Colovos v. Department of Transportation , 205 Mich. App. 524 ( 1994 )

Hood, J.

This is a personal injury case involving a phenomenon known as preferential icing. ¹ Plaintiff’s decedent was killed in an automobile accident after the car in which she was riding skidded on the ice and was struck by oncoming traffic. Defendant won a directed verdict in a bench trial with regard to claims alleging defective design and lack of proper maintenance. The court later issued a judgment of no cause of action with regard to plaintiff’s claim of breach of defendant’s duty to provide adequate warnings. Only this last ruling is at issue here.

In Pick v Gratiot Co Rd Comm, 203 Mich App 138; 511 NW2d 694 (1993), a panel of this Court held that there is no duty to erect signs or warning devices unless these are located on the improved portion of the road. We feel strongly that the panel in Pick erred in this holding. See Tuttle v Dep’t of State Hwys, 397 Mich 44; 243 NW2d 244 (1976) (holding that the defendant was negligent in failing to install traffic signals at an intersection in contravention of its own findings that the intersection was dangerous). However, because we are constrained by Administrative Order No. 1994-4, which replaced Administrative Order No. 1990-6, to follow Pick, we affirm. Because, but for Pick, we would reverse, we urge the convening of a special panel to resolve the conflict that would have been created by this decision but for Administrative Order No. 1994-4.

Plaintiff first argues that the trial court clearly erred in finding that inadequate warning signs were not the proximate cause of plaintiffs injury. We agree.

The trial court found that defendant had a duty to provide safe highways, including the duty to warn of known dangers. It found that there was a single warning sign at the entrance of the bridge and that it was not seen by either driver in this case. The court found that, although the sign conformed to the Michigan Manual of Uniform Traffic Control Devices, given the size of the road, the sign was inadequate to warn the majority of motorists because of where it was placed and the fact that it was the only sign.²

However, the court found that both drivers were experienced and aware that bridges tend to ice over in the winter and that both drivers were aware that ice warning signs are generally placed near bridges. The court found that both drivers were proceeding at a prudent speed of forty-five miles per hour given the slight precipitation and the non-icy condition of the surrounding road surface. The court found that it could not "conclude that the presence of an additional sign would have altered the already prudent driving of [the persons involved] in any significant fashion.” The court rejected as experimental and unduly expensive plaintiff’s claim that defendant should be required to provide a warning system that is somehow activated only when there is actually ice on the bridge — as opposed to a sign that remains in place at all times regardless of weather conditions and that therefore tends to be ignored.

A trial court’s findings of fact may not be set aside unless they are clearly erroneous. Tuttle, supra at 46. A finding is clearly erroneous when, "although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Id. (quoting United States v United States Gypsum Co, 333 US 364, 395; 68 S Ct 525; 92 L Ed 746 [1948]). We agree with plaintiff that, in nonjury cases such as this one, "the 'judicial sieve’ with which we have sifted the evidence ... is 'of finer mesh than the one correspondingly employed on review’ of a jury’s verdict.” Id. (quoting Schneider v Pomerville, 348 Mich 49, 54-55; 81 NW2d 405 [1957]).

The court found as fact that neither driver involved in the collision saw the single warning sign and that therefore the sign was ineffective in fulfilling its function to warn and educate motorists. Given these findings, and given further that the court found that ice was a proximate cause of the accident, this Court is left with the definite and firm conviction that the trial court erred in finding that defendant’s failure to post adequate warning signs was not also a proximate cause of the accident. As noted before, but for Pick’s holding regarding the duty to post warning signs, we would reverse.

Plaintiff also argues that the trial court erred in refusing to allow a substitute expert witness to testify. We agree. Plaintiff’s original expert witness announced two weeks before trial that he would not testify because of a conflict of interest. The parties informally agreed to a substitute. After several unsuccessful deposition attempts, plaintiff’s counsel learned that defendant was not going to cooperate but was going to exclude the witness at trial.

The trial court granted defendant’s motion to exclude the witness on the basis of the need to maintain the schedule of the court. In doing so, the trial court abused its discretion. Before imposing a sanction, such as barring a witness, several factors should be considered, including whether the violation was wilful or accidental; the party’s history of refusing to comply with discovery requests or disclosure of witnesses; the prejudice to the party; the actual notice to the opposite party of the witness; and the attempt to make a timely cure. Dean v Tucker, 182 Mich App 27, 32; 451 NW2d 571 (1990). We see no evidence that any of these criteria weighed in favor of excluding plaintiff’s substitute witness.

Plaintiff’s offer of proof asserted that the expert witness would have testified about important maintenance procedures for the bridge, the fact that the bridge was a top priority, and whether a single warning sign on a 1.6-mile bridge constituted inappropriate posting of signs.

We cannot know exactly what the effect of that testimony might have been. It seems that the use of appropriately illuminated or electrical signs, intermittent or flashing signs, or just large signs would increase drivers’ awareness and sense of danger. What driver has not slowed down upon seeing blazing electrical signs warning of danger, whether the driver had foreknowledge of ever present danger? Depending upon the quality and credibility of the proffered expert testimony, the trial court’s conclusion regarding proximate cause might have been affected. The erroneous exclusion of the expert testimony was not harmless. Were Pick not controlling with regard to the issue of governmental immunity, we would also reverse on evidentiary grounds.

Affirmed.

Michael J. Kelly, P.J., concurred.

1 "Preferential icing is a meteorological phenomenon in which ice forms on a bridge deck at a time when the surface of the bridge approaches is clear and dry.” Salvati v Dep’t of State Hwys, 415 Mich 708, 711; 405 NW2d 856 (superseding 330 NW2d 64) (1982). It is "intermittent, unpredictable and often rapidly developing.” Id.

2 The accident occurred on the Rouge River Bridge on northbound I-75. The bridge is 1.6 miles long and four lanes wide on the northbound side. There is an entrance ramp onto the highway shortly before the bridge.