McKeen v. Tisch , 223 Mich. App. 721 ( 1997 )

567 N.W.2d 487 (1997) 223 Mich. App. 721

Peggy L. McKEEN, Personal Representative of the Estate of Judy G. Searles, Deceased, Plaintiff-Appellant,
v.
Gerald TISCH, Patricia Tisch and Jackson County Road Commission, Defendants-Appellees.

Docket No. 201783.

Court of Appeals of Michigan.

Submitted March 12, 1997, at Lansing. Decided May 30, 1997, at 9:05 a.m. Released for Publication August 27, 1997.

Keller & Katkowsky, P.C. by Lawrence S. Kathowsky, Southfield, for Plaintiff-Appellant.

Brookover & Fleischmann, P.C. by Frank A. Fleischmann, East Lansing, for Jackson County Road Commission.

Willingham & Cote, P.C. by Marianne E. Samper and Wayne A. Harrison, East Lansing, for Gerald and Patricia Tisch.

Before McDONALD, P.J., and WAHLS and MARK J. CAVANAGH, JJ.

ON REMAND

PER CURIAM.

Plaintiff appeals as of right from the trial court's grant of defendants' motion for summary disposition in this case involving the highway exception to governmental immunity. We previously affirmed the trial court's decision. McKeen v. Tisch, unpublished opinion per curiam of the Court of Appeals, issued March 8, 1996 (Docket No. 168763). However, in lieu of granting leave to appeal, the Supreme Court remanded to this Court "for reconsideration in light of Pick v. Szymczak, 451 Mich. 607 [548 N.W.2d 603] (1996), limited to whether plaintiff's negligence claim against the defendant road commission falls within the exception to governmental immunity in M.C.L. § 691.1402(1); M.S.A. § 3.996(102)(1)." McKeen v. Tisch, 454 Mich. 863, 560 N.W.2d 630 (1997). On remand, we reverse.

Plaintiff's decedent was killed when a tree limb fell on her as she traveled on Seymour Road. Defendant Jackson County Road Commission (JCRC) has jurisdiction over Seymour Road. Over one month before the accident, the tree limb had been severed from its tree during a violent storm. The limb, however, did not fall to the ground at that time.

Plaintiff argues that the trial court erred in granting the JCRC's motion for summary disposition regarding her negligence claim. We agree. In determining whether a plaintiff's claim is barred by immunity granted by law under MCR 2.116(C)(7), a court must consider all documentary evidence filed or submitted by the parties. Tryc v. Michigan Veterans' Facility, 451 Mich. 129, 133, 545 N.W.2d 642 (1996). The court accepts well-pleaded allegations as true and construes them in a light most favorable to the nonmoving party. Id., p. 134, 545 N.W.2d 642.

Generally, governmental agencies are immune from tort liability when engaged in a governmental function. M.C.L. § 691.1407(1); M.S.A. § 3.996(107)(1). The defective highway exception to governmental immunity imposes a duty on county road commissions to maintain highways under their jurisdiction in reasonable repair so that they are reasonably safe and convenient for public travel. M.C.L. § 691.1402(1); M.S.A. § 3.996(102)(1).

In Pick, supra, p. 621, 548 N.W.2d 603, the Court held that the duty to maintain a highway in reasonable repair includes the duty to erect adequate warning signs or traffic control devices at a "point of hazard," or a "point of special danger." A "point of hazard" or "point of special danger" is any condition that directly affects vehicular travel on the improved portion of the roadway so that such travel is not reasonably safe. Id. To be a point of hazard for purposes of the highway exception, the condition must be one that uniquely affects vehicular travel on the improved portion of the roadway, as opposed to a condition that generally affects the roadway and its surrounding environment. Id.

Here, Richard Southwell, who lives in the area where the accident occurred, testified that he noticed that the limb in question had been severed from its tree over a month before the accident, and that it hung over Seymour Road. Southwell testified that it was apparent at that time that the limb would eventually fall to the ground. Plaintiff alleged that the tree limb that struck the decedent was large, approximately twelve to fourteen inches in diameter. Construing these allegations in the light most favorable to plaintiff, the severed tree limb was a condition that directly affected vehicular travel on the improved portion of the roadway so that such travel was not reasonably safe. Pick, supra, p. 621, 548 N.W.2d 603.

Our conclusion is buttressed by this Court's conclusion in Miller v. Oakland Co. Rd Comm, 43 Mich.App. 215, 204 N.W.2d 141 (1972). In Miller, the plaintiff was injured when a dead tree fell onto the truck she was driving. Id., p. 216, 204 N.W.2d 141. The plaintiff alleged that the defendant had been warned that falling trees in the area made driving dangerous. Id. This Court held that those facts were sufficient to allege a cause of action in negligence under the highway exception to governmental immunity. Id., p. 219, 204 N.W.2d 141.

Our conclusion is also in accord with other jurisdictions that have held a governmental agency liable for injuries caused by a tree or limb falling onto a moving vehicle where inspection would have revealed the danger. See Marsh v. South Carolina Dep't of Hwys & Public Transportation, 298 S.C. 420, 422-423, 380 S.E.2d 867, 869 (App.1989); Bullard v. State, 413 So. 2d 606, 607-608 (La.App., 1982); Husovsky v. United States, 191 U.S. App DC 242, 249, 590 F.2d 944 (1978). Other jurisdictions that have held that a governmental agency was not liable in this situation have done so almost exclusively on the theory that the governmental agency did not have actual or constructive notice of the danger to those traveling on the highway. See Lewis v. State, 654 So. 2d 311, 315 (La., 1995); Commonwealth v. Callebs, 381 S.W.2d 623, 624 (Ky., 1964); Berkshire Mutual Fire Ins. Co. v. State, 9 A.D.2d 555, 555-556, 189 N.Y.S.2d 333 (1959); but see Comba v. Town of Ridgefield, 177 Conn. 268, 270-273, 413 A.2d 859 (1979).

As with these other jurisdictions, Michigan also requires that a governmental agency have actual or constructive notice before it can be found liable under the highway exception to governmental immunity. Pick, supra, p. 624, 548 N.W.2d 603. Specifically, a governmental agency is not liable for injuries caused by a defective highway "unless the governmental agency knew, or in the exercise of reasonable diligence should have known, of the existence of the defect and had a reasonable time to repair the defect before the injury took place." M.C.L. § 691.1403; M.S.A. § 3.996(103). Knowledge of a defect and time to repair it are "conclusively presumed when the defect existed so as to be readily apparent to an ordinarily observant person for a period of 30 days or longer before the injury took place." Id.

Here, Southwell testified that the danger from the severed tree limb was readily apparent for over a month before the death of plaintiff's decedent. In addition, Southwell testified that he notified a JCRC work crew of the danger posed by the tree limb. Construing these allegations in the light most favorable to plaintiff, the JCRC had both actual and constructive notice of the danger and had time to repair it. Id. Because facts were alleged that would justify application of the highway exception to governmental immunity, the trial court erred in granting the JCRC's motion for summary disposition. Johnson v. Wayne Co., 213 Mich.App. 143, 158, 540 N.W.2d 66 (1995).

The trial court's grant of the JCRC's motion for summary disposition is reversed with regard to plaintiff's claim of negligence. We do not retain jurisdiction. No taxable costs pursuant to MCR 7.219, a question of public policy being involved.