Yono v. Department of Transportation , 499 Mich. 636 ( 2016 )

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Syllabus Robert P. Young, Jr. Stephen J. Markman
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
Joan L. Larsen
This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader. Corbin R. Davis
YONO v DEPARTMENT OF TRANSPORTATION
Docket No. 150364. Argued December 9, 2015 (Calendar No. 3). Decided July 27,
2016.
Helen Yono brought an action in the Court of Claims against the Department of
Transportation, seeking damages for injuries sustained when she stepped into a depression in a
parallel-parking space and fell. Her accident occurred in the village of Suttons Bay, where she
had parked in a space specifically designated for parallel parking along the northbound side of
M-22, a highway under the jurisdiction of the department. Yono alleged that the department had
breached its duty under MCL 691.1402(1) to maintain the improved portion of M-22 in a
condition reasonably safe and convenient for public travel and was liable under the highway
exception to governmental immunity. The department moved for summary disposition,
acknowledging its duty to maintain the improved portion of M-22 designed for vehicular travel
but arguing that that it was entitled to governmental immunity because the parking lane had not
been designed for vehicular travel. The court, Clinton Canady, III, J., denied the motion. The
Court of Appeals, BECKERING and M. J. KELLY, JJ. (TALBOT, P.J., dissenting), affirmed,
concluding that the parallel-parking lanes on the portion of M-22 at issue were designed for
vehicular travel. 299 Mich. App. 102 (2012). The Supreme Court ordered and heard oral
argument on the department’s application for leave to appeal, 495 Mich. 859 (2013), and
subsequently remanded the case to the Court of Appeals to consider what standard a court should
apply in determining as a matter of law whether a portion of highway was designed for vehicular
travel within the meaning of MCL 691.1402(1) and whether Yono had pleaded sufficient facts to
create a genuine issue of material fact under that standard, 495 Mich. 982 (2014). On remand, the
Court of Appeals, BECKERING, P.J., and BORRELLO and M. J. KELLY, JJ., again affirmed the
Court of Claims and concluded that Yono had pleaded in avoidance of governmental immunity.
The panel determined that the department had a duty to maintain in reasonable repair any part of
the highway that was specifically designed—that is, planned, purposed, or intended—to support
travel by vehicles, even if the lanes were designed as specialized, dual-purpose, or limited-access
travel lanes. The panel rejected the department’s contention that paint markings used on a
highway permit an inference concerning a highway’s actual design because a governmental
agency’s decision to paint markings on a highway does not alter the fact that the highway was
actually designed for vehicular travel over its full width. Because vehicles must travel into and
out of parallel parking lanes in order for those lanes to serve their purpose and the designers of
M-22 must have designed the parallel-parking lanes to support limited, albeit regular, vehicular
travel beyond that which accompanies the use of the lanes for parking, the Court of Appeals
concluded that the portion of M-22 at issue in this case fell within the department’s duty under
the highway exception. 306 Mich. App. 671 (2014). The Supreme Court granted the
department’s application for leave to appeal. 497 Mich. 1040 (2015).
In an opinion by Justice LARSEN, joined by Chief Justice YOUNG and Justices MARKMAN
and ZAHRA, the Supreme Court held:
Governmental immunity applies to a parallel-parking lane that is designated exclusively
as such by painted lines on the highway because that lane is not designed for vehicular travel
within the meaning of the of the highway exception to governmental immunity.
1. Under the governmental tort liability act, MCL 691.1401 et seq., the immunity
conferred on governmental agencies is broad and the statutory exceptions to that immunity must
be narrowly construed. MCL 691.1407(1) provides that except as otherwise provided in the act,
a governmental agency is immune from tort liability if the governmental agency is engaged in
the exercise or discharge of a governmental function. Under the highway exception, MCL
691.1402(1), each governmental agency having jurisdiction over a highway must maintain that
highway in reasonable repair so that it is reasonably safe and convenient for public travel. An
injured person, including a pedestrian, may recover damages from the governmental agency
arising out of the agency’s failure to do so. The duty, however, extends only to the improved
portion of the highway designed for vehicular travel, that is, only the travel lanes of the highway.
The question in this case was whether a parking lane is a travel lane—and therefore designed for
vehicular travel—within the meaning of MCL 691.1402(1).
2. Grimes v Dep’t of Transp, 475 Mich. 72 (2006), held that the improved shoulder of a
highway was not designed for vehicular travel because the word “travel” does not encompass the
incremental movement that accompanies a vehicle’s movement from the travel lanes onto the
shoulder. The fact that a shoulder could support even momentary vehicular travel (such as when
a motorist momentarily swerves onto it) was not enough to transform the shoulder into a lane
designed for vehicular travel. A shoulder is designed as a temporary breakdown or emergency
area and is not intended or designed to be part of a traveler’s journey from one location to
another. The instant case required a determination of whether a lane of designated, curbside
parallel-parking spaces was designed for vehicular travel, so Grimes might be read as not
directly controlling. A parallel-parking lane specifically invites drivers to end their journeys
there and, sometime later, begin new journeys, in a way that a shoulder does not. Under Grimes,
however, it was necessary to avoid confusing the potential uses that a highway could support
with what its design was intended to accomplish. Simply because an area of a highway can
support vehicular travel in ways that are not part of its design does not bring it within the
highway exception. The Court of Appeals attempted to distinguish use from design, but erred by
focusing too narrowly on the highway’s initial design, rather than the highway’s design at the
time of Yono’s injury. The department’s ongoing duty under MCL 691.1402(1) ensures that a
highway’s design is neither static nor dependent exclusively on whether a roadbed structure can
support vehicular travel. Contrary to the Court of Appeals’ conclusion, paint markings and other
traffic control devices can delineate how a highway is designed and redesigned over its useful
life.
3. The department was entitled to governmental immunity. At the time of Yono’s injury,
the area at issue was specifically marked as a parallel-parking lane. The department, under its
statutory authority to draft the Manual on Uniform Traffic Control Devices, specifically
differentiated lanes designed as parallel-parking lanes from lanes designed for travel. Although
some lanes on a highway might be designed for dual purposes, the only traffic-control devices
present in the lane at issue in this case indicated that it was designed to be used as a parallel-
parking lane. The Court of Appeals erred by concluding that the momentary ingress and egress
necessarily accompanying parallel parking is considered travel even though the same basic
action was not considered travel in Grimes. That a person will park at the end of travel does not
turn parking itself into travel.
Reversed and remanded to the Court of Claims.
Justice MCCORMACK, joined by Justices VIVIANO and BERNSTEIN, dissenting, agreed
with the majority that the paint markings on the roadbed showed that the portion of the highway
at issue was designed for at least parallel parking, but disagreed that a portion of a highway
designed for parallel parking is not designed for vehicular travel. A portion of a highway is
designed for vehicular travel if it is designed, or intended for, a vehicle’s planned and purposeful
progression from origin to destination, that is, to provide a route for a vehicle’s passage from one
point to another. A highway may be designed to provide vehicles with any number of such
routes, and the improved portions that fall within those intended routes are designed for
vehicular travel and subject to the highway exception’s duty of repair and maintenance. A
portion of the highway designated as a location for parking a vehicle is designed to provide the
beginning and ending segments of the highway’s intended routes. A vehicle’s passage through
those segments constitutes a part of its travel as much as that vehicle’s passage through various
other segments of an intended route, such as those designated for thoroughfare, merging, turning,
and so forth. The lines delineating the parking spots, like those marking other segments,
specifically invite a vehicle to drive over that portion of the highway and offer guidance about
how to do so. The majority posited that under Grimes, the highway exception only reaches
travel lanes, which it viewed as distinct from parking lanes. While Grimes used the phrase
“travel lane” in articulating its holding, the highway exception does not, nor does it otherwise
address or differentiate between types of lanes. Furthermore, a parking lane is simply one type
of travel lane for purposes of the highway exception given that it is designed to be used by a
vehicle to complete and begin its passage along a route from one point to another. The majority
also relied on Grimes to conclude that a vehicle’s entry into and exit from a parking lane is
indistinguishable from its use of a shoulder. While Grimes rejected the notion that travel should
be understood as including every incremental or momentary movement a vehicle may make over
an improved portion of a highway, it did not hold that travel necessarily excludes every vehicular
movement that could be characterized as momentary, incremental, or short. Grimes did not offer
an affirmative definition of “travel.” Rather, it clarified that travel could not be construed so
broadly as to categorically include every movement a vehicle does or could make on an
improved portion of the highway. Neither Grimes nor any other caselaw indicated that the
phrase “designed for vehicular travel” should be read as excluding any portion of a highway
designed to be used as part of a vehicle’s intended route between two points. The majority’s
conclusion otherwise did not comport with this precedent, the plain language of the highway
exception, or the overarching goal of interpreting the governmental tort liability act to create a
cohesive, uniform, and workable set of rules that will readily define the injured party’s rights and
the governmental agency’s liability. Accordingly, Justice MCCORMACK would have affirmed the
denial of the department’s motion for summary disposition.
©2016 State of Michigan
Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
OPINION Robert P. Young, Jr. Stephen J. Markman
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
Joan L. Larsen
FILED July 27, 2016
STATE OF MICHIGAN
SUPREME COURT
HELEN YONO,
Plaintiff-Appellee,
v No. 150364
DEPARTMENT OF TRANSPORTATION,
Defendant-Appellant.
BEFORE THE ENTIRE BENCH
LARSEN, J.
This is a line-drawing case, both literally and figuratively. We are asked to decide
whether a parallel-parking lane, designated exclusively as such by painted lines on the
highway, is “designed for vehicular travel” within the meaning of the highway exception 1
to the governmental tort liability act (GTLA). 2 Guided by our precedent and by the
admonition that we are to narrowly construe exceptions to governmental immunity, 3 we
1
MCL 691.1402(1).
2
MCL 691.1401 et seq.
3
Nawrocki v Macomb Co Rd Comm, 463 Mich. 143, 158; 615 NW2d 702 (2000).
conclude that it is not. Accordingly, we reverse the judgment of the Court of Appeals,
which held otherwise, and remand this case to the Court of Claims for entry of summary
disposition on behalf of defendant.
I. FACTS AND PROCEDURAL HISTORY
In 2011, plaintiff, Helen Yono, visited the village of Suttons Bay and parked in a
space specifically designated for parallel parking along the northbound side of M-22, a
highway under the jurisdiction of defendant, the Michigan Department of Transportation
(the Department). When returning to her car, she stepped into a depression in the area
designated as a parallel-parking space, fell, and suffered injuries. She filed suit in the
Court of Claims, alleging that the Department had breached its duty to maintain the
improved portion of M-22 in a condition “reasonably safe and convenient for public
travel.” 4
The Department moved for summary disposition under MCR 2.116(C)(7),
claiming that it was entitled to governmental immunity. The Department acknowledged
its duty, set forth in MCL 691.1402(1), to maintain the “improved portion of” M-22 that
is “designed for vehicular travel,” but argued that Yono’s injury had not occurred on that
portion of the highway because the parking lane was not designed for vehicular travel.
Plaintiff countered that the entire roadbed, from one curb to the other, was designed for
vehicular travel; as a result, she claimed that she had pleaded in avoidance of
4
MCL 691.1402(1).
2
governmental immunity. For the court’s review of defendant’s motion, each party
submitted an affidavit from an expert who was a highway engineer. 5
The Court of Claims denied the Department’s motion for summary disposition.
The court reasoned that plaintiff had alleged an injury that occurred “in the portion of the
road . . . designed for vehicular travel because [a] vehicle would have to travel to get to
the parking spot . . . .”
A divided Court of Appeals affirmed. 6 The majority observed that “the
highway—including that portion designated for parallel parking—is a contiguous whole;
the portion where parallel parking is permitted is not physically separated from the center
of the highway by a median, driveway, or other barrier.” 7 The majority agreed with the
Court of Claims that “the lanes designated for parking were designed to permit vehicles
to merge both from the center lanes to the parking lanes and from the parking lanes to the
center lanes.” 8 Moreover, the majority surmised that “the parallel parking lanes were
designed to be used (when unoccupied) to travel around stopped or slow vehicles that are
5
Defendant’s expert, one of its development engineers, averred that the parallel-parking
lane where plaintiff’s injury occurred “is not considered part of the traveled way” and
instead is separated from the travel lanes by a buffer zone. Plaintiff’s expert averred that
the entire paved surface consists of travel lanes, that the parallel-parking lane is dual
purpose for travel and parking, and that “the only difference between the differently
labeled travel lanes is the type of paint marks or striping and the measured widths of the
travel lanes.”
6
Yono v Dep’t of Transp, 299 Mich. App. 102; 829 NW2d 249 (2012) (Yono I).
7
Id. at 111.
8
Id.
3
in the center lanes and for turns.” 9 Indeed, the majority observed that “[a]bsent the
painted markings, the area for parallel parking would be indistinguishable from the
remainder of the highway.” 10 For all these reasons, the majority concluded that the
parallel-parking lanes were “designed for vehicular travel.”
The dissent would have held that any vehicular travel in the parallel-parking lane
“is merely ‘momentary’ and under limited circumstances” and that this momentary use
does not “transform the purpose of its design” into vehicular travel. 11 The dissent
disputed the majority’s contention “that the parallel parking lane at issue was designed to
be used, when unoccupied, to travel around stopped or slow vehicles in the travel lane or
as a thoroughfare because those contentions are not supported by the record” and “MCL
257.637 . . . states in pertinent part that ‘[t]he driver of a vehicle shall not overtake and
pass another vehicle upon the right by driving off the . . . main-traveled portion of the
roadway.’ ” 12 And even if drivers did so use the parking lane, that would “not establish
that the lane was designed for such.” 13
9
Id. To support this proposition, the majority claimed that the Michigan Vehicle Code
allows drivers “to use that type of area as a travel lane when the highway has
‘unobstructed pavement not occupied by parked vehicles of sufficient width for 2 or more
lines of moving vehicles in each direction[.]’ ” Id. at 111-112, quoting MCL
257.637(1)(b).
10
Id. at 111.
11
Id. at 116 (TALBOT, P.J., dissenting).
12
Id. at 117 (alteration in original).
13
Id. at 117.
4
This Court ordered oral argument on the Department’s application for leave to
appeal. 14 Following argument, we remanded the case to the Court of Appeals to consider
“what standard a court should apply in determining as a matter of law whether a portion
of highway was ‘designed for vehicular travel,’ as used in MCL 691.1402(1),” and
“whether the plaintiff has pled sufficient facts to create a genuine issue of material fact
under this standard.” 15
On remand, the Court of Appeals again affirmed the Court of Claims and
concluded that plaintiff had pleaded in avoidance of governmental immunity. 16 The
panel determined that defendant’s duty is “to maintain in reasonable repair any part of the
highway that was specifically designed—that is, planned, purposed, or intended—to
support travel by vehicles . . . , even if the lanes were designed as ‘specialized, dual-
purpose, or limited-access travel lanes.’ ” 17 The panel discounted the relevance of the
defense expert’s affidavit because the expert “never averred that he participated in or
otherwise had knowledge of the actual design of the particular section of M-22 at issue in
this case . . . .” 18 The panel “reject[ed] the Department’s repeated contention that the
paint markings used on a highway permit an inference concerning a highway’s actual
14
Yono v Dep’t of Transp, 495 Mich. 859 (2013).
15
Yono v Dep’t of Transp, 495 Mich. 982, 982-983 (2014).
16
Yono v Dep’t of Transp (On Remand), 306 Mich. App. 671, 675, 685-686; 858 NW2d
128 (2014) (Yono II).
17
Id. at 692, quoting Yono I, 299 Mich. App. at 110.
18
Yono II, 306 Mich. App. at 693-694.
5
design” because a “governmental entity’s decision to paint markings on the highway does
not alter the fact that the highway was actually designed for vehicular travel over its full
width.” 19 Because “vehicles must travel into and out of parallel parking lanes in order for
those lanes to serve their purpose,” and because “the designers of M-22, at minimum,
must have designed the parallel parking lanes at issue to support limited, albeit regular,
vehicular travel beyond that which accompanies the use of the lanes for parking,” the
panel concluded that the portion of M-22 at issue in this case fell within the duty outlined
in the highway exception. 20
This Court granted the Department’s application for leave to appeal. 21
II. STANDARD OF REVIEW
We review de novo the question whether the Department is entitled to summary
disposition under MCR 2.116(C)(7) on the basis of governmental immunity. 22 We
similarly review de novo the underlying questions of statutory interpretation. 23
III. ANALYSIS
In 1964, the Legislature enacted GTLA “to make uniform the liability of
municipal corporations, political subdivisions, and the state, its agencies and departments,
19
Id. at 695-696.
20
Id. at 695.
21
Yono v Dep’t of Transp, 497 Mich. 1040 (2015).
22
Maiden v Rozwood, 461 Mich. 109, 118; 597 NW2d 817 (1999).
23
Whitman v City of Burton, 493 Mich. 303, 311; 831 NW2d 223 (2013).
6
when engaged in a governmental function . . . .” 24 Under MCL 691.1407(1), “[e]xcept as
otherwise provided in [GTLA], a governmental agency is immune from tort liability if
the governmental agency is engaged in the exercise or discharge of a governmental
function.” 25 This immunity “is expressed in the broadest possible language—it extends
immunity to all governmental agencies for all tort liability whenever they are engaged in
the exercise or discharge of a governmental function.” 26 The Legislature has provided
six exceptions to this broad grant of immunity, which courts must “narrowly
construe[].” 27 One of these, the highway exception, exposes the Department to tort
liability for failing to maintain in reasonable repair the highways within its jurisdiction. 28
24
1964 PA 170, title. Approximately three years before GTLA’s enactment,, this Court
had abolished common-law governmental immunity for municipalities. Williams v
Detroit, 364 Mich. 231; 111 NW2d 1 (1961). As amended by 2002 PA 400, GTLA’s title
now provides that it is an act “to make uniform the liability of municipal corporations,
political subdivisions, and the state, its agencies and departments, officers, employees,
and volunteers thereof . . . when engaged in the exercise or discharge of a governmental
function . . . .”
25
MCL 691.1401(b), as amended by 2012 PA 50, defines “governmental function” as
“an activity that is expressly or impliedly mandated or authorized by constitution, statute,
local charter or ordinance, or other law.” The prior version of the statute, as amended by
2001 PA 131, differed only in that this definition appeared in Subdivision (f) instead.
26
Nawrocki, 463 Mich. at 156, citing Ross v Consumers Power Co (On Rehearing), 420
Mich. 567, 618; 363 NW2d 641 (1984).
27
Nawrocki, 463 Mich. at 158 (emphasis omitted).
28
MCL 691.1402(1), as amended by 2012 PA 50, provides in full:
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. A person who sustains bodily injury or
damage to his or her property by reason of failure of a governmental agency
to keep a highway under its jurisdiction in reasonable repair and in a
7
The Legislature has specified, however, that this duty “extends only to the improved
portion of the highway designed for vehicular travel . . . .” 29
The first sentence of MCL 691.1402(1) articulates the general duty of a
governmental agency: “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.” 30 The second sentence allows an injured person to recover
damages from the governmental agency arising out of its “failure . . . to keep a highway
condition reasonably safe and fit for travel may recover the damages
suffered by him or her from the 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 of chapter IV of 1909
PA 283, MCL 224.21. Except as provided in [MCL 691.1402a], the duty
of a governmental agency to repair and maintain highways, and the liability
for that duty, extends only to the improved portion of the highway designed
for vehicular travel and does not include sidewalks, trailways, crosswalks,
or any other installation outside of the improved portion of the highway
designed for vehicular travel. A judgment against the state based on a
claim arising under this section from acts or omissions of the state
transportation department is payable only from restricted funds
appropriated to the state transportation department or funds provided by its
insurer.
This statute has only minor differences from the prior version, as amended by 1999 PA
205, which are not relevant to our decision.
29
Id.
30
MCL 691.1401(c), as amended by 2012 PA 50, defines “highway” as “a public
highway, road, or street that is open for public travel. Highway includes a bridge,
sidewalk, trailway, crosswalk, or culvert on the highway. Highway does not include an
alley, tree, or utility pole.” The prior version of the statute, as amended by 2001 PA 131,
differed in that the definition appeared in Subdivision (e) instead and used plural forms
for “bridge,” “sidewalk,” etc.
8
under its jurisdiction in reasonable repair and in a condition reasonably safe and fit for
travel . . . .” 31 The fourth sentence clarifies that
the duty of a governmental agency to repair and maintain highways, and the
liability for that duty, extends only to the improved portion of the highway
designed for vehicular travel and does not include sidewalks, trailways,
crosswalks, or any other installation outside of the improved portion of the
highway designed for vehicular travel.[32]
When interpreting GTLA, courts must keep in mind that “the immunity conferred upon
governmental agencies is broad, and the statutory exceptions thereto are to be narrowly
construed.” 33
In Nawrocki v Macomb Co Rd Comm, this Court held that the fourth sentence of
MCL 691.1402(1) “narrows the duty of . . . the state . . . with regard to the location of the
dangerous or defective condition,” but not with regard “to the type of travel or
traveler.” 34 Pedestrians, such as Yono, may therefore plead in avoidance of
governmental immunity as long as “the condition proximately causing injury or property
damage is located in the improved portion of the highway designed for vehicular travel
[and] not otherwise expressly excluded . . . .” 35 In Grimes v Dep’t of Transp, this Court
held “that only the travel lanes of a highway are subject to the duty of repair and
31
MCL 691.1402(1).
32
Id.
33
Nawrocki, 463 Mich. at 158 (emphasis omitted).
34
Id. at 171.
35
Id.
9
maintenance specified in MCL 691.1402(1).” 36 Consistently with our precedent, then,
this case asks us to decide whether a parking lane is a “travel lane”—and therefore
“designed for vehicular travel”—within the meaning of the statute. 37
In some sense, to ask this question is to answer it. In common English usage, a
parking lane is closer to being a travel lane’s antonym than its synonym. To park is to
stop; to travel is to go. Deeper analysis confirms this initial impression.
In Grimes, the Court concluded that the improved shoulder of a highway was not
designed for vehicular travel within the meaning of the highway exception because
“travel” does not encompass the incremental movement that accompanies a vehicle’s
movement from the travel lanes onto the shoulder. 38 In so concluding, the Court
cautioned against “conflat[ing] two disparate concepts: design and contemplated use.” 39
36
Grimes v Dep’t of Transp, 475 Mich. 72, 91; 715 NW2d 275 (2006).
37
The parties do not ask us to revisit Grimes, but the dissent claims that Grimes’s holding
“must not be permitted to obscure or supplant the language chosen by the Legislature to
express its intent.” Post at 2. We agree that the statutory language prevails. Grimes’s
holding is this Court’s interpretation of when the improved portion of the highway is
“designed for vehicular travel” for purposes of MCL 691.1402(1), and we are not free to
disregard it. Moreover, we view this language as a fitting shorthand for whether a
particular portion of the highway is “designed for vehicular travel.” The dissent agrees
that paint markings matter in discovering a highway’s design. It is common to speak of
paint markings on a highway as denoting “lanes,” “such as a ‘thoroughfare lane,’ a
‘merge lane,’ a ‘turn lane,’ and so on[.]” Post at 7. The only dispute in this case is
whether a “parking lane” necessarily counts as a “travel lane,” i.e., whether its
designation for parking, without any other indicia of its being designed for travel, is
sufficient to make it “designed for vehicular travel.”
38
Grimes, 475 Mich. at 89-90.
39
Id. at 90.
10
Thus, the question in Grimes was not whether “road shoulders are ‘designed’ with the
intention that they be used by vehicles”; the Department did not, in fact, dispute that they
were. 40 The question instead was whether “shoulders are designed as travel lanes.” 41
To be designed as a travel lane and therefore to be designed for vehicular travel,
the Court explained, required something more than the fact that the shoulder “could
support even momentary vehicular ‘travel.’ ” 42 The mere fact that “a motorist
momentarily swerv[ing] onto the shoulder” could, in a broad sense, “be said to have
traveled on the shoulder” was not enough to transform the shoulder into a lane “designed
for vehicular travel.” 43
This case presents a question more difficult than the one at issue in Grimes, but
both focus on what constitutes vehicular travel. 44 The shoulder of a highway is designed
as a temporary breakdown or emergency area. It is not intended or designed to be part of
a traveler’s journey from one location to another. This case calls on us to determine
whether a lane of designated, curbside parallel-parking spaces is designed for vehicular
travel within the meaning of the highway exception. A parallel-parking lane specifically
40
Id. at 89.
41
Id.
42
Id. at 90.
43
Id. at 89.
44
This more general understanding of vehicular travel stands in opposition to that of the
dissenting opinion, which focuses on an individual’s travel route. MCL 691.1402(1)
directs the Court to look not at a person’s actual journey from one point to another, but
instead to the way in which the road was designed and whether that design was generally
intended for vehicular travel.
11
invites drivers to end their journeys there and, sometime later, begin new journeys, in a
way that a shoulder does not. As a result, Grimes might be read as not controlling the
outcome of this case. Nevertheless, Grimes cautions against confusing the potential uses
that a highway “could support” 45 with what its design was intended to accomplish. In
other words, just because an area of a highway can support vehicular travel in ways that
are not part of its design does not bring it within the highway exception. Plaintiff’s
evidence that the roadbed structure is consistent from curb to curb shows only that the
entire roadbed could support vehicular travel, not that the entire roadbed was “designed
for vehicular travel.”
The Court of Appeals attempted to distinguish use from design, but its analysis
focused too narrowly on the highway’s initial design, rather than the highway’s design at
the time of the injury. The panel used a hypothetical example to illustrate the importance
of a highway’s initial design: “A governmental entity might have designed a particular
highway to support vehicular travel for its full width, but might have later decided to
limit the traffic to a narrow portion in the center of the highway for safety reasons or even
to facilitate parking for businesses.” 46 In this scenario, the panel determined that “the
governmental entity’s decision” to limit vehicular travel on the highway would “not alter
the fact that the highway was actually designed for vehicular travel over its full width”
when it was initially constructed. 47 The panel also emphasized its belief that “paint
45
Id. at 90.
46
Yono II, 306 Mich. App. at 695-696.
47
Id. at 696.
12
markings on the highway do not correspond to the actual design . . . in the absence of
specific evidence connecting the design with the proposed markings . . . .” 48
By focusing on the highway’s design at the time of its initial construction, rather
than its design at the time of the injury, the Court of Appeals ignored the Department’s
ongoing duty to ensure that the highways of this state are safe for vehicular travel. 49 That
ongoing duty ensures that a highway’s design is neither static nor dependent exclusively
on whether a roadbed structure can “support vehicular travel.” 50 Contrary to the Court of
Appeals’ conclusion, paint markings and other traffic control devices can and do
delineate how a highway is designed and redesigned over its useful life. 51
Consider a situation familiar to all Michigan drivers: highway repairs. Suppose a
state highway develops a sinkhole within a travel lane that renders the lane unsafe for
travel. As the Department repairs the defect in the highway, it might place traffic-control
devices—including barricades, signage, and paint markings—to authorize drivers to
48
Id. By using the phrase “proposed markings,” the Court of Appeals suggested that the
only potentially relevant paint markings are those predating the highway’s construction.
49
MCL 691.1402(1).
50
See Yono II, 306 Mich. App. at 695-696.
51
The Michigan Vehicle Code provides an explicit connection between a highway’s
traffic-control devices and the Department’s design for a highway. MCL 257.608 gives
the Department, in conjunction with the State Police, the authority to “adopt a manual
and specifications for a uniform system of traffic-control devices . . . for use upon
highways within this state.” MCL 257.611(1) gives those traffic-control devices legal
effect for enforcing the Department’s intended design of a highway by providing that
“[t]he driver of a vehicle . . . shall not disobey the instructions of a traffic control
device . . . .”
13
travel along what had initially been designed as the highway’s shoulder. That shoulder—
not the closed lane under repair—would then have been redesigned “for vehicular travel”
within the meaning of MCL 691.1402(1), albeit temporarily. Once the repair is
complete, the traffic-control devices would be removed, the paint lines would again
designate the area as a shoulder, and the design of the highway would again have
changed and reverted back to its initial design as a shoulder.
As a result, and contrary to the Court of Appeals’ analysis, we must consider how
the Department had designed the highway at the time of the alleged injury. The parties
do not dispute that the area at issue in this case was specifically marked as a parallel-
parking lane at the time of the alleged injury. The Department, in exercising its statutory
authority to draft the Manual on Uniform Traffic Control Devices, 52 has specifically
differentiated lanes designed as parallel-parking lanes from lanes designed for travel.53
Although some lanes on a highway might be designed for dual purposes, the only traffic-
control devices present in the lane at issue in this case indicate that it was designed to be
used as a parallel-parking lane. 54 Although plaintiff’s expert opined that drivers
52
See MCL 257.608.
53
The manual defines “traveled way” as “the portion of the roadway for the movement of
vehicles, exclusive of the shoulders, berms, sidewalks, and parking lanes.” Manual on
Uniform Traffic Control Devices (2011 Michigan MUTCD), p 22.
54
The similar circumstance of angled on-street parking helps to illustrate the single
purpose delineated by the paint markings at issue in this case. Where the Department or
a local road authority has provided angled on-street parking for drivers, it is evident that
the highway is not designed for vehicles to use the entire width of the paved surface for
travel, even when unobstructed. We do not see any substantive difference between
specifically delineated angled-parking spaces and parallel-parking spaces.
14
sometimes travel along the parallel-parking lane when it is convenient to do so, the
evidence presented regarding the lane’s design—the paint delineating the individual
parallel-parking spaces—showed a parallel-parking lane, not a travel lane. 55
The dissent and the Court of Appeals conclude that the momentary ingress and
egress necessarily accompanying parallel parking independently warrants the
determination that the parking lane is designed for vehicular travel. Grimes, however,
rejected the notion that “travel” should be “broadly construed to include traversing even
the smallest distance . . . .” 56 If traversing a short distance (entering and exiting the
55
In Yono I, the Court of Appeals supported its conclusion that the entire roadbed was
designed for vehicular travel by citing MCL 257.637(1)(b), which allows the driver of a
vehicle to “overtake and pass upon the right” another vehicle when “unobstructed
pavement not occupied by parked vehicles [is] of sufficient width for 2 or more lines of
moving vehicles in each direction . . . .” Yono I, 299 Mich. App. 111-112. However, this
only applies “when the vehicles are moving in substantially continuous lanes of traffic,”
MCL 257.637(1)(b), and MCL 257.637(2) provides that a driver may not “pass another
vehicle upon the right by driving off the pavement or main-traveled portion of [a]
roadway.” The Court of Appeals, therefore, erred by relying only on Subsection (1)(b):
by placing paint markings differentiating the parking area from the travel lanes, the
highway designers indicated that the use of that area would be limited to parallel parking
and the momentary ingress and egress that accompanies it. MCL 257.611(1) provides
that “[t]he driver of a vehicle . . . shall not disobey the instructions of a traffic control
device . . . .” MCL 257.70 defines “traffic control devices” as “all signs, signals,
markings, and devices not inconsistent with this act placed or erected by authority of a
public body or official having jurisdiction, for the purpose of regulating, warning or
guiding traffic.”
56
Grimes, 475 Mich. at 90. The dissent observes that “the lines delineating the parking
spots . . . specifically invite a vehicle to drive over this portion of the highway” and
contrasts this invitation to that of a shoulder, “which, as its own paint markings and other
designators make clear, is not designed as part of an intended route, but instead is
designed to run alongside that route and provide temporary accommodation for
emergently stopped or disabled vehicles.” Post at 5. We are not persuaded. The act of
parking—like the act of pulling onto the shoulder of a highway—is only incidental to
travel. In each circumstance, the responsible governmental agency has separated the part
15
shoulder) is not “travel” within the meaning of the statute, we do not see how the same
basic action (entering and exiting a parking lane) can be considered travel and still be
faithful to our precedent. 57
The dissent posits that the act of parking “completes, and is thus a part of,”
vehicular travel. 58 On this theory, “a ‘parking lane’ . . . is simply a type of ‘travel lane’
of the highway designed for vehicular travel from the part of the highway where vehicles
cease or begin traveling. Moreover, the responsible governmental agency specifically
invites motorists to engage in incidental movement when going into and out of both
shoulders and parking spaces.
57
There is no allegation in this case, nor do we think there reasonably could be, that the
distance one might travel from the right lane onto the shoulder is somehow greater than
the distance one might travel from the right lane into a parallel-parking lane such as the
one at issue here. The dissent believes that this is beside the point because, as the dissent
sees it, even if the physical actions are the same, “the vehicle using the shoulder is
digressing from the highway’s designed vehicular route, whereas the vehicle using the
parking spot is proceeding along it[.]” Post at 8. We do not find this distinction
persuasive: like the vehicle using the shoulder, the vehicle using the parking spot also
digresses from the highway’s travel lanes—the portion of the highway designed for
vehicular travel. That digression is what makes the difference in this case.
The dissent distinguishes the often unplanned movement involved in a vehicle’s
use of a shoulder from the often planned movement involved in its use of a parking lane.
But this distinction is inconsistent with its broad definition of “travel” and shows why its
rationale is ultimately inconsistent with Grimes. The dissent claims that a parking lane is
designed for travel because travel does not end until the vehicle comes to a complete
stop, while criticizing this opinion for suggesting otherwise. But, to be faithful to
Grimes, we must recognize that travel necessarily ends before a vehicle reaches a
complete stop along a shoulder. That a shoulder stop is often unplanned and a parking
stop is often planned does not matter. Grimes informs us that a highway’s design for
vehicular travel does not encompass the incidental movement required to bring a vehicle
to a stop along a shoulder. That holds equally true for a portion of the highway designed
solely for parking, as the paint markings at issue here illustrate.
58
Post at 6-7.
16
for purposes of the highway exception . . . .” 59 That a person will park at the end of
travel does not turn parking into travel. To draw from the dissent’s definitions, “travel”
involves “ ‘the coming and going of people or conveyances along a route’ ” or
“ ‘movement or passage in general.’ ” 60 These definitions connote movement, not
starting or stopping a journey, and the parking lanes at issue here do not invite movement
that is more sustained than that at issue in Grimes. Indeed, in common parlance, we
consider traveling and parking to be two different things. We travel to our destination,
and we park once we have arrived.
“[O]ne basic principle . . . must guide our decision today: the immunity conferred
upon governmental agencies is broad, and the statutory exceptions thereto are to be
narrowly construed.” 61 Our caselaw teaches that “[b]ecause [MCL 691.1402(1)] is a
narrowly drawn exception to a broad grant of immunity, there must be strict compliance
with the conditions and restrictions of the statute.” 62 We cannot conclude that the statute
clearly applies to the act of parking, which is only incidental to travel and does not itself
constitute travel. Accordingly, defendant is entitled to governmental immunity. 63
59
Post at 7.
60
Post at 4, quoting Random House Webster’s College Dictionary (2005).
61
Nawrocki, 463 Mich. at 158.
62
Id. at 158-159, citing Scheurman v Dep’t of Transp, 434 Mich. 619, 629-630; 456
NW2d 66 (1990) (opinion by RILEY, C.J.).
63
Because no fact questions remain regarding the highway’s design, we do not reach the
issue of how to resolve fact questions on a motion for summary disposition involving
governmental immunity under MCR 2.116(C)(7).
17
Our holding does not suggest that the highway exception requires that the area in
question be designed exclusively for vehicular travel. For example, signage might
indicate particular hours during which a designated parking lane is to be used as an
additional travel lane. Or a street in a residential neighborhood, with no designated
parking lane, might be designed for both curbside parking and vehicular travel. 64 In this
case, however, the lane was designated by the paint markings as a parking area, with no
indication that it was also designed for vehicular travel. Accordingly, plaintiff cannot fit
these facts into the narrow confines of the highway exception to GTLA. 65
64
This may have been the factual situation in Nawrocki, and, if so, it would distinguish
the facts of Nawrocki from those of the present case. But whether the design of the
highway in Nawrocki can be distinguished from the highway design here is irrelevant
because our opinion in Nawrocki did not address the only question at issue in this case:
whether the situs of the injury was within the improved portion of the highway “designed
for vehicular travel.” Instead, this Court in Nawrocki held only that a pedestrian could
plead in avoidance of governmental immunity under the highway exception. Plaintiff,
nonetheless, “remains steadfast that Nawrocki remains dispositive,” drawing our attention
to the factual similarities between that case and the present one, and even appending
contemporary (though not contemporaneous) Google Maps Street View photographs of
the accident site in Nawrocki. This effort is misplaced. As we said recently: “To argue,
by working backwards from” the facts of a case to a conclusion of law not addressed by
the Court “is to build a syllogism upon a conjecture.” People v Seewald, 499 Mich. 111,
121 n 26; 879 NW2d 237 (2016).
65
The dissent posits that, under this holding, the governmental agency will sometimes
have an obligation to maintain the improved portion of the highway “as to a parking-
designated portion of a highway” and sometimes not. Post at 12. This is because we and
the dissent have different understandings of what constitutes vehicular travel, not because
our decision is somehow inconsistent with our prior precedent. Our decision today is
entirely consistent with Grimes. Whether the governmental agency has an actionable
duty to maintain the improved portion of the highway in reasonable repair depends on
whether that portion is designed for vehicular travel, and this will always depend on the
nature of the location at issue.
18
For these reasons, we reverse the judgment of the Court of Appeals and remand
this case to the Court of Claims for entry of summary disposition in favor of defendant.
Joan L. Larsen
Robert P. Young, Jr.
Stephen J. Markman
Brian K. Zahra
19
STATE OF MICHIGAN
SUPREME COURT
HELEN YONO,
Plaintiff-Appellee,
v No. 150364
DEPARTMENT OF TRANSPORTATION,
Defendant-Appellant,
MCCORMACK, J. (dissenting).
I respectfully dissent. I agree with the majority on a number of points: that the
immunity conferred by the governmental tort liability act (GTLA), MCL 691.1401 et
seq., is broad, and its exceptions, such as the highway exception, are narrowly drawn;
that, in assessing whether the alleged defect in this case fell within the scope of that
exception, it is necessary to consider the design of the highway at the time of the injury;
that the highway’s paint markings at that time provide relevant evidence of its design;
and that neither Nawrocki v Macomb Co Rd Comm, 463 Mich. 143; 615 NW2d 702
(2000), nor Grimes v Dep’t of Transp, 475 Mich. 72; 715 NW2d 275 (2006), is dispositive
of whether the improved portion of the highway at issue here was “designed for vehicular
travel.” MCL 691.1402(1). I cannot agree, however, that under a proper interpretation of
the highway exception’s plain language or a proper application of our precedent, the
defendant is entitled to immunity and summary disposition in this case.
It is important, at the outset, to remember precisely what the controlling inquiry is:
whether the alleged defect was located in “the improved portion of the highway designed
for vehicular travel . . . .” MCL 691.1402(1). The majority, relying on Grimes, 475
Mich. at 73-74, uses different language to frame this question, asking “whether a parking
lane is a ‘travel lane’—and therefore ‘designed for vehicular travel’—within the meaning
of the statute.” Grimes did, of course, use the phrase “travel lane” in articulating its
holding; the statute, however, does not, nor does it otherwise address or differentiate
between types of “lanes.” And as this Court has made clear, we must tread very carefully
when using terminology foreign to the statute in analyzing its scope: our interpretation
must always start with and remain governed by “a close examination of the statute’s plain
language,” and not “merely attempt[] to add still another layer of judicial gloss to those
interpretations of the statute previously issued by this Court and the Court of Appeals.”
Nawrocki, 463 Mich. at 150. I question whether the phrase “travel lane” is an apt
shorthand for “improved portion of the highway designed for vehicular travel,” but
regardless, our interpretive obligation is to ensure it becomes nothing more than that; the
phrase must not be permitted to obscure or supplant the language chosen by the
Legislature to express its intent. 1
1
The majority notes that “we are not free to disregard” Grimes’s holding, including its
use of the phrase “travel lane.” I, of course, agree that Grimes cannot be disregarded
here, nor do I think it should be; I do not take issue with that case’s ruling that shoulders
are not designed for vehicular travel, and—as set forth infra—I find its reasoning fully
compatible with and supportive of my conclusion that parking-designated portions of a
highway are so designed. Reaching that conclusion requires no disregard of Grimes or its
chosen terminology—just a proper understanding of its meaning and role in our
interpretive exercise, as discussed above.
2
When construing that plain language in light of the facts of this case, I fail to see
why the location of the alleged defect at issue fell outside “the improved portion of the
highway designed for vehicular travel.” There is no dispute here that this defect was
located in an “improved portion of the highway”; the only question is whether that
portion of the highway was, at the time of the injury, “designed for vehicular travel.”
The paint markings on the roadbed designated this portion of the highway for parallel
parking, and I agree with the majority that this evidences it was designed for at least that
use. 2 I disagree, however, that a portion of the highway designed for parallel parking is
not “designed for vehicular travel.”
The GTLA does not define “travel.” The word’s lay definitions vary in breadth,
but they commonly comprise and contemplate a planned and purposeful progression from
an origin to a destination—or, in terms particularly relevant here, the passage along a
route from one point to another. As a verb, for instance, to “travel” is, variously, to “go,”
“move,” or “pass” “from one place or point to another”; to “take a trip”; to “proceed or
advance”; “to move in a fixed course, as a piece of mechanism”; and “to journey or
2
In remanding this case for entry of an order granting the defendant’s motion for
summary disposition, the majority concludes that these paint markings evidence, as a
matter of law, that this portion of the highway was designed exclusively for parallel
parking. It remains unclear to me why these markings necessarily have that legal
effect—that is, what authority makes clear that the presence of these markings designates
this portion of the highway for parallel parking to the complete exclusion of all other
vehicular uses. Ultimately, however, I see no need to reach or resolve this issue.
Because, in my estimation, an improved portion of a highway designed exclusively for
parking is “designed for vehicular travel,” the defendant’s motion fails, regardless of any
factual dispute there may be over whether the portion of the highway at issue here was
also designed for other vehicular uses at the time of the plaintiff’s injury.
3
traverse (a specified distance).” Random House Webster’s College Dictionary (2005).
When used as a noun, as it is in the highway exception, “travel” is, for instance, “the
coming and going of people or conveyances along a route,” and “movement or passage in
general,” with “passage” being “the route or course by which a person or thing passes or
travels.” Id. “Route,” in turn, is “a course, way, or road for passage or travel,” and “a
customary or regular line of passage or travel”; “course,” similarly, is “a direction or
route taken or to be taken,” and “advance or progression in a particular direction.” Id.
Accordingly, under the plain meaning of the highway exception’s terms, a portion
of a highway is “designed for vehicular travel” if it is designed, or intended, for a
vehicle’s planned and purposeful progression from origin to destination—that is, to
provide a route for a vehicle’s passage from one point to another. See Suttles v Dep’t of
Transp, 457 Mich. 635, 648; 578 NW2d 295 (1998) (opinion by MALLETT, C.J.) (“ ‘[T]he
phrase “designed for vehicular travel” can only be reasonably interpreted to mean
“intended for vehicular travel.” ’ ”), quoting Mason v Wayne Co Bd of Comm’rs, 447
Mich. 130, 137; 523 NW2d 791 (1994) (alteration in original). A highway may be
designed to provide vehicles with any number of such routes; the improved portions of
the highway that fall within these intended routes—and thus invite vehicles to drive over
them as part of the vehicles’ planned progression from one point to another—are
“designed for vehicular travel,” and are subject to the highway exception’s duty of repair
and maintenance. 3
3
The majority alludes to a “more general understanding of vehicular travel” that “stands
in opposition to” the one I offer here. I am uncertain what that is, exactly; as the above
makes clear, however, I agree that, for purposes of the highway exception, what matters
4
An improved portion of the highway designated for parallel parking falls
comfortably within this reading of the statute’s plain language. By designating a location
for the parking of a vehicle, this portion of the highway is designed to provide the
beginning and ending segments of the highway’s intended route(s). A vehicle’s passage
through these beginning and ending segments constitutes a part of its “travel” as much as
that vehicle’s passage through various other segments of an intended route, such as those
designated for thoroughfare, merging, turning, and so forth—none of which the defendant
contends, or our caselaw indicates, would fall outside “the improved portion of the
highway designed for vehicular travel.” Indeed, the lines delineating the parking spots,
like those marking these other segments, specifically invite a vehicle to drive over this
portion of the highway, and offer guidance as to how. This stands in clear contrast to the
portion of the highway designated as its shoulder, which, as its own paint markings and
other designators make clear, is not designed as part of an intended route, but instead is
designed to run alongside that route and provide temporary accommodation for
emergently stopped or disabled vehicles.
The majority acknowledges and articulates much of this: namely, that a portion of
a highway designated for parallel parking “specifically invites drivers to end their
journeys there and, sometime later, begin new journeys,” whereas “[t]he shoulder of a
highway is designed as a temporary breakdown or emergency area” and “is not intended
or designed to be part of a traveler’s journey from one location to another.” Nonetheless,
is not the “actual” path a vehicle may or does end up taking over the improved portions
of a highway, but the route(s) the highway was designed to provide for that vehicle in
progressing from one point to another.
5
the majority concludes that this parking-designated portion of the highway is, like a
shoulder, not designed for vehicular travel because “parking . . . is only incidental to
travel and does not itself constitute travel.” This conclusion is seemingly premised on
two core points: (1) the belief that “[i]n common English usage, a parking lane is closer
to being a travel lane’s antonym than its synonym” because “[t]o park is to stop” but “to
travel is to go” and “[w]e travel to our destination” but only “park once we have arrived”
at it; and (2) the notion that “the momentary ingress and egress necessarily accompanying
parallel parking” does not constitute “travel” under Grimes because that case “rejected
the notion that ‘travel’ should be ‘broadly construed to include traversing even the
smallest distance . . . .’ ” I find neither point convincing.
First, as noted, focusing on whether the term “parking lane” is closer to being the
synonym or the antonym of “travel lane” risks misplacing the relevant interpretive
inquiry, given that the highway exception does not articulate or attempt to define itself on
the basis of different types of “lanes”; it simply asks whether portions of the highway are
improved and, if so, designed for vehicular travel. See Nawrocki, 463 Mich. at 175
(overruling a prior decision of this Court for “fail[ing] to simply apply the plain language
of the highway exception and, instead, rel[ying] on judicially invented phrases nowhere
found in the statutory clause”). And perhaps more fundamentally, I do not find apt the
majority’s offered distinction between these types of “lanes,” or more generally between
travel and parking. As discussed, “travel” is not simply the act of going; it is the passage,
the progression along a route, from one point to another. Accordingly, for purposes of
interpreting the highway exception, a “travel lane” is an improved portion of the highway
that is designed for such vehicular passage. The act of parking the vehicle completes,
6
and is thus a part of, that passage; I fail to see why that act would not constitute travel
simply because it involves bringing the vehicle to rest. Nor, for that matter, do I see why
a vehicle should be deemed to have completed its travel, and arrived at its intended
destination, at some point before it reaches that designated terminus of its route.
Furthermore, and as the majority recognizes, a “parking lane” is designed not only as a
means for a vehicle to end its route, but also as a means to begin one—that is, “to go.” 4
Thus, even framing the inquiry with the majority’s terminology, I reach the same result: a
“parking lane”—like the many other “lanes” on a highway (such as a “thoroughfare
lane,” a “merge lane,” a “turn lane,” and so on), but unlike a shoulder—is simply a type
of “travel lane” for purposes of the highway exception, and therefore falls within that
exception’s scope.
4
The majority notes that the definitions of “travel” discussed above “connote movement,
not starting or stopping a journey,” but I see no such distinction in those definitions. The
acts of starting and stopping a journey, of course, always involve movement. And as
discussed, the definitions of “travel” contemplate passage, movement, along a route from
one point to another. Nowhere do those definitions suggest that travel comprises less
than all of that movement along a route, or excludes the segments that entail departing
from a designated point of origin and reaching a designated point of destination. The
majority gestures toward Grimes in support of that reading of “travel,” but as discussed
infra, such reliance is misplaced.
Nor do I understand the practical implications of such a construction of “travel.”
When is a vehicle deemed to have completed its travel—to have, as the majority put it,
arrived at its destination—if not at the point where its route reaches a designated end
point? What, if not those designated points, marks the start and end of the travel? Does
the travel, for instance, simply end when the vehicle is in closest proximity to the location
to which its driver ultimately plans to go after parking and exiting the vehicle? If the
driver proceeds further—down the street, around a corner, and so on—in search of an
available parking spot, is none of that part of its travel? And if it is, why, then, does the
travel continue that far but then suddenly cease when the vehicle reaches some certain,
but unspecified, proximity to the available spot? I see nothing in the definitions of
“travel,” or in Grimes, that would invite these questions, let alone suggest their answers.
7
This feeds into the majority’s second offered reason: that, under Grimes, a
vehicle’s entry into and exit from a “parking lane” is not “travel” because that movement,
like a vehicle’s momentary use of a shoulder, involves “the same basic action” of
“traversing a short distance.” For the reasons discussed, I cannot view these movements
as “the same basic action” for purposes of the highway exception. It is true that, in
making a brief detour onto a shoulder, a vehicle might go through the same physical
actions it would in using a parallel-parking spot, with the only difference being the paint
markings over which the vehicle passes in doing so. But as the majority makes clear, the
paint markings cannot be ignored in our statutory analysis; they are critical indicators of
the dispositive inquiry—for what purpose was the improved portion of the highway at
issue designed? Accounting for this inquiry, the analogy does not hold: the vehicle using
the shoulder is digressing from the highway’s designed vehicular route, whereas the
vehicle using the parking spot is proceeding along it; the former is not driving on a
portion of the highway designed for vehicular travel, but the latter is. These two
vehicular movements are thus fundamentally distinct under the highway exception,
regardless of their physical similarities. 5
5
I thus agree with the majority that the “digression is what makes the difference,” in that
a vehicle is digressing from its intended route when it uses a shoulder, but is proceeding
along that route when using a parking-designated portion of the highway. Both portions
of the highway, as the majority notes, may be used by a vehicle in “com[ing] to a
complete stop,” but only the parking-designated portion is designed to be used by a
vehicle as a part of its passage along a route from one point to another. Indeed, if a
vehicle’s passage between points goes as designed, the vehicle never makes use of the
shoulder; that passage always will, however, and must, begin and end with use of a
parking space. The critical distinction is in the design. The majority rejects this
distinction—and the corresponding notion that a “parking lane” is, unlike a shoulder, just
another type of “travel lane”—by repeating that parking “is only incidental to travel . . . .”
8
Nor do I read Grimes to bolster this analogy. I agree that Grimes rejected the
notion that “travel” should be understood to comprise every “incremental” or
“momentary” movement a vehicle may make over an improved portion of a highway.
Grimes, 475 Mich. at 89-90; it did not, however, hold, and cannot fairly be read to
suggest, that “travel” necessarily excludes every vehicular movement that could be
characterized as momentary, incremental, or short.
Grimes did not offer an affirmative definition of “travel.” It acknowledged that to
“travel” is commonly understood to mean “to go from one place to another,” and
declined to read that common understanding in its “broadest and most literal sense” such
that it would necessarily “include the shortest incremental movement by a vehicle on an
improved surface”—as when, for instance, “in an emergency . . . a motorist momentarily
swerves onto the shoulder . . . .” Id. at 89 & n 51 (quotation marks and citation omitted).
Grimes did not, however, purport to define “travel” on the basis of this single illustration,
nor did it suggest that “travel” should be understood as comprising only movements of a
But this simply offers the conclusion in support of itself. It does not explain why use of a
parking-designated portion of a highway is “incidental” to, or a “digression” from, travel
when it—unlike use of a shoulder—is an intended and required part of a vehicle’s route
from one point to another. Nor does it explain why, in light of this distinction in design,
a vehicle should be considered to have been “specifically invite[d]” by the governmental
agency to “cease or begin traveling” when using a shoulder in the same way it has when
using parking-designated portion of the highway. Or why “the paint markings at issue
here,” distinct as they may be from the solid white line designating a shoulder, should
nonetheless be taken to “illustrate” this equivalence. For all the reasons discussed herein,
I agree that the parking-designated portion of the highway is designed for the beginning
and ending stages of travel; the shoulder, however, is designed for no such travel. Their
respective markings reflect this critical distinction, and I fail to see why our ruling here
should not as well.
9
certain length or duration. Rather, what Grimes made clear through this illustration was
that “travel” could not be construed so broadly as to categorically include every
movement a vehicle does or could make on an “improved portion of the highway,” as
doing so would leave no meaning to the phrase “designed for vehicular travel” and would
ignore the Legislature’s express focus on design rather than use:
If “travel” is broadly construed to include traversing even the smallest
distance, then it must follow that every area surrounding the highway that
has been improved for highway purposes is “designed for vehicular travel”
since such improved portions could support even momentary vehicular
“travel.” Under plaintiffs’ interpretation, then, every “improved portion of
the highway” is also “designed for vehicular travel.” This interpretation
renders these phrases redundant and contravenes a settled rule of statutory
interpretation. It also conflates two disparate concepts: design and
contemplated use. That vehicular traffic might use an improved portion of
the highway does not mean that that portion was “designed for vehicular
travel.” Therefore, in an effort to give meaning to every word of the
highway exception and to honor the Legislature's expressed intent, we
reject plaintiffs’ construction of the highway exception. [Id. at 90.]
Thus, as Grimes explained, “an intentionally sloped grassy median” running between the
northbound and southbound lanes of a highway cannot be considered “designed for
vehicular travel” simply because it has been “shaped in that fashion for any number of
highway-related purposes” and “could support even momentary vehicular ‘travel.’ ” Id.
at 90 & n 53. And, per Grimes, the same holds for the shoulder of a highway. 6
6
In light of this emphasis on design rather than use, I struggle with the majority’s
suggestion that, under a “faithful” reading of Grimes, it simply “does not matter” “[t]hat a
shoulder stop is often unplanned and a parking stop is often planned . . . .” Ignoring that
distinction, in my mind, is no more compatible with Grimes than ignoring the difference
between a vehicle driving down the shoulder and one driving on a portion of the highway
designated for thoroughfare. For both the thoroughfare- and parking-designated portions
of the highway, the governmental agency has planned, and thus designed, them to be
used as part of the vehicle’s route; the shoulder’s usage has not been so planned.
10
At no point did Grimes suggest that this reasoning or result depended on how far a
vehicle could drive on the grassy median, or shoulder, or other improved portion of the
highway. 7 Nor did it suggest that two vehicular actions should be considered “the same”
for purposes of the highway exception simply because they both could be characterized
as “traversing a short distance.” Rather, Grimes made clear that the phrase “designed for
vehicular travel” cannot be defined to comprise every improved portion of the highway
over which a vehicle could end up driving as it proceeds from one point to another,
irrespective of whether the portion was designed to be used as part of the vehicle’s route
between those points. Nothing in Grimes suggests that “travel” would exclude some
portions of such a designed route. 8 And indeed, no other caselaw has indicated that an
improved portion of a highway is not “designed for vehicular travel” when it has been
designed to be a part of a vehicle’s intended route on that highway.
The majority stresses that the highway exception is to be construed narrowly. I
agree. See, e.g., Nawrocki, 463 Mich. at 149-150. It cannot, however, be construed more
narrowly than the Legislature intended, as expressed through the plain language it chose.
7
Grimes, for instance, did not suggest that the highway exception’s coverage of a
shoulder may depend on how far or safely the shoulder’s design permitted a vehicle to
drive over it; its assessment of these improved portions of a highway was categorical.
8
This reading also comports with the majority’s example of an improved portion of the
highway that is normally designated as a shoulder, but has been temporarily redesignated
as part of the highway’s vehicular route while repairs are underway on another improved
portion of the highway. The redesignation renders that portion of the highway “designed
for vehicular travel”—a conclusion that depends not on what length of the shoulder has
been redesignated, but instead on the fact that, through such redesignation, vehicles have
been invited to drive over that portion of the highway as part of their passage from one
point to another.
11
See id. at 150-151. For the reasons discussed, I am unable to discern a reading of the
highway exception’s plain language that is narrow enough to exclude the improved
portion of the highway at issue here. Nor do I see how such a reading would comport
with our established, overarching interpretive goal “ ‘[i]n resolving the questions
presented by’ ” the GTLA: “ ‘to create a cohesive, uniform, and workable set of rules
which will readily define the injured party’s rights and the governmental agency’s
liability.’ ” Id. at 148-149, quoting Ross v Consumers Power Co (On Rehearing), 420
Mich. 567, 596; 363 NW2d 641 (1984). Rather, under the majority’s interpretation of the
highway exception, the governmental agency has a duty to maintain and repair some
segments of a vehicle’s intended route, but not others; it can mark an improved portion of
the highway for parking—and thus specifically intend and invite a vehicle to begin or end
its route there—but unlike the other segments of that intended route, have no obligation
whatsoever to ensure that it is, in fact, “reasonably safe and convenient” for such passage
(or any other “public travel,” for that matter). MCL 691.1402(1). The governmental
agency will not always be free from this obligation as to a parking-designated portion of
a highway, and likewise, a traveler will not always be afforded its assurances of safety
and fitness when parking in a given spot. Whether the obligation exists, and whether a
traveler can expect a parking spot to be kept safe, will vary from spot to spot, depending
on whether the spot is designated only for parking and, if so, whether that designation
applies all of the time, or some of it. As to the particular parking spot here, the majority
instructs that the defendant had no actionable duty; as to other types of spots, or other
12
segments of a vehicle’s intended route, it remains largely unclear to me how this ruling
should be understood and applied. 9 None of this—the majority’s ruling, or its
consequences—strikes me as consistent with or supported by our prior precedent
regarding how the highway exception should be interpreted. And more fundamentally, I
cannot conclude that the Legislature intended any of it when plainly mandating a duty to
maintain and repair “the improved portion of the highway designed for vehicular travel.”
MCL 691.1402(1).
The majority says this is “a line-drawing case.” The lines it purports to draw,
however, do not match those I see in the statute, in our precedent, or on the road.
Accordingly, I dissent, and would affirm the denial of the defendant’s motion for
summary disposition.
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
9
What of other types of paint markings that may be used to designate a portion of the
highway for parking, for instance? What is the effect of other potential designators, such
as parking meters on the curb? And what if the parking-designated portion is not clearly
or completely delineated; how are its boundaries—and the corresponding scope of the
governmental agency’s obligations—determined? Somewhat similarly, if a portion is
designated exclusively for parking at some times of the day but not others, does the
governmental agency’s immunity depend on during which of those time periods an injury
was suffered? And are there now other segments of a highway’s intended vehicular route
that, by similar analogy to Grimes, can also be broken off and carved out from the
governmental agency’s duty to maintain and repair? How should that assessment be
made, and according to what criteria? Is it any segment of the route whose intended
vehicular use can be characterized as “momentary,” “incremental,” “short,” or some other
such descriptor? At what length does a segment of a route become “incremental,” and
how should the segment’s beginning and ending points be determined?
13