Nawrocki v. MacOmb County Road Commission

*186Kelly, J.

{concurring in part and dissenting in part). I concur with the majority’s disposition of Nawrocki v Macomb Co Rd Comm. But I cannot join its decision in Evens v Shiawassee Co Rd Comm’rs.

In the Evens case, the majority again decides that a well-reasoned precedent of this Court must give way to its own interpretation of a Michigan statute. MCL 691.1402(1); MSA 3.996(102)(1). I find the majority’s analysis badly flawed.

I. NAWROCKI v MACOMB COUNTY ROAD COMMISSION

In Nawrocki v Macomb Co Rd Comm, the trial court relied on obiter dictum from Mason v Wayne Co Bd of Comm’rs1 to conclude that the highway exception to governmental immunity does not protect pedestrians, unless their injuries result from vehicular accidents. In so holding, the trial court ignored this Court’s ruling in Gregg v State Hwy Dep’t, 435 Mich 307; 458 NW2d 619 (1990).

In Mason, the ten-year-old plaintiff entered a roadway near his school and, while in the intersection, was struck by a vehicle running a red light. Id. at 132-133. He sued the Wayne County Board of Commissioners to recover for his injuries on the theory that the board should have provided signs warning drivers that a school was nearby. Id. This Court found that the highway exception did not apply and that the plaintiff’s suit was barred by governmental immunity. Id. at 138. The holding was based on a finding that “[t]he highway exception specifically excepts the state and counties from liability for defects in cross*187walks, the defect alleged by the plaintiff . . . "Id. at 135.

In a footnote in Mason, this Court stated:

It is true that “[a]ny person" may recover, but only for ii\juries that result from vehicular accidents. If a defect in the improved portion of the highway causes a traffic accident, any person injured as a result of that accident may recover, including injured passengers or pedestrians, if any, and the owner of the vehicle. [Id. at 135, n 4.]

The issue in Mason was whether the highway exception applies to a pedestrian injured in a crosswalk, not whether pedestrians in other locations can recover under the exception. Therefore, I regard footnote 4 as mere dictum.

In Gregg, however, the defendant argued that the highway exception did not apply to nonmotorists.2 Id. at 310-311. We rejected the argument because the highway exception expressly includes “any person sustaining bodily injury or damage to his property . . . Id. at 311. Thus, Gregg stands for the proposition that the highway exception allows injured pedestrians and the occupants of motor vehicles to recover. The injuries must have been caused by the failure of county road commissions or the state to maintain the improved portion of a highway designed for vehicular travel.

In this case, the trial court erred when it rejected the holding of Gregg in favor of dictum from Mason. I agree with the majority that the trial court should not *188have granted the defendant’s motion for summary disposition.

II. EVENS v SHIAWASSEE COUNTY ROAD COMMISSIONERS

However, I disagree with the conclusion in Evens that MCL 691.1402(1); MSA 3.996(102)(1) establishes an exception to governmental immunity involving only traveled portions of a roadbed actually designed for vehicular travel. This interpretation is myopic in that it fails to place MCL 691.1402(1); ' MSA 3.996(102)(1) in its proper statutory framework. It is erroneous, also, because the majority inserts its own meaning of the words “improved portion of the highway designed for vehicular travel.

A. THE WORDS “IMPROVED PORTION OF THE HIGHWAY DESIGNED FOR VEHICULAR TRAVEL” REFER TO MORE THAN JUST THE ROADBED

Had the Legislature intended to impose liability on county road commissions and the state for defects in the surface of roads, alone, it could have and would have said so. The plain meaning of the words “improved portion of the highway designed for vehicular travel” connotes a broader concept than just the surface of the road, itself.

The primary goal of statutory interpretation is to give effect to the controlling intent of the Legislature. Lorencz v Ford Motor Co, 439 Mich 370, 376-377; 483 NW2d 844 (1992). “When determining legislative intent, statutory language should be given a reasonable construction considering its purpose and the object sought to be accomplished.” Wills v Iron Co *189Bd of Canvassers, 183 Mich App 797, 801; 455 NW2d 405 (1990).

As the majority hints, this Court has long struggled with the outrageously imperfect language of the highway exception to governmental immunity. Ante, p 167. That long struggle, alone, supports the conclusion that the language of the highway exception is far from plain.3 However, the majority asserts that the language of the statute is “plain,” in the sense that it lacks ambiguity.

I differ with the majority’s conclusory assertion that the statutory phrase “improved portion of the highway designed for vehicular travel” has a plain meaning wilfully disregarded by this Court in Pick v Szymczak, 451 Mich 607; 548 NW2d 603 (1996). Standing alone, the phrase does not specify that the improved portion of the highway designed for vehicular travel includes only the surface of the highway. For example, it leaves uncertain whether the space above the highway containing traffic lights is included.

Because it does not, the words “improved portion of the highway designed for vehicular travel” might include traffic control devices. Beyond dispute, they constitute an improvement, inasmuch as they are placed on or above the highway by a government agency to improve vehicular travel.

As we noted in Pick, vehicles do not travel “solely on the two-dimensional length and width of the roadway,” but in three dimensional space. Id. at 622-623. *190And for obvious reasons, it is impossible to place traffic control devices on the roadbed that the vehicles touch while traveling.

Provisions of the Motor Vehicle Code support the conclusion that the Legislature envisioned traffic control devices as an integral part of the highway itself:

The state highway commission shall place or require to be placed and maintain or require to be maintained such traffic control devices, conforming to said manual and specifications, upon all state highways as it shall deem necessary to indicate and to carry out the provisions of this chapter or to regulate, warn or guide traffic. [MCL 257.609(a); MSA 9.2309(a) (emphasis added).]

The county road commission has a similar duty:

Local authorities and county road commissions in their respective jurisdictions shall place and maintain such traffic control devices upon highways under their jurisdiction as they may deem necessary to indicate and carry out the provisions of this chapter or local traffic ordinances or to regulate, warn or guide traffic. All such traffic control devices hereafter erected shall conform to the state manual and specifications. [MCL 257.610(a); MSA 9.2310(a) (emphasis added).][4]

*191The Legislature’s use of the word “upon” indicates that traffic control devices are on, not off highways. The Legislature appears to have intended that they become a part of the highway itself. Since we cannot determine from the phrase alone whether it includes improvements such as traffic devices, it is appropriate to analyze the provisions of the governmental immunity act as a whole.

B. THE STATUTORY SCHEME OF THE GOVERNMENTAL IMMUNITY ACT

In Ross v Consumers Power Co (On Rehearing),5 we recognized that the governmental immunity act was intended to provide uniform liability and immunity to both state and local government agencies. The preamble to the act notes that it is

an act to make uniform the liability of municipal corporations, political subdivisions, and the state, its agencies and departments, officers, employees, and volunteers thereof, and members of certain boards, councils, and task forces when engaged in the exercise or discharge of a governmental function, for injuries to property and persons; to define and limit this liability ....

The highway exception is § 2 of the governmental immunity act, MCL 691.1402(1); MSA 3.996(102)(1). In it, the Legislature placed a general duty on “each governmental agency having jurisdiction over a highway” to “maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel *192. . . The next sentence imposes liability on a government agency having jurisdiction over a highway for failure “to keep a highway under its jurisdiction in reasonable repair and in a condition reasonably safe and fit for travel . . . Thus, liability not only extends to highways in a state of disrepair, but to those in a condition not reasonably safe and fit for travel.

The majority concludes that the Legislature did not intend to include traffic control devices within the purview of the highway exception. To reach that conclusion, it reads the first and second sentence of MCL 691.1402(1); MSA 3.996(102)(1) separately. The result is that it contradicts the Legislature’s clear intent and renders the second sentence nugatory.

The second sentence of MCL 691.1402(1); MSA 3.996(102)(1) provides:

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.

In this sentence, the Legislature expressly provides that persons who are injured because a government agency failed to keep a highway “in reasonable repair and in a condition reasonably safe and fit for travel” may recover damages from that agency. The majority quotes Justice Riley’s dissent in Pick, asserting that a duty to keep the highway in a condition reasonably safe for travel does not exist. However, the assertion is refuted by the second sentence of the highway exception, itself. It is illogical to conclude that the *193Legislature would impose liability where there is no duty.

It is a maxim of statutory construction that every word in a statute should be read to give the word meaning. Also, a court should avoid a construction that would render any part of a statute surplusage or nugatory. In re MCI Telecommunications, 460 Mich 396, 414; 596 NW2d 164 (1999); Altman v Meridian Twp, 439 Mich 623, 635; 487 NW2d 155 (1992). The majority violates these principles by reading the first sentence of the highway exception, but ignoring the second. It renders meaningless the Legislature’s intent to allow damages to those injured when a government agency fails to keep a highway under its jurisdiction reasonably safe for public travel.

Keeping the highway in a condition reasonably safe for public travel includes maintaining traffic control devices in working order. The majority maintains that traffic control devices are not implicated in the definition of “highway” under the highway exception to the governmental immunity act. I disagree.

Under subsection 1(e) of the governmental immunity act, MCL 691.1401(e); MSA 3.996(101)(e),

“Highway” means a public highway, road, or street that is open for public travel and includes bridges, sidewalks, trail-ways, crosswalks, and culverts on the highway. The term highway does not include alleys, trees, and utility poles.

As the majority concedes, this definition of “highway” is broad. Ante, p 175, n 30. In defining it, the Legislature specifies what is excluded: alleys, trees, and utility poles. Notably, it did not exclude traffic control devices. The majority usurps the Legislature’s *194role by adding traffic control devices to the list of exclusions.

This broad definition of “highway” explains the presence of the fourth sentence of MCL 691.1402(1); MSA 3.996(102)(1):

The duty of the state and county road commissions to repair and maintain highways, and the liability for that duty, extends only to the improved portion of the highway designed for vehicular travel and does not include sidewalks, trailways, crosswalks, or any other installation outside of the improved portion of the highway designed for vehicular travel.

This sentence relieves county road commissions and the state from liability for installations outside the improved portions of the highway. But the Legislature did not completely bar recovery when an individual is injured because of a defect in “a portion of a county highway outside of the improved portion of the highway designed for vehicular travel, including a sidewalk, trailway, crosswalk or other installation.” MCL 691.1402a(l); MSA 3.996(102a)(l).

Instead, the act places liability for those accidents on municipal corporations. MCL 691.1402a(1); MSA 3.996(102a)(1). If a municipal corporation knew about a defect thirty days before a plaintiffs injury and the defect is the proximate cause of the injury, then the corporation is liable.6 MCL 691.1402a(1)(a) and (b); MSA 3.996(102a)(1)(a) and (b).

*195Under the statutory scheme created by the governmental immunity act, state and county road commissions are hable for defects in the improved portion of the highway designed for vehicular travel. MCL 691.1402(1); MSA 3.996(102)(1). When a municipal corporation knows or should know about the existence of a defect outside the improved portion of the highway, it is liable for injuries caused by the defect. MCL 691.1402a; MSA 3.996(102a).

Maintaining traffic control devices is a governmental function delegated to county road commissions and the state. MCL 257.609(a); MSA 9.2309(a), MCL 257.610(a); MSA 9.2310(a). The governmental immunity act was intended to make uniform the liability of government agencies when, in the discharge or exercise of certain government functions, persons were injured. One of the functions is maintaining highways in reasonable repair and in a condition reasonably safe and convenient for public travel. Hence, the act includes the highway exception, which is found at MCL 691.1402(1); MSA 3.996(102)(1).

Defective traffic control devices make highways hazardous for vehicular traffic. It is therefore logical to conclude that the Legislature intended to include traffic control devices in the duty to maintain highways in a condition reasonably safe for public travel. However, the majority has decided that traffic control devices are located outside the improved portions of roads, shifting liability for defective control devices to municipal corporations.

*196I find this conclusion illogical, particularly when county road commissions and the state have the duty to place and maintain traffic control devices on highways. MCL 257.609(a); MSA 9.2309(a); MCL 257.610(a); MSA 9.2310(a). Shifting liability for defective traffic control devices to municipal corporations when it is the county road commissions or the state that have the duty to maintain them is simply senseless.

C. PUBLIC POLICY CONSIDERATIONS

In support of its construction of MCL 691.1402(1); MSA 3.996(102)(1), the majority points to certain public policy considerations. Specifically, it is concerned about the costs taxpayers might sustain if we determine that the use and maintenance of traffic control devices are part of keeping highways safe for public travel.

Contrary to the majority’s predictions, the inclusion of traffic control devices would not make county road commissions and the state responsible for every instance of injury arising from automobile accidents. Instead, they would be liable only for injuries caused by their failure to maintain the improved highways in a condition reasonably safe for vehicular travel.

In terms of public policy, one could argue that the taxpayers desire the reasonable use of traffic control devices to make roads safer. One could also argue that they intend compensation for those injured when an agency fails to keep roads safe, as expressly provided in the second sentence of the highway exception.

*197There has been no evidence that, “before Pick, a dearth of traffic control devices existed, creating unsafe highways . . . Ante, p 178, n 34. By the same token, there is no evidence that, since Pick in 1996, state coffers have been drained by a flood of lawsuits alleging injuries from unsafe traffic control devices.7 Indeed, if it were the case that Pick resulted in an unbearable financial strain on the state, then surely the Legislature would have rewritten the governmental immunity act.8

HI. CONCLUSION

Pick does not contradict the plain meaning of MCL 691.1402(1); MSA 3.996(102)(1). Rather, the interpretation proffered by the majority today offends the statutory scheme set in place by the Legislature. Moreover, it offends principles of statutory construction, the doctrine of stare decisis, and common sense.

In Ross, we provided that exceptions to the governmental immunity act should be construed narrowly; however, it does not follow that they should be construed in contravention of the stated intent of the Legislature.

It appears that the majority is straining in making the statutory interpretation in Evens. It has improp*198erly interpreted the words “improved portion of the highway designed for vehicular travel” to include only the surface of the road. If the Legislature did so intend, it could have and, presumably, would have said “surface of the road.”

More problematic is the majority’s analysis of the words “improved portion of the highway designed for vehicular travel.” It distorts the governmental immunity act by shifting to municipalities liability for defective traffic control devices. It does so despite the Legislature’s delegation of the duty to maintain these devices to county road commissions and to the state.

Throughout this judicial term, I have been dismayed by the majority’s disregard of precedent laid down by the Court in years past. See Robinson v Detroit, 462 Mich 439, 475-477; 613 NW2d 307 (2000) (Kelly, J., dissenting). This case is yet another example.

Cavanagh, J., concurred with Kelly, J.

447 Mich 130, 135, n 4; 523 NW2d 791 (1994).

The plaintiff in Gregg was injured while riding his bicycle on the shoulder of highway M-35. The bicycle overturned when it struck a pothole. Id. at 309.

See People v Warren, 462 Mich 415; 615 NW2d 691 (2000). (“The Court’s varied readings of the personal wrong exception to the spousal privilege in the opinions discussed here bear witness to the ambiguous language of the exception.”)

The majority argues that these sections give the state highway commission and county road commissions discretion in determining how traffic control devices are installed and maintained. It seems to conclude that their discretion is complete. Therefore, a finding that the governmental immunity act imposes liability for the failure to maintain these devices in a condition reasonably safe for vehicular travel would disturb this discretion. But, the majority reaches this conclusion simply by failing to give weight to the language that follows the phrase “deem necessary.” Ante, p 182, n 36. The county road commission and the state shall place and maintain traffic control devices as they deem necessary “to indicate and to cany out the provisions of this chapter [and local traffic ordinances, in the case of county road commissions] or to regulate, warn or guide traffic.” MCL 257.609(a); MSA 9.2309(a). MCL 257.610(a); MSA 9.2310(a). Thus, the county road commissions’ and the state’s discretion is not as complete as the majority would lead one to believe. Holding that the high*191way exception to governmental immunity includes traffic control devices does not interfere with the placement and maintenance of these devices to effectively regulate, guide and warn traffic.

420 Mich 567, 614; 363 NW2d 641 (1984).

Section 2a of the governmental immunity act was added recently. 1999 PA 205. It codified the notice provision and the “two inch rule,” thereby limiting municipalities’ liability for sidewalks, trailways, crosswalks, and other installations outside the improved portion of the highway. Before the enactment of 1999 PA 205, municipalities were required to keep sidewalks and the like in “reasonable repair” by virtue of MCL 691.1402(1); *195MSA 3.996(102)(1) and its predecessors. See Weisse v Detroit, 105 Mich 482; 63 NW 423 (1895); Glancy v Roseville, 457 Mich 580, 584; 577 NW2d 897 (1998).

The majority lists seven cases brought as “ample evidence” that the state has been burdened by lawsuits alleging unsafe traffic control devices since Pick was decided in 1996. Ante, p 178, n 34. Of them, only five allege unsafe or inadequate traffic control devices. Five do not constitute a flood of lawsuits.

In 1999, the Legislature revised the government immunity act, including the provisions at issue here. MCL 691.1402(1); MSA 3.996(102)(1). Notably, the Legislature did not revise the highway exception to exclude traffic control devices, despite Pick’s 1996 holding that traffic control devices are included within the exception.