John Oliver PICK and Sally Pick, Plaintiffs-Appellants,
v.
Jan Albert SZYMCZAK and Gratiot County Road Commission, Defendants-Appellees.
Docket No. 98142, Calendar No. 7.
Supreme Court of Michigan.
Argued November 8, 1995. Decided June 5, 1996.*604 Oade, Stroud & Kleiman, P.C. by Ted W. Stroud, East Lansing, for plaintiffs.
Fordney, Dust & Prine by Andrew W. Prine, P.C., Saginaw, for defendant Gratiot County Road Commission.
Law Offices of Wayne J. Miller, P.C. by Anne K. Flaherty and Wayne J. Miller, Bingham Farms, amicus curiae for Michigan Head Injury Alliance.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Brenda E. Turner, Assistant Attorney General, Lansing, amicus curiae for Michigan Department of Transportation.
Highland & Zanetti, P.C. by John N. Highland, Southfield, amicus curiae for Michigan County Road Commission Self-Insurance Pool.
MICHAEL F. CAVANAGH, Justice.
This case requires us to revisit the still-unsettled issue of the highway exception to governmental immunity, M.C.L. § 691.1402; M.S.A. § 3.996(102). Presented for our review in this appeal is the plaintiffs' claim that defendant Gratiot County Road Commission breached its duty to provide traffic control devices and warning signs, "that Scheurman [v. Dep't of Transportation] and Prokop [v. Wayne Co. Bd. of Rd. Comm'r, 434 Mich. 619, 456 N.W.2d 66 (1990)] are dispositive that the road commission had a duty to ... repair and maintain the improved traveled portion of the roadway, but did not have to go outside the roadway proper." The trial *605 court granted summary disposition for the defendant road commission. We conclude that the trial court erred as a matter of law, and remand for a summary disposition hearing pursuant to MCR 2.116(C)(10).
I
On September 5, 1988, John Pick was driving his car eastbound on Roosevelt Road in Gratiot County. At the crossroads intersection of Roosevelt and Crapo Roads,[1] Pick's automobile collided with a vehicle being driven by defendant Jan Szymczak.[2]
A
Plaintiffs' complaint made the following allegations relevant to this appeal:
21. That pursuant to MCLA 691.1401, et seq.; MSA 3.996(101) [et seq.] [3] ..., the defendant, Road Commission, is charged with the statutory duties to design, maintain and repair all roadways within its jurisdiction, including Roosevelt Road, Crapo Road, and their intersection, so they are reasonably safe and fit for public travel.
22. That included within the above-described duties was a duty owed by the defendant, Road Commission, to post signs and other traffic control devices and warnings at or before the aforesaid intersection to assure that same was reasonably safe and fit for public travel.
23. That one of the proximate causes of the collision previously described above, and the resulting injuries and damages sustained by the plaintiffs, was the failure of the defendant, Road Commission, to fulfill their aforementioned duties so that the said roadways and intersection were reasonably safe and fit for public travel, and the said defendant's breaches were in the following particulars:
A. Failing to properly design the aforesaid intersection and roadways to be safe for vehicular traffic.
B. Failing to properly maintain the aforesaid intersection and roadways to be safe for vehicular traffic.
C. Failing to install and provide reasonably necessary traffic control devices at or near the intersection of Roosevelt Road and Crapo Road in Gratiot County, Michigan.
D. Failing to install and provide stop or yield signs at or near the aforesaid intersection.
E. Failing to install and provide warning signs or notices on Roosevelt Road and Crapo Road informing motorists of the approaching crossroad and intersection.
F. Failing to install and provide signs or devices to assure that the aforesaid intersection and roadways were safe for vehicular traffic.
Defendant filed a motion for summary disposition pursuant to MCR 2.116(C)(7), (8) and (10). In its brief in support of that motion, defendant argued:
[T]here is no claim in this matter that any condition existing within the "traveled portion of the roadbed actually designed for vehicular travel" caused either vehicle to go out of control, or leave the roadway....
Rather, it is the contention of both Plaintiffs ... that the accident occurred as a result of an alleged "vision obstruction" in the form of an orchard, which was admittedly located on private property, and *606 outside the "improved portion of the roadway designed for vehicular travel."
After oral argument at the motion hearing, the circuit judge stated that "the issue before the Court is what were the duties of the road commission...." Noting that questions of duty are questions of law, the circuit court held "that Scheurman [and] Prokop are dispositive that the road commission had a duty to ... repair and maintain the improved traveled portion of the roadway, but did not have to go outside the roadway proper." Accordingly, the court granted defendant's motion for summary disposition.[4]
The circuit court did not specify which subsection of the court rule it relied on in granting defendant's motion for summary disposition in either its bench ruling or its written order. The Court of Appeals noted that the circuit court based its grant of summary disposition on its holding that defendant "had no duty to maintain areas outside the improved portion of the roadway" and, accordingly, reviewed it as a grant under MCR 2.116(C)(8). 203 Mich.App. 138, 139, 511 N.W.2d 694 (1993). We agree, and will review the Court of Appeals decision under the same standard.
B
The Court of Appeals panel cited Scheurman, supra, for the proposition that "the duty [that arises under the highway exception] is narrowly drawn, and extends only to the improved, traveled portion of the roadway of a highway that was designed for vehicular travel; it does not include ... any other installation outside the improved portion of the highway designed for vehicular travel." 203 Mich.App. at 140, 511 N.W.2d 694 (citations omitted). The Court of Appeals majority then held as follows:
In this case, it is very clear that the orchards on private property adjacent to the road cannot be classified as being part of the improved portion of the highway designed for vehicular travel. Consequently, the existence of the orchards and their influence as a visual obstruction of the intersection creates no duty on the part of the defendant under the highway exception to governmental immunity.
What is not so clear is whether the improved portion of the highway includes improvements that serve as integral parts of the highway, such as signs and shoulders. See Scheurman, supra at 637, n. 29, 456 N.W.2d 66; Salvati v. State Hwys. Dep't, 415 Mich. 708, 330 N.W.2d 64 (1982); Hutchinson v. Allegan Co. Bd. of Road Comm'rs (On Remand), 192 Mich.App. 472, 477, 481 N.W.2d 807 (1992). If there is an "integral parts of the highway" exception under the broad concept of "traffic sign maintenance" that includes erecting signs or warning devices at points of hazard, it appears to conflict with the very narrow definition of duty that excluded street lighting in Scheurman. Because we can find no way to distinguish between street lighting and traffic signs, and because both have their physical structure outside the traveled or paved portion of the roadbed, we must conclude that the defendant is not subject to liability for the alleged lack of adequate traffic signs at the intersection of Roosevelt and Crappo [sic] Roads.
Affirmed. [203 Mich.App. at 141, 511 N.W.2d 694.]
The dissenting judge on the panel "disagree[d] with the majority's conclusion that this case is controlled by the limited definition of an improved roadway set forth in Scheurman .... While the Supreme Court in Scheurman, supra at 633, 456 N.W.2d 66, may have clearly stated that there is no duty to provide street lighting because it is not part of the improved portion of a roadway, it did reserve its decision with respect to the duty to post and maintain traffic signs, citing the previous case of Salvati v. State Hwys. Dep't, 415 Mich. 708, 330 N.W.2d 64 (1982)." 203 Mich.App. at 142, 511 N.W.2d 694 (citing Scheurman, supra at 637, n. 29, 456 N.W.2d 66). In the view of the dissenting judge, the circuit court's grant of summary disposition should be reversed and the case remanded for trial.
We granted leave and instructed the parties to "include among the issues to be *607 briefed whether a `point of hazard' is created by vegetation growing on private property." 448 Mich. 930, 534 N.W.2d 520 (1995).
II
As a threshold matter, we think it necessary to clarify exactly what claims are at issue in this appeal. Defendant's brief and oral argument in this Court evidence a mistaken belief that plaintiffs alleged a breach of duty only in regard to the vegetation that allegedly constitutes a visual obstruction at the intersection where the accident occurred.[5] In fact, as already noted, plaintiffs' complaint also stated the following claims: defective design of the intersection, failure to provide reasonably necessary traffic control devices or warning signs at the intersection, and, generally, failure to properly maintain the intersection so as to be safe for vehicular traffic. Put another way, plaintiffs' claim is that a governmental duty arises under the highway exception with regard to any factors that actually affect reasonably safe vehicular travel on the improved portion of a roadway.
Defendant's position, based on the purported authority of Scheurman and Prokop, is that no duty of any kind arises under the highway exception in cases where the alleged hazard-creating factor is physically outside of the improved portion of the roadbed actually designed for vehicular travel.
III
Properly characterizing it as a question of law for the court to decide, the circuit judge, citing Scheurman and Prokop, ruled that defendant had no duty with regard to the alleged visual obstructions cited by plaintiffs because those obstructions are "outside the roadway proper." We hold that, under the proper interpretation of all relevant language in the highway exception, the circuit court's ruling was erroneous as a matter of law.[6] Therefore, the Court of Appeals affirmance, on the same basis, is also erroneous.
The Court of Appeals majority went beyond the reasoning of the circuit court, recognizing the possibility that, at least theoretically, there might be "an `integral parts of the highway' exception under the broad concept of `traffic sign maintenance' that includes erecting signs or warning devices at points of hazard," but ultimately concluded that such an exception "appears to conflict with the very narrow definition of duty that excluded street lighting in Scheurman." 203 Mich.App. at 141, 511 N.W.2d 694.
We hold today that Scheurman does not establish authoritative precedent for any such "very narrow definition of duty" and that, in any event, the statutory language of the highway exception, read in its entirety, does not support such a narrow definition.
A
In Scheurman, a three-justice plurality would have held that "compliance with the conditions and restrictions of the highway exception statute negates the inclusion of street lighting within the duty of the state because the physical structure of the lights falls outside the traveled or paved portion of the roadbed actually designed for public vehicular travel." 434 Mich. at 633, 456 N.W.2d 66 (opinion of Riley, C.J.). In Prokop, the companion case, in which the plaintiff's claim was based on the existence of a hedge on private property that obstructed vision at the intersection where the plaintiff was injured, the same plurality concluded: "While the hedge may have interfered with compass-range vision within the intersection, it cannot be categorized as a defective condition upon `the improved portion of the highway designed for vehicular travel....'" Id. at 635, 456 N.W.2d 66. Therefore, the plurality concluded, "liability may not be imposed upon the defendant for a hedge, located on private property, which obstructed the *608 view of travelers." Id. [7] The actual disposition of the plaintiffs' claims in Scheurman and Prokop was accomplished by Justice Boyle's concurrence, which stated: "I join in both the rationale and result of the Chief Justice's opinion, with the understanding that it does not preclude the application of M.C.L. § 691.1402; M.S.A. § 3.996(102) in cases alleging a failure to `repair and maintain' installations that are integral to, if not part of, the `improved portion of the highway designed for vehicular travel,' such as traffic lights and signs." Id. at 637, 456 N.W.2d 66 (emphasis added).
The concurrence concluded with the following statement: "See ante, p. 637, n. 29, 456 N.W.2d 66." Id. This is a reference to note 29 of the plurality opinion, which acknowledged that in Tuttle v. Dep't of State Hwys., 397 Mich. 44, 45-46, 243 N.W.2d 244 (1976), "this Court found the defendant liable for a newly opened intersection that `was not "reasonably safe and fit for travel" by reason of inadequate signalization.'" In that same footnote, the plurality opinion also recognized the relevance of Salvati, supra, stating that
the plurality decision [in Salvati indicates a willingness by the Court to include the duty to post and maintain traffic signs within the highway exception statute. Again, however, neither of the two opinions [i.e., Tuttle or Salvati ], nor any of the cited cases within them, address the issue whether traffic signs fall within the "improved portion of the highway designed for vehicular travel."
Notwithstanding our decision today, we feel it is inappropriate to express an opinion as to the validity of Tuttle or Salvati at this time. [Scheurman, supra at 637, n. 29, 456 N.W.2d 66.]
The Salvati decision actually comprised two three-justice plurality opinions. The lead opinion favored, in lieu of granting leave to appeal, reversal of the judgment of the lower courts, whose rulings were favorable to the plaintiff, and remand for further proceedings; the other plurality favored denial of leave to appeal or, if leave to appeal was granted, affirmance of the lower courts' judgments.[8] The six justices unanimously agreed, however, that the governmental duty of maintenance with regard to public roads encompassed a duty to provide warning signs:
A governing unit may incur liability under the broad concept of "traffic sign maintenance"... for failing to erect any sign or warning device at a point of hazard, ... or for placing a sign which inadequately informs approaching motorists of a hazard. [Salvati, 415 Mich. at 715, 330 N.W.2d 64 (Coleman, J., joined by Fitzgerald, C.J. and Ryan, J.)].
A governmental agency having jurisdiction of a highway has the obligation to post traffic signs and to warn motorists at points of special danger. Liability may arise for failing to erect a sign or barrier warning at a point of hazard, or for posting a sign which inadequately warns of an approaching danger. [Id. at 721, 330 N.W.2d 64 (Levin, J., joined by Kavanagh and Williams, JJ.) (citations omitted).]
We recognize that, in a strict sense, the Salvati opinions' conclusions in regard to the scope of the governmental duty of maintenance of roadways can be characterized as dicta. However, we are convinced that the reasoning underlying their shared conclusion is convincing and faithful to the true intent of the Legislature in providing the highway exception. Therefore, we expressly hold that a duty to provide adequate warning signs or traffic control devices at known points of hazard arises under the highway exception of the governmental tort liability act,[9] M.C.L. *609 § 691.1402; M.S.A. § 3.996(102). We also note a more recent conclusion of a majority of this Court: "The highway exception abrogates governmental immunity at `points of special danger to motorists....'" Mason v. Wayne Co. Bd. of Comm'r, 447 Mich. 130, 135, 523 N.W.2d 791 (1994) (citation omitted).[10]
B
At the time of the incident at issue in this case, the highway exception stated:[11]
Each governmental agency having jurisdiction over any highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. Any person sustaining bodily injury or damage to his property by reason of failure of any governmental agency to keep any highway under its jurisdiction in reasonable repair, and in condition reasonably safe and fit for travel, may recover the damages suffered by him from the governmental agency.... The duty of the state and the county road commissions to repair and maintain highways, and the liability therefor, shall extend only to the improved portion of the highway designed for vehicular travel and shall not include sidewalks, crosswalks, or any other installation outside of the improved portion of the highway designed for vehicular travel. The historical development of governmental immunity, generally, and the specific development of the highway exception, have been fully detailed elsewhere (albeit from significantly different perspectives), and are unnecessary to our decision in this case. See Scheurman, supra at 626-631, 456 N.W.2d 66; Chaney v. Dep't of Transportation, 447 Mich. 145, 184-193, 523 N.W.2d 762 (1994) (Levin, J., dissenting). We find that the statutory language of the highway exception itself, read in its proper context, is fully adequate for resolution of the precise legal question before us in this case.
The first sentence of this provision establishes the duty to "maintain the highway in reasonable repair so that it is reasonably safe ... for public travel." And the duty of maintenance includes the duty to erect adequate warning signs or traffic control devices at a "point of hazard" (or a "point of special danger"). Therefore, if the alleged impediments to safe vehicular travel on Roosevelt and Crapo Roads cited by plaintiffs are points of hazard,[12] then defendant has a duty to warn motorists,[13] or to otherwise act so as to render travel on the improved portion of the roadway reasonably safe.[14]
*610 Defendant and the lower courts in this case have discerned (not, we acknowledge, wholly implausibly) a bright-line rule of decision that limits governmental responsibility for public roadways to factors that are physically part of the roadbed itself. However, such a rule requires an improperly stringent reading of the highway exception, one that focuses solely on the fourth sentence of that statutory section, and specifically on the phrase "the improved portion of the highway." We expressly disavow this selective reading of the statute. As previously stated by Justice Levin, "In providing, in the fourth sentence of the highway exception, that the duty `to repair and maintain highways, and the liability therefor' shall not extend to `any other installation outside of the improved portion of the highway designed for vehicular travel,' the Legislature did not [abrogate the] duty, and liability therefor, under the first two sentences of the highway exception, to repair and maintain the improved portion of the highway designed for vehicular travel in condition reasonably safe and fit for travel...."Chaney, supra at 193-194, 523 N.W.2d 762.
In gleaning the true scope of the highway exception to governmental immunity from the entire statutory provision and our undeniably fractured case law precedents, we do, in fact, derive some guidance from Scheurman:
It seems clear even from a literal reading that the "improved portion" language of § 2 does not distinguish the surface of the highway as opposed to conditions other than the surface of the highway which may well foreclose the highway from being "reasonably safe." [434 Mich. at 641, 456 N.W.2d 66 (opinion of Brickley, J.).]
A myopic focus on the phrase "the improved portion of the highway" ignores not only the first two sentences of the highway exception, but also ignores the phrase immediately following it: "designed for vehicular travel." Vehicular travel does not take place solely on the two-dimensional length and width of the roadway; rather, it occurs in three-dimensional space, and necessarily implicates factors not physically within the improved portion of the roadway itself, factors that can be points of hazard to reasonably safe vehicular travel on the interconnected network of public roadways.
We define "point of hazard" (or "point of special danger") as any condition that directly affects vehicular travel on the improved portion of the roadway so that such travel is not reasonably safe.[15] To be a point of hazard for purposes of the highway exception, the condition must be one that uniquely affects vehicular travel on the improved portion of the roadway, as opposed to a condition that generally affects the roadway and its surrounding environment. We reemphasize, however, that such conditions need not be physically part of the roadbed itself.[16]
C
We turn now to the other basis for the Court of Appeals majority's reliance on Scheurman, i.e., that it could "find no way to distinguish between street lighting and traffic signs...." 203 Mich.App. at 141, 511 N.W.2d 694.
The obvious difference between the two, which was expressly acknowledged by the entire Court in Scheurman, is that the defendant in Scheurman was statutorily excluded from the duty to provide street lights on the relevant roadways. See Scheurman, 434 Mich. at 632, n. 23, 456 N.W.2d 66 (opinion of Riley, C.J.); id. at 651-652, 456 N.W.2d 66 (opinion of Brickley, J.) (both citing M.C.L. § 247.651b; M.S.A. § 9.1097[1b]).
The other, generally applicable factor that distinguishes street lighting is that darkness is not a condition unique to the three-dimensional *611 space in which vehicular traffic on a roadway occurs.[17]
D
In conclusion, we expressly hold that a duty is imposed on governmental agencies to provide traffic control devices or warning signs at, or in regard to, points of hazard affecting roadways within their jurisdiction. And, as already noted, we emphasize that the issue whether a duty arises under this standard is strictly subject to the notice requirement of § 3 of the act, M.C.L. § 691.1403; M.S.A. § 3.996(103).
We acknowledge that our prior opinions readily evidence "this Court's badly fractured view of what the Legislature has divined in its efforts to provide this exception," Chaney v Dep't of Transportation, supra at 162, n. 7, 523 N.W.2d 762 (opinion of Brickley, J.), and that, even in individual cases, we have produced "badly fractured opinions." Id. at 178, 523 N.W.2d 762 (opinion of Cavanagh, C.J.). In this case, we have attempted to clearly state a workable principle that is faithful to the plain language of the highway exception, read in its proper context, and the intent of the Legislature in providing this exception.
IV
In remanding this case to the circuit court, we make no comment regarding the quality or quantity of the factual evidence presented by the parties. We leave the initial assessment of that evidence to the trial court in the exercise of its inherent discretion to make such evaluations in proceedings pursuant to MCR 2.116(C)(10). See Skinner v. Square D Co., 445 Mich. 153, 163-170, 516 N.W.2d 475 (1994) (discussing standards by which courts may assess a plaintiff's proofs relative to causation).
Reversed and remanded.
BRICKLEY, C.J., and LEVIN and MALLETT, JJ., concurred.
BOYLE, Justice, 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 in 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,[2] I 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," Op. at 606, state a claim of breach of duty under the highway exception to governmental immunity, M.C.L. § 691.1402; M.S.A. § 3.996(102), and to disagree with Justice Riley's rationale that the duty to warn can only arise from "disrepair *612 of the roadbed" itself. Op. at 624. 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. Dep't of Transportation, 447 Mich. 145, 178, 523 N.W.2d 762 (1994) (Cavanagh, C.J., concurring). 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 P.A. 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, Op. at 605, 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., Op. at 606. 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." M.C.L. § 691.1402; M.S.A. § 3.996(102).
Thus, 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. Dep't of Transportation, 434 Mich. 619, 456 N.W.2d 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 N.W. 50 (1889), Longstreet v. Mecosta Co, 228 Mich. 542, 200 N.W. 248 (1924), and Jewell v. Rogers Twp., 208 Mich. 318, 175 N.W. 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. M.C.L. § 691.1403; M.S.A. § 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 readily repaired or is not amenable to repair or redesign.[4]
*613 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 Hwys. Dep't, 415 Mich. 708, 330 N.W.2d 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, 330 N.W.2d 64.]
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., 1988). 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 N.J. 52, 648 A.2d 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 N.W.2d 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 Hwys. Dep't, 397 Mich. 44, 243 N.W.2d 244 (1976), is within the discretion of highway authorities. M.C.L. § 257.608; M.S.A. § 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 to 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 N.W.2d 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, *614 "yield," or a traffic light, necessarily implicates the causation analysis of Skinner v. Square D Co., 445 Mich. 153, 516 N.W.2d 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]
Whatever 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. Road Comm, supra at 595, 493 N.W.2d 439, "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.
RILEY, Justice, dissenting.
Because I do not believe that the majority's conclusion is faithful to the language and purpose of the highway exception to the governmental immunity statute, I respectfully dissent. Consistent with this Court's ruling in Scheurman v. Dep't of Transportation, 434 Mich. 619, 456 N.W.2d 66 (1990), I would hold that the highway exception, M.C.L. § 691.1402; M.S.A. § 3.996(102), does not expose the state or a county to liability for alleged defects that arise outside the improved portion of the highway designed for vehicular travel. Plaintiffs argue on appeal that the Gratiot County Road Commission failed to place adequate signs warning motorists of the special danger presented by both (1) the unmarked intersection and (2) a nearby apple orchard that allegedly obscured a traveler's view of the intersection. There was no allegation that there was a defect in the surface of the traveled roadbed itself, i.e., the improved portion of the highway, and, consequently, there was no claim that the road commission failed to repair or maintain the improved portion of the highway. Hence, I would affirm the Court of Appeals decision upholding the grant of summary disposition in favor of the road commission as a matter of law under MCR 2.116(C)(8).
ANALYSIS
I. Statutory Interpretation
A
Under M.C.L. § 691.1407; M.S.A. § 3.996(107), all governmental agencies are immune from tort liability while performing a governmental function, unless the activity falls within one of the narrowly drawn exceptions. Mason v. Wayne Co. Bd. of Comm'rs, 447 Mich. 130, 134, 523 N.W.2d 791 (1994); Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 618, 363 N.W.2d 641 (1984). One of the narrow exceptions, M.C.L. § 691.1402(1); M.S.A. *615 § 3.996(102)(1), enables a person to recover against a governmental agency for an injury arising from the use of public highways:
Each governmental agency having jurisdiction over any highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. Any person sustaining bodily injury or damage to his or her property by reason of failure of any governmental agency to keep any highway under its jurisdiction in reasonable repair, and in condition reasonably safe and fit for travel, may recover the damages suffered by him or her from the governmental agency. The liability, procedure and remedy as to county roads under the jurisdiction of a county road commission shall be provided in [MCL 224.21; MSA 9.121]. The duty of the state and the county road commissions to repair and maintain highways, and the liability therefor, shall extend only to the improved portion of the highway designed for vehicular travel and shall not include sidewalks, crosswalks, or any other installation outside of the improved portion of the highway designed for vehicular travel.
The resolution of the controversy in this case depends on the proper interpretation of this statute.[1]
B
Citing the reasoning of Salvati v. State Hwys. Dep't, 415 Mich. 708, 405 N.W.2d 856 (1982), the majority concludes that under the highway exception a governmental agency has a "duty to provide adequate warning signs or traffic control devices at known points of hazard...." Op. at 608. I agree that the exception creates a duty to erect signs or proper control devices at points of hazard, but only when these hazards arise from the failure of the state or county to "maintain the [improved portion of the] highway [designed for vehicular travel] in reasonable repair...." M.C.L. § 691.1402(1); M.S.A. § 3.996(102)(1). The hazard must result from the governmental agency's failure to fulfill its statutory duty.
In contrast, the majority expands the meaning of this duty beyond that created by the Legislature by defining a "point of hazard" as "any condition that directly affects vehicular travel on the improved portion of the roadway so that such travel is not reasonably safe. "Op. at 610 (emphasis added). In so defining this phrase, the majority has interpreted the statute as establishing a governmental duty to ensure that the improved portion of a highway is "reasonably safe and fit for travel," which is a more burdensome duty than to merely "maintain the [improved portion of the] highway [designed for vehicular travel] in reasonable repair...." M.C.L. § 691.1402(1); M.S.A. § 3.996(102)(1). This is not consistent with a narrowly drawn interpretation of the statute. See Mason, supra at 134, 523 N.W.2d 791.
The majority rightly notes that the first sentence of M.C.L. § 691.1402(1); M.S.A. § 3.996(102)(1) establishes the governmental agency's duty. The Legislature only required that the government "maintain the highway in reasonable repair...." This is the statement of the duty. The Legislature created this duty to achieve a particular end "so that [the highway] is reasonably safe and convenient for public travel." Id. This is the value that the Legislature hoped to realize by creating the duty. However, the statutory duty is not violated whenever the statute's end is not achieved. In other words, there is not a violation of this duty by the lone fact that a highway is not "reasonably safe and convenient for public travel." Id. The Legislature did not require that the governmental agency ensure that all highways were reasonably safe. Only when the governmental agency fails to "maintain the highway in reasonable repair" is there a violation of the statute.
*616 In support of its reasoning, the majority refers to Justice Levin's dissent in Chaney v. Dep't of Transportation, 447 Mich. 145, 193-194, 523 N.W.2d 762 (1994), in which he argued that the first two sentences of the statute establish that there is a duty "`to repair and maintain the improved portion of the highway designed for vehicular travel in condition reasonably safe and fit for travel....'" Op. at 610. In Chaney, supra at 196-198, 523 N.W.2d 762, Justice Levin relied on the statute's second sentence in concluding that a governmental agency has a duty to provide this end (a reasonably safe road), not the mere duty to keep the highway in "reasonable repair." The second sentence of the statute provides that "[a]ny person sustaining bodily injury or damage to his or her property by reason of failure of any governmental agency to keep any highway under its jurisdiction in reasonable repair, and in condition reasonably safe and fit for travel, may recover the damages suffered by him or her from the governmental agency." M.C.L. § 691.1402(1); M.S.A. § 3.996(102)(1) (emphasis added).
This interpretation of the second sentence suffers from the same deficiency as the majority's treatment of the first sentence. Examined in context, the second sentence does not expand the government's obligation established by the first.
The first sentence establishes the governmental agency's duty. The second sentence then identifies an injured person's right to recovery for a breach of that duty. The second sentence accomplishes this goal by providing for recovery when the governmental agency fails to keep the highway in "reasonable repair, and in condition reasonably safe...." M.C.L. § 691.1402(1); M.S.A.§ 3.996(102)(1). The comma placed after "reasonable repair" divides the government's duty ("maintain" in "reasonable repair") from the end this duty is intended to secure (a "reasonably safe" road). The point of identifying the statute's desired end with the duty it created in this sentence is to indicate that a person will recover only when the government's failure to perform its duty creates an unsafe condition. Thus, even if there is a breach of the duty (failure to maintain in reasonable repair), an injured person will not recover unless the breach of the duty created an unsafe condition. The interpretation that the majority posits when it adopts Justice Levin's analysis ignores the significance of this comma and the preceding text.[2]
The strict interpretation is confirmed by subsequent text in the highway exception's fourth sentence, which provides: "[t]he duty of the state and the county road commissions to repair and maintain highways, and the liability thereof, shall extend only to the improved portion of the highway designed for vehicular travel...." M.C.L. § 691.1402(1); M.S.A. § 3.996 (102)(1). The duty is reiterated. Using the ordinary meaning of these terms, the state and county road commissions, as governmental agencies, only have the duty "to repair and maintain" the highways, not the duty to keep the roads reasonably safe. See Scheurman, supra at 631, 456 N.W.2d 66 (Riley, C.J.)[3] ("The purpose of the highway exception is not to place upon the state or the counties an unrealistic duty to ensure that travel upon the highways will always be safe").[4]
*617 With this understanding of the statutory duty, the statute in the fourth sentence states that the duty to repair and maintain "shall not include sidewalks, crosswalks, or any other installation outside of the improved portion of the highway designed for vehicular travel," thus limiting this duty to "only "the "improved portion of the highway designed for vehicular travel." M.C.L. § 691.1402(1); M.S.A. § 3.996(102)(1). I believe, as a plurality of this Court stated in Scheurman, supra at 631, 456 N.W.2d 66:
[T]he phrase "improved portion of the highway designed for vehicular travel" refers only to the traveled portion, paved or unpaved, of the roadbed actually designed for public vehicular travel.
* * * * * *
[T]he true intent of the Legislature is to impose a duty to keep the physical portion of the traveled roadbed in reasonable repair. [Citation omitted.]
This conclusion is based on the nature of the duty the Legislature created. The state and county road commissions can only repair and maintain what already exists, what has already been constructed. Consequently, in specifying the improved portion of the highway, the Legislature must have contemplated the maintenance of the integrity of the roadbed's surface, keeping it travel worthy.[5]
C
Consequently, I believe the majority has improperly enlarged the duty from one of repair and maintenance to a duty to keep the traveled portion of the road reasonably safe. I recognize that the majority has attempted to impose a limitation on the application of this expansive interpretation, but I believe this analysis only further confuses the matter. The majority states:
To be a point of hazard for purposes of the highway exception, the condition must be one that uniquely affects vehicular travel on the improved portion of the roadway, as opposed to a condition that generally affects the roadway and its surrounding environment. We reemphasize, however, that such conditions need not be physically part of the roadbed itself. [Op. at 610.]
The majority fails to explain clearly what kind of condition "uniquely" affects the roadway and what condition only "generally" affects it. The majority attempts to clarify this distinction by applying it to the facts in Scheurman in which this Court ruled that there is no statutory duty for the state to erect a streetlight. The majority explains that "darkness is not a condition unique to the three-dimensional space in which vehicular traffic on a roadway occurs" in describing why the lack of street lighting would not expose travelers to a special hazard. Op. at 611. I worry that our trial courts will have a difficult time applying this distinction.[6]
*618 This very effort to distinguish between unique and general hazards that arise outside the physical roadbed may provide insight to the Legislature's desire to limit the duty of the state and county only to the obligation to "repair and maintain" the improved portion of the highway. The duty to repair would generally limit the government's liability to cases in which there are defects in the roadbed's surface. In contrast, the Legislature may have feared that it could not anticipate the circumstances in which the state or county would be exposed to liability if the Legislature imposed on it the duty to ensure that travel is reasonably safe on governmental highways.
II. Case Law
A. Recent Cases
The narrow interpretation required by the statute is consistent with this Court's recent rulings. In a similar case, a plurality of this Court recognized the limitation that the statute's fourth sentence placed on the duty created by the highway exception. See Scheurman, supra 630-631, 456 N.W.2d 66. In Scheurman, supra at 623, 456 N.W.2d 66, this Court examined whether the highway exception statute imposed a duty on governmental agencies either to (1) install street lighting to ensure safe travel on the roadway or (2) remove vegetation on private property that allegedly obstructed the view of motorists approaching an intersection. In applying a narrow construction of the statute, the plurality (Riley, C.J., joined by Cavanagh and Griffin, JJ.) concluded that there was no duty to install street lighting "because the physical structure of the lights falls outside the traveled or paved portion of the roadbed actually designed for public vehicular travel."Id. at 633, 456 N.W.2d 66. Thus, any alleged hazard did not arise from a defect in the roadbed's surface. Likewise, because the hedge that allegedly obstructed a motorist's view had "no connection" with the roadbed, the Wayne County Road Commission did not have a duty under the statute to ensure that the hedges were trimmed to allow for unobstructed vision while driving. Id. at 635, 456 N.W.2d 66.[7]
After Scheurman, in 1994, this Court analyzed the highway exception statute in Mason, supra at 132-133, 523 N.W.2d 791, where a pedestrian alleged that a county failed to install proper signs and traffic devices at a school crossing for pedestrians, and in Chaney, supra at 151, 523 N.W.2d 762, where a driver alleged that the state failed to properly design and construct a concrete bridge abutment and adjoining guardrail adjacent to, but beyond, the shoulder of the road.
In Mason, supra at 135-137, 523 N.W.2d 791, this Court concluded that the county was not liable under the highway exception statute because a school crossing is not a danger to vehicles and passengers. This Court explained that the statute definitively excludes from the exception "specific installations whose only rational purposes narrowly service the unique needs of pedestrians." Id. at *619 136, 523 N.W.2d 791 (emphasis added).[8] In Chaney, the Court affirmed the Court of Appeals decision by ruling that the Department of Transportation was protected by governmental immunity where the plaintiff's injuries arose from an allegedly defective guardrail even though the plaintiff claimed that the department failed to provide adequate warnings about this danger. See Chaney, supra at 152-153, 523 N.W.2d 762. However, there were four opinions among the five justices who concurred in this result.
This Court's ruling in Mason (signs for school crossing) and Chaney (guardrail) is consistent with a narrow interpretation of the statute, as is this Court's ruling in Scheurman (streetlights) and its companion case, Prokop v. Wayne Co. Bd. of Road Comm'rs (hedges on private property that allegedly obscured the view of an intersection). In each of these cases, the alleged defect did not arise from the physical roadbed itself, and this Court concluded that the statute protected the state or county from liability.
Moreover, this interpretation is consistent with this Court's rulings in Gregg v. State Hwy. Dep't, 435 Mich. 307, 313-317, 458 N.W.2d 619 (1990), and Roy v. Dep't of Transportation, 428 Mich. 330, 331, 408 N.W.2d 783 (1987). In Gregg, this Court concluded that the statute did not protect the state from liability for a bicycle path that was a part of the improved portion, while in Roy this Court concluded that the statute did protect the state from liability for a bicycle path that was detached from the highway because the path did not comprise part of the traveled portion of the highway designed for vehicular travel.
B. Other Cases
In Scheurman, the plurality noted at 637, n. 29, 456 N.W.2d 66, that it reserved the decision about the continuing vitality of two previous decisions, Tuttle v. State Hwys. Dep't, 397 Mich. 44, 45-46, 243 N.W.2d 244 (1976), and Salvati, supra, for another case. In each of these cases, this Court or a plurality of this Court apparently concluded that the highway exception included a duty to erect signs, regardless of whether the hazard arose from the roadbed surface. The present case involves the allegation that the road was unsafe because of the road commission's failure to provide a warning sign or a traffic device, e.g., a stop sign, at the unmarked intersection that was allegedly obscured by a nearby apple orchard. Thus, this is the case *620 that allows this Court to revisit Tuttle and Salvati.
In Tuttle, supra at 45-46, 243 N.W.2d 244, the plaintiff suffered serious injuries when he collided with another vehicle at an intersection he claimed was not reasonably safe because of "inadequate signalization." Sprinkle Road was a five-lane road with a speed limit of 55 miles per hour that intersected with a two-lane state trunkline with a speed limit of 55 miles per hour. There was a thirty-six-inch reflectorized "stop ahead" sign and a thirty-six-inch reflectorized stop sign on Sprinkle Road at each approach to the intersection. Immediately after opening the intersection, the traffic and safety engineer for the Department of State Highways received reports that people were not stopping, and he determined that the signs were not noticeable. Consequently, he ordered the installation of large black and white cross-hatch backboards to attach to each stop ahead sign and the installation of red and yellow battery-operated flashers for each stop sign and "stop ahead" sign. The department did not carry out these work orders before the accident. The department's supervising electrical service unit had also approved the installation of a traffic signal at the intersection. On the basis of these facts, this Court unanimously decided that the department was negligent for failing to carry out its own orders when it had already determined that the existing stop controls were not sufficiently noticeable. Id. at 52, 243 N.W.2d 244.
Yet, the Court in Tuttle never examined the highway exception itself to determine whether the department's failure was a breach of its duty to repair and maintain the highway. Instead, it merely assumed that there was a duty to keep the road reasonably safe and fit for travel. See Tuttle, supra at 52, n. 5, 243 N.W.2d 244. Therefore, the Court did not address the question whether the alleged hazard arose from the surface of the highway because of the department's failure to repair and maintain it. I do not believe this ruling can govern this Court's understanding of the scope of liability created by the Legislature in the highway exception and would overrule it to the extent that its holds that the state or a county can be liable for inadequate signage at an intersection, when that signage does not identify a hazard related to the state's failure to repair and maintain the improved portion of the highway designed for vehicular travel.
In Salvati, the plaintiff alleged that the department failed to post adequate signs alerting motorists of the danger of ice on a bridge road. Each plurality opinion in Salvati concluded that the duty of maintenance encompassed a duty to provide warning signs for a "point of hazard," but, as I stated above, I would limit this principle to the circumstance in which the hazard resulted from the state's or county's failure to repair and maintain the roadbed's surface designed for vehicular travel.
Before our ruling in Scheurman, this Court also concluded that the duty created by the highway exception includes the obligation to cure any design or construction defect in order to ensure that the road is reasonably safe. See Killeen v. Dep't of Transportation, 432 Mich. 1, 4, 438 N.W.2d 233 (1989); Peters v. State Hwys. Dep't, 400 Mich. 50, 53, n. 1, 252 N.W.2d 799 (1977). I do not believe that this statement of the duty under the highway exception is consistent with the language of the statute, nor with the Legislature's intent in limiting liability. See Killeen, supra at 19-21, 438 N.W.2d 233 (Riley, C.J., dissenting).[9] Under a strict reading of the highway exception, the state or a county would only be bound to fix a design or construction defect when that defect left the physical surface of the road in disrepair (or not maintained), and thereby unsafe. For example, the state or a county would be responsible for remedying a construction or design defect that allowed a substantial depression to develop in the roadbed's surface because of the agency's failure to ensure that support for the roadbed was girded. Thus, I agree with the result in Peters, supra at 52-53, 252 N.W.2d 799, in which the state's failure to repair a *621 defect in the road's drainage system allowed a body of water, up to ten to twelve inches deep, to collect on the road surface. This defect enabled a substantial obstruction to block free travel on the surface of the roadbed, leaving the surface of the roadbed legally in disrepair. However, I would overrule Killeen in which the alleged defect was a "superelevation" of the road because the defect did not arise from the physical surface of the roadbed. Id. at 5, 438 N.W.2d 233. In the present case, the allegation in plaintiffs' complaint about a design defect was also unrelated to the roadbed's surface.[10]
III. Legislative History
A. Predecessor Statutes
Finally, I wish to briefly examine this Court's treatment of the highway exception's predecessor statutes to dispel any misapprehension about the significance I believe these cases have for the statute at issue. See Chaney, supra at 178-216, 523 N.W.2d 762 (Levin, J., dissenting). The present highway exception was enacted under 1964 P.A. 170. Before 1964, this Court interpreted the predecessor statutes, 1879 P.A. 244,[11] 1885 P.A. 214,[12] and 1887 P.A. 264,[13] to provide that a *622 municipality ("township, village, city or corporation") was obliged to ensure that the road was in a "reasonably safe" condition.[14]
In McEvoy v. Sault Ste. Marie, 136 Mich. 172, 176, 98 N.W. 1006 (1904), this Court recognized that there was a conflict in the cases because the 1879 act was open to two incompatible constructions:
[O]ne, that it imposed upon municipalities an obligation to use diligence to keep their highways and streets in a condition reasonably safe and fit for public travel; and the other, that it imposed upon municipalities only the obligation to use due diligence to keep their highways and streets in good repair.
This Court decided to embrace the first interpretation, as it had held in Joslyn v. Detroit, 74 Mich. 458, 42 N.W. 50 (1889), and decided to disregard the analysis, although not necessarily the results, of the conflicting cases, as represented by McArthur v. Saginaw, 58 Mich. 357, 25 N.W. 313 (1885), among others.[15] I do not quarrel with this holding or with the conclusion that the previous statutes required that a municipality ensure that a road was in a reasonably safe condition. However, the Legislature repealed this statute and, in enacting a new one, substantially changed the duty that it created.
B. 1964 P.A. 170
In response to this Court's decision to abrogate common-law governmental immunity for municipalities in Williams v. Detroit, 364 Mich. 231, 111 N.W.2d 1 (1961), the Legislature enacted the governmental immunity act under 1964 P.A. 170 in order to restore governmental immunity to municipalities and to provide uniform treatment for state and local agencies. Ross, supra at 604-605, 363 N.W.2d 641. The Legislature created exceptions to governmental immunity, including a highway exception under M.C.L. § 691.1402; M.S.A. § 3.996(102). For the first two sentences of this statute, the Legislature borrowed provisions from 1887 P.A. 264: the first sentence of the new statute was basically taken from the first sentence of § 3 of 1887 P.A. 264, and the second from 1887 P.A. 264's first sentence of § 1.[16] In *623 reestablishing the highway exception, however, the Legislature specifically reduced the scope of liability for the state or a county road commission in the statute's fourth sentence from what it created in the first sentence by eliminating liability for the state and counties for "sidewalks, crosswalks, or any other installation outside of the improved portion of the highway." M.C.L. § 691.1402(1); M.S.A. § 3.996(102)(1). Instead, in this fourth sentence, the Legislature explained that the duty only extended to the "improved portion of the highway designed for vehicular travel."
Moreover, in limiting this liability, the Legislature described the nature of the duty as requiring the state or county only to "repair and maintain" the improved portion of the highway. I believe, in construing this statute narrowly, that this sentence not only limits the scope of liability, but also limits the nature of the duty the Legislature intended to create for these agencies. See part 1(B).
IV. Application
In applying this properly strict interpretation of the highway exception statute to the facts of this case, I would affirm the Court of Appeals decision to grant summary disposition in favor of the Gratiot County Road Commission.[17] Plaintiffs argue that the commission failed to keep this intersection reasonably safe in two different regards: (1) it did not place adequate signs to warn motorists of the danger of the improperly designed intersection where there were no traffic controls, and (2) it failed to warn motorists of the obstructed vision (a "point of hazard") caused by the apple orchard growing on private property near the intersection.
There is no dispute that the alleged hazard from the lack of traffic controls in this intersection did not arise from the disrepair of the roadbed (or from a failure to maintain the roadbed), and that the alleged design defect did not compromise the integrity of the roadbed surface. The duties imposed on the state and counties under the highway exception statute do not include the installation and maintenance of signs for dangers that do not arise from a defect in the roadbed. Consequently, the road commission is not subject to liability for the alleged lack of adequate signage at the intersection.
Moreover, the alleged danger due to the apple orchard did not arise from the roadbed. In fact, this Court ruled on almost the identical issue in Prokop, the companion case to Scheurman. The plaintiff in Prokop, supra at 633, 456 N.W.2d 66, argued that the road commission was liable under the statute because it failed to remove a six-foot hedge, located on private property, that obstructed the view of travelers. This Court concluded that there was no liability:
[T]he indisputable fact is that the hedge in question was on private property and had no connection with the roadbed or public travel thereon. While the hedge may have interfered with compass-range vision within the intersection, it cannot be categorized as a defective condition upon the "improved portion of the highway designed for vehicular travel...." [Id. at 635, 456 N.W.2d 66 (Riley, C.J.).]
Similarly, in this case, I would conclude that there was no liability.
The duty identified by the majority cannot reasonably be reconciled with the result in Prokop.[18] According to the reasoning of the majority, the plaintiff in Prokop failed to come under the highway exception as a matter of law merely because she neglected to argue that the hedge created a "point of hazard," like the apple orchard allegedly did in the present case, requiring the road commission to erect a sign to alert drivers of this *624 hazard. Hence, substantially nothing from Prokop survives this opinion. I also question whether this Court will need to revisit the result we reached in Chaney as a consequence of the majority's decision today.[19]
CONCLUSION
I believe that the Court of Appeals properly relied on Scheurman, supra, in affirming the trial court's decision to grant summary disposition in favor of defendant Gratiot County Road Commission. The statute is unambiguous in creating a governmental duty to repair and maintain only the improved portion of the highway designed for vehicular travel. This conclusion is faithful to the plain meaning of the provision defining the scope of the duty of the state and counties. Consequently, the state or a county road commission would only be liable when its failure to repair or maintain the improved portion of the highway, i.e., the physical structure of the roadbed surface, causes an injury. There is no obligation to warn motorists about dangers that do not arise from the condition of the roadbed itself. Hence, the Gratiot County Road Commission is protected from liability as a matter of law because plaintiffs' claims about the alleged dangers (an upcoming intersection and an apple orchard obstructing the motorists' view) were unrelated to the highway roadbed itself. I would affirm.
WEAVER, J., concurred.
NOTES
[1] It is undisputed that the intersection was under the jurisdiction of defendant Gratiot County Road Commission and that it was not controlled by any traffic devices or warning signs.
[2] Defendant Szymczak is no longer a party to this appeal. This case deals solely with plaintiffs' claim against Gratiot County Road Commission. Both drivers were injured. Sally Pick's sole claim in this case is a derivative claim for loss of consortium.
[3] The complaint also cites the statutory duty imposed on "the counties to keep in reasonable repair, so that they shall be reasonably safe and convenient for public travel, all county roads, bridges and culverts that are within their jurisdiction and under their care and control and which are open to public travel." M.C.L. § 224.21; M.S.A. § 9.121. However, this statutory provision has not been the subject of any discussion or briefing in the trial court, the Court of Appeals, or this Court. This appeal is based solely on the duty that arises under the highway exception to governmental immunity.
[4] This bench ruling subsequently was issued as a written order on January 24, 1991.
[5] Defendant is correct, however, that plaintiffs have abandoned their claim that defendant had any duty to remove or trim the vegetation.
[6] We wish to emphasize that the only issue properly before us is the legal question whether defendant had any duty relative to the claims set forth in plaintiffs' complaint. Specifically, on the basis of plaintiffs' brief and plaintiffs' counsel's response to a question at oral argument, we understand plaintiffs' argument to be that defendant had a duty to warn.
[7] I am not unaware that I joined this same plurality opinion. Specifically at issue in Prokop was which governmental entity had jurisdiction to remove the hedge. Justice Riley concluded:
Neither the alleged lack of adequate street lighting nor vegetation growing on private property has any connection to the traveled portion of the roadbed designed for public vehicular travel. [Id. at 636, 456 N.W.2d 66.]
Here, this plaintiff has alleged the existence of a hazard and a direct connection to the traveled portion of the roadbed.
[8] The seventh justice, Justice Riley, did not participate in the decision.
[9] Justice Boyle's reference to the majority's alleged" conclusion that `any factors that actually affect reasonably safe vehicular travel on the improved portion of a roadway'... state a claim of breach of duty under the highway exception" is a straw man. She quotes from the majority's restatement of our understanding of plaintiffs' claim. The actual conclusion we reach is as stated above: "[W]e expressly hold that a duty to provide adequate warning signs or traffic control devices at known points of hazard arises under the highway exception...." (Emphasis added.) And our purposeful inclusion of the word "known" in this holding, along with the two explicit references to the strict applicability of the notice requirement, see infra, p. 609, n. 14, and p. 611, further undermines the critique of the majority's holding. See Boyle, J., Op., p. 611.
[10] I concurred separately in Mason to distance myself from this same statement only because it was unnecessary to resolution of the precise claim alleged by the plaintiff in that case: a defect in a crosswalk. Such claims are expressly precluded by the statutory language.
[11] This provision was amended by 1990 P.A. 278, § 1, in ways not relevant to this case.
[12] Justice Boyle's discussion of causation and of the substantive merits of the question whether a duty was breached in this case is wholly beyond the scope of the narrow holding of the lower courts, the narrow legal issue actually before this Court, and the equally narrow holding of this majority opinion.
[13] Justice Boyle's creation of a motorist's duty of due care is an unwarranted engraftment onto a statutory provision that addresses only the duty of the relevant governmental entity.
[14] The existence of any such duty is, of course, strictly subject to the notice requirement of the act, M.C.L. § 691.1403; M.S.A. § 3.996(103), which provides:
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.
[15] We expressly refute plaintiffs' implied claim that all crossroads intersections intrinsically qualify as points of hazard.
[16] Moreover, we note in passing that the "improved portion" restriction contended for by defendant would require governmental agencies to place warning signs in the traveled portion of roadways. This, obviously, cannot have been the intention of the Legislature.
[17] We also note in this regard that every vehicle operating upon Michigan highways "at any time from a half hour after sunset to a half hour before sunrise and at any other time when there is not sufficient light to render clearly discernible persons and vehicles on the highway at a distance of 500 feet ahead shall display lighted lamps and illuminating devices...." M.C.L. § 257.684; M.S.A. § 9.2384. Even the number and required intensity of these headlamps is specified by statute. M.C.L. § 257.685; M.S.A. § 9.2385.
[1] The signals and signs claims allege only breach of a duty to install.
[2] 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.
[3] Senate Bill 353, introduced March 1, 1995, would exclude traffic control devices and signs located outside the improved portion of the highway.
[4] 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.
[5] Plaintiffs did not claim that the intersection was not visible.
[6] 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 geometrics 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.
[1] If a statute is unambiguous, this Court may not engage in judicial construction, but must apply the statute as written. Turner v. Auto Club Ins. Ass'n, 448 Mich. 22, 27, 528 N.W.2d 681 (1995); Coleman v. Gurwin, 443 Mich. 59, 65, 503 N.W.2d 435 (1993). This Court accords statutory language its ordinary and generally accepted meaning. Turner, supra at 27, 528 N.W.2d 681; Mull v. Equitable Life Assurance Society of the United States, 444 Mich. 508, 514, n. 7, 510 N.W.2d 184 (1994). However, where the meaning of the statute is unclear, judicial construction is necessary. Turner, supra at 27, 528 N.W.2d 681.
[2] If the majority were right, the second sentence should read:
Any person sustaining bodily injury or damage to his or her property by reason of failure of any governmental agency to keep any highway under its jurisdiction in reasonable repair and in condition reasonably safe and fit for travel may recover the damages suffered by him or her from the governmental agency. Instead, the Legislature sets this clause off by commas, suggesting this understanding:
Any person sustaining bodily injury or damage to his or her property by reason of failure of any governmental agency to keep any highway under its jurisdiction in reasonable repair, and [in breaching this duty thereby fails to keep the road] in condition reasonably safe and fit for travel, may recover the damages suffered by him or her from the governmental agency.
[3] Joined by Cavanagh and Griffin, JJ.
[4] See also Chaney, supra at 166, 523 N.W.2d 762 (Riley, J., joined by Griffin, J.) ("[T]he clear and unambiguous language of the statute imposes liability only when the physical highway is unreasonably unsafe because of physical disrepair of the improved portion of the road designed for vehicular travel" [emphasis added]). Chief Justice Cavanagh, writing separately, stated that he also "reluctantly" joined this opinion. Chaney, supra at 177, 523 N.W.2d 762.
[5] Thus, I do not agree with the majority that this duty "implicates factors not physically within the improved portion of the roadway itself...." Op. at 610.
I dispute the claim in Justice Boyle's concurrence that I have "collapse[d]" the duty recognized by the fourth sentence of the statute with the one created by the first. See Op. at 612. The duty articulated by the statute's first sentence ("maintain the highway in reasonable repair") and fourth sentence ("repair and maintain highways") are essentially the same. In Justice Boyle's concurrence, she concludes that "an actionable breach of duty might occur where a governmental unit fails to warn of a dangerous condition of the roadway surface" and that this statutory duty to repair and maintain the highway is discharged by "repairing the highway or warning motorists using the highway of a dangerous condition of the roadway itself." Op. at 611, 612 (emphasis added). She later concludes that there was no point of hazard in this case, except from the design defect, because the alleged dangers did "not constitute a hazardous condition of the roadway surface as a result of improper maintenance of the roadway surface itself." Op. at 614 (emphasis added). This analysis appears to recognize the same standard I have identified, although Justice Boyle applies it differently for the design defect claim. Justice Boyle does not explain why the allegation that the road commission failed to properly design the intersection indicates that there is a defect in the roadbed surface.
[6] In fact, Chief Justice Cavanagh himself appeared to recognize this point in his concurring opinion in Chaney, supra at 178, 523 N.W.2d 762. In that case, Justice Brickley wrote the lead opinion and offered a very similar interpretation of the highway exception as Justice Cavanagh does in the present case. Justice Brickley concluded that M.C.L. § 691.1402; M.S.A. § 3.996(102) "encompasses (1) installations physically located within that traveled or paved portion of a highway designed for vehicular travel, or (2) some installations, even those physically located beyond the traveled or paved portion of a highway, that directly and integrally affect safe vehicular travel on this improved portion." Chaney, supra at 158, 523 N.W.2d 762 (emphasis added). Cf. Justice Cavanagh's definition of "point of hazard," Op. at 610. In response to Justice Brickley's interpretation, Justice Cavanagh concluded:
Justice Brickley's interpretation does not provide a standard with which to guide both the bench and bar. The test is vulnerable to endless interpretation, encouraging recurrent appellate litigation. [Id. at 178, 523 N.W.2d 762.]
[7] In a concurring opinion in Scheurman, supra at 637, 456 N.W.2d 66, Justice Boyle "join[ed] in both the rationale and result" of this opinion with the understanding that
it does not preclude the application of [the statute] in cases alleging a failure to "repair and maintain" installations that are integral to, if not part of, the "improved portion of the highway designed for vehicular travel," such as traffic lights and signs. [Emphasis added.]
There is no dispute in the present case that the Gratiot County Road Commission had not placed any signs at this intersection. Thus, there were no existing signs to "repair and maintain." See also Chaney, supra at 152-153, 176-177, 523 N.W.2d 762 (Boyle, J., concurring) ("The plaintiff's claim is barred by governmental immunity because he does not allege a failure to repair and maintain the paved surface of the roadway or a traffic sign or signal," even though the plaintiff alleged that the transportation department" failed to provide adequate warnings of dangers on the entrance ramp").
[8] As the majority notes, this Court did state in Mason, supra at 135, 523 N.W.2d 791 that "[t]he highway exception abrogates governmental immunity except [sic] at `points of special danger to motorists....' Grof v. Michigan, 126 Mich.App. 427, 434, 337 N.W.2d 345 (1983); Comerica Bank of Kalamazoo v. Dep't of Transportation, 168 Mich.App. 84, 86, 424 N.W.2d 2 (1987)." However, this statement from Mason does not, by itself, indicate that the Court departed from the plain meaning of the highway exception statute. Rather, the Court employed the phrase "points of special danger to motorists" in order to emphasize that the highway exception statute was intended to protect motorists and not pedestrians, the pivotal point of that case. This Court did not hold that there was a duty to post signs for dangers that do not arise from the physical roadbed itself.
Nevertheless, the Court of Appeals cases cited in Mason did state that the statute created a duty to post signs even where the state and road commission had kept the road surface in reasonable repair. See Comerica, supra at 86-87, 424 N.W.2d 2 (inadequate signage at intersection); Grof, supra at 434-435, 337 N.W.2d 345 (inadequate signage at intersection). This conclusion conflicts with the limitations placed in the statute by the Legislature. Consequently, I would overrule these cases insofar as they hold that the statute creates a more burdensome duty.
In other cases, the Court of Appeals has previously reached the conclusion, I believe erroneously, that the public highway exception created a duty to ensure that the road was reasonably safe even if there was no disrepair in the roadbed. See, e.g., Hutchinson v. Allegan Co. Bd. of Road Comm'rs (On Remand), 192 Mich.App. 472, 479-480, 481 N.W.2d 807 (1992) (failure to place guardrail to protect drivers from adjacent ditch); Hall v. State Hwys. Dep't, 109 Mich.App. 592, 602-603, 311 N.W.2d 813 (1981) (failure to properly design a median guardrail); Bennett v. City of Lansing, 52 Mich.App. 289, 294-295, 217 N.W.2d 54 (1974) (failure to repair malfunctioning traffic control light); Lynes v. St. Joseph Co. Road Comm, 29 Mich.App. 51, 54-58, 185 N.W.2d 111 (1970) (inadequate signage). But see Alpert v. Ann Arbor, 172 Mich.App. 223, 230, 431 N.W.2d 467 (1988); Zyskowski v. Habelmann (On Remand), 169 Mich.App. 98, 103, 425 N.W.2d 711 (1988) ("The first sentence ... suggests that only the physical structure of the road itself was contemplated").
[9] "The statute does not impose a duty to repair defects in design or construction." Id. at 20, 438 N.W.2d 233.
[10] Furthermore, before Scheurman, this Court recognized that the highway exception rendered a governmental agency liable for a design or construction defect of a guardrail. See Endykiewicz v. State Hwy. Comm., 414 Mich. 377, 380, 324 N.W.2d 755 (1982); Arnold v. State Hwys. Dep't, 406 Mich. 235, 236, 277 N.W.2d 627 (1979). I do not believe that this conclusion from these cases remains good law after this Court's recent ruling in Chaney, supra. Although we issued four opinions among the five justices in the majority, these opinions agreed that the highway exception did not create a duty for the state to properly design and construct the concrete bridge abutment and adjoining guardrail. Rather, we affirmed the Court of Appeals decision upholding the trial court's grant of summary disposition in favor of the Department of Transportation where the plaintiff's injuries arose from an allegedly defective guardrail. See Chaney, supra at 161-162, 523 N.W.2d 762 (Brickley, J.), 167-168 (Riley, J., joined by Griffin, J.), 171 (Boyle, J.), 177 (Cavanagh, C.J., joining the opinion of Riley, J.). Thus, Endykiewicz and Arnold were effectively overruled on this point.
[11] Act 244 provided in pertinent part:
[Section 1.] That any person or persons sustaining bodily injury upon any of the public highways or streets in this state, by reason of neglect to keep such public highways or streets, and all bridges, crosswalks and culverts on the same in good repair, and in a condition reasonably safe and fit for travel, by the township, village, city, or corporation whose corporate authority extends over such public highway, street, bridge, crosswalk or culvert, and whose duty it is to keep the same in good repair, such township, village, city, or corporation shall be liable to, and shall pay to the person or persons so injured or disabled, just damages, to be recovered in an action of trespass on the case, before any court of competent jurisdiction.
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[Section 4.] It is hereby made the duty of townships, villages, cities, or corporations to keep in good repair, so that they shall be safe and convenient for public travel at all times, all public highways, streets, bridges, crosswalks, and culverts that are within their jurisdiction and under their care and control, and which are open to public travel. [Emphasis added.]
[12] Act 214 amended §§ 1 and 4 of 1879 P.A. 244 by adding "sidewalks" to the list of public areas that the authorities are responsible for protecting, replaced "good repair" with "reasonable repair," and added the term "reasonably" before "safe and convenient" in § 4. See n. 13. This amendment was held to be unconstitutional because certain revisions were not described in the title of the act. Church v. Detroit, 64 Mich. 571, 574-575, 31 N.W. 447 (1887).
[13] Act 264 superseded the previous act, but reenacted the identical language of §§ 1 and 4 of 1885 P.A. 214 as §§ 1 and 3. Thus, this act provided in pertinent part:
[Section 1.] That any person or persons sustaining bodily injury upon any of the public highways or streets in this State, by reason of neglect to keep such public highways or streets, and all bridges, sidewalks, cross-walks and culverts on the same in reasonable repair, and in condition reasonably safe and fit for travel by the township, village, city or corporation whose corporate authority extends over such public highway, street, bridge, sidewalk, cross-walk or culvert, and whose duty it is to keep the same in reasonable repair, such township, village, city or corporation shall be liable to and shall pay to the person or persons so injured or disabled just damages, to be recovered in an action of trespass on the case before any court of competent jurisdiction.
* * * * * *
[Section 3.] It is hereby made the duty of townships, villages, cities, or corporations to keep in reasonable repair, so that they shall be reasonably safe and convenient for public travel, all public highways, streets, bridges, sidewalks, cross-walks and culverts that are within their jurisdiction, and under their care and control, and which are open to public travel.... [Emphasis added.]
[14] See, e.g., O'Hare v. Detroit, 362 Mich. 19, 22, 106 N.W.2d 538 (1960) (failure to replace a knocked-down stop sign), and cases cited therein at 24, 106 N.W.2d 538; Malloy v. Walker Twp., 77 Mich. 448, 460-464, 43 N.W. 1012 (1889) (failure to provide a barrier or railings along an embankment); Joslyn v. Detroit, 74 Mich. 458, 460, 42 N.W. 50 (1889) (the failure to place a sign to alert travelers of an obstruction in the road). See also Mullins v. Wayne Co, 16 Mich.App. 365, 373-374, 168 N.W.2d 246 (1969), and Michigan Supreme Court cases cited therein at 376, 168 N.W.2d 246. But see McArthur v. Saginaw, 58 Mich. 357, 361, 25 N.W. 313 (1885) ("the statutory liability [from 1879 PA 244] was confined to such defects in streets as arose from their being out of repair, and did not cover objects forming no part of the streets"). See also McKellar v. Detroit, 57 Mich. 158, 160, 23 N.W. 621 (1885) ("The natural meaning of the act, both in the title and in the body, is to create liability only for having ways out of repair and defective on that account"); Agnew v. Corunna, 55 Mich. 428, 430, 21 N.W. 873 (1885) ("The statute [1879 PA 244] does not seem to be aimed at indirect and remote mischiefs, but to those which follow from a direct injury caused by the want of repair").
[15] See McEvoy, supra at 178-183, 98 N.W. 1006. See also Kowalczyk v. Bailey, 379 Mich. 568, 571-572, 153 N.W.2d 660 (1967).
[16] In the first sentence of 1964 P.A. 170, the language of 1887 P.A. 264 in § 3 ("It is hereby made the duty of townships, villages, cities, or corporations to keep in reasonable repair ....") is transformed into "[e]ach governmental agency having jurisdiction over any highway shall maintain the highway in reasonable repair...." (Emphasis added.) In the second sentence, the Legislature changed the first sentence of § 1 ("[A]ny person or persons sustaining bodily injury upon any of the public highways or streets in this State, by reason of neglect to keep such public highways or streets, and all bridges, sidewalks, cross-walks and culverts on the same in reasonable repair ....") to provide that "[a]ny person sustaining bodily injury or damage to his property by reason of failure of any governmental agency to keep any highway under its jurisdiction in reasonable repair...."
The third sentence states that "liability, procedure and remedy" for county roads would be taken from M.C.L. § 224.21; M.S.A. § 9.121, which was established under 1909 P.A. 283. This statute provides in part:
It is hereby made the duty of the counties to keep in reasonable repair, so that they shall be reasonably safe and convenient for public travel, all county roads, bridges and culverts that are within their jurisdiction and under their care and control and which are open to public travel.
In interpreting this provision, the Court of Appeals in Mullins, n. 14 supra at 373-374, 168 N.W.2d 246, relied on Joslyn, supra, and concluded that this statute imposes a duty to keep county roads reasonably safe and convenient for public travel. The majority notes that this provision is not at issue in the case before us. See Op. at 605, n. 3.
[17] 203 Mich.App. 138, 141, 511 N.W.2d 694 (1993).
[18] I also note that, contrary to the majority's suggestion, Op. at 610, the plurality's reasoning in Scheurman that the highway exception did not require the state to install street lighting was not based on M.C.L. § 247.651b; M.S.A. § 9.1097(1b) (placing the cost of highway maintenance on the state transportation department, but specifically excluding the maintenance of street lights). See Scheurman, supra at 632, 456 N.W.2d 66 ("we do not believe [§ 1b] to be dispositive of the question[;][n]or do we believe that it is the issue here").
[19] In rejecting the plurality's reasoning from Scheurman, the majority may require the Court of Appeals to revisit questions that it resolved in favor of the state or a county on the basis of Scheurman and Chaney. See, e.g., Zwolinski v. Dep't of Transportation (After Remand), 210 Mich.App. 496, 498-499, 534 N.W.2d 163 (1995) (failure to install a guardrail along a steep slope of an adjoining embankment); Fortunate v. Dep't of Transportation, 208 Mich.App. 467, 468, 528 N.W.2d 743 (1995) (failure to design a pedestrian bridge to prevent people from throwing concrete blocks at cars); Colovos v. Dep't of Transportation, 205 Mich.App. 524, 525, 517 N.W.2d 803 (1994) (failure to provide adequate warning signs for danger presented by ice on a bridge); Fogarty v. Dep't of Transportation, 200 Mich.App. 572, 573, 504 N.W.2d 710 (1993) (grassy median); Coluccelli v. Wayne Co, 196 Mich.App. 387, 389-390, 493 N.W.2d 439 (1992) (guardrail on grassy median); Soule v. Macomb Co Bd. of Road Comm'rs, 196 Mich.App. 235, 237-238, 492 N.W.2d 783 (1992) (failure to construct a shoulder).