Antonio Fleming v. Waterford Charter Township ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
ANTONIO FLEMING, UNPUBLISHED
March 23, 2023
Plaintiff-Appellee,
v No. 359180
Oakland Circuit Court
WATERFORD CHARTER TOWNSHIP, LC No. 2020-184783-NO
Defendant-Appellant,
and
OAKLAND COUNTY ROAD COMMISSION and
JEFFREY DURBIN,
Defendants.
ANTONIO FLEMING,
Plaintiff-Appellee,
v No. 361382
Oakland Circuit Court
WATERFORD CHARTER TOWNSHIP and LC No. 2020-184783-NO
JEFFREY DURBIN,
Defendants,
and
OAKLAND COUNTY ROAD COMMISSION,
Defendant-Appellant.
Before: CAVANAGH, P.J., and MARKEY and BORRELLO, JJ.
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PER CURIAM.
Plaintiff was injured when he fell into a manhole in front of 1049 Holbrook Avenue in
Waterford Township during his weekly trash collection. He brought this action against Waterford
Charter Township (Waterford Township) and the Oakland County Road Commission (the Road
Commission) under the highway exception to governmental immunity, MCL 691.1402 and MCL
691.1402a, and brought a premises liability claim against Jeffrey Durbin, the homeowner of 1049
Holbrook.1 In Docket No. 359180, Waterford Township appeals as of right the trial court’s order
denying it motion for summary disposition under MCR 2.116(C)(7) (governmental immunity). In
Docket No. 361382, the Road Commission appeals as of right the trial court’s later order that
denied its motion for summary disposition under MCR 2.116(C)(7) (governmental immunity) and
(C)(10) (genuine issue of material fact).2 We reverse in both appeals and remand for entry of
orders granting summary disposition in favor of these defendants.
On June 18, 2020, plaintiff was working for Green for Life Environmental, collecting trash.
While picking up trash cans and bags in front of 1049 Holbrook Avenue in Waterford Township,
plaintiff fell into a manhole when the cover on the manhole caved in or collapsed. Plaintiff caught
himself from falling all the way down into the hole with his arm and kicked the manhole cover off
his leg so that he could climb out. Plaintiff injured his right shoulder, which later required surgery.
On July 23, 2020, plaintiff mailed notice of his claim to Gary Wall at the Waterford
Township Supervisor Office. On August 14, 2020, plaintiff sent a notice of claim to Gregory C.
Jamian at the Road Commission’s office. Plaintiff later filed this action against both Waterford
Township and the Road Commission, alleging that both agencies were liable under the highway
exception to governmental immunity, MCL 691.1402 and MCL 769.1402a. Photographs of the
manhole show that it is located in a nonpaved and partially grassy area immediately adjacent to
Holbrook Avenue, and immediately to the left of the improved portion of the driveway in front of
1049 Holbrook Avenue.
Waterford Township and the Road Commission both moved for summary disposition,
primarily contesting whether the manhole was located in an area that they had a duty to maintain
and challenging the adequacy of plaintiff’s notice of his claim. The trial court denied both motions,
finding that there were issues of fact regarding the location of the manhole and the sufficiency of
plaintiff’s notices to each defendant. These appeals followed.
1
Plaintiff’s claim against Durbin is not at issue in these appeals, and Durbin is not a party to the
appeals.
2
Although the Road Commission also moved for summary disposition under MCR 2.116(C)(8),
because a motion under that subrule is limited to the pleadings alone and the Road Commission
relied on documentary evidence outside the pleadings in support of summary disposition, the
motion is properly considered only under MCR 2.116(C)(7) and (10). See Cuddington v United
Health Servs, Inc, 298 Mich App 264, 270; 826 NW2d 519 (2012).
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I. STANDARD OF REVIEW
This Court reviews de novo a trial court’s decision on a motion for summary disposition.
El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019). “MCR
2.116(C)(7) provides that a motion for summary disposition may be raised on the ground that a
claim is barred because of immunity granted by law.” Dextrom v Wexford Co, 287 Mich App 406,
428; 789 NW2d 211 (2010).
When reviewing a motion under MCR 2.116(C)(7), this Court must accept
all well-pleaded factual allegations as true and construe them in favor of the
plaintiff, unless other evidence contradicts them. If any affidavits, depositions,
admissions, or other documentary evidence are submitted, the court must consider
them to determine whether there is a genuine issue of material fact. If no facts are
in dispute, and if reasonable minds could not differ regarding the legal effect of
those facts, the question whether the claim is barred is an issue of law for the court.
However, if a question of fact exists to the extent that factual development could
provide a basis for recovery, dismissal is inappropriate. [Id. at 428-429.]
Summary disposition is appropriate under MCR 2.116(C)(10) when, “[e]xcept as to the
amount of damages, there is no genuine issue as to any material fact, and the moving party is
entitled to judgment or partial judgment as a matter of law.” The moving party “must specifically
identify the issues as to which the moving party believes there is no genuine issue as to any material
fact” and support its motion with documentary evidence. Maiden v Rozwood, 461 Mich 109, 120;
597 NW2d 817 (1999), quoting MCR 2.116(G)(4). The opposing party must then set forth specific
facts establishing a genuine issue of material fact to survive a motion for summary disposition.
Maiden, 461 Mich at 120-121, quoting MCR 2.116(G)(4). A genuine issue of material fact exists
when the evidence presented “leave[s] open an issue upon which reasonable minds might differ.”
Debano-Griffin v Lake Co, 493 Mich 167, 175; 828 NW2d 634 (2013) (quotation marks and
citation omitted).
This Court also reviews de novo questions of statutory interpretation. Rowland v
Washtenaw Co Rd Comm, 477 Mich 197, 202; 731 NW2d 41 (2007). “When construing a statute,
this Court’s primary goal is to give effect to the intent of the Legislature.” Id. This Court begins
by construing the language of the statute itself. Id. When the language is unambiguous, this Court
gives the words their plain meaning and applies the statute as written. Id.II. WATERFORD TOWNSHIP
Plaintiff’s complaint alleged that Waterford Township was liable under the highway
exception to governmental because it failed to maintain in reasonable repair both Holbrook Avenue
and a sidewalk adjacent to Holbrook Avenue. We conclude that Waterford Township is entitled
to summary disposition because there is no dispute that Waterford Township does not have
jurisdiction over Holbrook Avenue, and there is no genuine issue of material fact whether the
manhole is part of the adjacent sidewalk that Waterford Township has a duty to maintain.
The governmental tort liability act, MCL 691.1401 et seq., provides that governmental
agencies are immune from tort liability when they are engaged in the exercise or discharge of a
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governmental function. Roy v Swager, 501 Mich 52, 62; 903 NW2d 366 (2017). There are several
exceptions to governmental immunity, including the highway exception, which is at issue here.
See id.; Nawrocki v Macomb Co Rd Comm, 463 Mich 143, 158; 615 NW2d 702 (2000). “The
highway exception waives the absolute immunity of governmental units with regard to defective
highways under their jurisdiction.” Id.The highway exception, MCL 691.1402(1), provides, in relevant part:
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 condition reasonably safe and fit
for travel may recover the damages suffered by him or her from the governmental
agency. [Emphasis added.]
“Only one governmental agency can have jurisdiction over a highway at any time; there is no
concurrent jurisdiction.” Markillie v Bd of Co Rd Comm’rs of Co of Livingston, 210 Mich App
16, 20; 532 NW2d 878 (1995). The term “jurisdiction” in MCL 691.1402(1) is properly equated
with “control.” Id. at 21-22.
Waterford Township relies on MCL 247.669 for its argument that the Road Commission
has jurisdiction over Holbrook Avenue. MCL 247.669 provides:
The board of county road commissioners in each of the several counties
shall, within 1 year from the effective date of this act, complete the taking over as
county roads of all roads, streets and alleys heretofore required to be taken over as
county roads by the provisions of Act No. 130 of the Public Acts of 1931, as
amended, being sections 247.1 to 247.13, inclusive, of the Compiled Laws of
1948. . . . Such dedicated streets and alleys, when taken over by the county road
commission, shall be county roads in all respects and for all purposes and shall be
classified as county primary roads or county local roads pursuant to the provisions
of this act.
This statute transferred jurisdiction over township roads to county road commissions. See
Grayling Township v Berry, 329 Mich App 133, 138 n 3; 942 NW2d 63 (2019). Moreover, at the
hearing on the Road Commission’s motion for summary disposition, the Road Commission
conceded that it, and not Waterford Township, has jurisdiction over Holbrook Avenue. Indeed,
although plaintiff contests on appeal whether the manhole at issue is located within Holbrook
Avenue, he does not contest that the Road Commission, and not Waterford Township, has
jurisdiction over Holbrook Avenue. Accordingly, to the extent that liability may be imposed under
MCL 691.1402(1) for any failure to maintain Holbrook Avenue in reasonable repair, that liability
may not be imposed on Waterford Township because liability extends only to a governmental
agency’s failure “to keep a highway under its jurisdiction in reasonable repair” and there is no
dispute that the Road Commission, and not Waterford Township, has jurisdiction over Holbrook
Avenue.
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Waterford Township also argues that it cannot be held liable for the allegedly defective
manhole pursuant to MCL 691.1402a because the manhole is not part of the public sidewalk
adjacent to the improved portion of the highway that it has a duty to maintain. We agree.
A municipality has a statutory duty to maintain a sidewalk in reasonable repair as provided
by MCL 691.1402a(1), which states:
A municipal corporation in which a sidewalk is installed adjacent to a
municipal, county, or state highway shall maintain the sidewalk in reasonable
repair.
MCL 691.1401(f) defines a sidewalk as follows:
“Sidewalk,” except as used in subdivision (c), means a paved public
sidewalk intended for pedestrian use situated outside of and adjacent to the
improved portion of a highway designed for vehicular travel.
In the lower court and on appeal, plaintiff maintains that the manhole is in the roadway and
not the sidewalk. A review of the photos submitted by the parties clearly establishes that the
manhole in which plaintiff fell is not part of “a paved public sidewalk intended for pedestrian use”
as required by MCL 691.1402a(1) and as defined by MCL 691.1401(f).
In summary, because there is no genuine issue of material fact whether the manhole is part
of the sidewalk that Waterford Township has a duty to maintain under MCL 691.1402a, and it is
undisputed that Waterford Township does not have jurisdiction over Holbrook Avenue, there is no
basis for imposing liability on Waterford Township under the highway exception to governmental
immunity. Accordingly, we reverse the trial court’s order denying Waterford Township’s motion
for summary disposition. In light of this decision, it is unnecessary to address Waterford
Township’s additional argument challenging the adequacy of plaintiff’s notice under MCL
691.1404.
III. THE ROAD COMMISSION
The Road Commission does not dispute that it has jurisdiction over Holbrook Avenue, but
it argues that it is not liable under the highway exception because the allegedly defective manhole
is not part of the improved portion of the highway designed for vehicular travel. We agree.
The highway exception, MCL 691.1402, provides, in relevant part:
(1) 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 condition reasonably safe and fit
for travel may recover the damages suffered by him or her from the governmental
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agency. . . . Except as provided in [MCL 691.1402a3], 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. . . . [Emphasis
added.]
“Highway” is defined 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.” MCL 691.1401(c).
Thus, “[i]n regard to the state and county road commissions under the highway exception,
the statutory language creates a duty to maintain a highway solely with respect to the traveled
portion, paved or unpaved, of the roadbed actually designed for vehicular travel by the public.”
Snead v John Carlo, Inc, 294 Mich App 343, 357; 813 NW2d 294 (2011). Accordingly, “if the
condition is not located in the actual roadbed designed for vehicular travel, the narrowly drawn
highway exception is inapplicable and liability does not attach.” Id., quoting Nawrocki, 463 Mich
at 162; see, also, Grimes v Mich Dep’t of Transp, 475 Mich 72, 78; 715 NW2d 275 (2006) (The
duty of the state and county road commissions to repair and maintain does not extend to every
“improved portion of highway;” rather, the duty attaches only “to the improved portion of
highway” that is also “designed for vehicular travel.”).
In Mitchell v Detroit, 264 Mich App 37; 689 NW2d 239 (2004), this Court held that a
“berm,” consisting of “a strip of land between a public road and a sidewalk,” id. at 38, is not
included within the definition of the term “highway” because the plain language of the statute does
not support such a conclusion. Id. at 43. This Court held that “[b]ecause the immunity conferred
on governmental agencies is broad, and because the statutory exceptions should be narrowly
construed in accordance with their plain language, . . . a berm is not included within the definition
of the term ‘highway’ and is thus not included within the highway exception to governmental
immunity.” Id. at 44-45.
The submitted evidence in this case clearly demonstrates that the manhole that caused
plaintiff’s injuries is not part of the improved portion of the public roadbed designed for vehicular
travel. One of the submitted photos shows a truck parked in front of 1049 Holbrook, with its two
driver-side tires on the paved roadway and the other two tires on the grassy berm. The manhole
cover is to the right of the two tires on the paved roadway and clearly is not on or a part of the
paved roadway. The photos clearly show that the manhole does not extend into the roadway, but
is within or adjacent to the grassy berm between the road and the sidewalk, which is not part of
the improved portion of the roadbed designed for vehicular travel. The manhole arguably extends
into the apron portion of the driveway for 1049 Holbrook, but the apron only provides access
between the homeowner’s land and the street, and is not itself a road open for public travel. The
3
MCL 691.1402a addresses a municipal corporation’s liability for failing to maintain a sidewalk
in reasonable repair and is not applicable to defendant Road Commission.
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survey overlay that the Road Commission submitted below also clearly marks the paved roadway
and shows the relevant manhole outside of that roadway.
Plaintiff relies on evidence showing that, according to the subdivision plat, a 50-foot wide
area was reserved for the subdivision streets and the manhole is located within that 50-foot area.
Accordingly, plaintiff argues that the manhole is not part of the homeowner’s private property and
is within the control of the Road Commission. But even if that evidence is credited and accepted
as true, the duty of the Road Commission to repair and maintain, and its liability for breach of that
duty, “extends only to the improved portion of the highway designed for vehicular travel,” MCL
691.1402, and “[i]f the condition is not located in the actual roadbed designed for vehicular travel,
the narrowly drawn highway exception is inapplicable and liability does not attach.” Nawrocki,
463 Mich at 162. Because the manhole is not within the improved portion of the roadway designed
for vehicular travel, the highway exception is not applicable, regardless of whether the manhole is
within the 50-foot area as defined in the subdivision plat.
In summary, because there is no genuine issue of material fact whether the manhole is
within the improved portion of the public roadbed surface designed for vehicular travel, the
highway exception does not apply to plaintiff’s claim. Accordingly, the Road Commission was
entitled to summary disposition and we reverse the trial court’s order denying the Road
Commission’s motion. In light of this decision, it is unnecessary to address the Road
Commission’s additional claims that it was also entitled to summary disposition because it did not
have notice of the condition under MCL 691.1403, or because plaintiff failed to satisfy the notice
requirements under MCL 691.1404.
We reverse the trial court’s orders denying Waterford Township’s and the Road
Commission’s motions for summary disposition and remand for entry of orders granting summary
disposition in favor of these defendants. We do not retain jurisdiction.
/s/ Mark J. Cavanagh
/s/ Jane E. Markey
/s/ Stephen L. Borrello
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