Van Liere v. Michigan State Highway Dept.

• Decision Date: 25 February 1975
• Docket Number: No. 2,Docket No. 19659,2
• Citation: 229 N.W.2d 369,59 Mich.App. 133
• Parties: Earl VAN LIERE, Individually and as administrator of the Estate of Phyllis Jean Van Liere, Deceased, and as next friend of Mary Lynne Van Liere and Scott Allan Van Liere, minors, Plaintiff-Appellant, v. MICHIGAN STATE HIGHWAY DEPARTMENT, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 369

229 N.W.2d 369

59 Mich.App. 133

Earl VAN LIERE, Individually and as administrator of the Estate of Phyllis Jean Van Liere, Deceased, and as next friend of Mary Lynne Van Liere and Scott Allan Van Liere, minors Plaintiff-Appellant, v. MICHIGAN STATE HIGHWAY DEPARTMENT, Defendant-Appellee.

Docket No. 19659.

Court of Appeals of Michigan, Division No. 2.

Feb. 25, 1975.

Released for Publication June 4, 1975.

Sloan & McCarthy by James Thomas Sloan, Jr., Kalamazoo, for plaintiff-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Myron A. McMillan, Asst. Atty. Gen., for defendant-appellee.

Before BRONSON, P.J., and HOLBROOK and BRENNAN, JJ.

BRONSON, Presiding Judge.

Plaintiff-appellant, Earl Van Liere, was driving his automobile in an allegedly careful manner, heading east on I--94 in Calhoun County at about 3:30 p.m. on May 6, 1972, when a 'gust of wind' blew his car from the highway and into a guardrail adjacent to the shoulder of the road. Upon hitting the guardrail, the automobile purportedly became 'impaled on the guardrail' and rammed into a bridge abutment. Four passengers were in the automobile, and as a result of the occurrence, two died and the other two were seriously injured.

Plaintiff sought to recover damages for the injuries sustained as the result of the negligence of and nuisance created by the defendant-appellee, Michigan State Highway Department. The trial court granted summary judgment on February 13, 1974 for failure to state a claim upon which relief could be granted, GCR 1963, 117.2(1), and plaintiff appealed as of right.

Summary judgment was granted because, in the opinion of the trial judge, a guardrail is not within the exception to governmental immunity created in M.C.L.A. § 691.1402; M.S.A. § 3.996(102). That section provides, in pertinent part:

'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.'

The trial judge determined that a guardrail 'is not within the strict language of the statute nor the expansive interpretations that have been given thereto by the appellate court, and therefore, * * * it is not within the meaning of the exception. The accident that is alleged here under no circumstances is within the improved portion of the highway designed for vehicular traffic * * *.'

In Johnson v. Michigan, 32 Mich.App. 37, 188 N.W.2d 33 (1971), this Court held that the shoulder of a state highway is within the improved portion of the highway designed for vehicular travel and thus covered by the exception. The trial judge in this case apparently concluded that Johnson did not dictate a holding that a guardrail deserved similar treatment.

However, soon after the entry of summary judgment in this case, Detroit Bank & Trust Co. v. Department of State Highways, 55 Mich.App. 131, 222 N.W.2d 59 (1974), was decided. It was there held that a guardrail located in the median of a state highway fell within the statutory language 'improved portion of the highway', thereby rendering unavailable the defense of governmental immunity.

Johnson and Detroit Bank & Trust Co. taken together make it clear that the accident forming the basis of the present suit occurred on an 'improved portion of the highway'. Accordingly, summary judgment ¹ on the ground that governmental immunity barred plaintiff's claim was improperly entered in defendant's favor.

We pause further to consider another contention advanced by defendant. It was also held by the trial judge in his opinion granting summary judgment for defendant that plaintiff failed to adequately allege proximate cause in his complaint and thus that plaintiff's cause, as filed, contained a second fatal flaw. Defendant supports this interpretation of the allegations in plaintiff's complaint. Plaintiff maintains that he properly pled proximate cause.

We mention preliminarily that a motion for summary judgment under GCR 1963, 117.2(1) tests only the Legal, not the factual, sufficiency of the pleadings. Crowther v. Ross Chemical and Manufacturing Co., 42 Mich.App. 426, 429--431, 202 N.W.2d 577 (1972). In our review of such a motion, we are obliged to accept as true all of plaintiff's factual allegations as well as any concusions which can reasonably be drawn therefrom. Martin v. Fowler, 36 Mich.App. 725, 729, 194 N.W.2d 524 (1971), Weckler v. Berrien County Road Commission, 55 Mich.App. 7, 222 N.W.2d 9 (1974).

We accordingly have scrutinized the complaint, the two relevant portions of which are as follows:

'3. That as a result and proximate result of the creation of a nuisance and of the negligence of the defendant, Michigan State Highway Department, the vehicle in which the plaintiffs were driver and guest passengers, became impaled upon a guardrail when a gust of wind blew the aforesaid vehicle off the highway and upon the guardrail. Said guardrail directed the aforesaid vehicle into a bridge abutment at 22 1/2 Mile Road in the Township of Marengo, County of Calhoun, State of Michigan.

'4. That as a direct and proximate result of the creation of a nuisance and of the negligence of the defendant, Michigan State Highway Department, the plaintiff * * * (was) severely injured * * *.'

In our judgment, a jury could find it reasonably foreseeable that an automobile might be blown off the road. It could find also that the defendant highway department had a duty to provide a...