Pick v Szymczak

Boyle, J.

(concurring in part and dissenting in part). As alleged in plaintiffs’ complaint and clarified at oral argument, plaintiffs allege three grounds for recovery: defective design of the intersection, failure to place traffic signals or warning signs at the intersection, and failure to post signs at an intersection allegedly obscured on one side by vegetation.1 The intersection in question is the crossing of two county secondary gravel roads. Plaintiff was traveling east on Roosevelt Road when his vehicle was struck in the intersection by a vehicle traveling south on Crapo Road that failed to yield the right of way.

I conclude that plaintiffs’ claims regarding failure to install signals or warnings do not allege breach of a duty to warn of the existence of a point of special hazard to a motorist operating with due care on the improved portion of the highway. I therefore concur *626in part with Justice Riley’s result, while disagreeing with her rationale. Because I am unprepared to overrule cases recognizing liability for design or construction defects,21 agree with Justice Cavanagh that plaintiffs’ allegation survives in respect to that claim and would remand regarding that claim alone.

I write separately to set forth my disagreement with the majority’s conclusion that “any factors that actually affect reasonably safe vehicular travel on the improved portion of a roadway,” ante at 615, state a claim of breach of duty under the highway exception to governmental immunity, MCL 691.1402; MSA 3.996(102), and to disagree with Justice Riley’s rationale that the duty to warn can only arise from “disrepair of the roadbed” itself. Post at 654. In my view, an actionable breach of duty might occur where a governmental unit fails to warn of a dangerous condition of the roadway surface that could have been eliminated through discharging the statutory duty to maintain the improved portion of the roadway designed for vehicular travel.

I concede that this case is complicated by the fact that it is postured as a motion granted under MCR 2.116(C)(8) and that the majority’s conclusion is defensible as a further illustration to the Legislature of the need to clarify the extent of the highway exception.3 Chaney v Transportation Dep’t, 447 Mich 145, 178; 523 NW2d 762 (1994) (Cavanagh, C.J., con*627curring). I agree with Justice Riley that the question whether the statutory obligation is to maintain the road in reasonably safe condition, or to use due diligence to keep the road in good repair, has been a problem for the judiciary since the enactment of 1879 PA 244. However, while I agree that the amendment of the statute resolved the question by limiting the duty to the “improved portion of the highway,” I cannot agree that the phrase “improved portion of the highway” limited the exception to immunity to a failure to repair.

Acknowledging that there is a duty to erect signs as proper warning devices at points of hazard, post at 635, Justice Riley cannot demonstrate either through legislative history or canons of construction that the duty described in the first sentence of the statute is solely to repair the improved portion of the highway. 1964 PA 170 does not define the duty as a duty to “ ‘maintain the highway in reasonable repair.’ ” Riley, J., post at 635. Rather, it specifically defines the duty to “repair and maintain highways.” Thus, while Justice Riley is correct that the second sentence of the statute identifies an injured person’s right to recovery and does not define the duty of the agency, her conclusion that the duty extends only to repair is refuted by the fourth sentence of the statute that defines the duty to encompass a duty to repair and maintain the highways. Justice Riley’s analysis of the statutory duty thus collapses the definition of duty in the fourth sentence of the statute, which specifically includes the duty to maintain, into the first sentence, which defines the duty to “maintain the highway in reasonable repair.” MCL 691.1402; MSA 3.996(102).

*628Thus, while the duty extends only to the improved portion of the highway, the Legislature included within the exception the duty to keep the roadbed surface travel worthy by repairing and maintaining it. In adding the words “improved portion of the highway,” the Legislature may have intended to reject a duty to keep the road in reasonably safe condition, and reached a compromise regarding the duty to keep the road in good repair. The duty imposed would appear to be to maintain the highway either by repairing the highway or warning motorists using the highway of a dangerous condition of the roadway itself.

This interpretation is consistent with a narrow reading of the exception, with the results in both Scheurman v Transportation Dep’t, 434 Mich 619; 456 NW2d 66 (1990), and its companion case, Prokop v Wayne Co Bd of Rd Comm’r, and it is also consistent with cases such as Joslyn v Detroit, 74 Mich 458; 42 NW 50 (1889), Longstreet v Mecosta Co, 228 Mich 542; 200 NW 248 (1924), and Jewell v Rogers Twp, 208 Mich 318; 175 NW 151 (1919), in which liability was imposed for the failure to continue the road in the condition it had been maintained or failure to warn of any changes in the road that created a dangerous condition.

It is also consistent with the notice requirement of the act. MCL 691.1403; MSA 3.996(103). The notice requirement not only gives the government notice of a defect so it can remedy it, it also charges it with the duty of giving an appropriate warning if the hazard created by the condition of the roadway cannot be *629readily repaired or is not amenable to repair or redesign.4

Defining a point of hazard as requiring the government to install warnings to exclude dangers arising from a condition of the highway that would not be reasonably apparent to a person exercising due care is also consistent with Justice Coleman’s explanation of a point of hazard in Salvati v State Hwy Dep’t, 415 Mich 708; 330 NW2d 64 (1982).

In Salvati, the breach of duty alleged was the inadequacy of two signs bearing “WATCH FOR ICE ON bridge,” and in not having a flashing light or a message directing the driver to reduce speed. Justice Coleman wrote to reverse the verdict, finding that the two reflectorized signs were adequate to warn that

a hazardous condition existed on the bridge, so as to enable [the driver] in the exercise of ordinary care, to avoid injury. We will not require of defendant more than what is reasonable under the circumstances; nor will we make defendant an insurer of the travelers of the roadway. [Id. at 716.]

Less important, but of interest, is that such an approach is consistent with the statutory schemes of other states that absolve the government of liability for failure to install signs or signals, while imposing a duty to erect signs and adequate markings to warn against extremely dangerous trap-like hazards, unusual obstructions, or defects in the road, Burkett v Honeyman, 561 So 2d 857 (La App, 1990). Dep’t of Transportation v Caffiero, 522 So 2d 57 (Fla App, *6301988). Thus, for example, § 830.8 of the California Government Code, enacted a year before adoption of the improved portion of the highway language here in question, provides that a public entity is not exonerated for failure to erect a signal sign or marking device “necessary to warn of a dangerous condition which endangered the safe movement of traffic and which would not be reasonably apparent to, and would not have been anticipated by, a person exercising due care.” Washington v San Francisco, 219 Cal App 3d 1531, 1535, n 3; 269 Cal Rptr 58 (1990). See also New Jersey Stat 59:4-4, discussed in Civalier v Trancucci, 138 NJ 52; 648 A2d 705 (1994).

I would hold that the government is not obligated to erect a warning at an uncontrolled intersection on secondary gravel roads. The intersection is not a point of special hazard, nor does a limited ability to make observations on one side of the road caused by trees or vegetation make it so. In the former case, the nature of the intersection is apparent to a driver using due care. In the latter, the limited range of vision is itself a warning that due care must be maintained. Ortega v Lenderink, 10 Mich App 190; 159 NW2d 140 (1968). Further, the dangers presented by such an intersection do not arise from the condition of the roadway itself.

The decision to provide traffic devices that have not been determined to be necessary, Tuttle v State Hwy Dep’t, 397 Mich 44; 243 NW2d 244 (1976), is within the discretion of highway authorities. MCL 257.608; MSA 9.2308. To construe the statute to impose a duty to erect signs at ordinary intersections on flat terrain, or at such intersections where vision is partially obscured, would be to construe the statute *631to wholly undermine that discretion. It follows that the duty to warn must be limited. To fail to do so would make the state an insurer of highway safety, and dismantle the highway exception.

Additionally, while it is well established that there may be more than one proximate cause of an injury, application of that principle in the context of a claim of injury because a lack of a warning that would have made the road safer would convert proximate cause analysis into a highly speculative inquiry. It is one thing to allege that an unknown or undiscoverable point of hazard was the factual cause of a motoring injury, and quite another to say that failure to warn of the danger of an intersection where vision is partially obstructed by vegetation is a factual cause of an accident in the intersection. As Judge Markman recently observed in Wechsler v Wayne Co Rd Comm, 215 Mich App 579; 546 NW2d 690 (1996), if the accident was caused by another driver’s failure to follow the law and yield the right of way, concluding that the offending driver would have paid more attention to a sign saying, “yield,” or a traffic light, necessarily implicates the causation analysis of Skinner v Square D Co, 445 Mich 153; 516 NW2d 475 (1994). Stated otherwise, if the driver that struck plaintiffs’ car proceeded into the intersection without observation and failed to yield the right of way, it is difficult to see how a sign would have prevented the danger. If the offending driver’s vision was blocked by vegetation, as alleged, that did not give him the right to enter the intersection and attempt a maneuver that would put him in the path of oncoming traffic.5

*632Whatever else “the improved portion of the highway” means, we must give it some meaning. For the reasons stated, I would hold that a claim of failure to erect signs at an open intersection and a claim that vision was obstructed at such an intersection by vegetation on private property do not, as a matter of law, constitute an allegation of a breach of the government’s duty to warn plaintiffs of a point of hazard originating on the roadway. Every intersection may be dangerous, but courts do not have the authority to expose the government to tort liability for every situation that presents a potential for harm. As observed in Wayne Co Rd Comm, supra at 595, “Such a construction would impose a burden upon the public treasury that, if it is to be imposed, must be imposed only by the representative institutions of government.”

The openness of the intersection and the vegetation do not constitute a hazardous condition of the roadway surface as a result of improper maintenance of the roadway surface itself. A sign might make the intersection safer, but government is not the insurer of highway safety.6

I would affirm the trial court’s dismissal in all respects save that alleging a design defect.

The signals and signs claims allege only breach of a duty to install.

The parties have not briefed or argued this issue. Beyond passing reference to cases involving such claims, we have not been asked to overrule such authority.

Senate Bill 353, introduced March 1, 1995, would exclude traffic control devices and signs located outside the improved portion of the highway.

Preferential icing, which is noted in the amicus curiae brief of the Michigan County Road Commission Self-Insurance Pool, p 34, as an example of the duty to warn, is an obvious example. Bridges are subject to preferential icing, but they may not be amenable to redesign.

Plaintiffs did not claim that the intersection was not visible.

Examples of failures to maintain that may require warnings as listed by the Michigan County Road Commission amicus curiae brief, supra, pp 33-34, are advance warning of a curve when the geometries and design of the road is such that a person driving the speed limit could not safely negotiate the curve, “limited stopping sight distance,” preferential icing, and a T-shaped intersection that ends abruptly “with no warning” at the T-intersection.