Suttles v. Department of Transportation

Markman, P.J.

This is a premises liability case in which plaintiffs decedent got out of a motor vehicle parked on a street outside a church, stepped onto the street, and slipped on what she alleged was an unnatural accumulation of ice and snow on the street directly next to the curb. As a result, decedent was seriously injured. On October 1, 1994, defendant filed a motion for summary disposition, which was granted. Plaintiff appeals. We affirm.

Summary disposition was granted under MCR 2.116(C)(7) on the basis that plaintiff’s claim was barred by governmental immunity. By statute, governmental agencies are immune from tort liability while engaging in governmental functions unless an exception to such immunity applies. MCL 691.1407; MSA 3.996(107). Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 618; 363 NW2d 641 (1984). The scope of governmental immunity is broad and its exceptions are concomitantly narrow. Chaney v Dep’t of Transportation, 447 Mich 145, 154; 523 NW2d 762 (1994). One exception to governmental immunity is the highway exception, MCL 691.1402(1); MSA 3.996(102)(1), which states, in pertinent part:

The duty of the state and the county road commissions to repair and maintain highways, and the liability therefor, shall extend only to the improved portion of the highway designed for vehicular travel and shall not include sidewalks, crosswalks, or any other installation outside of the improved portion of the highway designed for vehicular travel.

The express language of the highway exception indicates that the duty of highway authorities to repair and maintain the highways “shall extend only to the improved portion of the highway designed for vehicular travel.” The provision then states that such duty “shall not” extend to three types of installations: (1) “sidewalks”; (2) “crosswalks”; and (3) “any other installation outside of the improved portion of the highway designed for vehicular travel.” (Emphasis added.)

This language is confusing for several reasons. First, its structure implies that installations 1, 2, and 3 are exclusions from the highway exception. Yet, it is difficult to fathom how “sidewalks,” unlike “crosswalks,” could be construed as part of the “improved portion of the highway designed for vehicular travel,” even absent their explicit exclusion from the highway exception. Second, the “any other installation” language of the third exclusion to the highway exception follows a specific enumeration of terms that by implication also describe installations “outside of the improved portion of the highway designed for vehicular travel”;¹ “crosswalks,” however, clearly do not fit this description. In other words, it is unclear why “sidewalks” are expressly excluded from the highway exception and it is equally unclear why “crosswalks” are implicitly described as installations “outside of the improved portion of the highway designed for vehicular travel.”

In attempting to reconcile this confusing language, we conclude that the trial court correctly interpreted the scope of the exclusions to the highway exception and that such exclusions, specifically the “any other installation” exclusion, fairly encompass the part of a highway adjacent to a parked car onto which an occupant of the car, especially the driver, might step when getting out of the car.

In Mason v Wayne Co Bd of Comm’rs, 447 Mich 130; 523 NW2d 791 (1994), the Michigan Supreme Court explored the scope of the highway exception to governmental immunity. In Mason, the Supreme Court recognized the existence of governmental immunity in the context of an accident between a pedestrian and a motor vehicle that had occurred on a crosswalk within “the improved portion of the highway designed for vehicular travel.” MCL 691.1402(1); MSA 3.996(102)(1).² The Court observed that the language of the highway exception “definitively excludes from the exception specific installations whose only rational purposes narrowly service the unique needs of pedestrians.” Mason, supra at 136. See also Roy v Dep’t of Transportation, 428 Mich 330, 336; 408 NW2d 783 (1987). As a result, the Mason Court concluded at 137-138:

Pedestrians who trek upon Michigan highways must and do venture beyond the protective mandates of MCL 691.1402(1); MSA 3.996(102)(1).

. . . Pedestrians are situated differently than vehicular traffic ... .

This legislative line drawing is also explicable on the ground that expanding the right to sue past a certain point does not prevent accidents, and amounts to nothing more than an expanded obligation to pay. The Legislature may well have concluded that governmental liability for injuries to pedestrians crossing the street will not enhance vehicular safety.

See also Fortunate v Dep’t of Transportation, 208 Mich App 467, 468; 528 NW2d 743 (1995).³

If “exclusively pedestrian installations,” such as crosswalks, are beyond the scope of the highway exception, Mason, supra at 137, then it is difficult to understand how the exception applies to the part of the highway immediately adjacent to a parked vehicle onto which an occupant of the vehicle might step when getting out of the vehicle. Rather, we believe that part of the highway is included within the scope of the “any other installation” language. The decedent, in our judgment, was in no more favorable a position than the pedestrian in Mason. The decedent was plainly in the position of a “pedestrian” as she got out of her vehicle. The space adjacent to a parked vehicle, although less capable of being permanently marked than a crosswalk, is conceptually identical to the crosswalk as a “pedestrian installation.” Both parts of the highway are designed to accommodate pedestrians who properly traverse both parts of the highway while sharing them with vehicular traffic.

In reconciling the confusing language of MCL 691.1402(1); MSA 3.996(102)(1), and in attempting to determine the scope of the “any other installation” language, we look to the language of Mason— specifically its admonition that “[p]edestiians who trek upon Michigan highways must and do venture beyond the protective mandates of [the highway exception to governmental immunity].” Id at 137. In addition, the Court noted that “[p]edestrians crossing outside crosswalks face the additional hurdle of comparative negligence.” Id. at 136, n 5 (emphasis added). This language strengthens our understanding of Mason as directed broadly toward the proposition that pedestrian accidents on highways generally fall outside the scope of the highway exception.⁴ Both parts of the highway are “outside of the improved portion of the highway” designed exclusively for vehicular travel.⁵

Further, it is hard to imagine that the Legislature would have immunized from liability governmental actions relative to pedestrian installations, such as school crosswalks, upon which pedestrians of all ages routinely walk, including children, Mason, supra at 132, while excepting from this immunity pedestrian installations, such as the space adjacent to parked cars, upon which adult pedestrians principally walk.⁶ Additionally, it is hard to imagine that the Legislature would have accorded greater protection to jaywalking pedestrians on highways, walking outside crosswalks, than is accorded to pedestrians walking within such crosswalks. Yet these consequences would be the result of the construction given by the dissent to the exclusions to the highway exception. Instead, we believe that the rationale set forth in Mason in support of its interpretation of MCL 691.1402(1); MSA 3.996(102)(1) is equally applicable to the “space adjacent to the parked car” part of the “improved portion of the highway” as to the “crosswalk” part. The distinction between these parts of the highway is a distinction without significance based upon the language and reasoning of Mason.

In granting summary disposition to defendant, the trial court properly interpreted MCR 2.116(C)(7) and the Supreme Court’s decision in Mason.

Affirmed.

Hoekstra, J., concurred.

1 The doctrine of ejusdem generis provides that, if a law contains general words following an enumeration of particular subjects, those general words are presumed to include only things of the same kind, class, character, or nature as the subjects enumerated. People v Berry, 198 Mich App 723, 724; 499 NW2d 458 (1993); Attorney General v Blue Cross & Blue Shield of Michigan, 168 Mich App 372, 380-381; 424 NW2d 54 (1988).

2 “[T]he phrase ‘designed for vehicular travel’ [in MCL 691.1402; MSA 3.996(102)] can only be reasonably interpreted to mean ‘intended for vehicular travel.’ ” Mason, supra at 137. (Emphasis in original.)

3 “We believe that the [highway] exception is intended to promote safe highways, but not necessarily safety on the highways.” Id. at 468, citing Scheurman v Dep't of Transportation, 434 Mich 619, 623; 456 NW2d 66 (1990); Reardon v Dep’t of Mental Health, 430 Mich 398, 417; 424 NW2d 248 (1988).

4 See also n 4 of Mason, supra at 135, where the Court states, “It is true that ‘[a]ny person’ may recover [under the highway exception], but only for injuries that result from vehicular accidents." (Emphasis added.)

5 The term “exclusively” is also the subject of focus in Mason, supra at 137, wherein the Court describes MCL 691.1402(1); MSA 3.996(102(1) as removing “exclusively” pedestrian installations from the highway exception. A “crosswalk” is an “exclusively” pedestrian installation if by that term it is meant that pedestrians alone have the need for such installations and, therefore, that they have the right to walk on such installations where they are in existence.

6 We assume that most drivers get out of a parked vehicle on the driver’s side of the vehicle and that most passengers get out of a parked vehicle on the passenger’s side.