McIntosh v. Department of Transportation

625 N.W.2d 123 (2001) 244 Mich. App. 705

Jane F. McINTOSH, John McIntosh and Betty A. Guzik, as Personal Representative of the Estate of Albert J. Guzik, Plaintiffs-Appellants,
v.
STATE of Michigan, DEPARTMENT OF TRANSPORTATION (MDOT), Defendant-Appellee.

Docket No. 203017.

Court of Appeals of Michigan.

Submitted November 28, 2000, at Detroit. Decided February 20, 2001, at 9:10 a.m. Released for Publication April 23, 2001.

Sachs Waldman, Professional Corporation, (by Gregory M. Janks and Elizabeth A. Cabot), Detroit, for the plaintiffs.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, and Brenda E. Turner and Harold J. Martin, Assistant Attorneys General, for the defendant.

Before MICHAEL J. KELLY, P.J., and HOOD and MARKEY, JJ.

ON REMAND

MICHAEL J. KELLY, P.J.

This matter is before us on remand from our Supreme Court for reconsideration of our previous determination that plaintiffs' claims against defendant fell within the highway exception to governmental immunity. 463 Mich. 899, 618 N.W.2d 911 (2000). We are to reconsider our previous decision in light of Evens v. Shiawassee Co. Rd. Comm'rs, 463 Mich. 143, 615 N.W.2d 702 (2000).^[1] In Evens, our Supreme Court overruled Pick v. Szymczak, 451 Mich. 607, 548 N.W.2d 603 (1996). In our previous opinion, we relied on the Pick decision in determining that plaintiffs' claims fell within the highway exception to governmental immunity. After further review, and in light of the Court's holding in Evens, we now affirm the Court of Claims' grant of summary disposition.

The facts of this case were set out in our previous opinion, McIntosh v. Dep't of Transportation, 234 Mich.App. 379, 380, 594 N.W.2d 103 (1999), vacated and remanded 463 Mich. 899, 618 N.W.2d 911 (2000).

On November 23, 1993, Jane F. McIntosh was driving her 1988 Buick and Albert J. Guzik was driving his 1991 Ford pickup truck on westbound I-96 near Old Plank Road in Lyon Township. William Jones was driving his 1985 Camaro on eastbound I-96 in the center lane near Old Plank Road. Jones, who was driving at an excessive rate of speed, abruptly veered to the right onto the right shoulder, swerved left across the eastbound lanes of traffic, lost control of his car, and entered the center grassy median. When he entered the median, his car became airborne, crossed the median, entered the westbound lanes of I-96, and struck Guzik's pickup truck, which exploded on impact. After striking the pickup truck, Jones' car rolled and struck several vehicles, including McIntosh's car. Guzik was killed on impact and McIntosh was severely injured.

Subsequently, plaintiffs brought claims against defendant "based on the allegation that the highway was defective in that either the grassy median separating the westbound and eastbound traffic lanes of I-96 should have been wider or a median barrier should have been installed." McIntosh, supra at 381, 594 N.W.2d 103. Defendant moved for partial summary disposition, claiming that plaintiffs' claims did not fall within the highway exception to governmental immunity. The Court of Claims granted defendant's motion.^[2] Because of our Supreme Court's recent decision in Evens, we are compelled to affirm the Court of Claims' grant of summary disposition in favor of defendant, however reluctantly.

In Evens, the plaintiff sustained serious injuries in an automobile accident at the intersection of Newburg Road and Byron Road in Shiawassee County. The plaintiff was driving north on Byron Road at the time of his accident. Byron Road was regulated by stop signs, posted on both the left and right sides of the roadway. Traffic on Newburg Road was not required to stop at this particular intersection. After stopping at the stop sign, the plaintiff entered the intersection with Newburg Road, where he collided with a car traveling west on Newburg Road, which had the right of way. Thereafter, the plaintiff sued the defendant, Shiawassee County Road Commissioners (SCRC), "arguing that they negligently failed to maintain the intersection in reasonable repair and in a condition safe and convenient for public travel. Specifically, Evens argued that the SCRC owed him a duty to install additional stop signs or traffic signals at the intersection." Evens, supra at 154, 615 N.W.2d 702. Subsequently, the SCRC moved for summary disposition, arguing that "county road commissions could not be held liable for a failure to install traffic signs on the theory that signs are outside the improved portion of the highway designed for vehicular travel and are not covered by the highway exception." Evens, supra at 154, 615 N.W.2d 702. The circuit court granted the SCRC's motion. The Supreme Court in Evens affirmed the circuit court decision.

The Evens Court held that the state and county road commissions' duty, under the highway exception, M.C.L. § 691.1402(1); MSA 3.996(102)(1), is only to repair and maintain the improved portion of the highway designed for vehicular travel and that the duty is limited exclusively to dangerous or defective conditions within the actual roadway designed for vehicular travel. Evens, supra at 183-184, 615 N.W.2d 702. Specifically, the Court held:

The state and county road commissions' duty, under the highway exception, is only implicated upon their failure to repair or maintain the actual physical structure of the roadbed surface, paved or unpaved, designed for vehicular travel, which in turn proximately causes injury or damage. A plaintiff making a claim of inadequate signage, like a plaintiff making a claim of inadequate street lighting or vegetation obstruction, fails to plead in avoidance of governmental immunity because signs are not within the paved or unpaved portion of the roadbed designed for vehicular travel. Traffic device claims, such as inadequacy of traffic signs, simply do not involve a dangerous or defective condition in the improved portion of the highway designed for vehicular travel. [Id. (citation omitted).]

The median between the eastbound and westbound lanes of I-96 is, obviously, outside the actual physical structure of the roadbed surface designed for vehicular travel. It is not a road surface condition.

The width of the median and the lack of a median barrier are basically design features. The Evens decision makes it clear that defendant had no duty, under the highway exception to governmental immunity, to correct these design defects. Id. at 183-184, 615 N.W.2d 702. Defendants' duty only extended to a dangerous or defective condition of the roadway designed for vehicular travel. Id. There is no dispute that the median area between the eastbound and westbound lanes of I-96 is outside the actual physical structure of the roadbed surface designed for vehicular travel.

In sum, plaintiffs' claim of improper or dangerous median design is not a claim involving a dangerous or defective condition in the improved portion of the roadway designed for vehicular travel. Therefore, they have failed to plead in avoidance of governmental immunity. Hence, summary disposition was properly granted in favor of defendant.

Affirmed.

NOTES

[1] Evens is the companion case to Nawrocki v. Macomb Co. Rd. Comm., 463 Mich. 143, 615 N.W.2d 702 (2000).

[2] After the Court of Claims granted defendant partial summary disposition, the parties stipulated the entry of an order dismissing plaintiffs' remaining claims.