Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
FILED MAY 31, 2006
MICHAEL GRIMES and TAMARA GRIMES,
Plaintiffs-Appellees,
v No. 127901
MICHIGAN DEPARTMENT OF TRANSPORTATION,
Defendant-Appellant.
_______________________________
BEFORE THE ENTIRE BENCH
YOUNG, J.
We granted leave to appeal to consider whether the shoulder is part of the
“improved portion of the highway designed for vehicular travel” for the purpose of
the highway exception to governmental immunity. We conclude that a shoulder is
not within the exception because it is not “designed for vehicular travel.”
In reaching this conclusion, we overrule the holding in our earlier decision
in Gregg v State Hwy Dep't that a shoulder is “designed for vehicular travel.”1
Gregg subsequently has been relied on by lower courts for the proposition that
1
435 Mich 307; 458 NW2d 619 (1990).
every shoulder is “designed for vehicular travel.” As we will discuss, we find no
support within Gregg, considering its internal inconsistencies, to give it this broad
reading. Moreover, judging from the plain meaning of the statutory language and
the context thereof enacted by the Legislature, we conclude that a shoulder, unlike
a travel lane, is not the improved portion of a highway designed for vehicular
travel. Accordingly, the order of the Court of Claims denying summary
disposition on the basis of Gregg is reversed, the judgment of the Court of
Appeals affirming that order is reversed, and this case is remanded to the Court of
Claims for further proceedings consistent with this opinion.
I. Facts and Procedural History
On the morning of March 24, 2000, Alan Thisse traveled north on I-75 in
the far left lane of the three-lane highway. Thisse testified in his deposition that as
he passed an entrance ramp he ran over a mound of dirt that forced his vehicle
onto the left shoulder of the highway. The left shoulder consisted of a three-foot-
wide strip of asphalt with an adjoining two-foot-wide gravel strip. The asphalt
portion of the shoulder shared the same grade as the travel lanes. The gravel
portion, however, was lower.2 Thisse’s two left tires dropped onto the gravel
surface. As Thisse left the highway travel lane, plaintiff Michael Grimes had just
entered onto northbound I-75. It is alleged that when Thisse recovered and
reentered the highway, the grade differential between the gravel and the asphalt
2
The parties dispute the severity of the grade differential.
2
surfaces caused Thisse to lose control of his vehicle, veer into the far right lane,
and crash into Grimes’s vehicle. As a result of the accident, plaintiff Michael
Grimes suffered permanent quadriplegia.
Plaintiffs Michael Grimes and his wife Tamara filed actions against Alan
and Douglas Thisse and defendant Michigan Department of Transportation
(MDOT).3 Plaintiffs brought negligence and nuisance claims against MDOT,
claiming that MDOT negligently maintained the gravel portion of the shoulder
where Thisse left the roadway. They argued that MDOT designed the shoulder
intending that the gravel portion would gradually slope away from the asphalt
portion. However, plaintiffs allege that MDOT failed to maintain that gradual
slope, resulting in the drop-off that proximately caused plaintiffs’ injuries.
MDOT moved for summary disposition pursuant to MCR 2.116(C)(7),
asserting governmental immunity as a defense. It argued that the shoulder fell
outside the scope of the highway exception because it was not an improved
portion of the highway designed for vehicular travel. Relying on Gregg, the Court
of Claims denied MDOT’s motion for summary disposition.4
3
Plaintiff Tamara Grimes sued derivatively for loss of consortium.
Plaintiffs’ claims against Alan Thisse, the driver, and Douglas Thisse, the owner
of the vehicle, are not part of this appeal.
4
The parties stipulated in the order of denial to dismiss all other allegations
and agreed that plaintiffs could “only proceed on their claim regarding an alleged
defective shoulder as it relates to the failure of MDOT to repair and maintain the
shoulder.”
3
The Court of Appeals affirmed the judgment of the Court of Claims.5 In a
short unpublished per curiam decision, the panel relied on Gregg as well as
subsequent Court of Appeals cases following Gregg in holding that a shoulder is
part of the improved portion of the highway designed for vehicular travel.6 The
panel also held that this Court’s subsequent decision in Nawrocki v Macomb Co
Rd Comm7 had not affected the jurisprudential validity of Gregg.
MDOT filed an application for leave to appeal, which this Court granted.8
II. Standard Of Review
This Court reviews motions for summary disposition under MCR
2.116(C)(7) de novo.9 Questions of statutory interpretation are also reviewed de
novo.10 When this Court interprets statutory language, our primary goal is to
discern the intent of the Legislature as expressed in the text of the statute.11 Where
5
Unpublished opinion per curiam, issued December 16, 2004 (Docket No.
249558).
6
Meek v Dep’t of Transportation, 240 Mich App 105, 114; 610 NW2d 250
(2000); Soule v Macomb Co Bd of Rd Comm’rs, 196 Mich App 235, 237; 492
NW2d 783 (1992).
7
463 Mich 143; 615 NW2d 702 (2000).
8
474 Mich 877 (2005).
9
Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999).
10
Mitan v Campbell, 474 Mich 21, 23; 706 NW2d 420 (2005).
11
Dibenedetto v West Shore Hosp, 461 Mich 394, 402; 605 NW2d 300
(2000).
4
the language is clear and unambiguous, our inquiry ends and we apply the statute
as written.12
III. Analysis
a. Governmental Immunity and the Highway Exception
The governmental tort liability act (GTLA)13 broadly shields a
governmental agency14 from tort liability “if the governmental agency is engaged
in the exercise or discharge of a governmental function.”15 The act enumerates
several exceptions to governmental immunity that permit a plaintiff to pursue a
claim against a governmental agency.16 This case concerns what is known
colloquially as the “highway exception.” That provision states, in pertinent part:
[E]ach 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
12
Huggett v Dep’t of Natural Resources, 464 Mich 711, 717; 629 NW2d
915 (2001).
13
MCL 691.1401 et seq.
14
A governmental agency is “the state or a political subdivision.” MCL
691.1401(d). The state, in turn, includes “the state of Michigan and its agencies,
departments [and] commissions . . . .” MCL 691.1401(c). Defendant, as a
department of the state, is protected by the provisions of this act.
15
MCL 691.1407(1).
16
The Legislature codified the following exceptions: the highway
exception, MCL 691.1402; the motor vehicle exception, MCL 691.1405; the
public building exception, MCL 691.1406; the proprietary function exception,
MCL 691.1413; the governmental hospital exception, MCL 691.1407(4); and the
sewage disposal system exception, MCL 691.1417.
5
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.
[17]
The GTLA provides its own definition of “highway,” which is “a public
highway, road, or street that is open for public travel and includes bridges,
sidewalks, trailways, crosswalks, and culverts on the highway.”18 This definition
of a highway excludes “alleys, trees, and utility poles.”19 Beyond defining the
term “highway,” the GTLA does not define these additional terms. It also does
not define “shoulder” or include shoulder among the list of features such as
bridges and sidewalks that are deemed to be part of a highway.
The scope of the highway exception is narrowly drawn. Under its plain
language, every governmental agency with jurisdiction over a highway owes a
duty to “maintain the highway in reasonable repair so that it is reasonably safe and
convenient for public travel.” However, when the governmental agency is the
state or a county road commission, as is the case here, the Legislature constricted
17
MCL 691.1402(1) (emphasis added).
18
MCL 691.1401(e).
19
Id.
6
the scope of the highway exception by limiting the portion of the highway covered
by that exception. For these agencies, the highway exception does not extend to
an installation “outside” the improved portion of the highway such as a sidewalk,
trailway, or crosswalk, although these features are included in the general
definition of a “highway.” The duty of these agencies to repair and maintain does
not extend to every “improved portion of highway.” It attaches only “to the
improved portion of the highway” that is also “designed for vehicular travel.” As
we discuss later in this opinion, such narrowing of the duty supplies important
textual clues regarding the Legislature’s intent concerning whether a shoulder falls
within or without the protection afforded by the GTLA.
Although the specific issues considered in Nawrocki v Macomb Co Rd
Comm,20 are not before us today, that case is particularly instructive in this case.21
In Nawrocki, this Court reconciled several of our previous inconsistent highway
exception cases, and clarified the scope of the governmental agency’s duty under
the highway exception. We held in Nawrocki that “if the condition is not located
in the actual roadbed designed for vehicular travel, the narrowly drawn highway
20
463 Mich 143; 615 NW2d 702 (2000).
21
In Nawrocki, this Court decided two issues. First, the highway exception
protects pedestrians who are injured by the defendant state or county road
commission’s failure to repair and maintain the improved portion of the highway
designed for vehicular travel. Id. at 184. Second, the highway exception does not
permit “signage” claims. That is, the state and country road commissions owed no
duty to install, maintain, repair, and improve traffic control devices. Id.
7
exception is inapplicable . . . .”22 Put differently, the highway exception creates a
duty to maintain only the “‘traveled portion, paved or unpaved, of the roadbed
actually designed for public vehicular travel.’”23 Our focus, then, consistent with
Nawrocki, is determining whether a shoulder is actually designed for public
vehicular travel.
b. Gregg v State Hwy Dep’t
Plaintiffs urge this Court to affirm the judgments of the lower courts on the
basis of our decision in Gregg v State Hwy Dep’t,24 which we decided before
Nawrocki. In Gregg, this Court considered whether the highway exception was
available to a bicyclist injured by a defect in “a designated bicycle path on the
inner portion of the paved shoulder of a state highway.”25 The plaintiff suffered
extensive injuries when he struck a pothole on the bicycle path and overturned his
22
Id. at 162.
23
Id. at 180 (citation omitted).
24
435 Mich 307; 458 NW2d 619 (1990).
25
Id. at 309. The defendant in Gregg raised a second argument that
bicyclists could not bring suit under the highway exception. We rejected that
claim by resorting to the plain language of the highway exception, which permits
“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” to recover
damages for injuries suffered in the improved portion of the roadway designed for
vehicular travel. MCL 691.1402(1). This separate holding in Gregg is consistent
with our decision in Nawrocki that a pedestrian may sue for an injury occurring in
the improved portion of the highway designed for vehicular travel. See Nawrocki,
supra at 184.
8
bicycle. For purposes of deciding whether the trial court had properly granted the
defendant’s motion for summary disposition, this Court relied on a photograph of
the accident scene, which pictured a bicycle path situated between the “traveled
portion of the highway and its paved shoulder.”26 The majority in Gregg reversed
the judgment granting summary disposition that had been entered in favor of the
defendant, concluding that the shoulder was designed for vehicular travel.
Gregg’s first task was to distinguish the bicycle path in that case from the
bicycle path at issue in Roy v Dep’t of Transportation.27 Roy also involved an
injury sustained on a bicycle path, and we concluded there that the plaintiff’s
claim was barred by governmental immunity. In distinguishing the two cases, the
Gregg majority placed a great deal of reliance on where the bicycle path in that
case was located in relationship to the roadbed.28 Whereas the bicycle path in
Gregg “comprised part of the inner portion of the shoulder,” the bicycle path in
Roy ran “parallel to” and was “detached from” the highway. As a result, Gregg
26
Gregg, supra at 310.
27
428 Mich 330; 408 NW2d 783 (1987).
28
The Gregg majority also made a superficial attempt to square its holding
with an earlier decision from this Court, Goodrich v Kalamazoo Co, 304 Mich
442; 8 NW2d 130 (1943). Goodrich had held that a shoulder next to the roadway
that was a three-foot-wide dirt and gravel shoulder with a tree planted
“approximately 30 inches” from the pavement was not part of the traveled portion
of the road. The Gregg majority recognized but made little effort to differentiate
Goodrich, acknowledging that it “would probably conclude” that such a shoulder
was not an “improved portion” of a highway if the factual situation in Goodrich
had been before the Gregg Court. Gregg, supra at 313.
9
expressly rested its holding “on the assumption that the bicycle path at issue
comprised part of the inner portion of the shoulder closest to the roadway,”29 later
conceding that it would have been a closer question “if the bike path had been on
the outer fringes of the shoulder . . . .”30
After distinguishing Roy, the Gregg majority offered several reasons to
support its conclusion that the shoulder encompassing the bicycle path fell within
the highway exception. It noted the uninterrupted line of cases from the Court of
Appeals beginning in 1971 holding that a shoulder was designed for vehicular
travel.31 Because the Legislature did not overrule that line of cases when it
amended the GTLA over the years, this served as proof to the Gregg majority that
the Legislature approved of this line of cases construing the highway exception.
The Gregg majority also held that it “flies in the face of common
experience” to say that a shoulder is not designed for vehicular travel. It opined:
Any motorist who has ever experienced a highway
emergency understands that shoulders are essential to a safe modern
highway. To get on or off a shoulder to stop, park, or leave standing
a vehicle, motorists must travel on the shoulder.
29
Id. at 310.
30
Id. at 317 n 5.
31
See, e.g., Johnson v Michigan, 32 Mich App 37, 39; 188 NW2d 33
(1971); Van Liere v State Hwy Dep’t, 59 Mich App 133, 136; 229 NW2d 369
(1975); Hall v Dep’t of State Hwys, 109 Mich App 592, 602 n 4; 311 NW2d 813
(1981); McKee v Dep’t of Transportation, 132 Mich App 714, 721; 349 NW2d
798 (1984); Roux v Dep’t of Transportation, 169 Mich App 582, 586; 426 NW2d
714 (1988).
10
At the high speeds of modern vehicles, such an endeavor
often results in significant travel, “in the ordinary sense,” on the
shoulder of a highway. Indeed, it seems quite extraordinary, if not
fictional, to assume that vehicles do not travel on shoulders or that
shoulders are not designed for vehicular travel, albeit of a temporary
sort.[32]
In further support of its holding, the Gregg majority cited what it believed
to be apposite definitions from the Michigan Vehicle Code (MVC).33 It noted that
the MVC defines “highway” more broadly than “roadway.” Whereas in the MVC
a highway encompasses “the entire width between the boundary lines,”34 a
roadway is only that portion of the highway “improved, designed, or ordinarily
used for vehicular travel.”35 According to the Gregg majority, the Legislature’s
use of the broader term “highway” in the highway exception of the GTLA evinced
its intent to sweep the shoulder into that exception. Otherwise, it reasoned, the
Legislature would have used the more narrowly defined term “roadway” to cabin
the scope of the highway exception.
Justice Griffin dissented from the Gregg majority opinion, arguing, among
other things, that the plain language of the highway exception excluded the
32
Gregg, supra at 315.
33
MCL 257.1 et seq.
34
MCL 257.20.
35
MCL 257.55.
11
shoulder.36 He emphasized that the highway exception extends only to a portion
37
of the highway, that is, the portion “designed for vehicular travel.”
c. Gregg was Wrongly Decided and Poorly Reasoned
Although the Court of Claims and the Court of Appeals relied on Gregg to
deny defendant summary disposition, we overrule Gregg’s conclusion that a
shoulder is “designed for vehicular travel.” That conclusion rested heavily on the
fact that the inner portion of the shoulder included a designated bicycle path. The
Gregg majority expressed doubt that it would have reached the same conclusion
had the designated bicycle path been located further from the edge of the travel
lane of the highway.38 This unusual factual premise—an integrated, dedicated
bicycle path—from the standpoint of statutory construction is irrelevant. We
36
Chief Justice Riley wrote a separate dissent concurring in Justice
Griffin’s analysis.
37
Justice Griffin also discussed at length the importance of the MVC
definitions and their applicability to the GTLA. While we agree with much of
Justice Griffin’s dissent, we do not rely on the MVC to reach our decision. See
the discussion later in this opinion.
38
See n 28 of this opinion and the accompanying text. In this case, the
shoulder was immediately adjacent to I-75, a well-traveled interstate highway, and
contained no designated bicycle path.
We see no principled basis for the distinction Gregg drew between a
bicycle path located near to or farther from the travel lanes of a highway. A
bicycle path included anywhere within the shoulder of a road would not otherwise
be an “installation outside the improved portion of the highway” if, as Gregg
arguably concluded, a shoulder itself constitutes an improved portion of the
highway designed for vehicular travel.
12
believe Gregg is consequently so internally inconsistent that it does not yield a
meaningful rule applicable to all shoulders on Michigan’s highways. Frankly,
upon close inspection, Gregg is an enigma. Its core assumption is that the location
of the integrated bicycle path determined the outcome of that case. We cannot
ascertain why the location of the integrated bicycle path—whether it was located
on the inner portion or the outer fringe of the shoulder—bore so heavily or at all
on the question whether the shoulder was designed for vehicular travel.39
Furthermore, the Gregg majority’s analysis, as we will show, is not based on the
text of the GTLA and is seriously flawed. Therefore, we overrule Gregg and its
progeny to the extent that they can be read to suggest that a shoulder is “designed
for vehicular travel.”
d. Gregg’s Reasoning is Erroneous
In our view, there are several fatal flaws in the analysis offered by Gregg.
It failed to pay serious attention to the plain meaning of the text of the highway
exception and it made other unpersuasive arguments.
First, the Gregg majority inappropriately relied on the doctrine of
legislative acquiescence for the proposition that prior Court of Appeals decisions
that had broadly construed the highway exception to encompass all shoulders were
consistent with the Legislature’s intent. This doctrine of legislative acquiescence
is founded on the notion that decisions that have not been legislatively overturned
39
See n 38 of this opinion.
13
are tacitly approved by the Legislature. The doctrine is “highly disfavored” in this
Court’s jurisprudence, which prescribes that courts are to discern the Legislature’s
intent “‘from its words, not from its silence.’”40 That the Legislature did not
amend the existing language of the highway exception in response to earlier Court
of Appeals cases does not suggest that the Legislature believed those cases were
rightly decided.
Moreover, unlike the Gregg majority, we decline to rely on the Court’s
conception of motorists’ “common experience” with road shoulders as a proper
canon of statutory construction. Were this Court competent to make such a
normative judgment about motorists’ common experience, it would be particularly
inappropriate to apply that judgment here where it departs from the plain statutory
language used by the Legislature. This subtle appeal to common experience
arguably substituted the Gregg majority’s policy preference for the policy
preference of the Legislature. In analyzing the highway exception, we must be
governed by the statutory language.41
Unlike the Gregg Court, we also decline to consult the definitions
contained in the MVC to inform our construction regarding the scope of the
highway exception. Closer inspection of the MVC reveals why Gregg’s reliance
40
Nawrocki, supra at 177 n 33, quoting Donajkowski v Alpena Power Co,
460 Mich 243, 261; 596 NW2d 574 (1999) (emphasis omitted).
41
We expect jurors to apply their “common experience” in assessing facts.
Judges should apply law in interpreting statutes.
14
on an unrelated statute to construe another is a perilous endeavor to be avoided by
our courts. The GTLA expressly incorporates only one definition from the MVC.
Section 5, also known as the motor vehicle exception, refers the reader to the
definition of “owner” in the MVC.42 The absence of any other reference to the
MVC in the GTLA, coupled with the explicit incorporation of “owner” in the
motor vehicle exception indicates that the Legislature intended to limit the
applicability of the MVC in the GTLA.43
Even more troubling than the Gregg majority’s frank violation of the rules
of statutory construction was the fact that it used provisions of the MVC in a
highly selective manner. One of the “crucial” questions before the Gregg Court
was “whether the paved shoulder is ‘designed for vehicular travel.’”44 Gregg
preferentially selected and relied on only some of the MVC defined terms to
answer that question. The Gregg majority cited the MVC definitions of
“roadway” and “highway” to support its conclusion that a shoulder was part of the
42
MCL 691.1405; see also Stanton v Battle Creek, 466 Mich 611; 647
NW2d 508 (2002).
43
See Farrington v Total Petroleum, Inc, 442 Mich 201, 210; 501 NW2d
76 (1993) (“Courts cannot assume that the Legislature inadvertently omitted from
one statute the language that it placed in another statute, and then, on the basis of
that assumption, apply what is not there.”); Detroit v Redford Twp, 253 Mich 453,
456; 235 NW 217 (1931) (“Courts cannot attach provisions not found therein to an
act of the legislature because they have been incorporated in other similar acts.”),
citing Michigan v Sparrow, 89 Mich 263, 269; 50 NW 1088 (1891).
44
Gregg, supra at 313.
15
improved portion of the highway designed for vehicular travel, but curiously failed
to rely on the most relevant term defined in the MVC— “shoulder.” One can only
speculate why the Gregg majority brushed aside this term, which the MVC
actually defines as “that portion of the highway contiguous to the roadway
generally extending the contour of the roadway, not designed for vehicular travel
but maintained for the temporary accommodation of disabled or stopped vehicles
otherwise permitted on the roadway.”45
Justice Griffin’s dissent reminded the majority of this fact, to which the
majority unconvincingly responded that what it termed “another section” of the
MVC stated, “‘“Shoulder” means that portion of a highway or street on either side
of the roadway which is normally snowplowed for the safety and convenience of
vehicular traffic.’”46 It is not clear why the Gregg majority believed this
provision negated the MVC’s specific definition of “shoulder,” particularly
because this provision does not support the conclusion that a shoulder is designed
for vehicular travel, whereas the MVC’s definition of a shoulder specifically states
that a shoulder is not so designed. Had the Gregg majority relied on the most
relevant definition, the one found in the MVC, it could not have reached the result
45
MCL 257.59a (emphasis added).
46
Gregg, supra at 315, quoting former MCL 257.1501(k) (emphasis in
Gregg). In actuality, the quoted section was part of the former Michigan
Snowmobile Act, not the MVC. The former provision is now found at MCL
324.82101(p).
16
it did.47 Once the Gregg majority inappropriately committed itself to using the
language of the MVC rather than construing the actual words of the highway
exception, the MVC should have pressed the Court to reach the opposite
conclusion.
More important, the GTLA provides its own definition of “highway.”48
There is no apparent ambiguity in the GTLA’s definition of “highway” that would
warrant resort to another statute’s definition of the same term. Hence, the Gregg
majority’s use of the MVC definition was inconsistent with our canons of statutory
construction.
In sum, the Gregg majority’s conclusion that a shoulder is designed for
vehicular travel and the reasons supporting that conclusion are entirely
unpersuasive and must be abandoned.49
47
If the Gregg majority had examined faithfully the entire MVC, it would
have found additional support to conclude that a shoulder is not designed for
vehicular travel. The MVC requires a person to drive within the travel lanes or
risk a civil infraction. For example, the driver of a vehicle may not “overtake and
pass another vehicle upon the right by driving off the pavement or main-traveled
portion of the roadway.” MCL 257.637(2). Thus the organic traffic laws of this
state, as provided in the MVC, limit vehicular travel to the travel lanes.
48
MCL 691.1401(e).
49
Although this Court respects and gives considerable weight to the
doctrine of stare decisis, we are “not constrained to follow precedent when
governing decisions are unworkable or are badly reasoned.” Robinson v Detroit,
462 Mich 439, 464; 613 NW2d 307 (2000). For the reasons stated earlier in this
opinion, we believe Gregg was a badly reasoned decision. However, we must
move beyond those considerations under a stare decisis analysis and examine the
effects of overruling Gregg. Id. at 466.
(continued . . .)
17
e. A Shoulder is not “Designed for Vehicular Travel”
Turning from Gregg to the text of the highway exception itself, we hold
that the shoulder is not “designed for vehicular travel.” Plaintiffs’ theory, boiled
down to its core, is that a shoulder is meant to be a travel lane. Guided by the
statutory language chosen by the Legislature, we reject plaintiffs’ contention. A
shoulder may be capable of supporting some form of vehicular traffic, but it is not
a travel lane and it is not “designed for vehicular travel.”
The GTLA does not expressly define “shoulder” or the phrase “designed
for vehicular travel.” Nor does the highway exception explicitly indicate whether
a shoulder is “designed for vehicular travel.” Consequently, to aid our inquiry, we
must consider the plain and ordinary meaning of the phrase “the improved portion
(. . . continued)
One of the most significant considerations is “the effect on reliance
interests and whether overruling would work an undue hardship because of that
reliance.” Id. We find no reliance interests at work that support the continuation
of Gregg’s erroneous interpretation of the highway exception. Motorists traverse
shoulders because of the exigencies of highway travel. They do not traverse
shoulders because our case law might permit them to recover against the
governmental agency in the event of an accident. Indeed, to do so would be a
violation of the MVC. MCL 257.637. Gregg is not the sort of case that fosters a
reliance interest or shapes future individual conduct. Therefore, we do not believe
we work an undue hardship in overruling Gregg. Further, by correcting Gregg’s
erroneous construction of the highway exception, we restore “legitimate citizen
expectations” that the Court will not arrogate to itself the legislative power to
make public policy. Robinson, supra at 467.
18
of the highway designed for vehicular travel” and the context in which the
Legislature employed this phrase.50
MDOT does not contest that road shoulders are “designed” with the
intention that they be used by vehicles. It contests that shoulders are designed as
travel lanes. This is a distinction that turns on the meaning of “travel.” Taken in
its broadest and most literal sense, “travel” in the highway exception could include
the shortest incremental movement by a vehicle on an improved surface.51
Therefore, in an emergency, when a motorist momentarily swerves onto the
shoulder, the motorist can be said to have traveled on the shoulder. Were this
broadly inclusive definition of “travel” appropriate, we might be persuaded by
plaintiffs’ argument that a shoulder is designed for vehicular travel. However, we
reject this broad definition proposed by plaintiffs.
Adopting a broad definition of “travel” would read any meaning out of the
phrase “designed for vehicular travel.” When interpreting statutes, we “must give
effect to every word, phrase, and clause in a statute and avoid an interpretation that
would render any part of the statute surplusage or nugatory.”52 The Legislature
50
MCL 8.3a; Horace v City of Pontiac, 456 Mich 744, 755-756; 575
NW2d 762 (1998).
51
See Random House Webster’s College Dictionary (1995), defining
“travel” as “to go from one place to another . . . .”
52
State Farm Fire & Cas Co v Old Republic Ins Co, 466 Mich 142, 146;
644 NW2d 715 (2002).
19
modified the phrase “the improved portion of the highway” with the phrase
“designed for vehicular travel.” It did not intend to extend the highway exception
indiscriminately to every “improved portion of the highway.” Otherwise, it would
not have qualified the phrase. Rather, it limited the exception to the segment of
the “improved portion of highway” that is “designed for vehicular travel.”
Because the Legislature created this distinction, it believed there are improved
portions of highway that are not designed for vehicular travel. Hence, this Court
ought to respect this distinction as we parse the statutory language.
Plaintiffs in effect urge this Court to adopt the expansive definition of
“travel.” If “travel” is broadly construed to include traversing even the smallest
distance, then it must follow that every area surrounding the highway that has been
improved for highway purposes is “designed for vehicular travel” since such
improved portions could support even momentary vehicular “travel.”53 Under
53
The only conceivable limitation of the highway exception under this
expansive view is that the duty does not extend to an “installation outside of the
improved portion of the highway designed for vehicular travel.” MCL
691.1402(1) (emphasis added). However, it is not clear, if every improved portion
of highway is designed for vehicular travel, where the improved portion of the
highway designed for vehicular travel ceases.
For example, on the motion for summary disposition, the parties submitted
photos that depict the area of I-75 around the accident scene. Clearly, much of
this area is an “improved portion of the highway.” That is, most of the area
surrounding the actual roadbed bears the mark of human improvement for
highway purposes. For example, separating the northbound and southbound lanes
of I-75 is an intentionally sloped grassy median shaped in that fashion for any
number of highway-related purposes. Plaintiffs’ theory would require that we
conclude that this entire swath of land, which looks dramatically different from the
(continued . . .)
20
plaintiffs’ interpretation, then, every “improved portion of the highway” is also
“designed for vehicular travel.” This interpretation renders these phrases
redundant and contravenes a settled rule of statutory interpretation. It also
conflates two disparate concepts: design and contemplated use. That vehicular
traffic might use an improved portion of the highway does not mean that that
portion was “designed for vehicular travel.” Therefore, in an effort to give
meaning to every word of the highway exception and to honor the Legislature’s
expressed intent, we reject plaintiffs’ construction of the highway exception.
We believe that, taken as a whole, the language of the highway exception
supports the view that a shoulder, unlike a travel lane, is not designed for vehicular
travel. Consequently, we adopt a view of “travel” that excludes the shoulder from
the scope of the highway exception. Thus, we hold that only the travel lanes of a
highway are subject to the duty of repair and maintenance specified in MCL
691.1402(1).54
(. . . continued)
wood and shrubbery lines on either side of I-75, was an improved portion of
highway designed for vehicular travel.
54
In construing the GTLA, this Court has often relied on the principle set
forth in Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 618; 363
NW2d 641 (1984), that exceptions to governmental immunity are construed
narrowly and the grant of immunity is construed broadly. It is unnecessary to rely
on this Ross principle to decide this case. We reject plaintiffs’ argument that the
shoulder is designed for vehicular travel, and we overrule Gregg in order to
construe the statutory language reasonably and give effect to every word and
phrase in the highway exception.
21
Also, our decision is consistent with Nawrocki. We had no opportunity in
Nawrocki to consider the validity of Gregg as it relates to the question presented in
this case. However, our determination that the shoulder is not designed for
vehicular travel reinforces Nawrocki’s reading of the highway exception that it
encompassed only the “‘traveled portion, paved or unpaved, of the roadbed
actually designed for public vehicular travel.’”55
IV. Response to the Dissent
Although the dissent would reaffirm Gregg, it fails to rebut the peculiarities
and flaws in Gregg’s reasoning highlighted above and rests heavily on the doctrine
of legislative acquiescence, which this Court has clearly discredited and rejected.56
Furthermore, the dissent offers no serious rebuttal to our construction of the
highway exception. We do not harbor, as the dissent accuses, a “subjective fear”
that Gregg exposes the governmental agency to “unlimited liability.”57 Rather,
this Court simply seeks to give effect to each word and phrase employed by the
Legislature. A shoulder may be capable of supporting vehicular traffic, but this
fact does not answer the legal question whether the Legislature intended to
designate shoulders as an “improved portion of the highway designed for
vehicular travel” and thereby expose a governmental agency to tort liability for
55
Nawrocki, supra at 180 (citation omitted).
56
See Donajkowski v Alpena Power Co, 460 Mich 243, 258-262; 596
NW2d 574 (1999).
57
Post at 8.
22
defects in a shoulder. If plaintiffs’ definition of “travel” were to prevail, then a
key phrase in the highway exception is rendered surplusage. This is inconsistent
with our settled rules of statutory construction.
V. Conclusion
We overrule Gregg because it was internally inconsistent and it appealed to
inappropriate methods of statutory construction. Consistent with the language of
the highway exception, we conclude that the shoulder is not designed for vehicular
travel. As this Court previously held in Nawrocki, the focus of the highway
exception is the actual physical roadbed. Moreover, by concluding that the
shoulder is not “designed for vehicular travel,” we fulfill our obligation to give
effect to every word of the highway exception.
Accordingly, we reverse the order of the Court of Claims and the judgment
of the Court of Appeals and remand this case to the Court of Claims for further
proceedings consistent with this opinion.
Robert P. Young, Jr.
Clifford W. Taylor
Elizabeth A. Weaver
Maura D. Corrigan
Stephen J. Markman
23
STATE OF MICHIGAN
SUPREME COURT
MICHAEL GRIMES and TAMARA
GRIMES,
Plaintiffs-Appellees,
V No. 127901
MICHIGAN DEPARTMENT OF
TRANSPORTATION,
Defendant-Appellant.
KELLY, J. (dissenting).
The issue presented is whether the shoulder of the road is part of the
“improved portion of the highway designed for vehicular travel” for purposes of
the highway exception to governmental immunity. MCL 691.1402(1). Unlike
the majority, I would reaffirm this Court’s holding in Gregg v State Hwy Dep’t,1
and hold that a shoulder is “designed for vehicular travel.” Therefore, I would
affirm the decision of the Court of Appeals.
STANDARD OF REVIEW
The trial court denied defendant’s motion for summary disposition. We
review such rulings de novo. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d
817 (1999).
1
435 Mich 307; 458 NW2d 619 (1990).
In making our de novo review, we are called on to determine an issue
involving statutory construction. Such matters are questions of law that also are
reviewed de novo. Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 62; 642 NW2d
663 (2002). Our primary goal in construing the meaning of statutes is to
determine the intent of the Legislature. Everyone on the Court is in accord that, if
a statute’s language is clear and unambiguous, it must be enforced as written.
People v Laney, 470 Mich 267, 271; 680 NW2d 888 (2004). Also, it is generally
agreed that the Legislature is presumed to have intended the meaning expressed in
the words it wrote. Roberts, supra at 63. All words and phrases are “construed
and understood according to the common and approved usage of the language . . .
.” MCL 8.3a.
ANALYSIS
The immunity of government from suit is made possible by the
governmental tort liability act (GTLA), MCL 691.1401 et seq. It sets forth the
basic tenets of governmental immunity: “Except as otherwise provided in this act,
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). There are a few exceptions. One is contained in MCL 691.1402(1),
which is commonly referred to as the “highway exception.” It provides, in
relevant part:
[E]ach 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
2
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. [Emphasis
added.]
“Highway” is defined by the GTLA as “a public highway, road, or street
that is open for public travel and includes bridges, sidewalks, trailways,
crosswalks, and culverts on the highway.” MCL 691.1401(e). “Shoulder” is not
defined in the GTLA.
I believe that this Court’s decision in Gregg correctly interpreted these
statutory provisions. It recognized that, for purposes of the highway exception to
governmental immunity, a shoulder is part of the highway “designed for vehicular
travel.” Gregg, supra at 317. The Gregg Court reached its decision for three
reasons.
First, the Court noted that, beginning in 1971, the Court of Appeals has
consistently held that the shoulder of a highway is designed for vehicular travel.
Id. at 314.2 In making this ruling, the Court applied the concept of legislative
2
See, e.g., Johnson v Michigan, 32 Mich App 37, 39; 188 NW2d 33
(1971); Van Liere v State Hwy Dep’t, 59 Mich App 133, 136; 229 NW2d 369
(1975); Hall v Dep’t of State Hwys, 109 Mich App 592, 602 n 4; 311 NW2d 813
(1981); McKee v Dep’t of Transportation, 132 Mich App 714, 721; 349 NW2d
(continued . . .)
3
acquiescence. Since the Legislature chose not to amend the GTLA in the face of
numerous holdings of the Court of Appeals, it acquiesced in the Court of Appeals
interpretation of the law. Id.
Second, the Court held that it would fly in the face of “common
experience” to hold that a highway shoulder is not designed for vehicular travel.
Id. at 315. The Court reasoned that all motorists understand that, because a
shoulder is an essential safety feature of a highway, it is part of the highway.
Specifically, the Court stated that
[t]o get on or off a shoulder to stop, park, or leave standing a vehicle,
motorists must travel on the shoulder.
At the high speeds of modern vehicles, such an endeavor
often results in significant travel, “in the ordinary sense,” on the
shoulder of a highway. Indeed, it seems quite extraordinary, if not
fictional, to assume that vehicles do not travel on shoulders or that
shoulders are not designed for vehicular travel, albeit of a temporary
sort. [Id.]
Third, the Court considered relevant definitions found in the Michigan
Vehicle Code (MVC). MCL 257.1 et seq. Id. Specifically, it considered the MVC
definitions of “highway” and “roadway.” It noted that the MVC definition of
“highway”3 is broader than the definition of “roadway.”4 It then concluded that
(. . . continued)
798 (1984); Roux v Dep’t of Transportation, 169 Mich App 582, 586; 426 NW2d
714 (1988).
3
MCL 257.20 defines “highway” to include “the entire width between the
boundary lines.”
4
MCL 257.55 defines “roadway” to include only the portion of a highway
“improved, designed, or ordinarily used for vehicular travel.”
4
the Legislature’s use of the word “highway” rather than “roadway” in the highway
exception statute showed that it intended that shoulders be considered as designed
for vehicular travel. Id. at 315-316.
The majority concludes that the rationale presented in Gregg is
unpersuasive. It states that Gregg should be overruled because, under the
majority’s “strict construction” approach, a shoulder is not “designed for vehicular
travel.”
MCL 8.3a and numerous recent decisions from this Court emphasize that
we should give words their ordinary meanings in construing statutes.5 In fact, this
Court often refers to dictionary definitions to interpret the meanings of words. A
dictionary is a codification of the “common experience” meanings of words. I
believe that the Gregg Court properly emphasized the mandate of MCL 8.3a when
it held that “it seems quite extraordinary, if not fictional, to assume that vehicles
do not travel on shoulders or that shoulders are not designed for vehicular travel,
albeit of a temporary sort.” Gregg, supra at 315.
Moreover, Gregg’s holding is consistent with dictionary definitions for
“design” and “travel.” Random House Webster’s College Dictionary (1995)
5
See, e.g., People v Monaco, 474 Mich 48; 710 NW2d 46 (2006); Griffith v
State Farm Mut Automobile Ins Co, 472 Mich 521, 526; 697 NW2d 895 (2005);
Halloran v Bhan, 470 Mich 572, 578; 683 NW2d 129 (2004); Gilbert v
DaimlerChrysler Corp, 470 Mich 749, 763; 685 NW2d 391 (2004); Koontz v
Ameritech Services, Inc, 466 Mich 304, 312; 645 NW2d 34 (2002).
5
defines “design” as “to intend for a definite purpose[.]” It defines “travel” as “to
move or pass from one place or point to another.”
Defense counsel’s admission at oral argument comported with the Gregg
Court’s “common experience” reasoning. Counsel conceded that shoulders are
designed for vehicular travel “of a sort.” Emergency vehicles travel on the
shoulder, and the Michigan Department of Transportation (MDOT) typically
diverts vehicular traffic onto shoulders during construction. Given these facts,
defense counsel admitted that shoulders are designed for travel “of a sort.”6
Certainly, MDOT would not permit motorists to drive their vehicles from
one place to another on a portion of the highway that is not designed for vehicular
travel. These facts, together with traditional notions of statutory construction,
strongly support Gregg’s reasoning. The majority’s conclusion that the “common
experience” approach is inconsistent with the statutory language is flawed in light
of this Court’s current practices and MCL 8.3a.
The majority also takes issue with Gregg’s use of legislative acquiescence.
This issue has arisen numerous times in the last several years. I continue to
believe that we should consider legislative acquiescence when construing statutes.
See Donajkowski v Alpena Power Co, 460 Mich 243, 270-273; 596 NW2d 574
(1999) (Kelly, J., dissenting). Since 1971, when appellate cases began defining
“designed for vehicular travel,” the Legislature has amended the highway
6
The majority does not even attempt to contradict this admission.
6
exception three times. But it did not see fit to alter the judicial interpretation of
those words.7 The Legislature’s acceptance of Gregg is highly persuasive.8
In summary, I believe that Gregg was correctly decided. I would affirm it
on the basis of (1) basic accepted principles of statutory interpretation, (2) defense
counsel’s unrebutted admission that a shoulder is designed for vehicular travel “of
a sort,” (3) MDOT’s use of shoulders for diversion of vehicular traffic during
construction, and (4) the fact that the law in question has remained unaltered since
1971.
In holding that shoulders are not “designed for vehicular travel,” the
majority admits that several interpretations are available but chooses the narrowest
one possible.9 Essentially, it argues that giving the words “designed for vehicular
travel” their plain ordinary meaning swallows the exception, because a vehicle
could travel on every improved part of a highway. This argument has three flaws:
First, the majority fails to remember that, although drivers rarely travel on
medians or embankments, they do routinely travel short distances on shoulders.
7
The Legislature amended the statute in 1990, 1996, and 1999.
8
The majority asserts that the Court’s ruling in Gregg was based on the
assumption that the Legislature had acquiesced in the Court’s earlier decisions.
This ignores the fact that the Gregg Court went further. It based its holding
primarily on an interpretation of the language of MCL 691.1402(1) that gave an
ordinary meaning to the word “travel.”
9
The majority suggests that it does not need to apply Ross v Consumers
Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984) to this case. In
actuality, the majority does apply Ross and reads the statute narrowly.
7
Moreover, MDOT specifically requires vehicles to travel on shoulders for long
distances. The same cannot be said for other highway improvements.
Second, as explained in Wexford Med Group v City of Cadillac,10 a court
should not make an interpretation not intended by the Legislature because it fears
what will develop if it interprets the language as written. Id. at 220 n 10. The
majority suggests that giving the statute’s language a meaning other than the
narrowest possible meaning would create the risk of unlimited liability, which is
something it must avoid. Its conclusion contradicts Wexford, apparently out of a
subjective fear.
Third, the only issue before the Court is whether a shoulder is designed for
vehicular travel. Whether other improved portions of the highway are designed
for vehicular travel is a question best left to cases that raise and explore that
possibility.
Ultimately, the majority’s reasoning fails because of the language of the
statute and because of the fact that vehicles do indeed travel on shoulders that
were designed for travel. By contrast, the reasoning in Gregg is soundly
supported by the meaning of the words in the statute and by common practice.
Moreover, Gregg is properly in line with the majority’s rules of statutory
interpretation.
10
474 Mich 192; ___ NW2d ___ (2006).
8
CONCLUSION
I would reaffirm this Court’s decision in Gregg and hold that the shoulder
of a highway is “designed for vehicular travel” within the meaning of the highway
exception to governmental immunity. I base this position on (1) time-honored
principles of statutory interpretation, (2) defense counsel’s unrebutted admission
that a shoulder is designed for vehicular travel, (3) MDOT’s actions of actually
diverting traffic onto the shoulders of highways, and (4) the fact that Michigan
courts have followed this interpretation since 1971. Therefore, I would affirm the
decision of the Court of Appeals.
Marilyn Kelly
Cavanagh, J., concurred only in the result proposed by Kelly, J.
Michael F. Cavanagh
9