Smith v. Department of Transportation

Gribbs, J.

(dissenting in part). I agree with my distinguished colleagues on the nuisance claim but respectfully dissent on the negligence claim and the question of concurrent jurisdiction and consequential liability.

On the less than ample facts presented on appeal, I find that the Court of Claims erred in granting the department’s motion for summary judgment on plaintiffs claim for negligent design and construction of the intersection. Although the affidavit presented by the department established that Eaton County maintains jurisdiction of the highways or intersection in question, this does not preclude the possibility that the department, at least at the time of the federally-aided construction, maintained concurrent jurisdiction over the highways or intersection. Stricker v Dep’t of State Highways, 96 Mich App 505, 508; 292 NW2d 240 (1980); Hiner v State Highway Comm’r, 96 Mich *23App 497, 503; 292 NW2d 709 (1980), lv den 409 Mich 914 (1980). On a motion for summary judgment pursuant to GCR 1963, 117.2(3), we are liberal in determining that a genuine issue of fact exists, Rizzo v Kretschmer, 389 Mich 363, 372; 207 NW2d 316 (1973), and I find that in the instant case there existed a factual dispute as to whether the state at one time had jurisdiction over the intersection during the period of design and construction.

I thus follow this Court’s view in Strieker, supra, and Hiner, supra, that there may be concurrent jurisdiction over a highway, and disagree with this Court’s opinion in Austin v City of Romulus, 101 Mich App 662, 668-669; 300 NW2d 672 (1980), lv den 411 Mich 955 (1981), relying on the earlier decision in Bennett v City of Lansing, 52 Mich App 289; 217 NW2d 54 (1974), lv den 399 Mich 840 (1977), where the Court refused to recognize the possibility of concurrent jurisdiction. I also disagree with the Austin Court’s distinguishing of Strieker, supra, on the basis that, in Strieker, a fact question existed because of conflicting affidavits as to how the highway in question had been classified pursuant to the county road certification statutes, MCL 247.652; MSA 9.1097(2) and MCL 247.655; MSA 9.1097(5). Austin, supra, p 672. I point out that in Stricker the affidavits presented established that the highway had been certified pursuant to these statutes as a county road and that the highway was under county jurisdiction. Stricker, supra, p 508. Notwithstanding that fact, the Stricker Court found that there were conflicting affidavits which would indicate a question of fact as to jurisdiction (not certification) over the highway, and expressly stated that

[t]he fact that the Macomb County Road Commis*24sion maintains jurisdiction over the road in question does not totally eliminate the possibility that defendant State Highway Department could also maintain concurrent jurisdiction over the road. [Emphasis added. Strieker, supra, p 508.]

I also find that if the department did not have jurisdiction over the highways or intersection at the time of the injury-causing accident, but only at the time of the earlier construction, that fact would not be dispositive on the issue of liability under the highway liability statute. If the department had jurisdiction during an earlier period of design and construction, it may also be open to liability for its negligence in design and construction at that time if such negligence was a factual and proximate cause of the later injury. I agree with the rationale of Hargis v Dearborn Heights, 34 Mich App 594; 192 NW2d 44 (1971), lv den 386 Mich 751 (1971), where this Court found that the county and city which had consecutive jurisdiction over an allegedly defective bridge held a continuing obligation to correct the defective design and could both be held liable for such failure if it proximately caused the injury in question.1 Where a defect is one of design, the transfer of jurisdiction from one entity to another should not insulate an entity for its earlier negligence which may have caused the later injury. In resolving the *25causation question, the lapse of time between the transfer of jurisdiction and the accident is merely a factor to be considered in deciding whether the earlier negligence was a cause of the accident. Hargis, supra, pp 600-602. See also Hankins v Elro Corp, 149 Mich App 22; 386 NW2d 163 (1986).

1 do not believe that the highway liability statute should be so narrowly construed as to preclude liability of an entity whose negligence has caused the injury simply because jurisdiction is subsequently transferred. Nowhere does the language of the statute restrict liability to the entity having jurisdiction at the time of the injury. I see no overriding reason not to impose such liability for defective design or construction on those entities which had jurisdiction over the highway at the time when the defect which caused the injury was created.

The highway liability statute is an expansive provision defining the liability of the governmental agency, and the intent of the Legislature in enacting the statute was to provide an opportunity for those injured by defective highways to obtain redress from the responsible governmental agency.2 Endykiewicz v State Highway Comm, 414 Mich 377, 388-389; 324 NW2d 755 (1982). This imposition of liability by excepting governmental entities from immunity for defective highways indicates a legislative intent to protect the public from injury by imposing upon governmental agencies the duty to maintain safe public roads. May v Wolverine Tractor Co, 107 Mich App 163, 169; 309 NW2d 594 *26(1981), app dis 412 Mich 863 (1982). That purpose is advanced by imposing liability upon governmental units where their failure to maintain is a proximate cause of injury or damage to the public. Id. Thus I would hold that the highway liability statute does not limit liability to the governmental entity which has jurisdiction over a highway at the time of the injury. In so holding I disagree with this Court’s earlier decisions in Potes v State Highway Dep’t, 128 Mich App 765, 769-770; 341 NW2d 210 (1983), and Killeen v Dep’t of Transportation, 151 Mich App 7; 390 NW2d 676 (1986) lv gtd 426 Mich 864 (1986), strictly construing the highway liability statute and holding that only the the governmental entity having jurisdiction over a highway at the time of the injury-causing accident can be held liable for its negligence under the highway liability statute.3

I would therefore affirm in part and reverse in part._

Although Hargis, supra, may be factually distinguishable in that it was decided prior to the passage of the governmental immunity act, MCL 691.1401 et seq.; MSA 3.996(101) et seq., see Potes v State Hwy Dep’t, 128 Mich App 765, 769; 341 NW2d 210 (1983), I view the issue at bar not as, strictly speaking, an immunity question, but as a question of jurisdiction over a highway and its accompanying duty and liability for breach thereof. Once jurisdiction with its accompanying duty of a governmental entity over a highway is established, the highway liability statute creates an exception to governmental immunity for injury-causing defects in that highway when the injury results from the breach of the entity’s statutory duty to maintain a defect-free highway.

If the governmental entity, which originally had jurisdiction over a highway during a period of design and construction, designed and constructed that highway with a defect known to it, but hidden to the governmental entity subsequently obtaining jurisdiction over the highway, who would bear responsibility for the injury caused by the defect discovered by the second governmental entity only at the time of the accident?

Although the Court in Potes, supra, did not specifically address the question of whether a governmental entity could maintain concurrent jurisdiction over a highway with another governmental entity, it would appear that the Potes panel would not favor concurrent jurisdiction since it opined that holding two governmental units responsible for correcting design or construction defects could result in confusion and inefficiency.

In its discussion of consolidation of plaintiffs’ claims, the Court also distinguished Stricker, supra, and Hiner, supra, on the ground that these cases involved a genuine dispute of fact as to which of two governmental entities had jurisdiction over the roadway. As discussed previously with respect to Austin, I disagree with this distinction. In neither Stricker nor Hiner was the Court specifically concerned with which of two governmental entities had jurisdiction over the highway, but expressed its opinion that concurrent jurisdiction could exist.