Johnson-McIntosh v. City of Detroit

701 N.W.2d 179 (2005) 266 Mich. App. 318

Denise JOHNSON-McINTOSH and Alvin McIntosh, as Next Friends of Daesha Johnson, a Minor, Plaintiffs-Appellees,
v.
CITY OF DETROIT, Defendant-Appellant, and
Tommy Nathan McGee, Jr., and Tommy Nathan McGee III, Defendants.

Docket No. 244349.

Court of Appeals of Michigan.

Submitted September 13, 2004, at Lansing. Decided May 5, 2005, at 9:25 a.m. Released for Publication July 26, 2005.

Theophilus E. Clemons, Southfield, for the plaintiff.

Ruth C. Carter, Corporation Counsel, and Joanne D. Stafford, Supervising Assistant Corporation Counsel, Detroit, for the city of Detroit.

Before: OWENS, P.J., and SAAD, BANDSTRA, SMOLENSKI, METER, DONOFRIO, and FORT HOOD, JJ.

DONOFRIO, J.

Pursuant to MCR 7.215(J), this Court convened a special panel to resolve the conflict between the prior opinion in this case^[1] and Marchyok v. Ann Arbor, 260 Mich.App. 684, 679 N.W.2d 703 (2004). These cases involve the interpretation of MCL 691.1402(1), the highway exception to governmental immunity, and MCL 691.1402a, which concerns a municipality's duty with regard to county highways. In Marchyok, supra at 691, 679 N.W.2d 703, the Court found that a municipality is immune from liability under the highway exception for injuries caused by defective traffic control devices. The original Johnson-McIntosh panel followed the Marchyok panel's holding and reversed the trial court, but only because it was required to do so pursuant to MCR 7.215(J). Because no basis currently exists in Michigan law for the proposition that a governmental entity, including a municipality, is subject to liability for the failure to repair and maintain traffic control devices, we adopt the holding in Marchyok and reverse the trial court, as the initial Johnson-McIntosh panel concluded.

I. Substantive Facts and Procedure

We adopt the facts and procedural history of the case as set out in Johnson-McIntosh, supra at 801-802, 688 N.W.2d 832:

On June 25, 2001, Tommy Nathan McGee III was driving southbound on Pennington Road in the city of Detroit with Daesha Johnson as his passenger. McGee drove through the intersection of West Seven Mile Road, and as a result of an inoperative traffic signal, collided with another vehicle and then ran into a tree. Johnson was injured and brought suit through her next friends against defendant city of Detroit, alleging a breach of duty under MCL 691.1402a to maintain and repair all installations, including traffic signals, on portions of county highways outside the improved portion designed for vehicular travel.3

Defendant responded to plaintiffs' claims with its initial motion for summary disposition. Defendant asserted that plaintiffs' claims were barred by governmental immunity under MCL 691.1402(1). Defendant, relying on Nawrocki v. Macomb Co. Rd. Comm., contended that municipalities are immune from liability for injuries caused by defective traffic signals.4 The trial court denied defendant's initial motion without prejudice, finding that, as Nawrocki involved claims against a county, it was inapplicable to the facts of this case.

This Court subsequently rendered its opinion in Weaver,^[2] explicitly extending the Nawrocki holding with regard to streetlight poles to municipalities. As a result, defendant filed a renewed motion for summary disposition based on governmental immunity,^[3] asserting that municipalities are now governmentally immune from tort liability arising from defective traffic signals. The trial court determined that if Weaver were applied, defendant would be governmentally immune from liability. However, the trial court declined to apply Weaver, as this Court did not expressly rule that the decision was to apply retroactively.

3 Plaintiffs also alleged claims against McGee and his father, Tommy Nathan McGee, Jr., as the owner of the vehicle, but these claims are not relevant to this appeal.

4 Nawrocki v. Macomb Co. Rd. Comm., 463 Mich. 143, 172-184, 615 N.W.2d 702 (2000). Nawrocki was consolidated on appeal with Evens v. Shiawassee Co. Rd. Comm'rs. Evens involved a county's liability with regard to defective traffic control devices while Nawrocki involved a defective roadbed. The consolidated appeal will be referred to as Nawrocki throughout.

[Emphasis in original.]

II. Standard of Review

"We review de novo a trial court's decision on a motion for summary disposition under MCR 2.116(C)(7) to determine if the moving party was entitled to judgment as a matter of law." McDowell v. Detroit, 264 Mich.App. 337, 346, 690 N.W.2d 513 (2004). "A motion under MCR 2.116(C)(7) ``"tests whether a claim is barred because of immunity granted by law, and requires consideration of all documentary evidence filed or submitted by the parties."'" Id., at 345, 690 N.W.2d 513, quoting Maskery v. Univ. of Michigan Bd. of Regents, 468 Mich. 609, 613, 664 N.W.2d 165 (2003), quoting Glancy v. City of Roseville, 457 Mich. 580, 583, 577 N.W.2d 897 (1998); see also MCR 2.116(G)(5).

"This Court reviews de novo a trial court's decision to grant summary disposition under MCR 2.116(C)(8)." McDowell, supra at 354, 690 N.W.2d 513, citing Spiek v. Dep't of Transportation, 456 Mich. 331, 337, 572 N.W.2d 201 (1998). "MCR 2.116(C)(8) tests the legal sufficiency of the pleadings standing alone." McDowell, supra at 354, 690 N.W.2d 513, citing Maiden v. Rozwood, 461 Mich. 109, 119-120, 597 N.W.2d 817 (1999). "``The motion must be granted if no factual development could justify the plaintiff's claim for relief.'" McDowell, supra at 354-355, 690 N.W.2d 513, quoting Spiek, supra at 337, 572 N.W.2d 201; see also Maiden, supra at 119, 597 N.W.2d 817.

III. Analysis

Absent an exception, a governmental agency is immune from tort liability if the agency was engaged in a governmental function. MCL 691.1407(1); Maskery, supra at 613, 664 N.W.2d 165. The highway exception to governmental immunity, MCL 691.1402(1), provides:

Except as otherwise provided in section 2a, 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 who sustains 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 a 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, trailways, crosswalks, or any other installation outside of the improved portion of the highway designed for vehicular travel.

Section 2a, MCL 691.1402a, provides limited immunity for a municipality with regard to the portions of county highways not designed for vehicular travel that fall within its borders. Specifically, MCL 691.1402a(1) provides:

Except as otherwise provided by this section, a municipal corporation has no duty to repair or maintain, and is not liable for injuries arising from, a portion of a county highway outside of the improved portion of the highway designed for vehicular travel, including a sidewalk, trailway, crosswalk, or other installation. This subsection does not prevent or limit a municipal corporation's liability if both of the following are true:

(a) At least 30 days before the occurrence of the relevant injury, death, or damage, the municipal corporation knew or, in the exercise of reasonable diligence, should have known of the existence of a defect in a sidewalk, trailway, crosswalk, or other installation outside of the improved portion of the highway designed for vehicular travel.

(b) The defect described in subdivision (a) is a proximate cause of the injury, death, or damage.

The definition of "highway" for purposes of this statute is found in MCL 691.1401(e):

"Highway" means a public highway, road, or street that is open for public travel and includes bridges, sidewalks, trailways, crosswalks, and culverts on the highway. The term highway does not include alleys, trees, and utility poles.

In Chaney v. Dep't of Transportation, 447 Mich. 145, 158, 523 N.W.2d 762 (1994) (opinion of Brickley, J.), our Supreme Court stated that "the improved portion of a highway designed for vehicular travel" included installations physically located within the roadbed and those installations physically located outside the roadbed "that directly and integrally affect safe vehicular travel on this improved portion." The Supreme Court noted that its decision was consistent with "clear" precedent. Id., citing Gregg v. State Hwy. Dep't, 435 Mich. 307, 458 N.W.2d 619 (1990), and Roy v. Dep't of Transportation, 428 Mich. 330, 408 N.W.2d 783 (1987).

Two years later, the Supreme Court returned to the "still-unsettled issue of the highway exception...." Pick v. Szymczak, 451 Mich. 607, 610, 548 N.W.2d 603 (1996). In determining that county road commissions have a duty to erect traffic signs to ensure that the portion of the road designed for vehicular travel remains reasonably safe, the Supreme Court noted that it was properly interpreting the statute in light of "our undeniably fractured case law precedents...." Id. at 621-622, 624, 548 N.W.2d 603.

In Nawrocki, our Supreme Court held that traffic control devices are not included in the definition of "highway" provided in MCL 691.1401(e), and therefore do not fall within the highway exception provided in MCL 691.1402(1). The Supreme Court stated that it had a duty to narrowly construe exceptions to the broad grant of governmental immunity provided in the statute. Nawrocki, supra at 175, 615 N.W.2d 702. While discussing the highway exception, our Supreme Court counseled that the statutory definition of "highway" does not include conditions that may arise from hazards or special dangers that integrally affect the highway, but are outside the portion actually designed for vehicular travel. Id. at 176-177, 615 N.W.2d 702. And it further stated that the statute does not impose a duty to install, maintain, repair, or improve traffic control devices. Id, at 180, 184, 615 N.W.2d 702. As a result, the Nawrocki Court expressly overruled Pick and held that the plain language of the highway exception includes only the "``traveled portion, paved or unpaved, of the roadbed actually designed for public vehicular travel.'" Nawrocki, supra at 180, 615 N.W.2d 702, quoting Scheurman v. Dep't of Transportation, 434 Mich. 619, 631, 456 N.W.2d 66 (1990). Furthermore, in a footnote addressing the dissent, the Nawrocki Court stated:

The dissent contends that "[t]he plain meaning of the words ``improved portion of the highway designed for vehicular travel' connotes a broader concept than just the surface of the road, itself." [463 Mich. at 188, 615 N.W.2d 702 (Kelly, J. dissenting).] We are convinced, however, that quite the opposite is true; while the term "highway" may be broad and potentially ambiguous, the phrase "improved portion" clearly narrows the term "highway" to its physical structure, and the phrase "designed for vehicular travel" further narrows "highway" to the physical roadbed itself. Thus, the dissent is simply wrong, in our judgment, when it states that the language of the highway exception "leaves uncertain whether the space above the highway containing traffic lights is included." [463 Mich. at 189, 615 N.W.2d 702.] [Nawrocki, supra at 175 n. 30, 615 N.W.2d 702 (emphasis added).]

Hence, construed narrowly, the phrase "improved portion" limits the meaning of "highway" to the physical structure of the highway, and the phrase "designed for vehicular travel" further limits the meaning to the physical roadbed alone. Id.

In Nawrocki, our Supreme Court was "convinced that Pick ... contradicts the plain language of the highway exception." Id. at 183, 548 N.W.2d 603. Although Nawrocki involved a county road commission, the Supreme Court stated, in apparent dicta, that municipalities would also be immune from tort liability for defective traffic signals because traffic signals did not fit into the definition of "highway" as used in the statute and, therefore, would not be part of the highway exception. Id., 182 n. 37, 615 N.W.2d 702.

This Court also extended the Nawrocki decision to municipalities. In Weaver, this Court convened a special panel to resolve a conflict between the vacated opinion in that case^[4] and Ridley v. Detroit (On Remand), 246 Mich.App. 687, 639 N.W.2d 258 (2001). The conflict revolved around whether a municipality was liable under the highway exception for negligent maintenance of a streetlight pole. Weaver, supra at 240, 651 N.W.2d 482. The special panel relied on Nawrocki in finding that streetlight poles, like "traffic signals and signs," are not part of the definition of "highway" provided in MCL 691.1401(e) and, therefore, do not fall within the highway exception to governmental immunity. Weaver, supra at 245, 651 N.W.2d 482.

In Adams v. Dep't of Transportation, 253 Mich.App. 431, 655 N.W.2d 625 (2002), this Court also convened a special panel to resolve the conflict between this Court's vacated opinion in that case^[5] and Sekulov v. City of Warren, 251 Mich.App. 333, 650 N.W.2d 397 (2002), regarding the issue of the prospective or retrospective effect of Nawrocki. The special panel concluded that Sekulov was wrongly decided and that, although Nawrocki expressly overruled Pick, it did not state a new principle of law, so its holding therefore applied retroactively. Adams, supra at 440, 655 N.W.2d 625. Significantly, in Adams, a power outage caused a traffic signal at an intersection to become disabled. The Adams panel approved the trial court's grant of immunity from liability for injuries resulting from the motor vehicle accident caused by the inoperative traffic signal light.

After studying the history of cases addressing the "still-unsettled issue of the highway exception,"^[6] and applying the statutory law to the instant issue, we have no other option but to conclude that a municipality is not responsible for failure to maintain a traffic control device, including a traffic signal light, under the prevailing judicial precedent and statutory law. Specifically of interest to us in reaching this conclusion, other than the obvious guidance of Nawrocki and its progeny, was our Supreme Court's fragmented set of opinions in Chaney, written some ten years ago. While the facts of Chaney indicate that the case involved a guardrail, our Supreme Court discussed the state of the law on the issue of governmental immunity, resulting in five concurring opinions and one dissent.

In Chaney, a case relied upon by plaintiffs in the instant action, Justice Boyle clearly enunciated in a concurring opinion the argument for holding governmental units liable for failing to repair and maintain traffic signal lights and signs. See Chaney, supra at 171-177, 523 N.W.2d 762. Justice Boyle's concurring opinion culminated in the following conclusion: "[B]ecause the Legislature restricted liability without mentioning signs and traffic lights, it is reasonable to infer that it intended that governmental units should be liable for failing to repair and maintain signs and signals." Id. at 176, 523 N.W.2d 762. Essentially, Justice Boyle made the argument that plaintiffs would have us adopt in the instant case — that while the highway exception is limited, it should also include those objects in the roadway that affect safe and efficient travel, such as signal lights.

An opinion concurring in part and dissenting in part, written by Justice Riley and concurred with by Justice Griffin, would limit liability to roadbed defects alone. Chaney, supra at 163-171, 523 N.W.2d 762. The view of Justices Riley and Griffin was, in effect, the holding of the Nawrocki Court.

Justice Brickley's view on the issue was as follows:

... I read the statute as creating liability for an accident that occurs on the improved portion of the highway caused by a condition that affects that improved portion, regardless of the ultimate location of that cause. Hence, this and my prior decisions allow for recovery when, and only when, the occurrence is on the improved portion and is caused by a condition directly affecting vehicular travel on the improved portion, even though that condition may have been occasioned by an act or an omission outside the improved portion of the highway.

As expressed herein, it is my view that this latter interpretation best captures the essence of a statute that provides liability for mishaps occurring on the improved portion of the highway, but which does so without any direct reference to the location of their causality. [Chaney, supra at 163 n. 7, 523 N.W.2d 762.]

Finally, Chief Justice Cavanagh, while concurring with the majority that immunity applies under the guardrail fact pattern, stated the following regarding his view of the highway exception in general:

Admittedly, Justice Riley's plain interpretation of the highway exception results in harsh consequences. Her interpretation, however, is defensible because it is in accord with the plain language of the statute and Ross^[7] command of broad governmental immunity with narrowly drawn exceptions. Furthermore, Justice Riley's interpretation provides an exact standard, defining not only an injured party's rights but the government's potential liability. None of the other separate opinions satisfies each of these components.

Although I find Justices Brickley's and Boyle's interpretations preferable from a policy standpoint, I cannot in good conscience join either opinion. Justice Brickley's interpretation does not provide a standard with which to guide both the bench and bar. The test is vulnerable to endless interpretation, encouraging recurrent appellate litigation. Justice Boyle's interpretation, while more limited in scope, is not supported by the statutory language or post-Ross case law. [Chaney, supra at 177-178, 523 N.W.2d 762.]

While strong policy considerations make Justice Boyle's approach an attractive one, the developing law in the last decade, both pre-and post-Nawrocki, simply does not allow that result today in the instant case. We recognize that Justice Boyle's argument, although to some more palatable, was made and not adopted. Since then, various courts in Michigan have faced the situation again and again, and have left us with a plethora of precedent dealing with the highway exception, seemingly each in its own way expanding the exception while purporting to narrowly construe it at the Legislature's direction. Conscience aside, we are left with little doubt regarding the resolution of this matter and must adopt the Marchyok reasoning. If liability is to attach to the municipality, it is a matter for the Legislature and not the judiciary.

In sum, after a comprehensive review of applicable legal precedent, we are required to respect the holding in Marchyok that footnote 37 of Nawrocki, supra at 182, 615 N.W.2d 702, was "``more than mere dicta....'" Marchyok, supra at 689, 679 N.W.2d 703, quoting Carr v. City of Lansing, 259 Mich.App. 376, 384, 674 N.W.2d 168 (2003). And, as such, we apply Nawrocki and Weaver and conclude that defendant has governmental immunity from liability for Johnson's injury caused by the inoperative traffic signal at Pennington and West Seven Mile Road. A governmental agency is immune from tort liability when engaged in a governmental function. MCL 691.1407(1). However, a governmental agency has a duty to maintain the highways under its jurisdiction in reasonable repair to keep the highways reasonably safe and convenient for public travel, and is not immune from tort liability for failing to do so. MCL 691.1402(1). In applying the precedent and statutory law in a logical manner, we conclude that defendant did not fail in its duty to maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel because a traffic signal is not part of the highway. The highway exception does not impose a duty on municipalities to install, maintain, repair, or improve traffic signals. See Nawrocki, supra at 180, 615 N.W.2d 702; Weaver, supra at 245, 651 N.W.2d 482.

IV. Conclusion

Because plaintiffs' claim does not fall within an exception to governmental immunity, defendant is entitled to summary disposition under MCR 2.116(C)(7) and MCR 2.116(C)(8).

Reversed and remanded for entry of an order of dismissal. We do not retain jurisdiction.

METER, J. (dissenting).

I respectfully dissent. If this case involved a defective traffic control device on a noncounty highway over which Detroit had jurisdiction, then statutory language, common sense, and case law support the conclusion that Detroit may be held liable for the injury in question. Conversely, if this case involved a defective traffic control device on a county highway over which Detroit had jurisdiction, then Detroit may be held liable if the two conditions set forth in MCL 691.1402a(1) were satisfied. I would remand this case for further proceedings.

I. Pertinent Statutes

In general, "a governmental agency is immune from tort liability if the governmental agency is engaged in the exercise or discharge of a governmental function." MCL 691.1407(1). The so-called "highway" exception to governmental immunity" is found at MCL 691.1402, which states, in part:

(1) Except as otherwise provided in [MCL 691.1402a], each governmental agency^[1] 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 who sustains 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 a 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, trailways, crosswalks, or any other installation outside of the improved portion of the highway designed for vehicular travel.

MCL 691.1402a states, in part:

(1) Except as otherwise provided by this section, a municipal corporation has no duty to repair or maintain, and is not liable for injuries arising from, a portion of a county highway outside of the improved portion of the highway designed for vehicular travel, including a sidewalk, trailway, crosswalk, or other installation. This subsection does not prevent or limit a municipal corporation's liability if both of the following are true:

(a) At least 30 days before the occurrence of the relevant injury, death, or damage, the municipal corporation knew or, in the exercise of reasonable diligence, should have known of the existence of a defect in a sidewalk, trailway, crosswalk, or other installation outside of the improved portion of the highway designed for vehicular travel.

(b) The defect described in subdivision (a) is a proximate cause of the injury, death, or damage.

The term "highway" is defined by MCL 691.1401(e), which states:

"Highway" means a public highway, road, or street that is open for public travel and includes bridges, sidewalks, trailways, crosswalks, and culverts on the highway. The term highway does not include alleys, trees, and utility poles.

II. Statement of the Issue

The issue in the present case is whether Detroit may be held liable for an injury allegedly caused by a defective traffic signal located at the intersection of West Seven Mile Road and Pennington Street in Detroit. The parties appear to disagree regarding whether the traffic signal at issue controlled the traffic on a county highway or a city road. Therefore, I will analyze this case under both factual situations.

III. Analysis

A. Noncounty Highway

Assuming that this case involves a noncounty highway, MCL 691.1402a becomes irrelevant, and the focus shifts to MCL 691.1402. Under that section, a municipality clearly is liable for failing to maintain a "highway in reasonable repair so that it is reasonably safe and convenient for public travel." Moreover, the duty of a municipality to keep a highway in reasonable repair is not statutorily limited, as it is with "state and ... county road commissions," to "the improved portion of the highway designed for vehicular travel...." MCL 691.1402(1). Therefore, the pertinent question becomes whether a traffic signal is included within the definition of "highway."

As noted, MCL 691.1401(e) states:

"Highway" means a public highway, road, or street that is open for public travel and includes bridges, sidewalks, trailways, crosswalks, and culverts on the highway. The term highway does not include alleys, trees, and utility poles.

The majority concludes that a traffic signal does not fall within the definition of "highway." I disagree. Indeed, it is simply a matter of common sense that the duty to maintain a "highway" in proper condition entails the proper maintenance of a traffic signal that controls the flow of traffic on that highway. While the definition of "highway" in MCL 691.1401(e) does not specifically list the phrases "traffic signals" or "traffic control devices," it also does not include the term "asphalt" or the phrase "rumble strips," even though serious defects in those items would clearly subject a municipality to liability. Certain items are implicit within the term "highway" itself. It is simply incongruous that a municipality would have a duty to maintain road surfaces, bridges, sidewalks, trailways, crosswalks, and culverts, while not having a duty to maintain traffic signals, which are crucial to the ability of a pedestrian or a traveler in a vehicle to use a road or a crosswalk safely.

This commonsense conclusion — that the duty to maintain a highway encompasses the duty to maintain traffic control devices pertaining to that highway — is fully supported by this Court's decision in Cox v. Dearborn Hts., 210 Mich.App. 389, 397, 534 N.W.2d 135 (1995), in which the Court stated, "[W]e today make explicit that municipalities may face liability where a pedestrian is injured as a result of allegedly inadequate traffic control devices." Contemplating the differing duties applied to municipalities as opposed to state and county road commissions under MCL 691.1402, the Cox Court stated, in part:

While we are puzzled with regard to the Legislature's disparate treatment of municipalities vis-a-vis the state and county road commissions, our role is to enforce the law as written. Furthermore, our duty is to interpret the law, not make new laws. [Cox, supra at 397, 534 N.W.2d 135.]

The Cox Court also referred to Justice Boyle's concurring opinion in Chaney v. Dep't of Transportation, 447 Mich. 145, 523 N.W.2d 762 (1994). Cox, supra at 397, 534 N.W.2d 135. In Chaney, Justice Boyle stated that there are logical, statutory, and historical reasons for concluding that governmental agencies should be subject to liability for failing to maintain traffic signals and signs in reasonable repair. Chaney, supra at 175-176, 523 N.W.2d 762 (opinion of Boyle, J.).

It is true that in Nawrocki v. Macomb Co. Rd. Comm., 463 Mich. 143, 182 n. 37, 615 N.W.2d 702 (2000),^[2] the Supreme Court, responding to the dissenting opinion in that case, stated the following:

The dissent accuses us of "shifting" the liability for traffic control devices, including traffic signs, from the state and county road commissions, to local municipalities. While the purpose of our holding today is merely to return to a principled application of the plain language of the highway exception, we are constrained to respond to the dissent's misapprehension of the governmental immunity statute.

Clearly, traffic signals and signs are not implicated in the broad definition of "highway" in MCL 691.1401(e); MSA 3.996(101)(e): "``Highway' means a public highway, road, or street that is open for public travel and includes bridges, sidewalks, trailways, crosswalks, and culverts on the highway. The term highway does not include alleys, trees, and utility poles." MCL 691.1402; MSA 3.996(102) creates an exception to governmental immunity for the state or county road commissions' failure to maintain and repair the "improved portion of the highway designed for vehicular travel." Thus, there is a gap that exists between the "improved portion of the highway designed for vehicular travel," and the broader confines of "highway," defined in subsection 1(e). MCL 691.1402a; MSA 3.996(102a) seeks to fill this gap, at least with respect to county highways. [Emphasis in original.] However, because traffic control devices are clearly not implicated in the broad definition of "highway," there can be no "shifting" of liability from the state and county road commissions to local municipalities. [Emphasis added.]

The majority opinion in the instant case places great emphasis on this footnote. I, however, find that it constitutes nonbinding obiter dicta because it was simply not necessary to resolve the pertinent issue in Nawrocki. See Dessart v. Burak, 252 Mich.App. 490, 496, 652 N.W.2d 669 (2002) (discussing obiter dicta).

In Carr v. City of Lansing, 259 Mich. App. 376, 383-384, 674 N.W.2d 168 (2003), the Court concluded that footnote 37 of Nawrocki, supra at 182, 615 N.W.2d 702, does in fact constitute binding precedent. The Court stated the following:

Although, the trial court in the instant case dismissed footnote 37 in Evens-Nawrocki as dictum, this Court has noted that dictum is a "``judicial comment made during the course of delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (though it may be considered persuasive).'" People v. Higuera, 244 Mich.App. 429, 437, 625 N.W.2d 444 (2001), quoting Black's Law Dictionary (7th ed). Nevertheless, the Higuera Court recognized that, "``"[w]hen a court of last resort intentionally takes up, discusses and decides a question germane to, though not necessarily decisive of, the controversy, such decision is not a dictum but is a judicial act of the court which it will thereafter recognize as a binding decision."'" Higuera, supra at 437, 625 N.W.2d 444, quoting Detroit v. Michigan Pub. Utilities Comm., 288 Mich. 267, 299-300, 286 N.W. 368 (1939), in turn quoting Chase v. American Cartage Co., Inc., 176 Wis. 235, 238, 186 N.W. 598 (1922). So, a "decision of the Supreme Court is authoritative with regard to any point decided if the Court's opinion demonstrates ``application of the judicial mind to the precise question adjudged, regardless of whether it was necessary to decide the question to decide the case.'" Higuera, supra at 437, 625 N.W.2d 444, quoting People v. Bonoite, 112 Mich.App. 167, 171, 315 N.W.2d 884 (1982). Clearly, whether the Court's decision in Evens would "shift liability" for signage to municipalities was germane to the Court's holding regarding immunity of the state and county road commissions and displayed the "application of the judicial mind" to the question. Consequently, the Evens Court's comments in footnote 37 are more than mere dicta; they must be read as implicitly overruling Cox. [Carr, supra at 383-384, 674 N.W.2d 168.]

I do not agree with this analysis set forth by the Carr Court. Indeed, the Nawrocki Court's paragraph-long analysis in a footnote of its opinion should not be considered an "application of the judicial mind" such that the analysis is transformed from obiter dicta into binding precedent. This is especially true because the Supreme Court in footnote 37 of Nawrocki made no mention of O'Hare v. Detroit, 362 Mich. 19, 24-26, 106 N.W.2d 538 (1960), a case in which the Supreme Court concluded that a municipality's duty to maintain streets in reasonable repair encompasses the duty to maintain stop signs in reasonable repair. One would hope that a true "application of the judicial mind" to a question would include a discussion of decades-long precedent, such as O'Hare, that is evidently being overruled in the course of resolving the question at hand. That O'Hare is not discussed in footnote 37 of Nawrocki supports my conclusion that the footnote constitutes mere obiter dicta.

Moreover, and importantly, I am not bound by Carr (despite my disagreement with it) under MCR 7.215(J)(1)^[3] because Cox, which conflicts with Carr, was released before Carr. As noted in Novak v. Nationwide Mut. Ins. Co., 235 Mich.App. 675, 690, 599 N.W.2d 546 (1999), "in cases of conflicting opinions issued on or after November 1, 1990, the Court is to follow the first opinion that addresses the matter at issue." See also Marchyok v. Ann Arbor, 260 Mich.App. 684, 694, 679 N.W.2d 703 (2004) (O'Connell, J., dissenting). Moreover, O'Hare, as a Supreme Court case, obviously takes precedence over Carr.

Further, my conclusion that municipalities may be held liable for defective traffic control devices on noncounty highways is not undermined by either Weaver v. Detroit, 252 Mich.App. 239, 651 N.W.2d 482 (2002), or Stevenson v. Detroit, 264 Mich. App. 37, 689 N.W.2d 239 (2004), the latter of which I authored. These cases involved municipalities, and the decisions relied heavily on the definition of "highway" in MCL 691.1401(e). See Weaver, supra at 240, 245-246, 651 N.W.2d 482 (streetlight pole, which fell on the plaintiff's decedent, not considered part of highway), and Stevenson, supra at 43, 689 N.W.2d 239 (berm not considered part of highway). I do not find these cases dispositive because a streetlight pole and a berm are fundamentally different from traffic control devices. As noted in Stevenson, supra at 45 n. 2, 689 N.W.2d 239, "a defective ``berm' as defined in the instant case is fundamentally different from a defective traffic control device, which can directly affect a person's use of the street itself." This observation from Stevenson applies equally, in my opinion, to the question of a streetlight pole versus a traffic control device. A reasonable and commonsense construction of the term "highway" includes traffic control devices.^[4]

In sum, I believe that statutory language, common sense, and case law support the conclusion that a municipality may be held liable for improperly maintaining traffic control devices on a noncounty highway under its jurisdiction. The duty of a municipality to keep a highway in reasonable repair simply is not limited, as it is with "state and ... county road commissions," to "the improved portion of the highway designed for vehicular travel...." MCL 691.1402(1). Moreover, a reasonable construction of the term "highway" includes traffic control devices, and both Cox and O'Hare support my conclusion today.

B. County Highway

With regard to a county highway, my analysis is straightforward, given my conclusion in part A that traffic control devices are implicitly part of a "highway." MCL 691.1402a indicates that municipalities may be held liable, when certain conditions are met, for improperly maintaining portions of a county highway that are "outside of the improved portion of the highway designed for vehicular travel...." Case law has made clear that traffic control devices are not part of the "improved portion of the highway designed for vehicular travel...." Nawrocki, supra at 179-180, 183-184, 615 N.W.2d 702. MCL 691.1402a therefore indicates that a municipality may be held liable for the improper maintenance of a traffic control device on a county highway if the municipality had notice of the defect that caused the injury in question.^[5]

IV. Conclusion

If this case involved a traffic control device on a noncounty highway over which Detroit had jurisdiction, then Detroit clearly was subject to liability. If this case involved a traffic control device on a county highway over which Detroit had jurisdiction, then Detroit was subject to liability if the two conditions set forth in MCL 691.1402a(1) were satisfied.

I would remand this case for further proceedings.

NOTES

[1] The opinion in this case was vacated pursuant to MCR 7.215(J)(5) in the order convening this special panel. Johnson-McIntosh v. Detroit, 261 Mich.App. 801, 688 N.W.2d 832 (2004).

[2] Weaver v. Detroit, 252 Mich.App. 239, 651 N.W.2d 482 (2002).

[3] Defendant's motion for summary disposition was brought pursuant to both MCR 2.116(C)(7) and MCR 2.116(C)(8).

[4] 249 Mich.App. 801, 642 N.W.2d 342 (2002).

[5] 251 Mich.App. 801, 651 N.W.2d 88 (2002).

[6] Pick, supra at 610, 548 N.W.2d 603.

[7] Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 363 N.W.2d 641 (1984).

[1] Detroit is considered both a "municipal corporation" and a "governmental agency" by virtue of MCL 691.1401(a), (b), and (d).

[2] In Nawrocki, supra at 179-180, 183-184, 615 N.W.2d 702, the Court held, among other things, that state and county road commissions cannot be held liable for the failure to repair and maintain traffic control devices because such devices are not part of "the improved portion of the highway designed for vehicular travel" as delineated in MCL 691.1402(1).

[3] MCR 7.215(J)(1) states that

[a] panel of the Court of Appeals must follow the rule of law established by a prior published decision of the Court of Appeals issued on or after November 1, 1990, that has not been reversed or modified by the Supreme Court, or by a special panel of the Court of Appeals as provided in this rule.

[4] In Ridley v. Detroit (On Second Remand), 258 Mich.App. 511, 514-516, 673 N.W.2d 448 (2003), this Court concluded, albeit reluctantly, that a municipality could not be held liable for inadequate illumination of a highway because illumination was not included within the definition of "highway" in MCL 691.1401(e). Although the issue is not before me, illumination arguably falls within the definition of "highway" in the same commonsense manner that traffic control devices do. At any rate, I am not bound by the Ridley holding because it dealt with illumination and not traffic control devices and because the Cox decision preceded it. See Novak, supra at 690, 599 N.W.2d 546. Moreover, the Ridley Court's discussion regarding traffic control devices, see Ridley, supra at 515-518, 673 N.W.2d 448, constitutes nonbinding obiter dicta.

[5] A municipality's liability under MCL 691.1402a(1) is limited by certain environmental protection laws that apparently are not at issue here. See MCL 691.1402a(3).