Salvati v. Department of State Highways

• Decision Date: 19 September 1979
• Docket Number: Docket No. 78-2097
• Citation: 92 Mich.App. 452,285 N.W.2d 326
• Parties: Helen SALVATI, Executrix of the Estate of Carmen Salvati, deceased, Plaintiffs-Appellees, v. DEPARTMENT OF STATE HIGHWAYS, State of Michigan, Defendant-Appellant. 92 Mich.App. 452, 285 N.W.2d 326
• Court: Court of Appeal of Michigan — District of US

Page 326

285 N.W.2d 326

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

Docket No. 78-2097.

92 Mich.App. 452, 285 N.W.2d 326

Court of Appeals of Michigan.

Sept. 19, 1979.

Rehearing Denied Nov. 15, 1979.

Released for Publication Nov. 29, 1979.

[92 MICHAPP 454] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Myron A. McMillan, Asst. Atty. Gen., for defendant-appellant.

Anthony D. Rosati, Southfield, for plaintiffs-appellees.

Before ALLEN, P. J., and T. M. BURNS and HOLBROOK, ^* JJ.

HOLBROOK, Judge.

This case involves an action for wrongful death suffered on a state highway where 'preferential icing' and claimed improper and inadequate warning signs were present at the scene of the accident.

Defendant-appellant, Department of State Highways, appeals as of right the judgment of the Court of Claims finding that defendant had negligently maintained a public highway in a manner that caused the death of plaintiff's decedent.

Shortly after 6 a. m. on the morning of February 17, 1972, plaintiff's decedent was driving southbound on I-75 in Allen Park, Michigan. At the point where I-75 crosses over the Goddard Road bridge, there are three southbound lanes, each being 12 feet in width. The portion of I-75 forming the Goddard Road bridge is 1,939 feet in length. The highway pavement was clear and dry on that portion of I-75 that was built directly on the ground. However, on the highway ice had developed and was present but not visible to the naked eye.

The trial judge in the Court of Claims wrote a very fine opinion, which we adopt in part as our opinion, Viz.:

[92 MICHAPP 455] "Plaintiff, as Executrix of the estate of her husband, file a complaint in the Court of Claims against defendant for the wrongful death of her husband as a result of a February 17, 1972 accident on the I-75 bridge over Goddard Road in Wayne County. On that date at about 6:20 a. m. plaintiff's decedent Carmen Salvati was the driver of an automobile travelling south on I-75. As his vehicle approached the bridge over Goddard Road it came upon other automobiles and a tractor-trailer truck which had skidded, collided and stopped across the bridge as a result of ice on the bridge. Decedent's automobile skidded on the ice and into the semi-trailer which was across the bridge traffic lanes and he was killed in the crash.

"Plaintiff's complaint, filed pursuant to the wrongful death act, M.C.L.A. § 600.2922; M.S.A. § 27A.2922, alleges that the proximate cause of the accident was the failure of the defendant to perform its statutory duties under M.C.L.A. § 691.1402; M.S.A. § 3.996(102).

"Defendant denies liability and insists that it exercised reasonable diligence with respect to the conditions which caused the accident and resulted in this claim.

"This case involves a natural phenomenon referred to as 'preferential icing' throughout this record. It is a fact that bridges in the State of Michigan will frost over when certain climatic conditions and temperatures reach known degrees in the hours between 6:00 a. m. and 7:30 a. m. When a bridge deck surface temperature is 32 degrees, the air temperature is 35-36 degrees and the relative humidity is 85% Percent, instant ice is formed. This is a fact well known to the Michigan Department of State Highways. On I-75 there is a five or six mile section on which there are some five bridges in succession. From the East, this section of I-75 and its bridges begins with the very long river Rouge Bridge and ends with the Goddard Road bridge at the South extremity. Because the 'preferential icing' phenomenon is well known to the defendant it has a contract with the Wayne County Road Commission whereby the latter maintains a salt truck 'morning patrol' of the five bridge area on I-75, from 6:00 a. m. to 7:30 a. m., Monday through Friday, beginning in November and continuing until April 15th each year. Its function is to check [92 MICHAPP 456] for ice and salt it when found. As a matter of fact, the 'patrol' was in operation on February 17, 1972, beginning at 6:00 a. m., but despite it being in operation the accidents on the Goddard Road bridge that morning occurred as a result of 'preferential icing'.

"It is the testimony that ice forms instantaneously when the weather phenomena occurs and that the ice on the bridge deck surface cannot be seen.

"The defendant relies upon the fact of the 'patrol' and also upon the fact of a sign some distance before the approach to the Goddard Road bridge which says "Watch for Ice on Bridge". It is claimed that this and the 'patrol' satisfies its' statutory duty to keep the highway in condition reasonably safe and fit for travel. And further, that there was no way of forewarning or predicting ice on the bridge or advising the motoring public of it.

"The evidence introduced indicates that the posted sign is not illuminated; that the speed limit on I-75 in that area at the time of the accident was seventy (70) miles per hour; and, that the road leading to the bridge deck was straight and dry.

"The court finds that on February 17, 1972, at the time of the accident which took the life of plaintiff's decedent, the Goddard Road bridge on I-75 was made hazardous to vehicular traffic by the presence of 'preferential icing' thereon. That the climatological phenomenon of 'preferential icing' was well known to defendant and that it had notice of the regular possibility of it occurring on the Goddard Road bridge any day between the hours of 6:00 a. m. and 7:30 a. m. from November until April 15th. Further, that at the time of the accident the road surface approaching the bridge was dry, at 6:20 a. m. it was dark, and an unlighted sign approximately 1000 feet before the bridge was displayed on the shoulder which bore the legend "Watch for Ice on Bridge".

"It has been held that the state's obligation to maintain highways includes the duty to post signs and warn motorists at points of special danger. National Bank of Detroit v. Department of State Highways, 51 Mich.App. 415, 215 N.W.2d 599 (1974); O'Hare v. City of Detroit, 362 Mich. 19, 106 [92 MICHAPP 457] N.W.2d 538 (1960); Williams v. Department of State Highways, 44 Mich.App. 51, 205 N.W.2d 200 (1972). Statutory liability requires that the State keep highways under its jurisdiction 'in reasonable repair, and in condition reasonably safe and fit for travel'. (underscoring supplied) M.C.L. § 691.1402; M.S.A. § 3.996(102).

"It is the opinion of this court that the signing at the site does not adequately warn of the danger. The sign language "Watch for Ice on Bridge" hardly can be said to be meaningful when it gives no instruction to motorists as to the action or precaution to be taken if there is ice on the bridge. Its visibility in the dark and its 'noticeability' by motorists are highly negative factors, in view of the expert testimony that tests indicate that motorists see such a sign less than fifty (50%) percent of the time. Lastly, the message " Watch for Ice on Bridge" seems to be incongruous advice in view of the testimony that when ice is present on the bridge deck surface it cannot be seen.

"It is the conclusion of this court from the evidence that the state was negligent and that its failure to keep the highway site here involved in condition reasonably safe and fit for travel was a proximate cause of the plaintiff's losses.

"The plaintiff Executrix was widowed by the February 17, 1972 accident and seeks damages for the loss of support, society and companionship resulting to her from the loss of her husband, and his funeral expenses which amounted to $1,857.48. Testimony indicated that the deceased was sixty-six years of age at the time of the fatal accident. He had a statutory life expectancy of 12.31 years.

"Defendant urges that the only recoverable item of loss is the funeral expense.

"M.C.L.A. § 600.2922; M.S.A. § 27A.2922 in pertinent part provides as follows:

"(2) ' * * * , and in every such action the court or jury may give such damages, as, the court or jury, shall deem fair and just, such damages when recovered Including damages for the reasonable [92 MICHAPP 458] medical, hospital, funeral and burial expenses for which the estate is liable and reasonable compensation for the pain and suffering, while conscious, undergone by such deceased person during the period intervening between the time of the inflicting of such injuries and his death. The amount of damages recoverable by civil action for death caused by wrongful act, neglect or fault of another may also include recovery for the loss of society and companionship of the deceased.' (underscoring not supplied)

"Also,

(1) 'Whenever the death of a person or injuries resulting in death shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages, in respect thereof, then and in every such case, the person who, or the corporation which would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony. All actions for such death, or injuries resulting in death, shall be brought only under this section.' " (underscoring supplied)

"Lastly, M.C.L.A. § 691.1402; M.S.A. § 3.996(102) in pertinent part provides as follows:

"Sec. 2. ' * * * . 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.' (underscoring supplied)

"The language 'bodily injury' has been held not to exclude injuries...