Smith v. Department of Transp.

• Decision Date: 16 April 1987
• Docket Number: Docket No. 78055
• Citation: 403 N.W.2d 87,157 Mich.App. 12
• Court: Court of Appeal of Michigan — District of US
• Parties: Terry J. SMITH, Personal Representative of the Estate of Rebecca Rogers, Ramona Rogers and John Rogers, Jointly and severally, Plaintiffs-Appellants, v. DEPARTMENT OF TRANSPORTATION, Defendant-Appellee. 157 Mich.App. 12, 403 N.W.2d 87

Page 87

403 N.W.2d 87

Terry J. SMITH, Personal Representative of the Estate of Rebecca Rogers, Ramona Rogers and John Rogers Jointly and severally Plaintiffs-Appellants, v. DEPARTMENT OF TRANSPORTATION, Defendant-Appellee.

Docket No. 78055.

157 Mich.App. 12, 403 N.W.2d 87

Court of Appeals of Michigan.

Submitted March 7, 1985.

Decided Jan. 5, 1987.

Released for Publication April 16, 1987.

[157 MICHAPP 13] Zimmer & Dietrick by Noreen K. Myers, Charlotte, for plaintiffs-appellants.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Carl K. Carlsen and Myron A. McMillan, Asst. Attys. Gen., for defendant-appellee.

[157 MICHAPP 14] Before ALLEN, P.J., and GRIBBS and GILLESPIE, ^* JJ.

ALLEN, Presiding Judge.

Plaintiffs appeal from the Court of Claims' order granting summary judgment for defendant Michigan Department of Transportation on plaintiffs' claim of negligent highway design and construction and claim of nuisance. We affirm.

On July 19 1979, plaintiffs' decedent, Rebecca Rogers, was struck by a truck owned by Quality Dairy at the intersection of Michigan Avenue and Creyts Road in Delta Township, Eaton County. Plaintiffs sued the Eaton County Road Commission and Quality Dairy in circuit court, and the Michigan Department of Transportation (department) in the Court of Claims. In their case against the department, plaintiffs alleged negligent design and construction of a highway and nuisance. The negligent design and construction claim was brought pursuant to the highway liability statute, M.C.L. Sec. 691.1402; M.S.A. Sec. 3.996(102), the statutory exception to immunity for defective highways, which provides in relevant part:

"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 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 Act No. 283 of the Public Acts of 1909." (Emphasis added.)

[157 MICHAPP 15] The circuit court and Court of Claims cases were joined by the Court of Claims pursuant to M.C.L. Sec. 600.6421; M.S.A. Sec. 27A.6421. The department moved for accelerated judgment, which was denied, and later for summary judgment, which was granted. The Court of Claims granted the department's motion for summary judgment pursuant to GCR 1963, 117.2(3), now MCR 2.116(C)(10), finding that the department lacked jurisdiction over the highways in question, and dismissed plaintiffs' entire complaint.

Negligence Claim

Turning first to plaintiffs' claim of negligent design and construction, we must consider whether summary judgment was appropriately granted on the ground that the department lacked jurisdiction over the highways in question. Summary judgment pursuant to GCR 1963, 117.2(3), now MCR 2.116(C)(10), should be granted when there is no serious dispute as to any material facts and the moving party is entitled to judgment as a matter of law. Reeder v. Hammond, 125 Mich.App. 223, 227, 336 N.W.2d 3 (1983). The Court of Claims found that these criteria were met, and granted summary judgment for the department.

From the sketchy facts and record provided by the parties on appeal, it appears that, some years prior to the accident in 1979, federal funds were requested and received by Eaton County for road construction, pursuant to the Federal-Aid Highways Act, 23 U.S.C. Sec. 101 et seq., which requires the participation of the state highway department in such construction. The limited record presented by both parties on appeal is unclear as to whether the federally-aided construction included either Creyts Road or Michigan Avenue, or both, and/or their intersection. [157 MICHAPP 16] Plaintiffs contend, based on deposition testimony of the engineer-manager of the Eaton County Road Commission (only cryptic parts of which are presented on appeal), that the construction included Michigan Avenue at the Creyts Road intersection where the accident occurred. The department does not dispute the fact that federal funds were involved in the construction of the intersection in question, but argues that federal funding does not by itself confer jurisdiction on the department and, if it does, such jurisdiction ended September 7, 1977.

With its motion for summary judgment the department attached an affidavit categorically stating that the highway in question was not a state highway but was and always had been an Eaton County highway. In rebuttal, plaintiffs submitted the deposition of the engineer-manager of the Eaton County Road Commission that upon receiving the federal aid the county was required to submit to the department the design and construction plans for preliminary review and final approval. At the construction stage, the department prepared bimonthly progress and inspection reports, and construction cost estimates. According to the engineer-manager, the department's involvement continued until the final payment was made to the project's contractor on September 7, 1977. He further testified that Creyts Road was always under county jurisdiction, and that Michigan Avenue was under county jurisdiction in and prior to 1976. He also testified that the later widening of Creyts Road at Michigan in 1979, the year of the accident, was paid for solely with county money.

In further support of its motion for summary judgment the department submitted the affidavit of Henry W. Thomas, establishment and abandonment[157 MICHAPP 17] coordinator for the department, stating that he had custody and control of the records identifying which roads are under the jurisdiction of the department and which roads are under the jurisdiction of all counties and cities in Michigan and that such records disclose that the intersection in question in the instant suit was under the jurisdiction of Eaton County and was "in the same jurisdictional status on and before July 19, 1979." However, the actual records and documents referred to in Thomas' deposition were never presented to the court, nor did plaintiffs execute an affidavit stating that the records under Thomas' control showed anything to the contrary.

Given the above-recited facts, and accepting as true everything recited in the deposition testimony of the Eaton County engineer-manager, and further accepting as true that the federally-aided construction included both Creyts Road and Michigan Avenue and their intersection, ¹ we cannot say that the Court of Claims erred in granting defendant's motion for a summary judgment. At best, if the department ever had jurisdiction over the intersection in question, it did so only because of the receipt of federal funds and only during the period the road was being designed and constructed. Construction ended upon final payment to the contractor September 7, 1977. The subsequent widening of Creyts Road and Michigan Avenue in 1979 was paid for solely with county money. Thus, based upon the affidavits and deposition testimony, at the time of the accident, jurisdiction rested solely with Eaton County. Nothing in plaintiffs' deposition or affidavits reasonably suggests that at the time of the accident the [157 MICHAPP 18] department and the county maintained concurrent jurisdiction over the highway.

Thus, the question before us is not one of liability where jurisdiction is concurrent. Instead, it is a question whether liability extends to a governmental agency which during the period of design and construction of the highway had jurisdiction, but which at the time of the accident and for several years prior thereto did not have jurisdiction. On this issue, though not without dissent, our Court has repeatedly held that liability is limited to the governmental unit having jurisdiction over the road at the time of the injury. Bennett v. City of Lansing, 52 Mich.App. 289, 217 N.W.2d 54 (1974), lv. den. 399 Mich. 840 (1977); Austin v. City of Romulus, 101 Mich.App. 662, 668-669, 300 N.W.2d 672 (1980), lv. den. 411 Mich. 955 (1981); Potes v. State Hwy Dep't, 128 Mich.App. 765, 341 N.W.2d 210 (1983); Killeen v. Dep't of Transportation, 151 Mich.App. 7, 390 N.W.2d 676 (1986), lv. gtd. 426 Mich. 864 (1986).

Both Potes and Killeen are factually similar to the instant case. In Potes, plaintiff's decedent died as a result of injuries sustained in an automobile accident on Ballenger Highway. Plaintiff's complaint alleged that the injuries were caused by the negligent design and construction of the highway at the time the road was under the jurisdiction of the state. However, at the time of the accident, jurisdiction was exclusively with Genesee County. Plaintiff maintained that the state remained liable for any design or construction defects created at the time, notwithstanding the fact that jurisdiction was subsequently transferred to the county. Our Court rejected this argument, stating:

"In the same spirit, we view that statutory exception as parting the immunity curtain only as to [157 MICHAPP 19] the governmental unit having jurisdiction of the subject roadway at the time of the accident. Application of this rule is compatible with the language of MCL 224.21; MSA 9.121, which places the duty to keep county roads in reasonable repair exclusively upon the counties. See Mullins v Wayne County, 16 Mich App 365; 168 NW2d 246 (1969), lv den 382 Mich 791 (1969). To hold two governmental units responsible for correcting design or construction defects could result in confusion and inefficiency." 128 Mich.App. at 769, 341 N.W.2d 210.

Similarly, in Killeen, plaintiff alleged that in 1969 defendant had assumed jurisdiction over the...