Scheurman v. Department of Transp.

• Decision Date: 15 October 1987
• Docket Number: No. 94117,94117
• Citation: 413 N.W.2d 496,162 Mich.App. 774
• Parties: Catherine SCHEURMAN, Personal Representative of the Estate of Geraldine Rogocki, Deceased, and Catherine Scheurman, individually, Plaintiff-Appellant, v. DEPARTMENT OF TRANSPORTATION, Defendant-Appellee. 162 Mich.App. 774, 413 N.W.2d 496
• Court: Court of Appeal of Michigan — District of US

Page 496

413 N.W.2d 496

Catherine SCHEURMAN, Personal Representative of the Estate of Geraldine Rogocki, Deceased, and Catherine Scheurman, individuallyPlaintiff-Appellant, v.DEPARTMENT OF TRANSPORTATION, Defendant-Appellee.

No. 94117.

162 Mich.App. 774, 413 N.W.2d 496

Court of Appeals of Michigan.

Submitted April 14, 1987.

Decided Sept. 9, 1987.

Released for Publication Oct. 15, 1987.

[162 MICHAPP 775]Sobel, Colton & Giovanni, P.C. by Michael A. Sobel, Birmingham, for plaintiff-appellant.

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

Before CYNAR, P.J., and SHEPHERD and JASPER, ^* JJ.

SHEPHERD, Judge.

Plaintiff filed a wrongful death action against defendantDepartment of Transportation in the Court of Claims on February 21, 1984.Defendant moved for summary disposition on March 7, 1986, on the grounds of governmental immunity.The Court of Claims granted defendant's[162 MICHAPP 776] motion on June 20, 1986.We reverse and remand for further proceedings.

Plaintiff's decedent, Geraldine Rogocki, attempted to cross eastbound Eight Mile Road on foot at approximately 10:15 p.m. on May 15, 1983.She was apparently intoxicated.She was struck by a motor vehicle and killed.Eight Mile Road is a state trunk line highway.While much of Eight Mile Road is lit, the area where Rogocki attempted to cross had no street lights.

Defendant argued that it was not liable for street lighting within Detroit along "nonfreeway" state trunk line highways.At an evidentiary hearing, M. James Tripp, Detroit Public Lighting Department Supervising Inspector of Overhead Lines and Safety, testified that the city must get defendant's prior approval for placing any street light poles along state trunk line highways within city boundaries.Tripp indicated, however, that to his knowledge defendant had never denied the city a requested permit for street lighting.Tripp's affidavit indicated that the city owns all the lights and poles found elsewhere along Eight Mile Road and pays for the electricity used.David Wilson, a Michigan Department of Transportation Utilities and Permit Engineer, testified that his department reviews requests for lighting along state trunk line highways for safety.Occasionally, his department requests modification of the plans.It makes no recommendations as to type of pole or light wattage, however.The affidavit of Toufic N. Jilbeh, Michigan Department of Transportation Electrical Utilities Leader, confirmed that the city must initiate placement of street lights along that portion of Eight Mile Road and that the city would pay for the installation.

The Court of Claims granted summary disposition for defendant, indicating that it "adopted the [162 MICHAPP 777] arguments and authorities made by counsel for the Defendant as its own."Defendant's claim was essentially that it was not responsible for nonfreeway street lighting under M.C.L. Sec. 247.651b;M.S.A. Sec. 9.1097(1b) and that Eight Mile Road did not meet the statutory definition of "freeway" found at M.C.L. Sec. 257.18a;M.S.A. Sec. 9.1818(1).Moreover, defendant argued that the portion of the highway involving street lighting was under the city's control and jurisdiction, even though the actual highway itself may have been under the state's control.Defendant also argued that the utility poles were not part of the improved portion of the highway within the meaning of M.C.L. Sec. 691.1402;M.S.A. Sec. 3.996(102).

Plaintiff also sued the City of Detroit on February 24, 1984, in a separate action.It appears that the Wayne Circuit Court granted summary disposition for the city sometime before the hearing in the instant case, apparently after finding that the state had jurisdiction over the area in question.The current status of that case is not in the record.

The state and governmental units are generally immune from tort liability when engaged in the exercise or discharge of a governmental function.M.C.L. Sec. 691.1407;M.S.A. Sec. 3.996(107).A statutory exception to this immunity exists for defective highways, M.C.L. Sec. 691.1402;M.S.A. Sec. 3.996(102):

"Each governmental agency having jurisdiction over any highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for 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 [162 MICHAPP 778] him from such governmental agency.The liability, procedure and remedy as to county roads under the jurisdiction of a county road commission shall be as provided in section 21, chapter 4 of ActNo. 283 of the Public Acts of 1909,as amended, being section 224.21 of the Compiled Laws of 1948.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.No action shall be brought against the state under this section except for injury or loss suffered on or after July 1, 1965.Any judgment against the state based on a claim arising under this section from acts or omissions of the state highway department shall be payable only from restricted funds appropriated to the state highway department or funds provided by its insurer."

Defendant admits that Eight Mile Road is a state trunk line highway at the accident site.Defendant has jurisdiction over state trunk line highways.Const. 1963, art. 5, Sec. 28;Beyer v. Fraternal Order of Eagles, Aerie No. 668, 123 Mich.App. 492, 497, 333 N.W.2d 314(1983).In the instant case, it appears that defendant requires the city to obtain defendant's approval prior to placing street lights along Eight Mile Road.Municipalities retain control over state trunk line highways within their boundaries to the extent that such control pertains to local concerns and is not in conflict with the state's paramount jurisdiction.Jones v. Ypsilanti, 26 Mich.App. 574, 580, 182 N.W.2d 795(1970).The state, however, must incur all legal liabilities for state trunk line highways, even when the municipality undertakes the responsibility for maintenance and repair.Beyer, supra.We thus [162 MICHAPP 779] believe defendant is the proper party in the instant case.

Defendant contends that M.C.L. Sec. 691.1402;M.S.A. Sec. 3.996(102) extends state liability only to the "improved portion of the highway designed for vehicular travel," which defendant argues does not include street lighting.We disagree.This Court held in Zyskowski v. Habelmann, 150 Mich.App. 230, 239-240, 388 N.W.2d 315(1986), that a county had a duty to maintain street lights along a county road.The Court noted that the lighting of a road affects the safety of motorists using the improved portion of the highway and that street lighting may be an integral and necessary part of road design in many urban areas.The Supreme Court has granted leave in Zyskowski for a consideration of two issues.One is whether this Court"erred in holding that off-road ornamental street lighting is an integral part of the improved portion of the highway designed for vehicular travel as defined by the governmental immunity act"(emphasis added).426 Mich. 865(1986).It does not appear that ornamental lighting is involved in this case.What is alleged instead is a failure to provide street lighting necessary for the use of the state trunk line highway.We believe the type of lighting alleged here would be an integral part of the improved portion of the highway necessary for vehicular travel, whatever the outcome of Zyskowski on appeal.

The Supreme Court's recent decision in Roy v. Dep't of Transportation, 428 Mich. 330, 408 N.W.2d 783(1987), does not compel a different result.The Supreme Court held in Roy that the M.C.L. Sec. 691.1402;M.S.A. Sec. 3.996(102) exception to governmental immunity did not apply to an adjacent bicycle path as it was not designed for vehicular travel.We perceive a difference between an adjacent [162 MICHAPP 780] bicycle path which was designed for bicycle travel and street lighting required for vehicular use of a state trunk line highway.While the light poles may be away from the highway, the illumination itself is on the highway and the question in this case is whether the illumination was sufficient to render the road safe for travel and for pedestrians.¹As defendant must approve all proposals for street lighting in the area of the accident, we find that defendant has retained control of the highway and has jurisdiction over it within the meaning of M.C.L. Sec. 691.1402;M.S.A. Sec. 3.996(102).

Defendant also argues that it has been statutorily relieved of responsibility for street lighting at the accident site.Plaintiff, on the other hand, relies on M.C.L. Sec. 250.61;M.S.A. Sec. 9.901, which provides:

"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 as imposed by section 21 of chapter 4 and chapter 22 of ActNo. 283 of the Public Acts of 1909, as amended, being section 224.21andsections 242.1 to 242.8 of the Compiled Laws of 1948."(Emphasis added.)

The pertinent statutory revisions cited in this section were repealed by 1964 P.A. 170 and replaced by the provisions of M.C.L. Sec. 691.1401 et seq.;M.S.A. Sec. 3.996(101) et seq., which now control governmental liability.SeeBennett v. Lansing, 52 Mich.App.[162 MICHAPP...