Order Michigan Supreme Court
Lansing, Michigan
September 18, 2009 Marilyn Kelly,
Chief Justice
138459 Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
AMANDA LAFNER and AARON HEAGLE, Diane M. Hathaway,
Plaintiffs-Appellants, Justices
v SC: 138459
COA: 282669
Genesee CC: 05-082535-NI;
CITY OF FLINT, 05-082800-NI
Defendant-Appellant.
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On order of the Court, the application for leave to appeal the February 3, 2009
judgment of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the questions presented should be reviewed by this Court.
MARKMAN, J. (concurring).
I concur in this Court’s order denying plaintiffs’ application for leave to appeal. I
write separately only to observe that plaintiffs expressly waived the only argument on
which a basis might have been established for granting this application.
Plaintiffs were involved in an automobile accident on a county highway under the
jurisdiction of defendant city of Flint. Plaintiffs claim that the driver lost control of his
vehicle when he hit a large pothole causing the passenger side tires to go onto the
shoulder of the road. Because the shoulder had an “edge drop-off” anywhere from 2 to 6
inches in height, the driver apparently oversteered to return to the pavement. In the
process, he crossed over the centerline and collided with an oncoming vehicle. Plaintiffs,
who were in the oncoming vehicle, filed this action, alleging that the city is liable under
the highway exception to governmental immunity. The trial court denied defendant’s
motion for summary disposition and the Court of Appeals reversed.
In Grimes v Dep’t of Transportation, 475 Mich 72, 73 (2006), a case involving
MCL 691.1402, this Court held that the “shoulder is not within the [highway] exception
because it is not ‘designed for vehicular travel.’” However, the liability of a municipal
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highway authority may conceivably be expanded by MCL 691.1402a(1), which states in
pertinent part:
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. . . .
Thus, on the one hand, § 1402 grants governmental immunity to highway authorities for
injuries occurring on “sidewalks, trailways, crosswalks, or any other installation outside
of the improved portion of the highway designed for vehicular travel.” On the other
hand, § 1402a(1) may additionally impose liability upon a municipal authority for
injuries occurring on “a sidewalk, trailway, crosswalk, or other installation outside of the
improved portion of the highway designed for vehicular travel,” if the municipal
authority knew or should have known of the defect at least 30 days before the accident
and the defect is the proximate cause of the injury. Although a shoulder is not “designed
for vehicular travel” pursuant to § 1402, it may, at least conceivably, constitute an “other
installation outside of the improved portion of the highway designed for vehicular travel”
pursuant to § 1402a(1).
Although plaintiffs raised the argument that § 1402a(1) imposed additional
liability upon defendant in the lower courts, this argument was expressly waived in the
instant application.
KELLY, C.J., and HATHAWAY, J., would grant leave to appeal.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
September 18, 2009 _________________________________________
l0916 Clerk