Arnold v. Department of State Highways & Transportation , 84 Mich. App. 380 ( 1978 )

Per Curiam.

Plaintiff was seriously injured when a car in which he was a passenger was involved in a multi-car accident on September 11, 1974, on the Edsel Ford Freeway in Detroit. The vehicle in which plaintiff was riding was proceeding east in the left lane of the freeway at a speed somewhat in excess of the posted speed limit. When the traffic ahead slowed suddenly the driver swerved the car to the left. The car struck the curb, vaulted the median and collided with westbound traffic.

Plaintiff brought this action in the Court of Claims, alleging that the median guardrail was negligently designed, since it should have been high enough to prevent the vaulting that occurred. Plaintiff now appeals as of right the judgment of no cause of action entered in defendant’s behalf.

It is true that in certain situations the state may be liable for its failure to keep a highway under its jurisdiction in a condition "reasonably safe and fit for travel”. MCL 691.1402; MSA 3.996(102). However, in the case of allegedly negligent design, the defect must be shown to be "flagrant”. Fraley v City of Flint, 54 Mich App 570, 574; 221 NW2d 394 (1974), Mullins v Wayne County, 16 Mich App 365, 380; 168 NW2d 246 (1969), and Schrader v Port Huron, 106 Mich 173, 175; 63 NW 964 (1895). See also 45 ALR3d 875, 888-889. The question of whether a particular defect is "flagrant” is a question for the trier of fact, Mullins, supra, at 380, and thus is not to be disturbed unless "clearly erroneous”. GCR 1963, 517.1.

We find no error in the trial judge’s conclusion that the alleged defect here was not flagrant. The undisputed evidence established that the curb rose 10 inches from the roadway and that a street guardrail rose an additional 20 inches above the curb. Although a taller barrier might have prevented this accident, we cannot say that, as a matter of law, this defect was so palpably dangerous, so as to require a contrary result in this action.

Affirmed. No costs, a public question being involved.