Dykstra v. Department of Transportation

208 Mich. App. 390 (1995) 528 N.W.2d 754

DYKSTRA
v.
DEPARTMENT OF TRANSPORTATION
McBRIDE
v.
DEPARTMENT OF TRANSPORATION

Docket Nos. 156448, 156484.

Michigan Court of Appeals.

Submitted November 17, 1994, at Grand Rapids. Decided January 17, 1995, at 10:05 A.M.

Davidson, Breen & Doud, P.C. (by Craig A. Zanot), for William J. Dykstra and Marcelyn B. Dykstra.

Laurence A. Long and Chaklos, Jungerheld & Hahn, P.C. (by Thomas C. Wimsatt), for Darla J. McBride.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Brenda E. Turner and Harold J. Martin, Assistant Attorneys General, for the Department of Transportation.

Before: NEFF, P.J., and MACKENZIE and J.R. CHYLINSKI,^[*] JJ.

MACKENZIE, J.

These appeals concern two negligence actions involving the highway exception to governmental immunity that were consolidated and decided below. In Docket No. 156448, plaintiffs William Dykstra and Marcelyn Dykstra appeal as of right from the trial court order that granted summary disposition to defendant Department of Transportation (MDOT) pursuant to MCR 2.116(C)(8) and (C)(10). In Docket No. 156484, plaintiff Darla McBride appeals as of right, and defendant William Dykstra cross appeals, from the same order. We affirm.

The trial court did not err in granting MDOT's motion for summary disposition pursuant to MCR 2.116(C)(10) with respect to the plaintiffs' negligence claims. MDOT is not liable pursuant to the natural accumulation doctrine, which provides that the state does not have an obligation to remove the natural accumulation of ice and snow from any location. See Hampton v Master Products, Inc, 84 Mich App 767, 770; 270 NW2d 514 (1978). The brine that formed after the road was salted and that later froze is a "natural accumulation" for purposes of the natural accumulation doctrine. Zielinski v Szokola, 167 Mich App 611, 621; 423 NW2d 289 (1988). While plaintiffs are correct that this holding of Zielinski technically is dicta, we find it persuasive and choose to follow it. Plaintiffs' claim that the natural accumulation doctrine is irrelevant in light of the statutory standard of conduct found in the highway exception to governmental immunity, MCL 691.1402; MSA 3.996(102), has been rejected by another panel of this Court. Reese v Wayne Co, 193 Mich App 215, 217; 483 NW2d 671 (1992).

The trial court also was correct in granting MDOT's motion for summary disposition pursuant to MCR 2.116(C)(8) with respect to the Dykstras' nuisance claim. Neither the conduct of MDOT's agent in salting the road nor the icy condition itself is a nuisance per se. Li v Feldt (After Second Remand), 439 Mich 457, 477; 487 NW2d 127 (1992) (opinion of CAVANAGH, C.J.); Hadfield v Oakland Co Drain Comm'r, 430 Mich 139, 152; 422 NW2d 205 (1988) (opinion of BRICKLEY, J.). To the extent that plaintiffs claimed to have alleged a public nuisance, there is no public nuisance exception to governmental immunity. Li, supra, p 474; Summers v Detroit, 206 Mich App 46; 520 NW2d 356 (1994).

Affirmed.

NOTES

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