Weckler v. Berrien County Road Commission

Quinn, J.

By her complaint, plaintiff sought to recover damages for personal injuries sustained as a result of the alleged negligence of defendant. She appeals from the trial court’s grant of summary judgment in favor of defendant.

April 2, 1970, plaintiff was driving her automobile in a westerly direction on Napier Avenue in Berrien County. As she approached the intersection of Napier and Hillendale Road, she collided with a vehicle travelling in an easterly direction on Napier and driven by Donald Selters. Selters and his wife filed suit against plaintiff and her father to recover damages for personal injuries, and this suit was settled out of court. Before this settlement, however, plaintiff filed a counterclaim against the Selters and a cross-claim against defendant. The cross-claim is the action involved in this appeal.

The original cross-complaint of plaintiff alleged that defendant was negligent in failing (1) to "use reasonable means to inspect” the road to ascertain when it was impassable because of an accumulation of snow, and (2) to "remove the snow which had accumulated” on the road. Defendant’s motion for summary judgment on the ground that plaintiff had failed to state a claim upon which relief can be granted, GCR 1963, 117.2(1) was granted conditionally, plaintiff being given 20 days to file an amended complaint.

The amended complaint added an allegation that defendant was negligent in failing "to take reasonable steps to correct a defective design in said roadway”. Subsequently, plaintiff filed a more definite statement that the defective design "consisted of the failure to erect snow barriers, or other means, along the roadway to prevent the excessive and dangerous accumulation of snow on said roadway”. Defendant’s -motion to reinstate the grant of summary judgment was granted, and this appeal followed.

By MCLA 224.21; MSA 9.121, defendant was statutorily bound to keep the highway in a condition reasonably safe and fit for travel. On appeal, we accept as true the well pleaded facts in plaintiff’s complaint, Johnston’s Administrator v United Airlines, 23 Mich App 279; 178 NW2d 536 (1970). The allegation "consisted of the failure to erect snow barriers, or other means, along the roadway to prevent the excessive and dangerous accumulation of snow on said roadway” implies a failure to maintain the roadway in a condition reasonably safe and convenient for public travel. Under that allegation and the facts of this case, it appears to us that the issue raised may be stated as, "Was the duty of defendant to maintain the highway in a condition reasonably safe and fit for travel breached by its failure to erect snow fences at the point in the highway where the accident occurred?” This is a question of fact for jury determination.

Since plaintiff’s pleadings presented a fact question for jury determination, it was error for the trial court to reinstate the summary judgment on defendant’s motion therefor.

Reversed and remanded with costs to plaintiff.

Allen, P. J., concurred.