(dissenting). Ray Chaney was operating his motorcycle on Michigan Avenue in Dearborn onto a two-lane entrance ramp leading to 1-94. He *179claims that as he was moving to the right of the ramp he saw an automobile approaching from the rear, and that while attempting to straighten the motorcycle he hit the curb and concrete wall or metal guardrail.1 He was catapulted over the ramp and landed next to a median barrier on I-94.2
The question presented is whether the Michigan Department of Transportation is relieved from liability under the highway exception to governmental immunity3 from tort liability for a defect in *180design or construction of the concrete wall or guardrail because they were erected immediately beyond and thus "outside of the improved portion of the highway designed for vehicular travel.”
The Court of Appeals, relying on Scheurman v Dep’t of Transportation, 434 Mich 619; 456 NW2d 66 (1990), held that the circuit judge should have granted the mdot’s motion for summary disposition for two reasons: because the Legislature intended to impose only a duty to keep "the traveled roadbed in reasonable repair,” and also because "the concrete wall, while part of the overpass structure, was not designed for vehicular travel, but instead constituted an 'other installation outside of the improved portion of the highway designed for vehicular travel’ [within the meaning of the 'any-other-installation’ clause4 of the highway exception set forth in n 3]. Because the barrier was neither 'roadbed’ nor 'designed for vehicular travel,’ Scheurman, supra, governmental immunity applies and defendant should not be held liable for plaintiff’s injuries.”5
i
We would reverse the Court of Appeals and remand for trial.
A
Scheurman is not precedentially binding under the doctrine of stare decisis.
*181Three justices signed the plurality opinion in Scheurman. A fourth justice joined in the "rationale and result” of the plurality opinion "with the understanding that it does not preclude the application” of the highway exception "in cases alleging a failure to 'repair and maintain’ installations that are integral to, if not part of, the 'improved portion of the highway designed for vehicular travel,’ such as traffic lights and signs.”6
"Since neither opinion [in Scheurman] obtained four signatures, neither is binding under the doctrine of stare decisis.” People v Jackson, 390 Mich 621, 627; 212 NW2d 918 (1973).7
B
Even if four justices had unqualifiedly signed the plurality opinion in Scheurman—and we acknowledge in this connection that the concurring justice joined "in both the rationale and result” of the concurring opinion—the analysis and rationale of *182the plurality opinion does not govern disposition of this case.
"It has often been said by this and other courts that the language of a decision must be construed with reference to and confined to the facts of that case.” Wolcott v Holcomb, 97 Mich 361, 368; 56 NW 837 (1893). Justice Marston’s statement for the Court in Larzelere v Starkweather, 38 Mich 96, 100-101 (1878), is again in point:
No such question was involved or decided in [the cited] case. Nor were the facts in that case such as would justify the court in coming to and announcing such a conclusion. Some expression may be found in the reasoning in the opinion delivered in that case, which taken alone might give color to such an idea. The reasoning in an opinion is not that of the court, but of the judge who prepares and delivers it. It may or may not be considered sound and unanswerable, and as such is the subject of criticism. The conclusion arrived at and announced upon the several questions discussed and essential to a proper disposition of the case, is that of the court, and in concurring in such conclusions it is not generally supposed or understood that everything contained or said in the opinion is thereby unqualiñedly and unquestionably adopted as the opinion of the court. In preparation of an opinion, the facts of the case are in mind. It is prepared with reference to such facts, and when considered in connection therewith, will generally be found satisfactory. When, however, an attempt is made to pick out particular parts or sentences, and apply them indiscriminately in other cases, nothing but confusion and disaster will be likely to follow. In other words, the opinion and decision of a court must be read and examined as a whole in the light of the facts upon which it was based. They are the foundation of the entire structure which cannot with safety be used without reference to them. [Emphasis added.]
*183The fundamental issues in Chaney—whether the mdot is subject to liability for failure of design or construction of the concrete wall and metal barrier—and in its companion case, Mason v Wayne Co Bd of Comm’rs, 447 Mich 130; 523 NW2d 791 (1994)—whether Wayne County is subject to liability for failure to erect school warning signs—were not decided in Scheurman. Nor could they have been. Neither a barrier issue, such as is presented in Chaney, nor a warning issue, such as is presented in Mason, were present in Scheurman or in its companion case, Prokop v Wayne Co Bd of Rd Comm’rs.8
Further, the statement in the plurality opinion in Scheurman that the "true intent of the Legislature is to impose a duty to keep the physical portion of the traveled road in reasonable repair”9 (emphasis added) is obiter dictum. Scheurman and Prokop could have been decided with either the first or the second "plain meaning”10 of the highway exception put forth in the plurality opinion in Scheurman.11
We all agreed in Scheurman that the mdot was not subject to liability for failure to install lighting on state highways. A majority in the companion case, Prokop, held that the county’s obligation under the highway exception does not require it to *184remove or trim hedges located on private property that obscure the line of vision at an intersection. A design or construction defect of the barrier in Chaney could have been corrected without intruding on private property. A warning sign could have been erected in Mason within the right of way.
The issues presented in Chaney and Mason thus do not require reconsideration of or overruling Scheurman,12 Nor should Scheurman be overruled. If one focuses on what was decided in Scheurman/ Prokop, the results are defensible. The Legislature had indicated that the state is not required to provide nighttime lighting of state highways.13 The question whether a county should be subject to liability for failure to remove obstructions on private property is close, and reasonable persons might differ regarding whether the duty and liability to keep roadways in condition reasonably safe and fit for travel requires such intervention.
The majority’s response to the issues here presented, in contrast with its decisions on the issues actually presented in Scheurman/Prokop, has not been, and cannot be, defended._
*185C
The first two sentences of the highway exception14 impose a duty to keep "the traveled roadbed in reasonable repair,” and also a duty, and liability for failure to discharge that duty, to "maintain” the highway "in condition reasonably safe and fit for travel.”
This Court has, until today, consistently ruled, for over one hundred years—both before and after the 1964 reenactment, in those two sentences of the governmental tort liability act, of language first enacted in 1879 and 188715—that the liability for failure to discharge the duty to maintain the *186highway in condition reasonably safe and fit for travel extends to failures of design or construction, including failures to install guardrails as reasonably necessary to maintain the improved portion of the highway designed for vehicular travel in condition reasonably safe and fit for travel.
During the seventy-five years before the 1964 reenactment of the 1879/1887 language in the highway exception of the go\ernmental tort liability act, and also during the thirty years after the 1964 reenactment, governmental agencies have been held subject to liability
• for failures to warn of hazards that might not be expected,16
• for failures to erect barriers to prevent vehicles from leaving a roadway,17 and
• for failures of design that created hazards making roads less than reasonably safe and fit for travel.18
*187The Legislature, surely aware of the consistent judicial construction, extending for seventy-five years from 1889,19 nevertheless reenacted in 1964 the same language20 in the governmental tort liability act.
We all have been the beneficiaries. New roads were designed, and old roads have been redesigned, by the state highway department and county road commissions to reduce the risk of accidents, and to reduce the hazard of accidents that do occur, in compliance with the standard first declared by the Legislature over one hundred years ago, and reiterated thirty years ago, requiring governmental agencies to keep highways21 in "reasonable repair, and in condition reasonably safe and fit for travel.”22
D
In 1889, this Court held that liability could be imposed because of the absence of barriers or railings for a death resulting when a horse-drawn passenger wagon left a well-worn path of a road in midwinter.23 The Court said that the trier of fact could find, on the basis of a statutory obligation to keep highways "in good repair, and in a condition reasonably safe and fit for travel,”24 that a township was subject to liability for wrongful death *188resulting from a failure "to provide barriers or railings along the sides”25 of an embankment.
Ray Chaney similarly claims that liability should be imposed for injuries he claims resulted from the mdot’s failure to provide a properly designed and constructed barrier along the side of an embankment.
In cases decided thereafter, this Court held that the trier of fact may impose liability for failure to provide railings or barriers needed to keep a road reasonably safe and convenient for public travel.26
Also relevant—here as in Mason—this Court, also in 1889, held that the City of Detroit was subject to liability for injuries suffered by a woman when her carriage encountered, in the nighttime, a pile of sand that had been lying for over a month in the middle of a street on the basis that the city had failed to place lights or other suitable warning of the obstruction.
This Court said that the City of Detroit was subject to liability not only "for injuries occurring through neglect to keep the streets in repair, but also for such as occur by reason of the neglect of the city to keep its streets in a condition reasonably safe and;Gt for travel.”27 (Emphasis added.)
*189This Court thus rejected in 1889 the view—one of three "plain meanings” of the highway exception28—set forth in the plurality opinion in Scheurman, that the only statutory duty imposed by the words "in reasonable repair, and in condition reasonably safe and fit for travel,” is to keep roadways "in repair.”29
This Court’s rejection in 1889 • of the "repairs only” view was reaffirmed by this Court in 1904,30 and reiterated in 1967.31
*190E
The plurality opinion in Scheurman essentially ignored32 all prior decisions of this Court. The majority in Chaney and in Mason, similarly ignores this Court’s early decisions and its decisions between 1977 and 1989 construing the first two sentences as incorporated in the 1964 reenactment.
In the first case to reach this Court after the 1964 reenactment of the 1879/1887 language,33 as the first two sentences of the highway exception, Tuttle v Dep’t of State Hwys, 397 Mich 44, 45-46; 243 NW2d 244 (1976), this Court held that the Department of State Highways34 was subject to liability for "inadequate signalization. ”35
The following year, in Peters v Dep’t of State Hwys, 400 Mich 50, 63; 252 NW2d 799 (1977), the *191plaintiff’s decedent was a passenger in an automobile that encountered a body of water that covered the north half of westbound 1-94 at a depth of up to ten or twelve inches. The driver lost control of the vehicle, which went into a skid and was struck broadside by a truck. The defect in Peters was not a failure to repair, but a design defect, an insufficiency in the sewer drainage system, that permitted water to accumulate on the Edsel Ford Expressway.
This Court said that "the duty of the defendant[36] is to keep the highway in a condition reasonably safe and ñt for travel,”37 id., p 58 (emphasis added), and that the department was subject to liability whether the defect was in the "design” of the highway, or in the "construction” of the highway, or in the "maintenance” of the highway. Id., p 61.
Two years later, in Arnold v Dep’t of State Hwys, 406 Mich 235, 236; 277 NW2d 627 (1979), the claimed defect was in the design, construction, and maintenance of a guardrail separating the east and westbound lanes of 1-94. The driver of the automobile in which the plaintiff was riding as a passenger swerved to avoid hitting an automobile directly in front of him, "struck the 10-inch high median curb which effectively catapulted the vehicle over the 20-inch guardrail and into the path of westbound traffic.” This Court declared that it is enough if the plaintiff establishes that the defect "rendered the highway not reasonably safe and fit for travel.”38
*192Arnold was followed three years later by Endykiewicz v State Hwy Comm, 414 Mich 377; 324 NW2d 755 (1982), and ten years later by Killeen v Dep’t of Transportation, 432 Mich 1; 438 NW2d 233 (1989).
In Endykiewicz, factually similar to Arnold, this Court held that the State Highway Commission,39 was subject to liability for a failure of design or construction of a guardrail separating the north and southbound lanes of the Southñeld Expressway.40
Finally, in Killeen, this Court, just five years ago, held that the mdot was subject to liability for failure of design and construction of a "superelevation” at an expressway interchange resulting in injuries when a motor vehicle crossed the center of a highway and rolled down an embankment.41
*193Although this Court, in the thirty years since the enactment of the governmental tort liability act in 1964, has, until today, been true, without dissent,42 to the well-established precedents consistently applied since 1889, holding governmental agencies subject to liability for failures to warn, for failures to erect barriers, and for failures of design, the Legislature has not changed the statutory standard subjecting governmental agencies to liability for failure to keep highways in reasonable repair, and in condition reasonably safe and fit for travel.
ii
In providing, in the fourth sentence of the highway exception,43 that the duty ”to repair and main*194tain highways, and the liability therefor” shall not extend to "any other installation outside of the improved portion of the highway designed for vehicular travel,” the Legislature did not relieve the mdot of its duty, and liability therefor, under the first two sentences of the highway exception, to repair and maintain the improved portion of the highway designed for vehicular travel in condition reasonably safe and fit for travel, including installation of guardrails reasonably necessary to maintain the improved portion reasonably safe and fit for travel.
A
Although plaintiff’s claim in Endykiewicz was for fatal injuries suffered when a vehicle traveled through a guardrail dividing the northbound and southbound lanes of the Southfield Expressway, and Justice Coleman’s opinion for the Court referred to the fourth sentence of the highway exception,44 none of the justices then on the Court suggested that that language relieved the State Highway Commission of its duty and liability respecting the guardrail.
B
The concededly narrow,45 I would say myopic; view of the meaning of the "any-other-installation” clause set forth in the plurality opinion in Scheurman was not urged by the Attorney General in Scheurman. The Attorney General acknowledged in his brief in Scheurman: "Guardrails *195are within the improved portion of the highway in the same sense as shoulders, to wit: use as an adjunct to the paved portion of the highway.” (Emphasis added.)46
None of the cases spanning one hundred years, 1889-1989, in which this Court held that the obligation to maintain a highway in condition reasonably safe and fit for travel includes liability for failures of design or construction, including failures to install and maintain reasonably necessary guardrails, were discussed in the plurality opinion.47
The Attorney General, representing the mdot and its predecessor highway authorities during the twenty-two-year period, 1964-1987, did not contend in Arnold or Endykiewicz that the any-other-installation clause relieved the mdot of the duty to provide barriers necessary to maintain the improved portion of a highway in condition reasonably safe and fit for travel.
The Attorney General’s failure to so assert following the 1964 reenactment of the 1879/1887 language suggests that it was undoubted that the *196Legislature intended that the construction placed on the words "in condition reasonably safe and fit for travel” for over seventy-five years by this Court was incorporated in the highway exception when those words were reenacted with the result that the obligation to provide necessary barriers and warning signs, as required by the 1889 cases of Malloy and Joslyn, was so incorporated.48
c
The fourth sentence of the highway exception is set forth in its entirety in n 43. There are two clauses, the repair-and-maintain clause and the any-other-installation clause:
• The repair-and-maintain clause:
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 [emphasis added]; '
• The any-other-installation clause:
and shall not include sidewalks, crosswalks or any other installation outside of the improved portion of the highway designed for vehicular travel. [1964 PA 170, § 2, MCL 691.1402; MSA 3.996(102). Emphasis added.]
D
Reading the highway exception as a whole,49 the *197duty and liability, so expressly "extended” in the repair-and-maintain clause to the improved portion of the highway designed for vehicular travel, is for failure "to repair and maintain” the improved portion. The scope of the obligation to "repair and maintain” is to keep the improved portion "in reasonable repair, and in condition reasonably safe and fit for travel.” (Emphasis added.)
State and county liability under the repair-and-maintain clause indeed extends "only to the improved portion of the highway designed for vehicular travel.” (Emphasis added.) The obligation to keep highways in "reasonable repair, and in condition reasonably safe and fit for travel,” nevertheless clearly and expressly does so extend to such improved portion of the highway.50 That obligation *198and liability, under the consistent case law before and after the 1964 reenactment going back over a hundred years,51 extends to a failure of design or construction, including a failure to warn or to erect suitable barriers.
We agree with the view set forth in the opinion concurring in part and dissenting in part in Scheurman that the highway exception
expresses the Legislature’s intent to impose a duty on state and county highway authorities to maintain the improved portion of a highway in a condition safe and fit for travel and to provide liability for the failure to do so. Although the Legislature clearly did not intend liability for a failure to maintain the unimproved portion of the highway in a condition safe and fit for travel, nothing in the wording of §2 [the highway exception] suggests an intent to limit the liability of governmental agencies to only certain factors that are necessary to safely maintain the improved portion of the highway. [Emphasis in originalj[52]
ill
We agree with the Court of Appeals in the instant case that the Legislature, in providing in the any-other-installation clause that the duty to repair and maintain highways and the liability therefor shall not include "any other installation outside of the improved portion of the highway designed' for vehicular travel,” relieved the mdot of the duty and liability to keep the concrete wall *199—in the words of the Court of Appeals, "neither 'roadbed’ nor 'designed for vehicular travel’ ”—in reasonable repair and in condition reasonably safe and fit for travel. 198 Mich App 728, 730; 499 NW2d 29 (1993).
We so agree with the Court of Appeals, not simply because the concrete wall and metal barrier were located immediately beyond, "outside of the improved portion of the highway designed for vehicular travel,” but also because the concrete wall and metal barrier were not, as the Court of Appeals observed, designed for vehicular travel. And, thus, the duty to repair and maintain in condition reasonably safe and fit for travel could not extend to an "other installation” such as a concrete wall and metal barrier.
The plaintiff in Chaney is not complaining that the concrete wall that was erected was not in reasonable repair, or in a condition reasonably safe and fit for travel on the concrete wall.53
The Chaney plaintiff complains, rather, under the repair-and-maintain clause, of the failure of the mdot to design and construct the concrete wall and metal barrier as reasonábly necessary to maintain the improved portion of the highway "designed for vehicular travel” in condition reasonably safe and fit for travel.
A barrier or, as in Mason, a sign needed to maintain a highway in condition reasonably safe and fit for travel is not itself an "installation” that *200can be repaired and maintained in condition reasonably safe and fit for travel. •
A literal or "plain” reading—the majority prides itself on "plain” meanings—of the any-other-installation clause, relieving the state and counties of the duty and liability to keep "any other installation outside of the improved portion of the highway designed for vehicular travel” in condition reasonably safe and fit for travel, does not relieve the state and counties of their obligation under the repair-and-maintain clause to keep the "improved portion designed for vehicular travel,” not only in reasonable repair, but also in condition reasonably safe and fit for travel. That obligation, as the words "in condition reasonably safe and fit for travel” have been construed by this Court, subjects the state and counties to liability for failures of design or construction, including a failure to warn, or to erect suitable barriers.
IV
The repair-and-maintain and any-other-installation clauses need not be read as in conflict. The any-other-installation clause should be read in harmony with the repair-and-maintain clause.
A sign or barrier, to be sure, is an installation. Signs and barriers, indeed, generally are located outside the improved portion of the highway designed for vehicular travel. But not always. School warning signs often, in some parts of the state generally, are stenciled with the word school from left to right on the highway itself.
The words "any other installation,” read in the context of the highway exception as a whole, and not in isolation or in the abstract, are at least ambiguous.
I acknowledge that my reading of "any other *201installation” deprives it of some of the absolute meaning that might be ascribed to it if one were to read "any other installation” in isolation and in the abstract. However, holding that there is no duty or liability, on the part of the state or counties, to maintain the improved portion of the highway in condition reasonably safe and fit for travel —as those words have been consistently construed by this Court, requiring the installation of necessary barriers and signs—deprives the words "and maintain” in the repair-and-maintain cláuse of any meaning.
The words "reasonably safe and convenient for public travel,” in the first sentence of the highway exception, and the words "in condition reasonably safe and fit for travel,” in the second sentence, are stricken of all meaning. The words, in the third sentence, reaffirming the "liability” of and "remedy” against counties for failure to keep county roads "in reasonable repair, so that they shall be reasonably safe and convenient for public travel” under 1909 PA 283, as amended, are changed by judicial fiat to mean "in reasonable repair.” The words "and maintain” in the first and fourth sentences are stricken of all meaning.
v
The plurality opinion in Scheurman sets forth the history of the fourth sentence of the highway exception. There, not in plain meaning, is to be found the source of the "true intent of the Legislature . . . ,”54
A
Counties, while subject to liability for failure to *202keep "county roads, bridges and culverts” in "reasonable repair, so that they shall be reasonably safe and convenient for public travel,” were not subject to liability for failure to keep sidewalks in reasonable repair, and reasonably safe for pedestrian travel.55
The responsibility for repair and maintenance of sidewalks and crosswalks, under the 1879/1887 and subsequent statutes, had been imposed on townships and cities.56
The state had not, before 1964, been subject to any statutory liability for failure to keep state highways in reasonable repair and in condition reasonably safe and fit for travel.
Because "highway” was defined in the 1964 reenactment to include sidewalks and crosswalks,57 *203thereby continuing the responsibility therefor of townships and cities, for the maintenance of which neither the state nor the counties had been subject to liability, it was necessary, to preserve the status quo, to exclude state and county responsibility for "sidewalks and crosswalks.”
Reading the any-other-installation clause in light of that history, it becomes clear that at least the exclusion for sidewalks and crosswalks is unremarkable and sought merely to preserve the status quo so that the state and county would not be responsible for the maintenance and repair of sidewalks and crosswalks.58 The legislative purpose was not to create an artificial distinction, regarding the duty to erect warning signs and barriers, between highways under the jurisdiction of the state and counties and roads and streets under the jurisdiction of the cities and townships.
B
To be sure, the any-other-installation clause excludes responsibility for the repair and maintenance not only of sidewalks and crosswalks, but also of "any other installation outside of the improved portion of the highway designed for vehicular travel.” (Emphasis added.)_
*204The any-other-installation language appears to have been added to cover a case such as Roy v Dep’t of Transportation, 428 Mich 330; 408 NW2d 783 (1987), in which we all agreed that a bicycle path adjacent to 1-275 was an "other installation outside of the improved portion of the highway designed for vehicular travel,” and that, therefore, the mdot was not subject to liability for injuries suffered on the bicycle path.59
"Installations” that, like sidewalks, crosswalks, and bicycle paths, can be traveled upon and that, but for the any-other-installation clause, might give rise to claims against the state and counties for failures to repair and maintain, include city and township road and street bridges traversing state and county roads, highways, and expressways, pedestrian bridges, railroad bridges, grassy and other areas beyond the shoulders rising or sloping away from expressway lanes, the median between expressway lanes, truck stops and weigh stations, rest areas,60 scenic overlooks, overlooks from schoolyards and other public and private lands, and drains and ditches.61
*205VI
The author of the concurring opinion in Chaney concludes that "the bridge railing [in Chaney] does not directly and integrally affect vehicular travel along the improved portion of this highway. Neither a guardrail nor a concrete abutment, located beyond the shoulder of a highway, has any affect upon the safe and convenient passage of vehicles while on the improved portion.”62
If Ray Chaney had been catapulted onto the improved portion of the highway below, rather than onto the median, it would, I think, have had an "affect upon the safe and convenient passage of vehicles while on the improved portion.” Most motorists would seek to steer clear of, some would even stop, to render assistance to, a man lying injured in the middle of an expressway. One can easily visualize the potential for catastrophe._
*206Arnold and Endykiewicz show that the absence of properly designed and constructed guardrails, separating the east and westbound lanes of 1-94 in Arnold and the north and southbound lanes of Southfield in Endykiewicz, affects the safe and convenient passage of vehicles while on the improved portion.63
Metal barriers were erected between the north and southbound lanes of the early stages of the Lodge Expressway after innumerable accidents that injured or killed not only drivers and passengers in vehicles that crossed the center line into the opposite lane, but also drivers and passengers traveling in the opposite direction. Neither lane of an expressway is in "condition reasonably safe and fit for travel” without barriers between the lanes, barriers which, over the years, have been modernized from the skimpy metal barriers first mounted *207on wood stakes on the Lodge to sturdy concrete barriers.
In Gregg v Dep’t of State Hwys, 435 Mich 307, 315; 458 NW2d 619 (1990), decided after Scheu'rman, the majority held that Gregg could maintain an action for injuries received when his bicycle struck a pothole located within two white lines demarking a bicycle path between the traveled portion of the highway and its paved shoulder. The alleged defect in this case occurred on a bicycle path that the majority concluded, quoting from the syllabus, "unquestionably comprised part of the improved portion of the highway designed for vehicular travel and not on an installation separated and detached from the improved portion.”64 The majority in Gregg said that the contention that the Legislature did not intend to include the shoulder of a highway within the highway exception
has an obvious flaw: it flies in the face of common experience. 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.
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., p 315.]_
*208The author of Scheurman dissented, stating that while a plain reading of the definition of shoulder in the Motor Vehicle Code precluded the extension of the government’s duty to maintain highways pursuant to the highway exception to road shoulders, quoting again from the syllabus, "the definition is logically inconsistent and does not comport with the realities of highway driving,” and the Legislature should amend the statute.65
The argument that the Legislature did not intend to include a concrete wall or barrier running alongside the shoulder of a highway within the highway exception has a similarly obvious flaw. A motorist who, like the driver in Arnold,66 has experienced a highway emergency necessitating that he move onto the shoulder understands that where the far side of a shoulder is a precipice, as in the instant case where the ramp was an overpass of 1-94, a barrier on the far side of the shoulder is as "essential to a safe modern highway” as the shoulder itself.
The majority slices the bologna far too thin in holding that the Legislature intended that a shoulder be included within the highway exception but not a barrier alongside the shoulder.
This is not a case where the mdot saw no need to install a barrier. We are long past the day when highway authorities might ordinarily ignore the need for barriers when designing a highway. Manifestly a barrier is essential wherever the improved portion of the highway is a bridge, overpass, or otherwise like a cliff in the sense that without a barrier a motorist forced off the improved portion of the highway would be heading straight down to his doom.
Those of us who drive on Michigan’s highways *209know from experience that, especially during inclement weather, automobiles not infrequently spin out immediately in front of other motorists. The choice, to be made in a split second, is to drive straight ahead—assuring what in effect will be a head-on collision—or to turn to the left or right, like the driver in Arnold. Unless the area to the left or right is gradually graded, a barrier immediately beyond the shoulder is essential to maintain the improved portion of the highway in condition reasonably safe and fit for travel.
VII
The statement in the plurality opinion in Scheurman,67 —that the state and counties (and it would appear, by necessary implication, townships and cities) are subject to liability only for a failure to repair whatever highway, road, or installation has been constructed, however hazardous, as a result of defects in design or construction, the highway, road, or installation may be—removes all meaning from most of the operative language of the highway exception, and renders most of the operative language superfluous.68
If that reading were correct, the Legislature would not have reenacted the highway exception without first striking, rather than enacting, the words indicated in the following:_
*210Each governmental agency having jurisdiction over any highway shall maintain the highway in reasonable repair éé/fháf/it/WiAAiéÁéMf/áélé/áiíd ééúMMéM/iét/^iMié/titMél. Any person sustaining bodily injury or damage to his property by reason of failure of any governmental agency to keep any highway under its jurisdiction in reasonable repair, áúA/iÁ/éóÁAMóá/MáéóúáWf/¿¿fé/áÁd fit/tdiltiM€UJmay recover the damages suffered by him from such governmental agency. The EA¥>Eltf{ procedure áiíd/férfuád^/as to county roads under the jurisdiction of a county road commission shall be as provided in section 21, chapter 4 of Act No. 283 of the Public Acts of 1909, as amended, being section 224.21 of the Compiled Laws of 1948. The duty of the state and the county road commissions to repair áñdMáMfdM/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[69]
If that reading were correct, the Legislature
• would have stopped with the words "reasonable repair” when writing the first and second sentences of the highway exception, and
• would not have, in the third sentence, reaffirmed the "liability” and "remedy” against the county under 1909 PA 283, as amended, and
• would have stopped with the word "repair” in the first clause of the fourth sentence, and would not have added the words "and maintain” immediately thereafter.
*211VIII
The plurality opinion in Scheurman discerned that the "plain meaning” of the highway exception is that the "true intent of the Legislature is to impose a duty to keep the physical portion of the traveled roadbed in reasonable repair”70
A
That "true intent”—liability arises under the highway exception only for failure to keep the physical portion of the roadbed in repair—so discerned in the plurality opinion in Scheurman is the third "plain meaning” of the highway exception set forth in Scheurman.
The second "plain meaning,” possibly portending the third "plain meaning,” precludes recovery unless the defective condition is "part of the improved portion of the highway designed for vehicular travel.”71 The second "plain meaning” does not preclude recovery for defective conditions of design or construction. It is not until the obiter dictum72 of the third "plain meaning,” limiting recovery to loss resulting from a failure to keep the "physical portion” of the roadbed in reasonable "repair,” that recovery for design or construction defects of the roadbed, by that obiter dictum, is precluded.
The ñrst of the three "plain meanings” set forth *212in the plurality opinion in Scheurman—stating that the fourth sentence of the highway exception "refers only to the traveled portion, paved or unpaved, of the roadbed actually designed for public vehicular travel,”73—mandates no Thermidorian obliteration of the highway exception.74
As a postscript, it is once again clear that "[t]he notion that because the words of the statute are plain, its meaning is also plain, is merely pernicious oversimplification.”75
B
The three "plain meanings” derived by the plurality in Scheurman, I expect, are attributable to a failure to read all the words of the highway exception together. There is no recognition in the plurality opinion in Scheurman that the fourth sentence of the highway exception does not appear in isolation. There is no reference to or any discussion whatsoever of "in condition reasonably safe and ñt for travel” set forth in the second sentence of the highway exception.
Scheurman selectively quotes the highway exception. The opinion quotes, on page 630, the first sentence of the highway exception and omits the second sentence which provides for governmental liability. The opinion thus fails to set forth all the *213pertinent words of the highway exception. It' focuses in isolation on the first and fourth sentences of the highway exception.
Omitted—dismissed without reference, as all prior precedent is dismissed—is the operative statutory language, set forth in the second sentence, requiring that the highway be kept both "in reasonable repair, and in condition reasonably safe and fit for travel.” (Emphasis added.) Those words —the statutory standard—do not appear anywhere in the plurality opinion in Scheurman.76
IX
In conclusion, the majority misreads the legislative purpose in adding the any-other-installation clause in the fourth sentence.
That sentence was crafted to avoid state and county responsibility for the repair and maintenance of sidewalks and crosswalks, traditionally the responsibility of townships and cities, and also crafted to eliminate state and county responsibility for the repair and maintenance of installations like bicycle paths, bridges, and medians adjacent to, traversing, or running alongside, state and county highways.
That sentence was not crafted to eliminate the liability of the state and counties, and by implication cities and townships, for design and construction defects and for all other failures to maintain, as distinguished from repair, highways in condition reasonably safe and fit for travel._
*214A
The new meaning developed by the new majority purposefully ignores one hundred years of adjudication by this Court. Not one case decided by this Court before the advent of the new majority, during the over one-hundred-year history of "in reasonable repair, and in condition reasonably safe and fit for travel,” is distinguished.
A substantial departure from precedent can only be justified, I had thought, in the light of experience with the application of the rule to be abandoned or in the light of an altered historic environment.
A basic change in the law upon a ground no firmer than a change in our membership invites the popular misconception that this institution is little different from the two political branches of the Government. No misconception could do more lasting injury to this Court and to the system of law which it is our abiding mission to serve. [Mitchell v WT Grant Co, 416 US 600, 634, 636; 94 S Ct 1895; 49 L Ed 2d 406 (1974) (Stewart, J., dissenting).]
The new majority indulges itself, masked by "plain meaning” and "strict construction” in heavy-handed judicial legislation, rendering the highway exception devoid of practical meaning.
B
It is noteworthy that the view expressed in the plurality opinion in Scheurman, based on the fourth sentence of the highway exception, was not set forth in dissent in Killeen, where another analysis reaching the same conclusion was prof*215fered.77 It is remarkable that the law of the highway exception has been transformed by an afterthought that was not urged by the Attorney General in behalf of the mdot before it was thrust upon the profession in the plurality opinion in Scheurman.
The situation sense78 that intuitively guides the author of Scheurman was not informed by any consideration in Scheurman of the second sentence of the highway exception, imposing liability for failure to keep a highway "in reasonable repair, and in condition reasonably safe and fit for travel,”79 or by any consideration in Scheurman of the *216prior decisions of this Court that were essentially ignored.80
x
I would remand in Chaney to the circuit court for trial to determine the evidentiary support for Chaney’s claims of design and construction failure, and for his other claims.81
Mallett, J., concurred with Levin, J.Immediately beyond the paved roadway there is a paved curb and a narrow shoulder, and then a concrete wall where the ramp bridges the expressway. Immediately before and after the concrete wall is a metal railing.
Chaney could not recall whether he struck the metal guardrail or the concrete wall. His motorcycle did not leave the ramp.
The highway exception reads:
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 property by reason of failure of any governmental agency to keep any highway under its jurisdiction in reasonable repair, and in condition reasonably safe and ñt for travel, may recover the damages suffered by him from such 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, chapter 4 of Act No. 283 of the Public Acts of 1909, as amended, being section 224.21 of the Compiled Laws of 1948. 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. No action shall be brought against the state under this section except for injury or loss suffered on or after July 1, 1965. Any judgment against the state based on a claim arising under this section from acts or omissions of the state highway department shall be payable only from restricted funds appropriated to the state highway department or funds provided by its insurer. [1964 PA 170, § 2, MCL 691.1402; MSA 3.996(102). Emphasis added.]
The text of the portion of 1909 PA 283, concerning county liability, is set forth in n 55. 1948 CL 224.21 carries forward, without change, the operative language of the 1909 act:
*180It is hereby made the duty of the counties to keep in reasonable repair, so that they shall be reasonably safe and convenient for public travel, all county roads, bridges and culverts that are within their jurisdiction and under their care and control and which are open to public travel.
See text following n 48 and preceding n 49.
198 Mich App 728, 729-730; 499 NW2d 29 (1993).
Id., p 637. The concurring opinion concluded with: "See ante, p 637, n 29,” thereby adverting to n 29 of the plurality opinion in which it was acknowledged that in Tuttle v Dep’t of State Hwys, 397 Mich 44, 45-46; 243 NW2d 244 (1976), "this Court found the defendant-liable for a newly opened intersection that 'was not "reasonably safe and fit for travel” by reason of inadequate signalization.’ ” The plurality opinion also there adverted to Salvati v Dep’t of State Hwys, 415 Mich 708; 330 NW2d 64 (1982), and stated:
[T]he plurality decision [in Salvati] indicates a willingness by the Court to include the duty to post and maintain traffic signs within the highway exception statute. Again [as in Tuttle], however, neither of the two opinions, nor any of the cited cases within them, address the issue whether traffic signs fall within the "improved portion of the highway designed for vehicular travel.”
Notwithstanding our decision today, we feel it is inappropriate to express an opinion as to the validity of Tuttle or Salvati at this time.
See also Negri v Slotkin, 397 Mich 105, 109; 244 NW2d 98 (1976).
Both Scheurman and Prokop were decided with one (plurality, concurring, and dissenting) opinion.
Id., p 631. This was the third "plain meaning” of the highway exception put forth in the plurality opinion in Scheurman. See ns 70-74.
Scheurman, concerning street lighting, and Prokop, concerning trimming hedges at an intersection, involved installations that were not "part of the improved portion of the highway designed for vehicular travel” (the second "plain meaning,” Scheurman, supra, p 623) or "the traveled portion, paved or unpaved, of the roadbed actually designed for public vehicular travel” (the first "plain meaning,” Scheurman, supra, p 623). See ns 67-70 and accompanying text.
See ns 70-74.
The author of Scheurman states that the formulation set forth in the concurring opinion "is inconsistent with Scheurman,” and its adoption would "[i]n effect” overrule Scheurman. Ante, pp 169, 170 (opinion of Riley, J.). Scheurman, however, could only be overruled by a decision of this Court holding that the highway exception requires the installation of lighting on state highways or the state or county to remove hedges located on private property that obscure the line of vision at an intersection.
A decision of this Court deciding another case, with different facts, especially a decision that, like Scheurman, finds that the state is not subject to liability under the highway exception, would not overrule Scheurman merely because the analysis of the later decision holds out the possibility that in some other case the state or the county might be subject to liability under the highway exception for maintenance failures other than failure to repair.
Scheurman, supra, p 632, n 23 (opinion of Riley, J.), pp 651-652 (opinion of Brickley, J.).
The first two sentences of the highway exception read:
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 property by reason of failure of any governmental agency to keep any highway under its jurisdiction in reasonable repair, and in condition reasonably safe and ñt for travel, may recover the damages suffered by him from such governmental agency. [1964 PA 170, § 2, MCL 691.1402; MSA 3.996(102). Emphasis added.]
See n 3 for the full text of § 2, the highway exception of the governmental tort liability act.
The 1879 act read as follows:
That any person or persons sustaining bodily injury upon any of the public highways or streets in this state, by reason of neglect to keep such public highways or streets, and all bridges, crosswalks and culverts on the same in good repair, and in a condition reasonably safe and ñt for travel, by the township, village, city, or corporation whose corporate authority extends over such public highway, street, bridge, crosswalk or culvert, and whose duty it is to keep the same in good repair, such township, village, city, or corporation shall be liable to, and shall pay to the person or persons so injured or disabled, just damages, to be recovered- in an action of trespass on the case, before any court of competent jurisdiction. [1879 PA 244. Emphasis added.]
The 1887 act read as follows:
*186That any person or persons sustaining bodily injury upon any of the public highways or streets in this State, by reason of neglect to keep such public highways or streets, and all bridges, sidewalks, cross-walks and culverts on the same in reasonable repair, and in condition reasonably safe and ñt for travel by the township, village, city or corporation whose corporate authority extends over such public highway, street, bridge, sidewalk, cross-walk or culvert, and whose duty it is to keep the same in reasonable repair, such township, village, city or corporation shall be liable to and shall pay to the person or persons so injured or disabled just damages, to be recovered in an action of trespass on the case before any court of competent jurisdiction. [1887 PA 264. Emphasis added.]
Joslyn v Detroit, 74 Mich 458; 42 NW 50 (1889); Salvati v Dep’t of State Hwys, n 6 supra.
Malloy v Walker Twp, 77 Mich 448; 43 NW 1012 (1889); Arnold v Dep’t of State Hwys, 406 Mich 235; 277 NW2d 627 (1979); Endykiewicz v State Hwy Comm, 414 Mich 377; 324 NW2d 755 (1982).
Malloy v Walker Twp, n 17 supra; Peters v Dep’t of State Hwys, 400 Mich 50, 63; 252 NW2d 799 (1977); Arnold v Dep’t of State Hwys, n 17 supra; Tuttle v Dep’t of State Hwys, n 6 supra; Killeen v Dep’t of Transportation, 432 Mich 1; 438 NW2d 233 (1989).
See cases cited in notes 16-18.
See n 3.
Defined as including roads and streets. See n 57.
See ns 3 and 15 for text of statutes.
The report does not state the. speed of the horse-drawn conveyance, but the speed of the conveyance was surely far less than the speed of automobiles on state and county highways and roads under the jurisdiction of townships, cities, and other municipal corporations.
See n 15 for the full text of the 1879 act.
Malloy v Walker Twp, n 17 supra, p 455.
Sharp v Evergreen Twp, 67 Mich 443; 35 NW 67 (1887); Ross v Ionia Twp, 104 Mich 320, 324; 62 NW 401 (1895); Hannon v City of Gladstone, 136 Mich 621; 99 NW 790 (1904); Lamb v Clam Lake Twp, 175 Mich 77; 140 NW 1009 (1913); Carpenter v Bloomingdale Twp, 227 Mich 355; 198 NW 912 (1924).
Joslyn v Detroit, n 16 supra, p 460.
The Court continued:
The duty is imposed in both cases, and the necessity for it exists in the one case just as much as in the other, and the liability is the same, and it is very manifest that the Legislature intended to make it so.
*189The Court said that the statute
requires everything to be done by the city necessary to make travel upon its streets reasonably safe. If in so doing it becomes necessary to place signals or other safeguards at given points, or give other proper warning, it is the duty .of the city to see that it is done or that the street is closed to travel; and that duty is imposed by the express language of the statute, and the injury arising from the neglect of such duty to the citizen will make the municipality responsible to the party injured. [Id., p 461.]
See n 9 and ns 70-74 and the accompanying text.
Joslyn v Detroit, n 16 supra, p 462 (Campbell, J., dissenting); Malloy v Walker Twp, n 17 supra, p 466 (Campbell, J., dissenting); McEvoy v Sault Ste Marie, 136 Mich 172, 183; 98 NW 1006 (1904) (Grant, J., dissenting).
McEvoy v Sault Ste Marie, n 29 supra.
Kowalczyk v Bailey, 379 Mich 568, 572; 153 NW2d 660 (1967), in which this Court said:
In both Joslyn [n 16 supra] and McEvoy [n 29 supra] dissenting opinions were filed but the views of the two dissenters never have prevailed in this Court. We are not persuaded that we should abandon the carefully considered opinions of this Court in Joslyn and McEvoy, in favor of the dissenters’ views, in applying now the relevantly similar provisions of PA 1909, No 283. It is our conclusion, therefore, that the statute imposed upon cities liability for injuries caused by their negligent failure to remove obstructions in their streets after notice thereof.
The accident in Kowalczyk occurred before the enactment of the governmental tort liability act, but the language dealt with in the 1889, 1904 and 1967 cases was carried forward in the 1964 enactment of the governmental tort liability act without substantive change.
With the exception referred to in n 6. See also n 77.
The dissenting opinion in Killeen v Dep’t of Transportation, n 18 supra, p 20, n 5, but not the plurality opinion in Scheurman, adverted to Mullins v Wayne Co, 16 Mich App 365, 375; 168 NW2d 246 (1969), and the citation there of Joslyn (see n 16) and Malloy (see n 17). Mullins was distinguished on the basis that it involved a "county’s duty to repair county roads under MCL 224.21; MSA 9.121, whereas, here this Court is construing a governmental agency’s duty to maintain highways under” the highway exception of the governmental tort liability act, and additionally on the basis that the state and not a county was the governmental agency in Killeen. Joslyn and Malloy were distinguished on the basis that they "were both decided twenty years before the effective date of MCL 224.21; MSA 9.121.” See n 3 for the text of MCL 224.21; MSA 9.121.
The dissenting opinion in Killeen also adverted to Endykiewicz, and expressed disagreement with statements concerning the rules of statutory construction in that opinion. Endykiewicz, n 17 supra, was not adverted to in the plurality opinion in Scheurman.
See n 15 for the text of the 1879/1887 language. See n 3 for the text of the 1964 reenactment.
A predecessor of the mdot.
The issue in Tuttle was whether the Court of Claims judge clearly erred in finding that the highway department was not negligent when the undisputed facts showed that it failed to carry out its own work orders to add flashing lights and other signals at an intersection after its traffic engineers had determined that the existing stop control devices were not sufficiently noticeable. This Court ruled that the Court of Claims judge clearly erred.
Department of State Highways, now Michigan Department Of Transportation.
The statement in Peters that the duty under the highway exception is "to keep the highway in a condition reasonably safe and fit for travel,” and the recognition that the department is subject to liability whether the defect was in design, construction or maintenance, is at odds with the statement in the companion case of Mason that the highway exception is limited to repair.
Id., pp 236-238.
*192The Court rejected the contention of the State Highway Department that a plaintiff must show that a highway defect was "flagrant” or "palpably dangerous.” Id., p 238.
The Court reiterated the statement in Peters that the " 'duty of the defendant is to keep the highway in a condition reasonably safe and fit for travel.’ ” Arnold, supra, p 238. (Emphasis in original.)
A predecessor of the mdot.
The issue in Endykiewicz was whether the State Highway Commission was liable for damages for loss of society and companionship in a wrongful death action arising out of the failure of the commission to maintain a highway in a condition reasonably safe and fit for travel. This Court rejected the contentions that the plaintiff could not recover for the loss of society and companionship because "this statute must be strictly construed,” and the courts should "defer to the Legislature’s intent to confine narrowly the state’s tort liability in highway defect cases.” Id., p 384. Contrast the plurality opinion in Scheurman, supra, p 627.
In Killeen v Dep’t of Transportation, supra, p 5, the issue did not concern the meaning of "in reasonable repair, and in condition reasonably safe and fit for travel.” The issue was whether the mdot was subject to liability when it assumes jurisdiction of a county road, and redesigns and reconstructs the road and then returns jurisdiction to the county road commission, for injuries sustained in accidents caused by failures in design or construction while it had jurisdiction, although the accident did not occur until after the department had relinquished jurisdiction. This Court held that the mdot was subject to liability in such a case for failures in design or construction.
The majority said:
*193The question presented is whether the highway department is subject to liability under the governmental tort liability act to a person sustaining injury by reason of defects in design or construction of a county road made while the highway department has assumed jurisdiction of the county road where the accident occurs after the highway department has returned jurisdiction to the county road commission. We hold that the highway department is subject to liability for loss suffered as a result of design and construction defects made while it has jurisdiction, and that it is not absolved from responsibility by a retransfer of jurisdiction of the defective road to the county road commission. [Id., pp 4-5.]
See ns 32 and 77 for discussion of the dissenting opinion in Killeen.
Excepting only the view expressed in dissent by the author of Scheurman in Killeen v Dep’t of Transportation, supra, p 18 (Riley, C.J., dissenting). See ns 32 and 77.
The fourth sentence of the highway exception reads:
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. [1964 PA 170, § 2, MCL 691.1402; MSA 3.996(102). Emphasis added.]
See n 3 for the full text of § 2, the highway exception.
The highway provision states that "liability . . . shall extend only to the improved portion of the highway” .... [Endykiewicz, supra, p 389.]
Scheurman, p 627.
The Attorney General said that the courts of this state have "found items to be within the improved portion where they are ’an integral part of the improved portion’ and which 'directly relate to the statutory duty imposed upon the defendant to maintain the highway in a condition safe and fit for travel,’ Lynes v St Joseph Rd Comm, 29 Mich App 51, 59; 185 NW2d 111 (1970).”
The Attorney General continued in Scheurman: " 'Essentially, anything intimately connected with vehicular travel and making it safe for travel has been said to be within the ambit of the abrogation of governmental immunity.’ Tibor v Dep’t of State Hwys, 126 Mich App 159, 163; 337 NW2d 444 (1983).”
In Tuttle, Endykiewicz, and Killeen, the plaintiffs recovered on the basis that the mdot and its predecessor state highway authorities had failed to keep the roadways in condition reasonably safe and fit for travel.
The mdot did not, I acknowledge, assert that the duty and liability set forth in the first and second sentences of the highway exception to keep roadways in condition reasonably safe and fit for travel was superseded by the any-other-installation clause of the fourth sentence.
Except as noted in n 6. See also ns 32 and 77.
See ns 16-18.
I write that the words and sentences of the highway exception should be read as a whole because the fourth sentence does not stand *197by itself. All the pertinent language of the highway exception reads as follows:
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 property by reason of failure of any governmental agency to keep any highway under its jurisdiction in reasonable repair, and in condition reasonably sáfe and ñt for travel, may recover the damages suffered by him from such 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, chapter 4 of Act No. 283 of the Public Acts of 1909, as amended, being section 224.21 of the Compiled Laws of 1948. 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. [1964 PA 170, § 2, MCL 691.1402; MSA 3.996(102). Emphasis added.]
The highway exception, reading all the words together, subjects a governmental agency to liability for failure to keep "the improved portion of the highway designed for vehicular travel” "in reasonable repair, and in condition reasonably safe and fit for travel.”
The "improved portion” of the highway is redescribed in the *198Scheurman plurality opinion as the “physical portion” and "traveled portion.” The redescription of the "improved portion” as the "physical” or "traveled” portion is inconsequential. Id., p 623.
See notes 16-18.
Id., p 639 (Brickley, J., concurring in part and dissenting in part).
The plaintiff in Mason is not complaining of a failure of Wayne County to repair and maintain in condition reasonably safe and fit for travel school warning signs that were not erected. He does not complain that he was unable to travel on an imaginary road traversing the tops of school warning signs that should have been erected and located outside the improved portion of the highway. The Mason plaintiff complains of the failure of Wayne County to erect school warning signs.
Chaney does not complain that the barrier was not of suitable width or design for ordinary or daredevil driving.
Id., p 631.
Ferguson v Muskegon Co, 181 Mich 335; 148 NW 212 (1914).
The statute provided:
It is hereby made the duty of the counties to keep in reasonable repair, so that they shall be reasonably safe and convenient for public travel, all county roads, bridges and culverts that are within their jurisdiction and under their care and control and which are open to public travel. The provisions of law respecting the liability of townships, cities, villages and corporations for damages for injuries resulting from a failure in the performance of the same duty respecting roads under their control, shall apply to counties adopting such county road system. [1909 PA 283, ch 4, § 21.]
As set forth in the plurality opinion, 1879 PA 244 (see n 15 for text) subjected townships and cities to liability for failure to keep bridges, crosswalks, and culverts, as well as public highways or streets, in good repair, and in condition reasonably safe and fit for travel, and this liability was expanded to include sidewalks in 1887. See n 15. "Good repair” was changed to "reasonable repair” by the same act, 1887 PA 264, see n 15 for text. See Welton v Crystal Twp, 152 Mich 486; 116 NW 390 (1908); Ferguson v Muskegon Co, n 55 supra; Union Twp v Mt Pleasant, 381 Mich 82; 158 NW2d 905 (1968).
"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. [MCL 691.1401(e); MSA 3.996(101)(e).]
To be sure, as a practical matter, the state and the counties, when they repair and maintain a state or county road, probably also repair and maintain crosswalks traversing such roads.
Sidewalks may or may not be an "installation outside of the improved portion of the highway.” Crosswalks are, by definition, part of the highway.
But the responsibility of the state and counties is to maintain roadways in reasonable repair, and in condition reasonably safe and fit for travel by vehicles authorized to use the roads. It would appear —but because this is not an issue in this case, I do not formally address it—that, to the extent that that standard is less than what would constitute reasonable repair, and in condition reasonably safe and fit for travel by pedestrians, the townships and city continue to be responsible.
Roy was decided by per curiam opinion. We all agreed that the highway exception "does not extend to injuries which arise from detached, ancillary installations, such as sidewalks, crosswalks, and bicycle paths.” Id., p 331.
Roy was riding his bicycle on a bicycle path adjacent to a portion of 1-275. The complaint alleged that there was a " 'substantial asphalt bump,’ ” and that the mdot’s agents had cut weeds and piled them over the area of the bump, and, as a result, he was unable to see the bump and was thrown from his bicycle when he encountered it. Id., p 332.
The improved portion of the roadway leading to and from rest stops and truck stops, and possibly the parking areas, are improved portions of the highway designed for vehicular travel. The remainder of the areas between the roadway of the expressway and the outer boundaries of rest stops and truck stops would be an installation outside the improved portion of the highway designed for vehicular travel.
The state and the counties have not been subject to liability for the repair and maintenance of drains and ditches paralleling the *205right of way of a highway even if they were located within the boundaries of the right of way.
I have made these observations with regard to a median, rest stops, truck stops, drains and ditches, and other installations with some, reluctance because the issues in the instant case do not concern such installations, and there has been no briefing or argument. I make these observations because the construction placed by the majority on the fourth sentence attributes a meaning to "any other installation” that, in my judgment, is clearly wrong, and I feel obliged to show that there is another reading that gives those words substantial meaning.
Ante, p 161 (opinion of Brickley, J.).
The opinion declares that it reads Scheurman as reiterating the general rule that the "highway exception does not normally include installations physically separate and detached from the paved or traveled portion of a highway.” Id., p 157 (emphasis added). The opinion continues that the limiting language of the fourth sentence of the highway exception "creating liability only for 'the improved portion of a highway designed for vehicular travel,’ encompasses (1) installations physically located within that traveled or paved portion of a highway designed for vehicular travel, or (2) some installations, even those physically located beyond the traveled or paved portion of a highway, that directly and integrally affect safe vehicular travel on this improved portion.” Id., p 158.
The language in (2) above parallels the "integral” language in the concurring opinion in Scheurman. See text accompanying n 5 for the text of that opinion.
In Fogarty v Dep’t of Transportation, 200 Mich App 572; 504 NW2d 710 (1993), formal abeyance for Mason, February 28, 1994 (Docket No. 97248), the plaintiff’s decedent was killed when his automobile was struck head on by an automobile being driven by the defendant’s decedent, Mancini. Mancini was traveling southbound on 1-75 when he lost control of his vehicle, passed through a grassy median, and entered the northbound lanes in which the plaintiff’s decedent was traveling. The plaintiff claims that the mdot failed to adequately design, construct, and repair the median.
The Court of Appeals held that th'e grassy median is not part of the highway designed for vehicular travel. While the mdot is not required to repair and maintain the median in condition reasonably safe and fit for travel, and as set forth in text accompanying n 60, the median is generally an "other installation,” that does not relieve the mdot of the obligation to erect barriers necessary to maintain the improved portion of a highway, such as expressway lanes moving in opposite directions, in condition reasonably safe and fit for travel.
See also Sinishtaj v Dep’t of State Hwys, unpublished opinion per curiam of the Court of Appeals, issued April 30, 1993 (Docket No. 135368), formal abeyance for Chaney, December 3, 1993 (Docket No. 96641). The plaintiff is the guardian of a woman who was hurt when her automobile went over a guardrail on M-59 near Adams Road. She claims the mdot breached its duty to keep M-59 in a manner reasonably safe and fit for public travel. The woman’s automobile struck a guardrail, went over the guardrail, and rolled down a steep embankment. The Court of Appeals granted summary disposition on the basis of its decision in Chaney and Scheurman.
One justice dissented, stating that a shoulder of a highway is not within the highway exception because it is not designed for vehicular travel but rather for the temporary accommodation of disabled or stopped vehicles. Gregg, supra, p 317 (Griffin, J., dissenting).
Gregg, supra, p 308 (Riley, C.J., dissenting).
See text accompanying n 38.
Id., p 631.
In a recent opinion, construing the gross negligence exception to employee governmental immunity, MCL 691.1407(2)(c); MSA 3.996(Í07)(2)(c), a majority observed:
It defies common sense and the responsible exercise of our authority to conclude that the Legislature would have provided protection tantamount to eliminating liability without having commented on it. [Dedes v Asch, 446 Mich 99, 115; 521 NW2d 488 (1994).]
The plurality opinion in Scheurman reads out from the highway exception the words stricken in the foregoing text, and in effect renders the highway exception almost no exception at all.
Id., p 631.
Id., p 623.
Neither Scheurman itself nor its companion case, Prokop, concerned allegations of design or construction defects. The third "plain meaning” set forth in the plurality opinion in Scheurman, stating that the "true intent of the Legislature is to impose a duty to keep the physical portion of the traveled roadbed in reasonable repair," went beyond what was necessary to decide either Scheurman or Prokop. Both cases could have been decided with the same conclusion of no governmental liability under either the first or second "plain meanings” set forth in the plurality opinion in Scheurman. Id., p 631.
Id., p 623.
This first "plain meaning” of the fourth sentence, read, as it must be read, in conjunction with the language of the second sentence, "in reasonable repair, and in condition reasonably safe and fit for travel,” means that a governmental agency is subject to liability, in the words of the plurality opinion in Scheurman, for a failure to keep "the traveled portion, paved or unpaved, of the roadbed actually designed for public vehicular travel” in reasonable repair, and in condition reasonably safe and fit for travel. That is the correct meaning of the fourth sentence. Id., p 623.
United States v Monia, 317 US 424, 431; 63 S Ct 409; 87 L Ed 376 (1943) (Frankfurter, J., dissenting).
The plurality opinion quoted only the first sentence of the highway exception, obligating a governmental agency to "maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel.” Those words, standing alone, might have been read—they were not (see ns 16-18)—-by this Court when it first confronted the issue over a hundred years ago as requiring only reasonable repairs.
In Killeen, supra, p 18, the author of Scheurman dissented stating:
It is my opinion that the highway exception to Michigan’s governmental immunity statute encompasses only a duty of maintenance and does not include liability for the negligent design and construction of highways.
That statement in Killeen was not based on the any-other-installation clause in the fourth sentence of the highway exception. Indeed, the thought that the fourth sentence might provide a basis for holding that there is no governmental liability for "negligent design and construction of highways” was so far out of mind that the fourth sentence was not quoted in the dissenting opinion. The quotation of the highway exception set forth in the dissenting opinion concluded with the third sentence. Id., p 20 (Riley, C.J., dissenting).
The view expressed in the dissenting opinion was based, rather, on the first sentence of the highway exception. The dissenting justice expressed her position in the following language:
In my view, the Legislature’s choice of the words, "shall maintain the highway in reasonable repair,” indicates its intention merely to impose a duty of maintenance upon the governmental agency having jurisdiction over a highway. Furthermore, I interpret "maintain ... in reasonable repair” as encompassing only those repairs necessary as a result of normal highway usage. The statute does not impose a duty to repair defects in design or construction. [Id. Emphasis in original.]
Llewellyn, Common Law Tradition, Deciding Appeals, p 206.
See n 76 and accompanying text.
Except as noted in n 6. See also ns 32 and 77.
See ante, pp 152-153 (opinion of Brickley, J.).