Taylor v. Lenawee County Bd. of Road Com'rs

• Decision Date: 30 April 1996
• Docket Number: Docket Nos. 175455,175456 and 179326
• Citation: 549 N.W.2d 80,216 Mich.App. 435
• Parties: Pamela TAYLOR, Personal Representative of the Estate of Lisa Taylor, deceased, Plaintiff-Appellant, v. LENAWEE COUNTY BOARD OF ROAD COMMISSIONERS, Defendant/Third-Party Plaintiff-Appellee, Sally POCS, Personal Representative of the Estate of Kelly Hill, deceased, Plaintiff-Appellant, v. LENAWEE COUNTY BOARD OF ROAD COMMISSIONERS, Defendant/Third-Party Plaintiff-Appellee. SCHIKORA v. LENAWEE COUNTY BOARD OF ROAD COMMISSIONERS.
• Court: Court of Appeal of Michigan — District of US

Page 80

549 N.W.2d 80

216 Mich.App. 435

Pamela TAYLOR, Personal Representative of the Estate of Lisa

Taylor, deceased, Plaintiff-Appellant, v. LENAWEE COUNTY BOARD OF ROAD COMMISSIONERS, Defendant/Third-Party Plaintiff-Appellee, Sally POCS, Personal Representative of the Estate of Kelly

Hill, deceased, Plaintiff-Appellant, v. LENAWEE COUNTY BOARD OF ROAD COMMISSIONERS,

Defendant/Third-Party Plaintiff-Appellee.

SCHIKORA v. LENAWEE COUNTY BOARD OF ROAD COMMISSIONERS.

Docket Nos. 175455, 175456 and 179326.

Court of Appeals of Michigan.

Submitted March 20, 1996, at Detroit.

Decided April 30, 1996, at 9:00 a.m.

Released for Publication June 11, 1996.

Chambers Steiner by Angela J. Nicita, Courtney E. Morgan, Jr., and John I. Kittel, Detroit, for the plaintiffs.

Highland & Zanetti, P.C. by John N. Highland, Southfield, for Lenawee County Board of Road Commissioners.

Before SMOLENSKI, P.J., and MARKEY and SULLIVAN, ^* JJ.

PER CURIAM.

In these consolidated cases, the personal representatives of the estates of Lisa Taylor, Kelly Hill, and Jon Schikora appeal as of right from the trial court orders that summarily dismissed their claims against defendant Lenawee County Board of Road Commissioners arising out of a fatal train-automobile collision at the railroad crossing on Thompson Road in Lenawee County. The personal representatives of the estates of Lisa Taylor and Kelly Hill also challenge the court's order striking their first amended complaints and awarding sanctions to defendant board of road commissioners. We affirm the grants of summary disposition and the decision to strike plaintiffs' amended complaints, but reverse the trial court's award of sanctions against plaintiffs.

Although defendant board of road commissioners' motion for summary disposition was filed pursuant to MCR 2.116(C)(8) and (10), the trial court apparently granted the motion under (C)(10) because it relied on an affidavit stating that the Michigan Department of Transportation (MDOT), before the fatal accident, had not issued an order requiring the installation of flashing lights or stop signs at the railroad crossing in question. In reviewing de novo the trial court's decision, we examine the record, review the documentary evidence, grant the benefit of all reasonable doubts and inferences to plaintiffs, and determine whether a record may be developed on which reasonable minds could differ. Jackson v. Detroit, 449 Mich. 420, 426, 537 N.W.2d 151 (1995); Nelson v. American Sterilizer Co., 212 Mich.App. 589, 594, 538 N.W.2d 80 (1995). We may not, however, make findings of fact or weigh credibility. Nelson, supra. As a general matter, a governmental agency such as defendant board of road commissioners is immune from tort liability for actions taken while performing governmental functions. M.C.L. § 691.1407(1); M.S.A. § 3.996(107)(1). This immunity is subject to a limited number of narrowly drawn exceptions, including the highway exception contained in M.C.L. § 691.1402; M.S.A. § 3.996(102). Jackson, supra at 427, 537 N.W.2d 151.

The trial court summarily dismissed plaintiffs' claims under M.C.L. § 691.1402; M.S.A. § 3.996(102), commonly referred to as the defective highway statute, in light of M.C.L. § 257.668(2); M.S.A. § 9.2368(2). The defective highway statute provides, in pertinent part:

Each governmental agency having jurisdiction over a 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 or her 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 or her from the governmental agency. [M.C.L. § 691.1402(1); M.S.A. § 3.996(102)(1).]

The narrowly drawn highway exception to governmental immunity contained in M.C.L. § 691.1402; M.S.A. § 3.996(102) must be strictly construed, and no action may be maintained under the exception unless it clearly falls within the scope of the statute. Scheurman v. Dep't of Transportation, 434 Mich. 619, 630, 456 N.W.2d 66 (1990). M.C.L. § 257.668(2); M.S.A. § 9.2368(2) regarding the erection of signs at railroad grade crossings provides, in pertinent part:

The state transportation department with respect to highways under its jurisdiction, the county road commissions, and local authorities with reference to highways under their jurisdiction, may designate certain grade crossings of railways by highways as yield crossings, and erect signs at the crossings notifying drivers of vehicles upon the highway to yield.... The erection of or failure to erect, replace, or maintain a stop or yield sign or other railroad warning device, unless such devices or signs were ordered by public authority, shall not be a basis for an action of negligence against the state transportation department, county road commissions, the railroads, or local authorities.

See, generally, Turner v. CSX Transportation, Inc., 198 Mich.App. 254, 256-257, 497 N.W.2d 571 (1993); Baughman v. Consolidated Rail Corp., 185 Mich.App. 78, 80-81, 460 N.W.2d 895 (1990), citing Edington v. Grand Trunk W.R. Co., 165 Mich.App. 163, 165-169, 418 N.W.2d 415 (1987); accord Melville v. St. Joseph Bd. of Rd. Comm'rs, unpublished opinion per curiam of the Court of Appeals, issued December 22, 1992 (Docket No. 130251). ¹ In light of Turner, supra, and Melville, supra, we agree with defendant board of road commissioners that it was immune from tort liability for the death of plaintiffs' decedents because M.C.L. § 257.668(2); M.S.A. § 9.2368(2) bars plaintiffs' causes of action against defendant under M.C.L. § 691.1402; M.S.A. § 3.996(102).

M.C.L. § 257.668(2); M.S.A. § 9.2368(2) clearly states that defendant will not be held liable for failure to erect warning signs at railroad intersections "unless such devices or signs were ordered by public authority." It is uncontroverted that the MDOT had not ordered these devices installed before the accident. Thus, under M.C.L. § 257.668(2); M.S.A. § 9.2368(2), defendant board of road commissioners is not liable for failing to erectwarning signs at the railroad intersection where the fatal accident occurred.

According to plaintiffs, the issue before this Court is whether defendant's failure to request that the MDOT perform a study with respect to the safety of the railroad intersection created a duty and exception to governmental immunity despite the existence of M.C.L. § 257.668(2); M.S.A. § 9.2368(2). We find no such duty or exception to governmental immunity. In Turner, supra, this Court rejected the assertion that the railroad had a common-law duty to petition the proper government agency for authority to install additional warning devices because M.C.L. § 257.668(2); M.S.A. § 9.2368(2) evidenced the Legislature's intent that liability not be premised upon the absence of warning devices at a railroad crossing unless the railroad failed to follow an order from the proper authority ² to install these devices. See Turner, supra at 257, n. 1. This Court in Turner, supra, also found it instructive that the Edington Court endorsed the grant of summary disposition to the railroad and the road commission where the plaintiff alleged that both failed to request the installation of additional warning devices. Plaintiffs have cited no authority or argument persuading us that the rationale in Turner is inapplicable to defendant board of road commissioners. See also Melville, supra at 3.

Despite plaintiffs' rhetoric, their claims against defendant board of road commissioners certainly sound in negligence. When distilled to their most basic elements, plaintiffs' causes of action against defendant board of road commissioners are grounded upon their belief that defendant failed to keep the roadway safe for public travel by failing to erect warning signals and signs at the railroad intersection because, but for the lack of flashing signals or stop signs, the accident would not have occurred. Plaintiffs' actions against defendant are "statutory" but are, nevertheless, negligence actions. See Melville, supra at 2. Thus, in light of M.C.L. § 257.668(2); M.S.A. § 9.2368(2) and the immunity granted to defendant board of road commissioners from liability for negligence in failing to erect warning signs at railroad crossings, we find that this statute also bars plaintiffs from maintaining an action under the defective highway statute.

We base our conclusion in large part on the persuasive reasoning set forth in Melville, supra. Although Melville is an unpublished case, we can find no other case that more precisely addresses the issue confronting this Court. We therefore rely upon and adopt its conclusions that, first, M.C.L. § 257.668(2); M.S.A. § 9.2368(2) does apply to plaintiffs' "statutory" cause of action under M.C.L. § 691.1402; M.S.A. § 3.996(102) and, second, the mere failure to request that safety devices be erected at the intersection does not constitute a separate and distinct cause of action:

Plaintiff contends that the prohibition against negligence claims contained in MCL 257.668(2); MSA 9.2368(2), does not apply to her "statutory" cause of action [under MCL 691.1402; MSA 3.996(102) ]. We disagree.

In 1961, MCL 257.668(2); MSA 9.2368(2), was amended by adding a provision that failing to erect or maintain a stop sign at a railroad crossing could not be a basis of a claim of negligence. See 1961 PA 179. At the time of this amendment 1909 PA 283, MCL 242.1 et seq.; MSA 9.591 et seq. was the statute which provided for government liability for failing to maintain roads. That statute said that failing to keep roads in reasonable repair would give rise to an action for "trespass on the case," the cause of action more commonly known as negligence. 1909 PA 283, § 1, MCL 242.1; MSA 9.591. Thus, when it was added to MCL 257.668; MSA 9.2368, the...