Palmer v. Western Michigan University

568 N.W.2d 359 (1997) 224 Mich. App. 139

Gordon PALMER, Next Friend of Jonathan Palmer, a Minor, Plaintiff-Appellant,
v.
WESTERN MICHIGAN UNIVERSITY, Defendant-Appellee.

Docket No. 188933.

Court of Appeals of Michigan.

Submitted December 18, 1996, at Grand Rapids. Decided June 10, 1997, at 9:20 a.m. Released for Publication September 11, 1997.

Field & Field, P.C. by Samuel T. Field, Kalamazoo, for Plaintiff-Appellant.

Miller, Canfield, Paddock and Stone, P.L.C. by Ronald E. Baylor and Scott R. Sikkenga, Kalamazoo, for Defendant-Appellee.

Before BANDSTRA, P.J., and HOEKSTRA and COX ^[*], JJ.

BANDSTRA, Presiding Judge.

Plaintiff appeals as of right the Court of Claims' order granting summary disposition to defendant. We affirm.

This case arises out of an incident where Jonathan Palmer, a minor, was struck by a car while crossing West Michigan Avenue at a designated crosswalk on the campus of defendant Western Michigan University. At each end of the crosswalk, defendant had erected a white, rectangular-shaped sign, directed toward vehicular traffic, with the word "STOP" written in white letters on a red octagon and, beneath that, the words "FOR PEDESTRIANS" written in red letters. Plaintiff claims that defendant engaged in ultra vires conduct by erecting a nonconforming sign, that defendant breached its duty to maintain the highway in reasonable repair so that the highway was safe for public travel, and that the erection of the sign constituted a nuisance per se.

Plaintiff first argues that the Court of Claims erred in rejecting his claim that defendant was not entitled to the benefit of governmental immunity because its action of designing and erecting a "stop for pedestrians" sign was ultra vires. We disagree. When a governmental agency engages in an activity that is expressly or impliedly mandated or authorized by constitution, statute, or other law, it is performing a governmental function and is immune from tort liability. Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 620, 363 N.W.2d 641 (1984). In this case, we conclude that defendant was impliedly authorized, pursuant to M.C.L. § 390.891; M.S.A. § 15.1120(51), to erect a "stop for pedestrians" sign that regulated traffic on its campus.

M.C.L. § 390.891; M.S.A. § 15.1120(51) expressly authorizes a state university, such as defendant, to regulate vehicular and pedestrian traffic on its campus. Erection of a traffic sign to protect pedestrians is an extension of that authority. Thus, defendant's conduct was not ultra vires because it was impliedly authorized to erect the "stop for pedestrians" sign. Furthermore, even though defendant may have performed the activity improperly by designing and erecting a sign that did not conform to the specifications outlined in the Michigan Manual of Uniform Traffic Control Devices, the activity is still considered a governmental function and defendant is still protected by governmental immunity. Richardson v. Jackson Co., 432 Mich. 377, 385-386, 443 N.W.2d 105 (1989).

Plaintiff next argues that the Court of Claims erred in finding that plaintiffs claim against defendant did not fall under the highway exception to governmental immunity provided by statute, M.C.L. § 691.1402(1); M.S.A. § 3.996(102)(1). Again, we disagree. Section 2(1) provides, in pertinent 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 sustaining 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 condition reasonably safe and fit for travel, may recover the damages suffered by him or her from the governmental agency.... The duty of the state and the county road commissions 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, crosswalks, or any other installation outside of the improved portion of the highway designed for vehicular travel.

Section 2(1) explicitly states that the duty of the state to maintain and be liable for highways does not include crosswalks. This limiting sentence of the highway exception applies to defendant.^[1]

This language was recently interpreted by our Supreme Court in Mason v. Wayne Co. Bd of Comm'rs, 447 Mich. 130, 523 N.W.2d 791 (1994), amended 451 Mich. 1236, 549 N.W.2d 575 (1996). There, the plaintiff, while crossing a street, was struck by a car that ran a red light at the intersection. He sued Wayne County, alleging that Wayne County failed to maintain the streets and intersection in reasonable repair by not installing stop signs, a pedestrian overhead walkway, a flashing red stoplight, school advance signs, school crossing signs, school speed limit signs, and school pavement markings. 447 Mich., at 133, 523 N.W.2d 791. Our Supreme Court rejected this claim, interpreting § 2(1) as excluding from the highway exception "specific installations whose only rational purposes narrowly service the unique needs of pedestrians." Id. at 136, 523 N.W.2d 791. Similarly, plaintiffs claim here must fail. Because the only rational purpose of the "stop for pedestrians" sign narrowly services the unique needs of pedestrians, defendant's actions of designing and erecting the sign do not fall within the highway exception to the governmental immunity act.^[2]

Plaintiff also argues that the Court of Claims erred in finding that defendant's design and erection of the "stop for pedestrians" sign was not a nuisance per se. We disagree. A nuisance per se is "an activity or condition which constitutes a nuisance at all times and under all circumstances, without regard to the care with which it is conducted or maintained." Li v. Feldt (After Second Remand), 439 Mich. 457, 476-477, 487 N.W.2d 127 (1992). In Li, id. at 462-163, 487 N.W.2d 127, the plaintiff argued that an improperly timed traffic light, which was operated by the City of Ann Arbor, caused an automobile accident. Our Supreme Court rejected the plaintiffs claim and held that the operation of a traffic light cannot be considered "an intrinsically unreasonable or dangerous activity, without regard for care or circumstances." Id at 477, 487 N.W.2d 127. The Court stated that the operation of a traffic light serves a beneficial public purpose and is quite capable of being performed in a manner so as not to pose any nuisance. Id.

In this case, we conclude that the "stop for pedestrians" sign cannot be considered a nuisance per se. Rather, the sign, like the improperly timed traffic light in Li serves a beneficial public purpose by warning motorists that they must stop for crossing pedestrians. The crosswalk area becomes dangerous only when an inattentive driver, like the driver in the present case, overlooks the sign or notices it but chooses to ignore it. Although the sign in this case might have been designed better, like the light in Li might have been timed better, its placement at the crosswalk does not "constitute an intrinsically unreasonable or dangerous activity, without regard for care or circumstances," id., and it is not a nuisance per se.

We affirm.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] For purposes of governmental immunity, a public university, such as defendant, is considered to by a state entity. M.C.L. § 691.1401(c); M.S.A. § 3.996(101)(c).

[2] We find plaintiff's reliance on Pick v. Szymczak, 451 Mich. 607, 548 N.W.2d 603 (1996), to be misplaced. In Pick, id. at 619, 548 N.W.2d 603, our Supreme Court held that "a duty to provide adequate warning signs or traffic control devices at known points of hazard arises under the highway exception M.C.L. § 691.1402; M.S.A. § 3.996(102)." However, the crosswalks exclusion to the highway exception was not at issue in Pick. Moreover, the Court cited Mason, supra, and explicitly stated that a claim involving a defect in a crosswalk is expressly precluded by the language contained in § 2(1). Pick, supra at 619, n. 10, 548 N.W.2d 603.