Pate v. Department of Transportation

D. F. Walsh, J.

(dissenting). I must respectfully dissent. It may be, as a panel of this Court ruled in Lynes v St Joseph Road Comm, 29 Mich App 51, 59; 185 NW2d 111 (1970), that "[traffic signals which control the ffow of traffic are an integral part of the improved portion of the highway”. (Emphasis supplied.) In my judgment, however, the remains of a former traffic control device which has been removed and which no longer functions to control traffic is not part of the improved portion of the highway. It is at best an "installation outside of the improved portion of the highway” *137explicitly excluded from the highway exception, MCL 691.1402; MSA 3.996(102), to the governmental immunity act. MCL 691.1407; MSA 3.996(107).

In enacting the highway exception to the immunity act, the Legislature imposed upon the governmental agency having jurisdiction over any highway the duty to "maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel”. It expressly limited that duty to the "improved portion of the highway designed for vehicular travel”. In Lynes, supra, this Court held that the placement and maintenance of signals and devices necessary to control the flow of traffic was part of the duty to maintain the highway. Therefore, even if such devices were located outside of that portion of the highway "designed for vehicular travel”, they were nevertheless part of the "improved portion” of the highway since they were required in order to make safe that portion of the highway "designed for vehicular travel”. But to extend the rationale of Lynes to an area not "designed for vehicular travel” is, in my judgment, not only unwarranted and unwise but also completely inconsistent with the express language of the statute. The Legislature simply did not impose any duty upon the governmental agency having jurisdiction over the highway to repair or make "reasonably safe and convenient for public travel” any area outside that "designed for vehicular travel”.1

I would affirm the trial court.

1 note that all of the cases cited in the majority opinion involve a failure to maintain a traffic control device which resulted in an unsafe condition on the vehicular travel portion of the highway not an unsafe condition in an area outside the vehicular travel portion of the highway. The statute, MCL 691.1407; MSA 3.996(107), expressly provides that the duty to maintain the highway and to make it safe for public travel extends "only to the improved portion of the highway designed for vehicular travel”.