Salvati v. Department of State Highways

*463Allen, P.J.

(dissenting). I cannot agree with the conclusion of the majority opinion that a hazardous condition was created for which the state is liable when a natural phenomenon known as "preferential icing” occurs on a bridge and where that occurrence is coupled with no more than (a) the approach to the bridge being dry and without ice and (b) a nonilluminated sign reading "Watch for Ice on Bridge”. Such a holding imposes too strict and unrealistic a burden on the state. Further, such holding is contrary to the conclusion reached by a different panel of this Court that preferential icing is not a defect for which the state is liable. Greenleaf v Dep’t of State Highways & Transportation, 90 Mich App 277; 282 NW2d 805 (1979).

The factual situation in Greenleaf was similar to the instant case. Plaintiff lost control of her automobile on ice on an overpass bridge on US23 near Fenton. The phenomenon described as preferential icing caused the accident. As in the case before us, the bridge was high and long, the roadbed leading to the bridge was dry, and there was no evidence that there was a defect in the bridge itself or that the bridge was improperly designed.1 There was testimony that there was a sign reading "Watch For Ice on Bridge” although, unlike the case before us, a majority of the witnesses testified that the sign did not exist. In what the Court described as "a case of first impression” the Court rejected the finding of the Court of Claims that the Highway Department was negligent due to inadequate methods of handling the icing conditions.

"In the instant case, testimony elicited from wit*464nesses for both parties indicated that it was impossible to predict when preferential icing would occur. Although temperature was one indicator, there are numerous other relevant factors.
"All the expert witnesses agreed that the icing could occur suddenly and almost instantaneously.
"A maintenance engineer for the Highway Department indicated that an observer could drive over a bridge and find it clear, but that it could ice up immediately afterward. It was also established that salting the highway in anticipation of this problem would be of no value since the salt would be blown off a dry road within minutes by traffic.
"The fact that the Highway Department program of highway surveillance was not in operation on November 8, 1971, does not clearly mandate a finding of negligence. The icing phenomenon is of a highly unpredictable and rapid nature. Short of full-time human surveillance of the bridge from early fall to late spring, there is no assured method for immediate detection of this condition.
”The Highway Department cannot be held to so stringent a standard. Based upon the evidence, the finding of the Court of Claims that the defendants were negligent due to inadequate methods of handling the icing conditions is clearly erroneous. Tuttle v Dep’t of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976).” 90 Mich App 277 at 283-284. (Emphasis supplied.)

In fact, the instant case is more favorable to defendants than Greenleaf, since in Greenleaf there was no program of ice surveillance at all, whereas in the instant case a salt truck patrol was in operation. The record discloses that on the morning of the accident, at 6:03 a.m. an employee of the Wayne County Road Commission had driven a salt truck over the Goddard Road bridge, had examined it for preferential icing and had found no ice. The employee then drove north, checking on other bridges which he found without ice until *465he reached the Rouge Bridge which had begun to ice. The employee salted the bridge, turned about and drove south salting the other bridges until he came to the Goddard Road bridge where he saw the accident had taken place. Based on the record, the accident occurred soon after 6 a.m. when the bridge was first inspected. Given these facts, it appears unreasonable to conclude that the defendants were either remiss in their duty to maintain a safe highway or that defendants had actual knowledge that icing had occurred. In Hampton v Master Products, Inc, 84 Mich App 767, 773; 270 NW2d 514 (1978), this Court favorably quoted 19 McQuillin, Municipal Corporations (3d ed), § 54.107, pp 389-391, as follows:

" 'No governmental agency is liable for injuries or damages caused by defective highways unless the governmental agency knew, or in the exercise of reasonable diligence should have known, of the existence of the defect and had a reasonable time to repair the defect before the injury took place. Knowledge of the defect and time to repair the same shall be conclusively presumed when the defect existed so as to be readily apparent to an ordinarily observant person for a period of 30 days or longer before the injury took place.’ ”

From the above it is clear that, to the extent that the majority finds liability because of ice on the bridge, the opinion errs. Preferential icing is a natural phenomenon and, as such, is a natural accumulation. In Michigan there is no liability for an accident caused solely by natural accumulations of ice or snow. Hampton v Master Products, Inc, supra, at 770-772. This was the holding in Greenleaf which, in a case of first impression, applied the doctrine to preferential icing.

I do agree that liability might flow from the absence of a sign or from the inadequacy of a sign. *466The issue of the adequacy of the sign’s wording was not reached in Greenleaf.2 The trial court found, and my brethren agree, that the words "Watch for Ice on Bridge” do not adequately warn of the dangerous phenomenon of preferential icing. In their opinion the sign conveys a false message to the motorist to use his visual senses to see that which cannot be seen. I disagree. It is not necessary that a sign describe preferential icing. All that is necessary is that the sign adequately warn the motorist of the possibility of ice. I think the sign did so. To me, "Watch for Ice” means watch out for ice. It does not mean look for ice that cannot be seen. Further, there was not one sign, there were two. Each sign was reflective and plainly visible with headlights. The signs are in conformity with the Federal Highway Administration traffic signing manual which does not provide any other legend for signs involving warnings of ice.

Plaintiffs expert testified that a flashing sign would be preferable. However, the complexity of activating the sign when the icing occurs was not resolved. No device is available which automatically turns such a sign on when needed. But even if we assume, arguendo, that the sign was inadequate either because of its wording or because it was not lighted, plaintiff may not recover. For, if this be so, the "dangerous condition” is the defect in the "Watch for Ice on Bridge” sign. The statutory duty to maintain highways "in reasonable repair” includes proper signing. O’Hare v Detroit, 362 Mich 19, 26; 106 NW2d 538 (1960). But liabil*467ity does not attach unless the local unit of government has prior knowledge of the defect, viz.:—that the sign did not adequately convey the warning required. No such evidence appears in the record, and the trial court made no finding that the defendant had actual or constructive notice that the sign was defective.3

In summary, I fear the majority invites wholesale liability by concluding that a reflectorized sign reading "Watch for Ice on Bridge” is a highway defect where preferential icing occurs. I would not, however, rule that in the case before us the state is not liable as a matter of law. In deference to the trial judge, the matter was tried without benefit of an appellate opinion in Michigan on preferential icing. Had the trial court known of Greenleaf, the court might well have come to a different conclusion. Completely overlooked was the question of whether the state had prior notice of the sign’s alleged inadequacy. Therefore, I would not reverse and dismiss but would reverse and remand for a new trial in the Court of Claims.

Plaintiff in Greenleaf did not plead the bridge was defectively constructed or designed. Such allegation was pled in the instant case but no witnesses testified as to the design or construction of the bridge. Thus, in both cases, there was no defect in the bridge.

Because three witnesses in Greenleaf testified there was no "Watch for Ice on Bridge” sign on the day of the accident and only one witness of the defendant, whose testimony was that he had erected the sign five days before the accident, our Court held that the trial judge did not err in finding liability on the basis that the defendant failed to give any warning at all.

At best, the alleged inadequacy of the sign was not flagrant. It is the same signing as is recommended nationally by the Federal Highway Administration. Under prior decisions a defect must be shown to be "flagrant”. Mullins v Wayne County, 16 Mich App 365, 380; 168 NW2d 246 (1969). See also 45 ALR3d 875, 888-889. But the requirement that the defect must be "flagrant” or "palpably dangerous” was abolished in Arnold v Dep’t of State Highways, 406 Mich 235, 238-239; 277 NW2d 627 (1979).