses, Ronald Mourant, a Wayne State University psychologist with a Ph.D. in industrial engineering, testified that on the basis of "past studies" (not described) a system of traffic signs such as that in use at the Goddard Road bridge was inadequate because motorists passing would "only see those signs at most 50 percent of the time and at nighttime conditions you could expect this to be less". Dr. Mourant's evaluation of the Goddard Road bridge system of signs was based upon his personal observation of the signs on the bridge, as well as his analysis of similar signs in other states. (However, it is noted that he was under the erroneous impression that only one "watch for ICE on bridge" sign had been placed in advance of the Goddard Road bridge.) He reasoned that a "watch for ICE on bridge" sign, even if reflectorized, as were these, does not require the driver to make an explicit response. The psychologist advised use of a sign with a flashing amber light and a message directing the driver to reduce speed. The defense primarily focused upon the unavailability of a reliable and accurate ice detection and warning system.

The trial judge awarded plaintiff $175,000, premising the award upon his finding that defendant failed adequately to warn of the hazardous preferential icing condition. In a 2-to-1 decision, 92 Mich.App. 452, 285 N.W.2d 326, the Court of Appeals agreed that defendant was negligent, but remanded to the trial court for findings on the issue of contributory negligence. ⁴

II

The instant controversy focuses not upon whether the condition known as preferential icing is a natural accumulation of ice, a defect for which defendant may not be held liable, ⁵ nor does this case involve an assertion that there was a flaw in the design or construction of the bridge itself. ⁶ Instead, the disputed issue is whether defendant has breached its statutory duty to maintain its highways in reasonably safe condition by posting traffic signs that failed to serve their intended purpose of warning motorists of hazardous conditions.

M.C.L. Sec. 691.1402; M.S.A. Sec. 3.996(102) imposes upon defendant an affirmative obligation to "maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel". A traffic sign, once erected, becomes an integral part of the physical structure of the highway, and thus the duty to maintain a highway in reasonable repair encompasses the maintenance of traffic signs. ⁷ A governing unit may incur liability under the broad concept of "traffic sign maintenance" in the following ways: for failing to properly maintain a sign placed on the roadway, O'Hare v. Detroit, 362 Mich. 19, 106 N.W.2d 538 (1960); for failing to erect any sign or warning device at a point of hazard, Bonneville v. Alpena, 158 Mich. 279, 122 N.W. 618 (1909); Mullins v. Wayne County, 16 Mich.App. 365, 168 N.W.2d 246 (1969); for positioning an improper system of signs on the roadway, National Bank of Detroit v. Dep't of State Highways, 51 Mich.App. 415, 215 N.W.2d 599 (1974); or for placing a sign which inadequately informs approaching motorists of a hazard, Lynes v. St. Joseph County Road Comm., 29 Mich.App. 51, 185 N.W.2d 111 (1970). While the highway authority has discretion in the erection of traffic control signs, M.C.L. Sec. 257.608; M.S.A. Sec. 9.2308, this discretion may not be capitalized upon to shield the authority from liability for highway defects, see Mullins, supra, 381, 168 N.W.2d 246, nor should compliance with standard manual specifications similarly act wholly to absolve the highway authority from liability. However, National Bank of Detroit, supra, suggests that compliance with traffic manual standards is a factor to consider in determining the reasonableness of the state's actions at the time of the accident.

In general, the question of the adequacy of a particular system of traffic signs is to be resolved by the trier of fact. 18 Am.Jur. Proof of Facts 2d, Highway Defects--Warning Device, Sec. 7, p. 509.

Our review of this case leaves us " 'with the definite and firm conviction that a mistake has been committed' " by the trier of fact. Tuttle v. Dep't of State Highways, 397 Mich. 44, 46, 243 N.W.2d 244 (1976). We cannot agree that the two "watch for ICE on bridge" reflectorized signs posted by defendant at the approach to the Goddard Road bridge failed adequately to inform plaintiff's decedent of the possibility that a hazardous condition existed on the bridge, so as to enable him, in the exercise of ordinary care, to avoid injury. We will not require of defendant more than what is reasonable under the circumstances; nor will we make defendant an insurer of the travelers of the roadway.

In addition to its program of routinely patrolling the I-75 bridges during the hours in which preferential icing is most likely to occur, defendant conspicuously placed, on either side of the roadway not one, but two reflectorized signs reading "watch for ICE on bridge" which conformed to traffic manual specifications. This we find to be entirely reasonable.

Although we hesitate to say that defendant could not possibly have done more, we are at a loss to say what that "more" could have been. Apparently, applying salt to a dry road surface as a preventive measure is a useless procedure, since most of it is blown to the roadside by vehicles as they pass by. Further, abundant evidence exists to show that the technology for a flashing "Reduce Speed--Ice on Bridge" sign, such as the one suggested by Dr. Mourant, was unperfected at the time of the accident. Short of stationing an employee at each point throughout the state where preferential icing might occur, defendant had no reliable means of predicting or detecting the presence of ice so that a flashing warning sign could be activated.

III

We disagree with the lower courts' conclusions that the "watch for ICE on bridge" signs erected by defendant were inadequate to apprise approaching motorists of the hazard of preferential icing. Although the signs did not instruct the driver in the action to be taken should ice be encountered on the bridge, we think that this lack of instruction does not necessarily make the signs meaningless. We can think of many worthwhile and significant traffic signs which are similarly non-instructive, e.g., "Deer Xing", "Road Ends". These signs imply, rather than expressly direct, responses such as "use caution" or "reduce speed". We should recognize three important considerations: first, that the briefer the message, the more likely it is to be comprehended by a motorist (especially one driving on an Interstate roadway); second, that the less time the reading consumes the less dangerous is the diversion; and third, that the ordinary motorist should have received sufficient training or experience to know what response is expected should a particular danger be posted. We do not believe that the "watch for ICE on bridge" signs used by defendant were inadequate because the desired response was not expressly commanded on the sign itself.

We also do not agree with the trial judge's determination, based upon the unfounded assertion of Dr. Mourant, that the reflectorized signs were deficient because the motoring public noticed them less than 50 percent of the time while driving at night. If some nighttime...