Lain v. Beach

177 Mich. App. 578 (1989) 442 N.W.2d 650

LAIN
v.
BEACH

Docket No. 100062.

Michigan Court of Appeals.

Decided February 27, 1989.

Zimostrad & Zimostrad, P.C. (by Eric W. Zimostrad), for appellant.

Cummings, McClorey, Davis & Acho, P.C. (by Susan D. Nelson), for appellee.

Before: SAWYER, P.J., and MICHAEL J. KELLY and J.J. RASHID,^[*] JJ.

PER CURIAM.

Dean E. Beach and Jeffrey R. Beach appeal from a Midland Circuit Court order granting the Midland County Road Commission summary disposition. We affirm.

This case arises out of an automobile accident which occurred at the intersection of M-20, a state highway, and Meridian Road, a Midland County road. The accident occurred at about 6:00 P.M. on June 10, 1986. Dean E. Beach was driving a pickup truck belonging to his passenger, Jeffrey R. Beach. Joann Lain was driving a car belonging to her passenger, Clifford Munson. Lain and Munson were traveling north on Meridian Road. The Beaches were traveling east on M-20 and ran a red traffic signal, striking Munson's car. Lain died that day and Munson died on December 3, 1986.

On September 11, 1986, the personal representatives of the estates of Lain and Munson filed a complaint against the Beaches and the road commission in Midland Circuit Court, alleging negligence. They also filed a complaint against the Michigan Department of Transportation in the Court of Claims. By stipulation of the parties, the case against MDOT was transferred to Midland Circuit Court and joined with the other case.

The road commission's answer asserted by way of an affirmative defense that MDOT was in control of the highway. The Beaches filed a cross-claim against the road commission and MDOT, seeking contribution and indemnification based on allegations of negligent maintenance of a public highway. The Beaches claimed that, because the traffic light was new and had previously operated as a flashing light, the commission and MDOT had a duty to warn the public about the new light. The road commission moved for summary disposition on the grounds that it was immune from liability, that plaintiffs had failed to state a claim upon which relief could be granted, and that no genuine issue as to any material facts existed. See MCR 2.116(C)(7), (8), and (10). The road commission then amended its motion for summary disposition to also apply to the cross-claim. Plaintiffs' claims against the road commission were dismissed by stipulation at a later date.

The trial court ordered summary disposition in favor of the road commission against the Beaches, finding that the road commission had no control over the intersection and, therefore, that it had no duty to warn of any dangers.

The Beaches appeal the dismissal of their cross-claim, arguing that the trial court erred in finding that the road commission had no duty to warn of a new traffic signal installed at the intersection.

While the road commission moved for summary disposition under MCR 2.116(C)(7), (8), and (10), the trial court found that the Beaches had failed to state a claim. Therefore, we will proceed under the assumption that the motion was granted under MCR 2.116(C)(8).

A motion for summary disposition pursuant to MCR 2.116(C)(8) tests the legal sufficiency of the pleadings, viewing the facts alleged in the light most favorable to the nonmoving party and accepting the plaintiff's well-pled facts as true. Burnett v City of Adrian, 414 Mich 448, 457; 326 NW2d 810 (1982). Granting a motion for summary disposition is appropriate only where the claim is clearly unenforceable as a matter of law and no factual development can possibly justify a right to recovery. Id., at 457-458.

Governmental agencies are immune from any tort liability that would arise out of the operation and maintenance of public highways. MCL 691.1407; MSA 3.996(107). Governmental immunity is not available as a defense to a governmental agency where the injuries arise out of the failure to maintain a public highway under its jurisdiction in reasonable repair so that it is reasonably safe for travel. MCL 691.1402; MSA 3.996(102).

Under the Michigan Constitution, the State Transportation Commission and the state Department of Transportation have jurisdiction over state highways. Const 1963, art 5, § 28; Bennett v City of Lansing, 52 Mich App 289, 294; 217 NW2d 54 (1974), lv den 399 Mich 840 (1977). Intersections of state highways and county roads are within the state's jurisdiction. See Tuttle v Dep't of State Highways, 397 Mich 44; 243 NW2d 244 (1976).

Since the accident occurred at an intersection under the exclusive jurisdiction of MDOT and the road commission had no jurisdiction over that intersection, the road commission had no duty to warn of possible hazards associated with the intersection. The failure of the road commission to post signs on its own road warning of possible dangerous conditions which are under the exclusive jurisdiction of another governmental entity is not actionable. There is no duty on the part of the road commission to warn of possibly dangerous conditions which are under the exclusive jurisdiction of another governmental entity, in this case MDOT. To impose such a duty would be an expansion of the statutory highway exception to governmental immunity. The Beaches' claim of negligence against the road commission is unenforceable as a matter of law, and the trial court properly granted summary disposition to the road commission.

We decline to address the Beaches' nuisance claim, since they did not allege nuisance in their complaint.

Affirmed.

NOTES

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