Weckler v. Berrien County Road Commission

• Decision Date: 14 August 1974
• Docket Number: Docket No. 17925,No. 3,3
• Citation: 55 Mich.App. 7,222 N.W.2d 9
• Parties: Kathleen Joy WECKLER, Plaintiff-Appellant, v. BERRIEN COUNTY ROAD COMMISSION, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 9

222 N.W.2d 9

55 Mich.App. 7

Kathleen Joy WECKLER, Plaintiff-Appellant, v. BERRIEN COUNTY ROAD COMMISSION, Defendant-Appellee.

Docket No. 17925.

Court of Appeals of Michigan, Division No. 3.

Aug. 14, 1974.

Released for Publication Oct. 9, 1974.

Alfred M. Butzbaugh, Butzbaugh, Page, Butzbaugh & DeWane, Benton Harbor, for plaintiff-appellant.

Seymour, Seymour, Conybeare & Hosbein, St. Joseph, for defendant-appellee.

Before ALLEN, P.J., and J. H. GILLIS and QUINN, JJ.

QUINN, Judge.

By her complaint, plaintiff sought to recover damages for personal injuries sustained as a result of the alleged negligence of defendant. She appeals from the trial court's grant of summary judgment in favor of defendant.

April 2, 1970, plaintiff was driving her automobile in a westerly direction on Napier Avenue in Berrien County. As she approached the intersection of Napier and Hillendale Road, she collided with a vehicle travelling in an easterly direction on Napier and driven by Donald Selters. Selters and his wife filed suit against plaintiff and her father to recover damages for personal injuries, and this suit was settled out of court. Before this settlement, however, plaintiff filed a counterclaim against the Selters and a cross-claim against defendant. The cross-claim is the action involved in this appeal.

The original cross-complaint of plaintiff alleged that defendant was negligent in failing (1) to 'use reasonable means to inspect' the road to ascertain when it was impassable because of an accumulation of snow, and (2) to 'remove the snow which had accumulated' on the road. Defendant's motion for summary judgment on the ground that plaintiff had failed to state a claim upon which relief can be granted, GCR 1963, 117.2(1) was granted conditionally, plaintiff being given 20 days to file an amended complaint.

The amended complaint added an allegation that defendant was negligent in failing 'to take reasonable steps to correct a defective design in said roadway'. Subsequently, plaintiff filed a more definite statement that the defective design 'consisted of the failure to erect snow barriers, or other means, along the roadway to prevent the excessive and dangerous accumulation of snow on said roadway'. Defendant's motion to reinstate the grant of summary judgment was granted, and this appeal followed.

By M.C.L.A. § 224.21; M.S.A. § 9.121, defendant was statutorily bound to keep the highway in a condition reasonably safe and fit for travel. On appeal, we accept as true the well pleaded facts in plaintiff's complaint, Johnston's Administrator v. United Airlines, 23 Mich.App. 279, 178 N.W.2d 536 (1970). The allegation 'consisted of the failure to erect snow barriers, or other means, along the roadway to prevent the excessive and dangerous accumulation of snow on said roadway' implies a failure to maintain the roadway in a condition reasonably safe and convenient for public travel. Under that allegation and the facts of this case, it appears to us that the issue raised may be stated as, 'Was the duty of defendant to maintain the highway in a condition reasonably safe and fit for travel breached by its failure to erect snow fences at the point in the highway where the accident occurred?' This is a question of fact for jury determination.

Since plaintiff's pleadings presented a fact question for jury determination, it was error for the trial court to reinstate the summary judgment on defendant's motion therefor.

Reversed and remanded with costs to plaintiff.

J. H. GILLIS, Judge (concurring).

On April 2, 1970, Kathleen Weckler, plaintiff herein, was driving her automobile in a westerly direction on Napier avenue in Berrien County. As she approached the intersection of Napier and Hillendale road, she collided with a vehicle traveling in an easterly direction on Napier and driven by Donald Selters. Mr. Selters and his wife, Isabelle, a passenger, brought suit against Kathleen, a minor, and her father, Donald, as next friend, to recover damages for personal injuries. The Wecklers filed a counterclaim against the Selters and a cross-claim against defendant herein, Berrien County Road Commission. ¹

In her original complaint plaintiff alleged defendant was negligent in failing (1) to 'use reasonable means to inspect' the road to ascertain whether it was impassable because of an accumulation of snow, and (2) to 'remove the snow which had accumulated' on the road. Defendant filed a motion for summary judgment on the ground that plaintiff had failed 'to state a claim upon which relief can be granted'. GCR 1963, 117.2(1). The motion was conditionally granted, plaintiff being given 20 days to file an amended complaint. ² Plaintiff did so file, alleging additionally that defendant was negligent in failing 'to take reasonable steps to correct a defective design in said roadway'. In a subsequently filed more definite statement, plaintiff said the defective design 'consisted of the failure to erect snow barriers, or other means, along the roadway to prevent the excessive and dangerous accumulation of snow on said roadway'. After a hearing, the court granted defendant's motion to reinstate the grant of summary judgment. Plaintiff appeals.

A county road commission has the statutory duty to keep roads under its jurisdiction in reasonable repair so that they shall be reasonably safe and convenient for public travel. ³ However, the majority and Michigan rule is that a municipality is not liable for injuries caused by the usual and natural accumulation of snow and ice on its roads. Johnson v. Marquette, 154 Mich. 50, 117 N.W. 658 (1908); Gerrie v. Port Huron, 226 Mich. 630, 198 N.W. 236 (1924); 19 McQuillin, Municipal Corporations (3d Ed.), § 54.79, pp. 254--259. Therefore, we think the lower court was correct in its ruling that plaintiff failed to state a claim in her original complaint. However, the propriety of the summary judgment as to the additional allegation in plaintiff's amended complaint is a different matter.

On appeal, we accept as true the well-pleaded facts in plaintiff's complaint. Johnston's Administrator v. United Airlines, 23 Mich.App. 279, 178 N.W.2d 536 (1970). Therefore, we must accept as true plaintiff's allegation that the roadway was defectively designed because of the failure of defendant to erect snow barriers. ⁴ Thus, the question becomes simply: Does M.C.L.A. § 224.21; M.S.A. § 9.121 impose upon a county road commission a duty to design roadways in a reasonably safe manner and to correct defects in design? We think it does.

In Mullins v. Wayne County, 16 Mich.App. 365, 372--375, 168 N.W.2d 246, 248--250 (1969), this Court reasoned:

'The prior decision of our Court ⁵ would limit the road authority's obligation under the applicable statute to preservation of the status quo. More specifically, if a road has been built and goes into disrepair, the road authority is obliged to repair it. If it becomes obstructed, the obstruction must be removed without regard to who places it there. If a sign has been erected and falls down, it must be replaced. But, says that opinion that is where the road authority's duty ends.

'The prior opinion italicized the words 'to keep in reasonable repair' in the quotation of the relevant portion of the applicable statute * * *. That 'emphasis supplied' emphasizes the theoretical basis for the Court's opinion, I.e., there is a duty to keep in reasonable Repair--to maintain the status quo--but not a duty to construct or keep the road so that it is 'reasonably safe and convenient for public travel.'

'Such view was, indeed, once the law in Michigan but it has not been the rule since the...