Wechsler v. Wayne County Road Commission

Wahls, J.

(dissenting). I respectfully dissent because I would hold that the issues of duty and governmental immunity were not properly preserved for this Court’s review. In addition, I would hold that the trial court did not err in holding defendant liable where the question whether defendant exercised reasonable care was for the trier of fact to determine.

i

Although defendant pleaded governmental immunity as an affirmative defense, defendant did not move for summary disposition on this basis at trial. In addition, defendant did not raise the issue at trial. Neither did defendant raise the issue of duty with the trial court. This Court cannot address issues not decided by the trial court. Vungterveen Systems, Inc v Olde Millpond Corp, 210 Mich App 34, 38; 533 NW2d 320 (1995).

Although the majority cites Patterson v Kleinian, 199 Mich App 191; 500 NW2d 761 (1993), aff'd, but modified 447 Mich 429; 526 NW2d 879 (1994), that case simply does not stand for the proposition that this issue was preserved for appeal. Rather, that case held that a plaintiff need not anticipate a defendant’s affirmative defense of governmental immunity by pleading gross negligence in the complaint. Id., p 192. In any case, the defendant in Patterson moved for summary disposition on the basis of governmental immunity, which properly brought the issue before that trial court. Id. Here, defendant did not similarly move.

*602In addition, in Hillman’s v Em 'N Al’s, 345 Mich 644; 77 NW2d 96 (1956), the defendant did more than simply raise an affirmative defense in its pleadings. The defendant in that case made its argument an issue at trial by the submission of documentary evidence, and the issue was stated in the trial court’s pretrial order. Id., pp 651, 656. Here, in contrast, the evidence at trial focused on the reasonableness of the decedent’s and the defendant’s conduct, and the necessity of a left-turn lane or signal. The evidence did not address whether defendant owed the decedent any duty at all.

ii

In addition, even if this issue was preserved, it is not dispositive. It is clear that an exception to governmental immunity exists to require governmental agencies to "keep any highway under its jurisdiction in reasonable repair, and in condition reasonably safe and fit for travel.” MCL 691.1402(1); MSA 3.996(102)(1); Cox v Dearborn Heights, 210 Mich App 389, 392-393; 534 NW2d 135 (1995). The statutory goal of maintaining safe highways is clear and unambiguous. Chaney v Dep’t of Transportation, 447 Mich 145, 155; 523 NW2d 762 (1994) (Brickley, J).

A

The majority has concluded that the highway exception to governmental immunity only requires a governmental agency to "maintain” a highway, but not to "improve,” "augment,” or "expand” one. However, the majority admits that the duty includes the "installation” of suitable traffic-control signals and signs. See Cox, supra, p 395. Using *603the majority’s own definitions, the "installation” of previously nonexistent signs would be. an "improvement,” rather than "maintenance.”

Rather than adopt the majority’s distinction, I would follow the plain language of the statute, which is that a duty exists to keep highways reasonably safe and convenient for public travel. The fact that plaintiffs argue that defendant should have constructed a left-turn lane is relevant to the reasonableness of defendant’s behavior, not to the existence of a duty itself. In the absence of a motion for summary disposition pursuant to MCR 2.116(C)(10) or a motion for a directed verdict, I would hold that the decision regarding whether reasonable care required the construction of a left-turn lane at this intersection should have been left to the trier of fact. See Scott v Harper Recreation, Inc, 444 Mich 441, 448; 506 NW2d 857 (1993).

B

Plaintiffs also argued at trial that there should have been a left-turn signal at this intersection. Regarding this issue, the majority concludes:

This appears to be nothing more than an ordinary intersection, like thousands of others throughout the state, familiar to all motorists, safely driven with the exercise of reasonable care.

In fact, there was evidence at trial that plaintiffs’ decedent was exercising reasonable care at the time of the accident. The deposition of Lloyd Meyer was read into the record at trial. On the date in question, Meyer was working as a truck driver when he witnessed the automobile accident while stopped at a red light. Meyer testified that *604plaintiffs’ decedent was waiting to make a left turn in the middle of the intersection when struck by a van. Meyer testified that no part of the station wagon driven by plaintiffs’ decedent crossed over into the oncoming traffic lanes.

An appellate court is not to substitute its judgment for that of the trial court unless the facts clearly preponderate in the opposite direction. Arco Industries Corp v American Motorists Ins Co, 448 Mich 395, 410; 531 NW2d 168 (1995). Findings of fact may not be set aside unless clearly erroneous. Id. In particular, appellate courts should give special deference to the trial court’s findings when they are based upon its assessment of the witnesses’ credibility. Id. In making its finding that the intersection was safe as constructed, the majority has failed to accord any deference to the trial court at all.

In addition, the majority mischaracterizes the testimony of plaintiffs’ expert. Rather than merely state that a left-turn signal would have made the intersection safer, plaintiffs’ expert testified that the absence of such a signal made the intersection unsafe. The difference is critical because it addresses the focus of the statute, i.e., whether the intersection was "reasonably safe and convenient for public travel.” MCL 691.1402(1); MSA 3.996(102X1). Once again, I would defer to the trial court’s determination regarding the credibility of witnesses. Arco, supra, p 410.

The majority argues that this case would impose too great of "a burden upon the public treasury.” However, the Legislature has decided to provide an exception to governmental immunity for public highways. It is the responsibility of this Court to enforce, rather than to enact or effectively abro*605gate, that legislation. City of Lansing v Lansing Twp, 356 Mich 641; 97 NW2d 804 (1959); Cox, supra, p 397.

Finally, regarding the majority’s analysis of proximate cause, once again it contradicts evidence properly before the trial court. Plaintiffs’ expert witness testified explicitly that, "[h]ad a left turn phase been in existence at the time of Mr. Johnson’s accident, most likely no accident would have occurred.” This Court must accord special deference to the trial court in evaluating the credibility of witnesses. Arco, supra, p 410. The majority has failed to accord that deference.

m

The majority did not reach defendant’s argument that the award was so high as to justify remittitur. However, I would hold that defendant failed to preserve this issue by not moving for remittitur in the trial court. McFadden v Tate, 350 Mich 84, 91; 85 NW2d 181 (1957); Jamison v Lloyd, 51 Mich App 570, 576; 215 NW2d 763 (1974); see also McLemore v Detroit Receiving Hosp, 196 Mich App 391, 401-402; 493 NW2d 441 (1992) (failure to provide transcript of trial court’s ruling prevents this Court from reviewing issue of remittitur). This Court cannot defer to the trial court’s superior ability to view the evidence and evaluate the credibility of the witnesses if the trial court was never afforded the opportunity to exercise its discretion. See Palenkas v Beaumont Hosp, 432 Mich 527, 534; 443 NW2d 354 (1989); Phillips v Deihm, 213 Mich App 389, 404; 541 NW2d 566 (1995).

I would affirm.