Snead v. John Carlo, Inc.

• Decision Date: 18 October 2011
• Docket Number: Docket No. 298575.
• Citation: 813 N.W.2d 294,294 Mich.App. 343
• Parties: SNEAD v. JOHN CARLO, INC. Snead v. Department of Transportation.
• Court: Court of Appeal of Michigan — District of US

294 Mich.App. 343

813 N.W.2d 294

SNEAD

v.JOHN CARLO, INC.

Snead

v.Department of Transportation.

Docket No. 298575.

Court of Appeals of Michigan.

Submitted Sept. 14, 2011, at Detroit.

Decided Oct. 18, 2011, at 9:10 a.m.

Daniel J. Flaggman and Eric D. Geller, Birmingham, for Tracy Snead.

Ogne, Alberts & Stuart, P.C. (by Dennis D. Alberts, Special Assistant Attorney General), for the Department of Transportation.

Before: MURPHY, C.J., and FITZGERALD and TALBOT, JJ.

MURPHY, C.J.

Defendant Michigan Department of Transportation (MDOT) appeals the Court of Claims' order that denied its motion for summary disposition while granting partial summary disposition in favor of plaintiff with respect to the applicability of the highway exception to governmental immunity. This case arose out of a motor vehicle accident in which plaintiff drove her car into a large construction hole located in the roadbed of a highway exit lane, allegedly as a result of confusing and inadequate traffic-control devices. We conclude that the relevant condition or hazard for purposes of determining the applicability of the highway exception was the construction hole itself, which proximately caused the accident and any resulting damages. Furthermore, we find, as a matter of law, that the exit lane's roadbed where the construction hole was located constituted an improved portion of the highway and that the exit lane had been designed for vehicular traffic. We also conclude that a genuine issue of material fact exists regarding whether the exit lane was closed or effectively remained open for public travel at the time of the accident, as gleaned by a reasonable motorist traveling along the pertinent section of highway. Accordingly, we affirm the trial court's ruling that denied MDOT's motion for summary disposition but we reverse the court's determination that plaintiff was entitled to partial summary disposition with respect to the applicability of the highway exception to governmental immunity.

I. FACTUAL AND PROCEDURAL HISTORY

In the early morning hours of April 21, 2007, plaintiff was operating her motor vehicle on eastbound I–94 when she entered the exit lane for westbound M–59/Hall Road and soon struck a large, unprotected construction hole in the roadbed of the exit lane.¹ In January 2009, plaintiff initially filed suit in the Macomb Circuit Court solely against defendant John Carlo, Inc. (hereafter Carlo). Plaintiff alleged that Carlo was hired and delegated the task of construction and that Carlo was responsible for maintaining safe conditions at the construction site and for keeping the site reasonably safe and convenient for public travel. She contended that Carlo was negligent because it failed to properly and adequately maintain the construction site, failed to adequately design the site to allow for safe use of the exit lane, failed to adequately warn the public of the hazardous condition, failed to use reasonable care to make the site reasonably safe for foreseeable use by motorists attempting to exit the highway, erected unsafe and inadequate barricades, and failed to properly barricade the exit lane, thereby allowing traffic to enter what should have been a closed exit. Plaintiff maintained that she suffered a litany of injuries and incurred damages as a proximate result of Carlo's negligence.

A couple of weeks after filing the complaint, plaintiff filed a first amended complaint in the Macomb Circuit Court that retained the negligence claim against Carlo and added a first-party claim for personal protection insurance (PIP) benefits against defendant State Farm Insurance Company (hereafter State Farm), which was plaintiff's auto insurer.²

In February 2009, plaintiff initiated a separate suit against MDOT in the Court of Claims, alleging negligenceby MDOT for having barricaded the construction hole in a defective, unsafe, and confusing manner. Plaintiff claimed that the construction site was improperly and negligently constructed and maintained by MDOT, creating a point of hazard or special danger that uniquely affected vehicular traffic on the improved portion of the roadway to the extent that travel was rendered unsafe. Plaintiff additionally set forth allegations of negligence similar to those made against Carlo, along with a claim that MDOT negligently hired and failed to properly supervise Carlo.

In April 2009, a stipulated order for joinder was entered pursuant to which the Court of Claims, under MCL 600.6421,³ ordered the joinder of the two actions and assigned the joined cases to the Macomb Circuit Court, with the circuit court “having concurrent jurisdiction and sitting as the Court of Claims.”

In March 2010, MDOT filed a motion for summary disposition, arguing that plaintiff drove on the wrong side of orange construction barrels and into a portion of the road under construction. MDOT maintained that the construction activities clearly and undeniably entailed the exercise and discharge of a governmental function; therefore, it was immune from tort liability under the governmental tort liability act (GTLA), MCL 691.1401 et seq., and more specifically MCL 691.1407(1). MDOT contended that the highway exception to governmental immunity, MCL 691.1402, did not apply for the following two reasons: “(1) the accident occurred on a closed portion of the road that was not intended for vehicular travel at the time as a result of the ongoing construction activities; and (2) Plaintiff's claims for negligent placement of barricades and other traffic control devices does not fit within the highway exception as a matter of law.”

Plaintiff filed a response to the motion, arguing that she did not drive on the wrong side of the barrels and that the barrels were set up in such a manner so as to not clearly indicate a right or wrong side for vehicular travel. Plaintiff maintained that she and several other drivers drove where they were directed by the barrels, leading them into a construction hole dug across two of the three exit or flare lanes in the improved portion of the roadway.⁴ Plaintiff argued that the highway exception to governmental immunity was thus fully applicable. Documentary evidence submitted by plaintiff showed that four vehicles, including plaintiff's car, took the exit lane that was under construction and struck the hole. Four separate crash reports indicated that the accidents occurred around the same time.⁵ The crash reports further indicated that the vehicles struck or drove into the large hole in the roadway because of a confusing road-closure set up. In two of the reports, it was noted, “Investigation found barrels for construction confusing.” A couple of the crash reports also stated that the county road commission was contacted because of the confusing closure set up, that road commission personnel arrived, and that the personnel “made adjustments.”

Plaintiff testified in her deposition that she was driving slower because of the construction in the general area, that she took the exit at issue, and that the next thing she knew was that the front of her car was at the bottom of a hole. She did not see the hole before impact and did not have the opportunity to take any evasive action. Plaintiff could not recall the placement of any barrels or barricades near the exit, and she did not see any exit-closed signs. Plaintiff testified that she observed a regular exit sign for westbound M–59; she did not see a sign for a “temporary” M–59 westbound exit. She stated that she did not see any construction vehicles or construction equipment in the area around the hole. Plaintiff observed two other cars in different parts of the same hole when she crashed. As she scurried to get out of her car out of fear that other cars might run into her vehicle before she got out, the fourth car plowed into another section of the hole.

Officer Gary Venet, who was one of the responding police officers, testified in his deposition that “it wasn't clear that ... the road was—that that lane was closed.” Venet further testified that, to the best of his memory, “the barrels were spaced a little too far apart, and that there wasn't a sign specifically indicating that the exit was closed.” Sergeant Philip Abdoo, who also responded to the accident scene, testified that the hole was about the width of one lane and probably six to seven feet deep. Abdoo also indicated that “[t]he road was marked with barrels. However, it was somewhat confusing where the barrels meant to direct traffic.” Documents from the road construction company, we presume Carlo, contained a foreman's diary, which provided:

Note that even after we put type III barricades up at the EB off ramp for WB Hall two cars still managed to drive into the open hole where we pulled the concrete for the pipe crossing at sta. 997+00. Leo from MDOT called to tell me and we had to re-adjust the barricades again to try and keep traffic out!! Note that Leo himself drove into the corner of this proposed pipe crossing and he ended up in the ditch, and he knew it was there but wasn't watching where he was going[.]

Another document from the company included an entry by a different company foreman, who stated as follows:

U/G crews working on EB storm sewer X-ings ... from north of RR to 23 Mi. Rd. There was confusion with traffic overnight after [workers] removed pavement for these X-ings. Traffic was used to using the long deceleration lane from EB I–94 to WB M–59 and 4 cars came through the closure into the pavement removal area. Removals finish up at 4:00 AM with U/G crews starting at 6:30 AM.

It thus appears that the construction hole at issue was cut or excavated at or before 4:00 a.m., with the accidents occurring a little more than an hour later.

Gordon Wall, a safety manager who worked for Carlo, testified that the police contacted MDOT after the accidents and that an MDOT inspector contacted Carlo regarding the need for more barrels. Arnold Beller, an MDOT employee, made the following...