Sekulov v. City of Warren

650 N.W.2d 397 (2002) 251 Mich. App. 333

Vera SEKULOV, Personal Representative of the Estate of Rade Sekulovski, Deceased, Plaintiff-Appellant,
v.
CITY OF WARREN and County of Macomb, Defendants-Appellees.

Docket No. 228159.

Court of Appeals of Michigan.

Submitted March 13, 2002, at Detroit. Decided May 14, 2002, at 9:00 a.m. Released for Publication August 23, 2002.

Fieger, Fieger & Schwartz, P.C. (by Geoffrey N. Fieger, Ven R. Johnson, and Tammy J. Reiss), Southfield, for Vera Sekulov.

Rutledge, Manion, Rabaut, Terry & Thomas, P.C. (by Anthony J. Calati), Detroit, for city of Warren.

York, Dolan & Ciaramitaro, P.C. (by Timothy D. Tomlinson and John A. Dolan), Clinton Township, for Macomb County.

Before: NEFF, P.J., and FITZGERALD and TALBOT, JJ.

NEFF, P.J.

Plaintiff Vera Sekulov appeals as of right from the trial court's orders granting summary disposition in favor of defendants city of Warren and Macomb County. We reverse in part, affirm in part, and remand for further proceedings.

I

In February 1997, plaintiff's decedent, Rade Sekulovski, was struck and killed by an oncoming vehicle as he crossed Mound Road in Warren on his way to work at a Chrysler plant. Sekulovski was crossing at a designated crosswalk, which led from an employee parking lot on the west side of Mound Road, across seven lanes of highway, to the plant on the east side of Mound Road. The driver of the vehicle was also a Chrysler employee and had just driven out of the parking lot onto the highway. The crosswalk traversed the traveled portion of the highway, i.e., the roadbed. Plaintiff filed a negligence action against the driver of the vehicle and defendants city of Warren and Macomb County. Plaintiff settled her claim against the driver. The trial court subsequently granted summary disposition in favor of defendants.

II

Plaintiff argues that the trial court erred in granting summary disposition in favor of Macomb County. We agree. This case involves review of a decision on a motion for summary disposition and also presents a question of statutory construction, both of which are subject to review de novo. Hanson v. Mecosta Co. Rd. Comm'rs., 465 Mich. 492, 497, 638 N.W.2d 396 (2002). The trial court granted summary disposition to Macomb County under MCR 2.116(C)(7) (claim barred by immunity granted by law). In reviewing a motion under this subrule, the trial court must consider any supporting evidence submitted by the parties, including affidavits, depositions, and admissions, to determine whether the claim is barred by immunity granted by law. McGoldrick v. Holiday Amusements, Inc., 242 Mich.App. 286, 289-290, 618 N.W.2d 98 (2000).

Governmental immunity is the public policy limiting imposition of tort liability on a governmental agency. Nawrocki v. Macomb Co. Rd. Comm., 463 Mich. 143, 155-156, 615 N.W.2d 702 (2000). Immunity from tort liability, as codified by the governmental immunity act, M.C.L. § 691.1401 et seq., "is expressed in the broadest possible language—it extends immunity to all governmental agencies for all tort liability whenever they are engaged in the exercise or discharge of a governmental function." Nawrocki, supra at 156, 615 N.W.2d 702. The five specific statutory exceptions to governmental immunity are to be narrowly construed. Id. at 156, 158, 615 N.W.2d 702; Robinson v. Detroit, 462 Mich. 439, 455, 613 N.W.2d 307 (2000).

In avoidance of governmental immunity, plaintiff relies on the statutory highway exception, M.C.L. § 691.1402(1), which, at the time this action arose, provided:

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.

In Nawrocki, supra at 176, 615 N.W.2d 702, and its companion case, Evens v. Shiawassee Co. Rd. Comm'rs., the Supreme Court, relying on Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 363 N.W.2d 641 (1984), noted that the duty of the state and county road commissions "is significantly limited, extending only to the improved portion of the highway designed for vehicular travel." (emphasis in original). The Court stated:

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.

Evens argues that the SCRC failed to install additional traffic signs or signals that might conceivably have made the intersection safer. Because the highway exception imposes no such duty on the state or county road commissions, we reverse the decision of the Court of Appeals and reinstate the trial court's grant of summary disposition to the SCRC. [Nawrocki, supra at 183-184, 615 N.W.2d 702 (citation omitted).]

Plaintiff contends that the decision in Nawrocki should be applied prospectively only. We agree. The general rule is that judicial decisions are to be given complete retroactive effect. Lincoln v. General Motors Corp., 461 Mich. 483, 491, 607 N.W.2d 73 (2000). Prospective application has generally been limited to decisions that overrule clear and uncontradicted case law. Id. By its own express terms, Nawrocki overruled clear and uncontradicted case law, specifically Pick v. Szymczak, 451 Mich. 607, 548 N.W.2d 603 (1996), so the general rule is inapplicable, and Nawrocki has only prospective application. Lincoln, supra; Nawrocki, supra at 180, 615 N.W.2d 702.

In this case, plaintiff alleged that Macomb County breached its duty to design roadways, crosswalks, and pedestrian traffic lights in a reasonably safe manner. Specifically, plaintiff alleged that Macomb County (1) failed to maintain appropriate signage, (2) failed to maintain adequate traffic control devices, (3) failed to make improvements to the roadway and crosswalk despite notice of previous, similar accidents, and (4) failed to provide adequate lighting to illuminate the area.

Nawrocki overruled existing law on which plaintiff relied in commencing, litigating, and settling her claims in this action. Id. at 176-177, 180, 615 N.W.2d 702. In overruling this precedent, Nawrocki thus eliminated under the highway exception any claim premised on areas of special danger and the installation, maintenance, repair, or improvement of traffic control devices, including signage. Id. at 176-177, 180, 183, 615 N.W.2d 702. In this context, giving Nawrocki full retroactive effect is unjust and unwarranted. Pohutski v. Allen Park, 465 Mich. 675, 641 N.W.2d 219 (2002).

More recently, in Hanson, supra, the plaintiff's claims that a county road was poorly designed were determined to be insufficient to avoid governmental immunity. The Court explained: "Nowhere in the statutory language is there a duty to install, to construct or to correct what may be perceived as a dangerous or defective ``design.'" Id. at 501, 638 N.W.2d 396 (emphasis in original). Accordingly, we must also determine whether Hanson is to be applied prospectively only. As Justice Kelly points out in her dissent in Hanson, a significant body of law before Hanson held governmental entities liable for defective highway design. Id. at 505, 638 N.W.2d 396. Accordingly, following the analysis applied above, we conclude that Hanson, like Nawrocki, overruled clear and uncontradicted case law and should have prospective application only.

III

The question then becomes whether plaintiff has sufficiently pleaded a cause of action in avoidance of governmental immunity, and we hold that she has. In granting summary disposition in favor of Macomb County, the trial court ruled that the simple fact that the accident occurred in a crosswalk precluded plaintiff's cause of action. However, this notion of automatic preclusion has been rejected by this Court, even considering the strictures of Nawrocki. Sebring v. City of Berkley, 247 Mich.App. 666, 680, 637 N.W.2d 552 (2001). In reaching the conclusion that a pedestrian's claim that alleges a dangerous defect in the improved portion of the highway that also happens to fall within the crosswalk is not barred by governmental immunity, Judge Holbrook's well-reasoned opinion provides the historical context of governmental immunity as it relates to crosswalks, and carefully explains why automatic preclusion on this ground is unwarranted. Id. at 676-680, 637 N.W.2d 552.

Given that plaintiff's action is not automatically barred by governmental immunity simply because the accident occurred in the crosswalk, we conclude that the allegations of her complaint, along with the affidavits filed in opposition to defendant's motion for summary disposition, satisfy the pre-Nawrocki and pre-Hanson requirements for a valid cause of action. Plaintiff alleged design defects for which, as pointed out in Justice Kelly's Hanson dissent, there has long been governmental liability, and the affidavit of her expert witness establishes a claim that a point of special danger existed pursuant to Pick, supra at 621, 548 N.W.2d 603. Summary disposition in favor of defendant Macomb County was improperly granted.

IV

We conclude that the trial court properly granted summary disposition to defendant city of Warren under MCR 2.116(C)(10). In reviewing a motion under MCR 2.116(C)(10), a trial court considers the affidavits, pleadings, admissions, and documentary evidence filed in the action or submitted by the parties in the light most favorable to the party opposing the motion. A trial court may grant a motion for summary disposition if the affidavits and other documentary evidence show that there is no genuine issue in respect to any material fact and the moving party is entitled to judgment as a matter of law. Smith v. Globe Life Ins. Co., 460 Mich. 446, 454, 597 N.W.2d 28 (1999).

The governmental immunity act limits liability under the highway exception to the governmental agency having jurisdiction over the highway at the time of the injury. Sebring, supra at 684, 637 N.W.2d 552; Markillie v. Livingston Co. Bd. of Co. Rd. Comm'rs., 210 Mich.App. 16, 19, 532 N.W.2d 878 (1995). Only one governmental agency at a time can have jurisdiction over a highway; there is no concurrent jurisdiction. Sebring, supra at 684, 637 N.W.2d 552; Markillie, supra at 20, 532 N.W.2d 878.

We disagree with plaintiff that the submitted evidence established a genuine issue of material fact regarding jurisdiction. On the contrary, the evidence established that Macomb County had jurisdiction over the location of the accident on Mound Road. It is undisputed that Macomb County was responsible for maintenance of the traffic signals, crosswalk signals, and pedestrian lights at the accident site and that Macomb County controlled and regulated the timing of pedestrian lights and traffic lights at the crosswalk at issue. More significantly, it was undisputed that Mound Road between Eight Mile and Nine Mile roads was a county road. MCL 224.21(2) provides that the county must keep in reasonable repair all county roads, bridges, and culverts used for public travel within its jurisdiction. The county can transfer jurisdiction to a city only by written agreement and with the consent and resolution of both parties. MCL 247.852. Because no evidence was submitted indicating that such a transfer occurred, jurisdiction rested with Macomb County. Even if Warren may have had some involvement or input with certain aspects of the roadway, because jurisdiction rested with Macomb, and because Warren cannot have concurrent jurisdiction, the trial court did not err in dismissing the case against the city of Warren.^[1]

Affirmed with respect to the city of Warren, reversed with respect to Macomb County, and remanded for proceedings consistent with this opinion. We do not with this opinion. We do not retain jurisdiction.

FITZGERALD, J., concurred.

TALBOT, J. (concurring in part and dissenting in part).

I would affirm the trial court's grant of summary disposition for both defendants. I agree that summary disposition was properly granted in favor of defendant city of Warren for the reasons stated in the majority opinion. However, I would also affirm the trial court's grant of summary disposition in favor of defendant Macomb County on the basis of Nawrocki v. Macomb Co. Rd. Comm., 463 Mich. 143, 615 N.W.2d 702 (2000), and Hanson v. Mecosta Co. Bd. of Co. Rd. Comm'rs., 465 Mich. 492, 638 N.W.2d 396 (2002), which I believe apply retroactively and are dispositive of plaintiff's claims.

In determining whether the general rule of retroactive application applies to Nawrocki, it is necessary to address the threshold question whether the Nawrocki decision clearly established a new principle of law. Pohutski v. Allen Park, 465 Mich. 675, 696-697, 641 N.W.2d 219 (2002). Accordingly, the relevant inquiry is whether our Supreme Court overruled clear and uncontradicted case law when it overruled Pick v. Szymczak, 451 Mich. 607, 548 N.W.2d 603 (1996). Lincoln v. General Motors Corp., 461 Mich. 483, 491, 607 N.W.2d 73 (2000), citing Michigan Educational Employees Mut. Ins. Co. v. Morris, 460 Mich. 180, 189, 596 N.W.2d 142 (1999). I would hold that it did not.

The Pick decision was neither clear nor uncontradicted. In overruling the decision, the Nawrocki Court noted that Pick constituted a departure from the interpretative principles of Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 363 N.W.2d 641 (1984), "that the immunity conferred on governmental agencies is broad with narrowly drawn exceptions." Nawrocki, supra at 149, 177-178, 615 N.W.2d 702. Nawrocki corrected an erroneous interpretation of M.C.L. § 691.1402(1) that was contrary not only to the established principles of Ross, but also to the plain language of the statute. Nawrocki, supra at 175, 180, 183, 615 N.W.2d 702. "[A] purpose of clarifying existing law is sufficient for the retroactive application of a rule of law." Chow v. O'Keefe, 217 Mich.App. 102, 105, 550 N.W.2d 833 (1996). See Lindsey v. Harper Hosp., 455 Mich. 56, 68-69, 564 N.W.2d 861 (1997); Bolt v. City of Lansing (On Remand), 238 Mich.App. 37, 44, 604 N.W.2d 745 (1999).

Notably, the Nawrocki Court prefaced its analysis by observing that "[t]he failure to consistently follow Ross, specifically with regard to the interpretation and application of the highway exception, has precipitated an exhausting line of confusing and contradictory decisions." Nawrocki, supra at 149, 615 N.W.2d 702. The Court recognized that "these conflicting decisions have provided precedent that both parties in highway liability cases may cite as authority for their opposing positions." Id. at 149-150, 615 N.W.2d 702. The Court stated that "[t]his area of the law cries out for clarification," which it attempted to provide in the Naurrocki decision. Id. at 150, 615 N.W.2d 702. Clearly, Pick was not settled precedent. Accordingly, because Nawrocki does not satisfy this threshold criterion, Nawrocki has retroactive application.

Similarly, the Supreme Court in Hanson applied the plain language of subsection 1402(1) and the principles articulated in Nawrocki in rejecting the plaintiff's claim that the government has a duty to correct design defects in the road. Hanson, supra at 503, 638 N.W.2d 396. The prior case law cited in the Hanson dissent contains mere dicta on this issue and therefore carries no precedential authority. Hanson, supra at 501, n. 7, 638 N.W.2d 396. Because Hanson did not overrule clear and uncontradicted prior case law, retroactive application is appropriate.

On the authority of Nawrocki and Hanson, plaintiff's claim fails. Plaintiff's claim of inadequate signage, traffic control devices, or lighting fails to plead facts in avoidance of governmental immunity. Nawrocki, supra at 183-184, 615 N.W.2d 702. Further, plaintiff's claim that the county failed to correct design defects and make improvements to the roadway and crosswalk also is inadequate to avoid governmental immunity. Hanson, supra at 503-504, 638 N.W.2d 396. Our Supreme Court "emphasized in Nawrocki that the highway exception does not permit claims based on conditions arising from such points of hazard, and that the only permissible claims are those arising from a defect in the actual roadbed itself." Id. at 503, 615 N.W.2d 702, citing Nawrocki, supra. The highway exception to governmental immunity is inapplicable and Macomb County is entitled to summary disposition. Hanson, supra at 503, 638 N.W.2d 396; Nawrocki, supra at 182-183, 615 N.W.2d 702; MCR 2.116(C)(7) and (C)(8).

NOTES

[1] We also reject plaintiff's claim that summary disposition was premature because discovery was not complete. Plaintiff has not demonstrated that there was a reasonable chance that further discovery would uncover factual support for her position. Hasselbach v. TG Canton, Inc., 209 Mich.App. 475, 482, 531 N.W.2d 715 (1994).