Listanski v. Canton Township

Weaver, J.

(dissenting). The issue before this Court is whether a township can be held liable under MCL 691.1402; MSA 3.996(102) for injuries sustained because of the condition of a public sidewalk located beside a county road within a township’s boundaries. I would hold that a township cannot be held liable for such injuries.

On August 25, 1989, Ethel Listanski was injured on a sidewalk adjacent to a county road1 located in Canton Township.

*692On March 20, 1990, Judith Williams was injured on a sidewalk in Redford Township located along a road over which Wayne County has jurisdiction.

On April 26, 1990, Priscilla Moceri was injured in Canton Township on a sidewalk that runs adjacent to a county highway.

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The sole issue before this Court is the construction of the governmental tort liability act.

All three plaintiffs were injured on public sidewalks. Normally, the townships would be insulated from liability for such an occurrence on the ground of governmental immunity. A township’s construction and maintenance of sidewalks within its boundaries is the performance of a governmental function. This performance or nonperformance of an authorized activity entitles it to absolute immunity from tort liability. Ross v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984). The Legislature has conferred on governmental agencies a broad grant of immunity, with certain narrowly drawn statutory exceptions that are to be strictly construed. MCL 691.1407; MSA 3.996(107), Scheurman v Dep’t of Transportation, 434 Mich 619, 627; 456 NW2d 66 (1990).

Here, plaintiffs assert that they are proceeding under a statutory exception to governmental immunity, MCL 691.1402(1); MSA 3.996(102)(1), which provides:

Each governmental agency having jurisdiction over any highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. Any person sustaining bodily injury or damage to his or her *693property by reason of failure of any governmental agency to keep any highway under its jurisdiction in reasonable repair, and in 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 Act No. 283 of the Public Acts of 1909, as amended, being section 224.21 of the Michigan Compiled Laws. 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.

For the purposes of this statute the term “highway” is defined to include sidewalks under MCL 691.1401(e); MSA 3.996(101)(e): “ ‘Highway’ means every public highway, road, and street which is open for public travel and shall include bridges, sidewalks, crosswalks, and culverts on any highway. The term highway does not include alleys, trees, and utility poles.” '

The plaintiffs argue, and the majority agrees, that because the state and county are expressly excluded from liability for sidewalks adjacent to roads under their jurisdiction, MCL 691.1402(1); MSA 3.996(102)(1), the township should be construed to have jurisdiction over any sidewalk that passes through its boundaries. I disagree. It is clear from the statute defining “highway” that a sidewalk is not to be treated as a highway for the purposes of the governmental immunity exception. Rather, the term “highway” is to be construed as encompassing certain features adjacent to the traveled portion of the roadway, *694including sidewalks. Because MCL 691.1402(1); MSA 3.996(102)(1) is an exception to a broad grant of governmental immunity, the Court must strictly construe the conditions and restrictions of the statute. Scheur-man, supra.

Accordingly, I would find that the governmental entity that has jurisdiction over the road also has exclusive jurisdiction over the adjacent sidewalk. Thus, under MCL 691.1402(1); MSA 3.996(102)(1) a township can be held liable only for injuries sustained on a sidewalk adjacent to a township road, not for those occurring on sidewalks adjacent to county or state roads.

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The statute sets out a general rule, that each governmental agency having jurisdiction over any highway must both maintain and be liable for the highway. This rule is then modified for the state and the counties; they are only obligated to maintain and be liable for those portions of the improved portion of the highway designed for vehicular traffic — a lesser burden. See Scheurman, supra.

I recognize plaintiffs’ arguments that the statute results in there being no governmental agency that is required either to maintain or be liable for sidewalks adjacent to county and state roads. However, this is a policy decision made by the Legislature, with which this Court cannot interfere.

I appreciate the extensive analysis and historical review of the Michigan Constitutions, statutes, and common law advanced by plaintiffs in an attempt to show that townships have historically had jurisdiction over public sidewalks within their boundaries. How*695ever, this is not relevant for the purposes of determining the application of the Legislature’s waiver of governmental immunity when it has made its intent plain. Because the highway exception statute is clear, there is no need to go beyond the four comers of the statute and examine the historical liability for sidewalks. For the purposes of this statute sidewalks are not to be considered individually, but only as part of the highway when they are adjacent to a public road.

Plaintiffs assert that townships should be treated the same as cities with respect to sidewalks along roads or highways under the jurisdiction of another governmental unit, citing Jones v Ypsilanti, 26 Mich App 574; 182 NW2d 795 (1970). In Jones, a city was found to be liable under MCL 691.1401; MSA 3.996(101) for a sidewalk running along a state road. In this case, the question of a city’s liability, as opposed to a township’s, is not at issue. Therefore, I do not address whether I would overrule Jones. However, I see no reason for cities to be held liable for injuries sustained on sidewalks adjacent to county or state roads.

CONCLUSION

I would relinquish jurisdiction and remand the three cases to the trial courts to either enter or reinstate appropriate orders of summary disposition, in accordance with this opinion. I would affirm the decision of the Court of Appeals in Listanski and reverse the Court of Appeals decision in Williams and Moceri.

The Listanskis have asserted before this Court that the road in question was not a county road. However, they are precluded from asserting this on appeal because at the trial court the Listanskis conceded that “The county is responsible for the roadway.”