Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan Michael F. Cavanagh
O pinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED JANUARY 3, 2002
LUCIA J. HANSON, Individually
and as Personal Representative
of the Estate of NELS THOMAS
HANSON, Deceased,
Plaintiff-Appellee,
v No. 117176
BOARD OF COUNTY ROAD
COMMISSIONERS OF THE COUNTY
OF MECOSTA, a Municipal
Corporation,
Defendant-Appellant,
and
DALLAS JOSEPH SULLIVAN,
Defendant.
_____________________________
LUCIA J. HANSON, Individually
and as Personal Representative
of the Estate of NELS THOMAS
HANSON, Deceased,
Plaintiff-Appellant,
v
No. 117973
BOARD OF COUNTY ROAD
COMMISSIONERS OF THE COUNTY
OF MECOSTA, a Municipal
Corporation,
Defendant-Appellee,
and
DALLAS JOSEPH SULLIVAN,
Defendant.
________________________________
PER CURIAM
The plaintiff’s decedent died as a result of a motor
vehicle accident on a road under the jurisdiction of defendant
Mecosta County Board of Road Commissioners. Plaintiff sued
both the other driver and the road commission, contending that
the accident was caused in part by the defective condition of
the roadway, and that this claim was within the highway
exception to the governmental immunity statute.
MCL 691.1402(1). Among other things, the plaintiff alleged
that the slope of the road at the crest of a hill prevented
drivers from seeing each other in time to avoid a collision.
The circuit court granted summary disposition for the road
commission, and, on rehearing, the Court of Appeals affirmed.
The plaintiff’s allegations regarding the slope of the
road present a claim of defective design, which is not within
the road commission’s duty to maintain and repair the highway
under § 1402(1). We therefore affirm the decisions of the
lower courts.
2
I
Plaintiff’s decedent, Nels Hanson, was seriously injured
in a head-on automobile collision on August 3, 1994, and died
the following day. Decedent and the other driver, defendant
Dallas Joseph Sullivan, were driving in opposite directions on
160th Avenue, an unpaved road in Mecosta County. It appears
that the accident occurred as both vehicles were approaching
the crest of a hill. Plaintiff maintained that Sullivan had
crossed over the center line, though expert testimony
developed during discovery suggested that both drivers may
have done so.1
The essence of plaintiff’s claim against the road
commission was that the section of highway in question was
unsafe because of the limited sight distance caused by the
curvature of the hill. Specifically, plaintiff alleged that
the road commission breached its duties by:
a. Failing to keep the improved,
travelled portion of 160th Avenue in a reasonable
state of repair and reasonably safe and convenient
for public travel;
b. Failing to grade and profile 160th Avenue
on the hill north of 22 Mile Road to conform to the
applicable standards for sight distance;
c. Maintaining the grade and profile of
160th Avenue on the hill north of 22 Mile Road so
that southbound motorists did not have a safe sight
distance as they climbed the hill;
1
Plaintiff’s claim against defendant Sullivan was
resolved by acceptance of a mediation evaluation under
MCR 2.403.
3
d. Failing to provide adequate warning to
southbound motorists of the limited sight distance
on the hill north of 22 Mile Road;
e. Failing to reduce the speed limit on
160th Avenue in recognition of the danger posed by
the limited sight distance;
f. Failing to maintain 160th Avenue at a
proper and adequate width given the limited sight
distance caused by the grade and profile of the
hill to provide motorists reasonable margins of
error in their driving patterns and allow oncoming
vehicles to safely pass each other at the crest of
the hill;
g. Failing to provide proper or adequate
shoulder area for emergency use by motorists
climbing the hill; and
h. Carelessly and negligently breaching its
statutory duties.
Among other defenses, the road commission contended that
plaintiff’s claim was barred because it was not within the
highway exception to the governmental immunity statute,
MCL 691.1402(1), which provides:
(1) 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 liability, procedure, and
remedy as to county roads under the jurisdiction of
a county road commission shall be as provided in
section 21 of chapter IV of 1909 PA 283, MCL
224.21. 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
4
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.
The circuit court granted summary disposition for the
defendant, concluding that the highway exception did not apply
and that the road commission was protected by governmental
immunity. The court also rejected the plaintiff’s nuisance
theory.2
The plaintiff appealed to the Court of Appeals. The
Court’s initial decision affirmed in part and reversed in
part.3 The Court concluded that summary disposition was
properly granted on the nuisance theory. However, it reversed
on the highway exception. The Court relied on Pick v
Szymczak, 451 Mich 607; 548 NW2d 603 (1996), for the
proposition that the duty of highway maintenance includes a
duty to erect adequate warning signs or traffic control
devices at a “point of hazard” or a “point of special danger”.
The Court of Appeals said that the evidence submitted created
a genuine issue of material fact about whether the hill crest
was a point of danger to such an extent that the defendant had
a duty to provide adequate warning signs.
2
That issue is not raised in the present appeals.
3
Unpublished opinion per curiam, issued June 9, 2000
(Docket No. 217869).
5
On June 30, 2000, the defendant road commission filed an
application for leave to appeal to this Court,4 and on the
same day the plaintiff filed a motion for rehearing in the
Court of Appeals. While that motion was pending, on July 28,
2000, we decided Nawrocki v Macomb Co Rd Comm, 463 Mich 143;
615 NW2d 702 (2000), which clarified the law regarding the
highway exception and overruled Pick. In light of Nawrocki,
the Court of Appeals granted rehearing and reversed itself on
the highway exception issue, affirming the circuit court’s
grant of summary disposition.5
The plaintiff has filed an application for leave to
appeal from that decision.6
II
This case involves a review of a decision on a motion for
summary disposition, and presents an issue of statutory
construction, both of which we review de novo. Hazle v Ford
Motor Co, 464 Mich 456, 461; 628 NW2d 515 (2001); Brown v
Michigan Health Care Corp, 463 Mich 368, 374; 617 NW2d 301
(2000).
4
Docket No. 117176.
5
Unpublished opinion per curiam, issued October 3, 2000
(Docket No. 217869). Judge JANSEN dissented from the highway
exception portion of the opinion, believing that several of
the allegations of plaintiff’s complaint were sufficient to
avoid governmental immunity even under the principles
announced in Nawrocki.
6
Docket No. 117973.
6
III
In Nawrocki and its companion case, Evens v Shiawassee Co
Rd Comm’rs, we relied on Ross v Consumers Power Co (On
Rehearing), 420 Mich 567; 363 NW2d 641 (1984), for the basic
principle that the immunity conferred on governmental agencies
is a broad one, with only narrowly drawn exceptions. 420 Mich
618. In rejecting Brian Evens’ claim that the repair and
maintenance obligation imposed by the highway exception
includes a duty to install, maintain, repair, or improve
traffic control devices, we examined the plain language of
§ 1402(1). While we agreed with Pick that the first sentence
of the statutory clause creates a general duty to repair and
maintain highways so they are reasonably safe and convenient
for public travel, we noted that the duty with regard to state
and county road commissioners is significantly limited,
extending “only to the improved portion of the highway
designed for vehicular travel.” We explained:
Nowhere in this language, or anywhere else in
the statutory clause, do phrases such as “known
points of hazard,” “points of special danger,”
“integral parts of the highway,” or “traffic sign
maintenance” appear. We are not persuaded that the
highway exception contemplates “conditions” arising
from “point[s] of hazard,” “areas of special
danger,” or “integral parts of the highway,”
outside the actual roadbed, paved or unpaved,
designed for vehicular travel. None of these
phrases or concepts appears anywhere within the
provision of the highway exception. To continue to
rely upon these phrases in determining the scope of
the highway exception is contrary to the language
selected by the Legislature in creating this
7
exception. [463 Mich 176-177 (emphasis supplied).]
In light of those principles, we concluded that Pick must
be overruled and the liability of state and county road
commissions limited. We said:
The state and county road commissions’ duty,
under the highway exception, is only implicated
upon their failure to repair or maintain the actual
physical structure of the roadbed surface, paved or
unpaved, designed for vehicular travel, which in
turn proximately causes injury or damage.
Scheurman [v Dep’t of Transportation, 434 Mich 619,
631; 456 NW2d 66 (1990)]. A plaintiff making a
claim of inadequate signage, like a plaintiff
making a claim of inadequate street lighting or
vegetation obstruction, fails to plead in avoidance
of governmental immunity because signs are not
within the paved or unpaved portion of the roadbed
designed for vehicular travel. Traffic device
claims, such as inadequacy of traffic signs, simply
do not involve a dangerous or defective condition
in the improved portion of the highway designed for
vehicular travel.
Evens argues that the SCRC failed to install
additional traffic signs or signals that might
conceivably have made the intersection safer.
Because the highway exception imposes no such duty
on the state or county road commissions, we reverse
the decision of the Court of Appeals and reinstate
the trial court’s grant of summary disposition to
the SCRC. [463 Mich 183-184 (emphasis supplied).]
IV
The majority of the plaintiff’s allegations in this case
involve the very sorts of warning and traffic control sign
claims rejected in Nawrocki. Such claims are clearly outside
the purview of the highway exception, and we affirm the grant
of summary disposition to the road commission with respect to
these claims.
8
V
In addition to her claims involving inadequate warning,
the plaintiff alleged that the defendant breached its duty by:
b. Failing to grade and profile 160th Avenue
on the hill north of 22 Mile Road to conform to the
applicable standards for sight distance;
c. Maintaining the grade and profile of
160th Avenue on the hill north of 22 Mile Road so
that southbound motorists did not have a safe sight
distance as they climbed the hill . . . .
The plaintiff argues that these allegations do involve
the actual roadway designed for vehicular travel, thus
avoiding the principles stated in Nawrocki. The Court of
Appeals majority disagreed, holding that Nawrocki made clear
that these types of claims do not implicate the statutory duty
of the road commission to repair and maintain the roadbed:
In the present case, there is no dispute that
the actual roadbed surface itself was well
maintained. Although plaintiff focused her
argument on the limited sight distance where the
crash occurred, the limited sight distance is not a
road surface condition. Rather, it is a design
feature that is a product of the terrain through
which the road traverses. We believe that under
the statute in question, as interpreted in
[Nawrocki], the road commission’s duty does not
include a duty to correct design defects. Had the
Legislature intended the correction of design
defects to be included, it would have included such
a requirement in the statutory language, and not
assumed that such a requirement would be inferred
under “maintenance and repair.” As we observed in
our original opinion, this design feature created a
point of hazard that prior to [Nawrocki] created an
issue of fact. In overruling Pick, supra, the
Supreme Court instructed that the highway exception
to governmental immunity does not contemplate
conditions arising from points of hazard.
9
[Nawrocki], supra at 176-177. At best, plaintiff
can only establish a point of hazard resulting from
the limited sight distance at the crest of the hill
where this occurrence happened, rather than a
defect in the actual roadbed surface. [Slip op, pp
2-3.]
The dissenting Court of Appeals judge stated:
I cannot believe that the Legislature
“intended” that a governmental entity responsible
for designing and building a road would be immune
from liability where the design itself is
dangerous, but the road itself contained no
“potholes” or other defects in the surface itself.
[Slip op, p 2 (JANSEN , P.J.).]
This latter statement is contrary to the plain language of the
statute, which carves out a limited exemption from
governmental immunity and imposes on the state and county road
commissions a narrow duty to “repair and maintain . . . the
improved portion of the highway designed for vehicular travel
. . . .” MCL 691.1402(1). Nowhere in the statutory language
is there a duty to install, to construct or to correct what
may be perceived as a dangerous or defective “design.”7
7
We disagree with dicta in cases such as Killeen v Dep’t
of Transportation, 432 Mich 1, 4-5; 438 NW2d 233 (1989),
Arnold v State Hwy Dep’t, 406 Mich 235, 237-238; 277 NW2d 627
(1979), and Peters v State Hwy Dep’t, 400 Mich 50, 57; 252
NW2d 799 (1977), that the duty to maintain a road in a
reasonably safe condition includes the duty to correct defects
arising from the original design or construction of highways.
Although the dissent criticizes us for “dismissing” such
cases, the dissent itself recognizes that “the primary issue
in Killeen involved jurisdiction over a highway . . . .” Post
at 3, n 5. The dissent further recognizes that the other
cases, “did not specifically reach the design defect issue.”
Id. Yet, the dissent seems to believe that this Court should
elevate conclusory statements of dicta, lacking in any
10
Moreover, it is not the province of this Court to make policy
judgments or to protect against anomalous results. See
Nawrocki, supra at 171, n 27.
We agree with the Court of Appeals majority and hold that
the road commission’s duty under the highway exception does
not include a duty to design, or to correct defects arising
from the original design or construction of highways. In the
highway exception, the Legislature has said that the duty of
the road commission is to “maintain the highway in reasonable
repair so that it is reasonably safe and convenient for public
travel.” The statute further provides that the specific duty
of the state and county road commissions is to “repair and
maintain” highways. “Maintain” and “repair” are not
technical legal terms. In common usage, “maintain” means “to
statutory analysis, above the plain words of the statute.
However, our judicial task is to give meaning to the intent of
the Legislature, as expressed in the statutory text.
Accordingly, we decline to elevate such statements above the
plain words of the highway exception.
Moreover, the dissent relies upon the doctrine of
legislative acquiescence in stating that "[t]he Legislature’s
failure to change the language [in response to the dicta
contained in the above decisions] suggests its intent to make
a design defect actionable.” Post at 6. However, even apart
from the fact that these decisions involve dicta to which few
legislative bodies would feel the need to respond, this Court
has made it clear that the doctrine of legislative
acquiescence "is a highly disfavored doctrine of statutory
construction; sound principles of statutory construction
require that Michigan courts determine the Legislature's
intent from its words, not from its silence." Donajkowski v
Alpena Power Co, 460 Mich 243, 261; 596 NW2d 574 (1999)
(emphasis in the original).
11
keep in a state of repair, efficiency, or validity: preserve
from failure or decline.” Webster’s Third New International
Dictionary, Unabridged Edition (1966), p 1362. Similarly,
“repair” means “to restore to a good or sound condition after
decay or damage; mend.” Random House Webster’s College
Dictionary (2000), p 1119. We find persuasive the analysis of
Wechsler v Wayne Co Rd Comm, 215 Mich App 579, 587-588; 546
NW2d 690 (1996) that
[t]he Legislature thus did not purport to demand of
governmental agencies having jurisdiction of
highways that they improve or enhance existing
highways, as by widening existing lanes or banking
existing curves; that they augment existing
highways, as by adding left-turn lanes; or that
existing highways be expanded, as by adding new
travel lanes or extending a highway into new
territory. The only statutory requirement and the
only mandate that, if ignored, can form the basis
for tort liability is to "maintain" the highway in
reasonable repair.
Thus, . . . highway authorities are under no
statutory obligation to reconstruct a highway
whenever some technological safety advancement has
been developed. Rather, the focus of the highway
exception is on maintaining what has already been
built in a state of reasonable repair so as to be
reasonably safe and fit for public vehicular
travel.
The plain language of the highway exception to governmental
immunity provides that the road commission has a duty to
repair and maintain, not a duty to design or redesign.
What the plaintiff sought in this case was to create a
duty to design, or redesign, the roadway to make it safer by
eliminating points of special danger or hazard. However,
12
there is no such design duty included in the statute. Nowhere
in the statutory language are there phrases such as “known
points of hazard” or “points of special danger.” We
emphasized in Nawrocki that the highway exception does not
permit claims based on conditions arising from such points of
hazard, and that the only permissible claims are those arising
from a defect in the actual roadbed itself.8 Accordingly, the
plaintiff’s claims that 160th Avenue was poorly designed and
that it did not provide an adequate sight distance are
insufficient to avoid governmental immunity.
Reasonable minds can differ about whether it is sound
public policy to so limit the duty imposed on authorities
responsible for our roads and highways. However, our function
is not to redetermine the Legislature’s choice or to
independently assess what would be most fair or just or best
public policy. Our task is to discern the intent of the
8
In Nawrocki, we stated that the duty imposed upon state
and county road commissions to “repair and maintain . . . the
improved portion of the highway designed for vehicular travel”
is implicated only when the alleged “defect,” or “dangerous or
defective condition,” is located within the actual roadbed
itself. See id. at 161-162. We used the terms “defect” and
“dangerous or defective condition” in Nawrocki to describe the
status of the highway following a breach of the road
commission’s specific duty to “repair and maintain” the
highway. The terms “defect” and “dangerous or defective
condition” do not expand the statutory duty, but instead
describe the general conditions that trigger the statutory
duty to “repair and maintain.” In other words, if the road
commission’s statutory duty is breached, it follows that the
highway is in a state of disrepair, a synonym of which is
“defect.”
13
Legislature from the language of the statute it enacts. Ross,
supra at 596. The Legislature has clearly limited the duty of
the road commission to the repair and maintenance of the
roadways, and the plaintiff’s claim does not fall within that
scope. Thus, we affirm the judgments of the Court of Appeals
and the Mecosta Circuit Court.
CORRIGAN , C.J., and WEAVER , TAYLOR , YOUNG , and MARKMAN , JJ.,
concurred.
14
S T A T E O F M I C H I G A N
SUPREME COURT
LUCIA J. HANSON, individually
and as personal representative
of the estate of NELS THOMAS
HANSON, deceased,
Plaintiffs-Appellees,
v No. 117176
BOARD OF COUNTY ROAD
COMMISSIONERS OF THE COUNTY
OF MECOSTA, a municipal
corporation,
Defendant-Appellant,
and
DALLAS JOSEPH SULLIVAN,
Defendant.
___________________________________
LUCIA J. HANSON, individually
and as personal representative
of the estate of NELS THOMAS
HANSON, deceased,
Plaintiffs-Appellants,
v No. 117973
BOARD OF COUNTY ROAD
COMMISSIONERS OF THE COUNTY
OF MECOSTA, a municipal
corporation,
Defendant-Appellee,
and
DALLAS JOSEPH SULLIVAN,
Defendant.
___________________________________
KELLY, J. (dissenting).
I cannot agree with the majority's conclusion that the
highway exception to governmental immunity1 does not extend to
a duty to design safe roadways. I would reverse the Court of
Appeals decision that plaintiff's design defect claim is
barred by governmental immunity.
The majority approaches the issue of design defects as
one of first impression, relying on Nawrocki v Macomb Co Road
Comm,2 and selected dictionary definitions of "maintain" and
"repair." It fails to discuss any case law dealing with
governmental immunity and a highway's design defect,
dismissing in a footnote three such examples as dicta.
Without acknowledging that it is doing so, the majority is
again overturning the longstanding precedent of this Court.
As recently as 1989, this Court held a governmental
1
MCL 691.1402(1).
2
463 Mich 143; 615 NW2d 702 (2000).
2
entity that defectively designed a highway liable for a loss
suffered as a result of the defect. Killeen v Dep't of
Transportation, 432 Mich 1, 4-5; 438 NW2d 233 (1989).
Moreover, in Arnold v State Hwy Dep't,3 this Court explicitly
stated: "[D]efects in the construction of highways [are]
within the bounds of the [highway exception] statute." That
conclusion echoed this Court's statement in Peters v State Hwy
Dep't,4 where it asserted: "[L]iability for defective highways
is an express exception to the general sovereign immunity
scheme created by statute," including a "defect in the design
or construction of the highway." Until now, those decisions
have not been called into question.5
More recently, this Court decided Nawrocki, supra.
Admittedly, the majority opinion in Nawrocki stands for the
3
406 Mich 235, 237; 277 NW2d 627 (1979).
4
400 Mich 50, 57; 252 NW2d 799 (1977).
5
The majority dismisses references to design defects "in
cases such as" Killeen, supra, as dicta, meaning statements
unnecessary to support the decision of the Court. Black's Law
Dictionary (6th ed). Although the primary issue in Killeen
involved jurisdiction over a highway, the conclusion that
design defects are actionable was critical to the highway
department's liability. Id. at 13. Moreover, this Court did
not specifically reach the design defect issue in other cases
only because no one disputed that defects in design and
construction fall within the highway exception. See Arnold,
supra at 237-238; Peters, supra at 55-57. This implies that
the fact has been well accepted. Accordingly, even as dicta,
this Court's repeated assertions that the highway exception
includes design defects are persuasive.
3
proposition that the highway exception is limited to hazardous
conditions of the actual road surface designed for vehicular
travel. Nawrocki, supra at 176-177. However, with respect to
governmental liability for highway design defects, I do not
read that decision as overruling any of the cases cited
herein.
A hazard on the traveled surface of a road can certainly
be caused by a design defect, as this case demonstrates.
Plaintiff has alleged that the county failed to create a safe
surface for travel because the road was designed with too
steep a grade. I would hold that plaintiff's design defect
claim survives Nawrocki to the extent that she contends that
the design defect rendered the road surface unsafe for
travel.6
A logical reading of the highway exception supports that
conclusion. The statute provides for a cause of action
against a governmental agency for failure "to keep a highway
under its jurisdiction in reasonable repair and in a condition
reasonably safe and fit for travel . . . ." It instructs
agencies "having jurisdiction over a highway [to] maintain the
highway in reasonable repair so that it is reasonably safe and
6
Certainly, some roadways must traverse terrain making
it impossible to avoid arguably unsafe conditions. However,
whether a road was designed to be reasonably safe considering
the terrain it must traverse is a question of fact for a jury.
4
convenient for public travel." MCL 691.1402(1) (emphasis
added).
The majority construes that language to mean that the
government has no duty other than to keep a highway in its
original condition. However, implicit in a duty to maintain
a reasonably safe highway is a duty to design a reasonably
safe highway in the first place. It mocks common sense to
construe "maintain" to permit an agency that designed a
dangerous roadway to escape liability as long as it keeps the
road in that same condition. The Legislature must have
intended "maintain" to include "design and build."
In 1886, this Court examined a predecessor statute7 to
the current highway exception statute and reached the same
conclusion as I do in this case. The language of both
statutes requires the governmental agency having authority
over a particular highway to "keep" the highway in reasonable
or good repair and "in a condition reasonably safe and fit for
travel." See Carver v Detroit & Saline Plank-Road Co, 61 Mich
584, 589; 28 NW 721 (1886). Speaking for the Court then,
Justice Champlin stated:
I have no doubt that the defects in highways
covered by the act of 1879 extend to defects in
construction, as well as defects through omission
to repair, and to neglect to keep the public
highways in a condition reasonably safe and fit for
7
1879 PA 244.
5
travel by day or by night; and unless it is so
kept, it constitutes a defect in the highway, for
which, if injury results, an action will lie. [Id.
at 590.]
I reaffirm that longstanding assessment. Also, I note
that the Legislature could have used different language when
it codified governmental immunity and specifically carved out
the highway exception. Presumably it acted with knowledge of
this Court's interpretation of the language it chose. The
Legislature's failure to change the language suggests its
intent to make a design defect actionable. See Gordon
Sel-Way, Inc v Spence Bros, Inc, 438 Mich 488, 505; 475 NW2d
704 (1991); Craig v Larson, 432 Mich 346, 353; 439 NW2d 899
(1989).
On the basis of the highway exception's wording and this
Court's longstanding precedent, I conclude that a highway
design defect is actionable as an exception to governmental
immunity. I would reverse the Court of Appeals decision to
the contrary.
CAVANAGH , J., concurred with KELLY , J.
6