Grimes v. Department of Transportation

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

FILED MAY 31, 2006

MICHAEL GRIMES and TAMARA GRIMES,

Plaintiffs-Appellees,

v No. 127901

MICHIGAN DEPARTMENT OF TRANSPORTATION,

Defendant-Appellant.

_______________________________

BEFORE THE ENTIRE BENCH

YOUNG, J.

We granted leave to appeal to consider whether the shoulder is part of the

“improved portion of the highway designed for vehicular travel” for the purpose of

the highway exception to governmental immunity. We conclude that a shoulder is

not within the exception because it is not “designed for vehicular travel.”

In reaching this conclusion, we overrule the holding in our earlier decision

in Gregg v State Hwy Dep't that a shoulder is “designed for vehicular travel.”1

Gregg subsequently has been relied on by lower courts for the proposition that

1
435 Mich 307; 458 NW2d 619 (1990).
every shoulder is “designed for vehicular travel.” As we will discuss, we find no

support within Gregg, considering its internal inconsistencies, to give it this broad

reading. Moreover, judging from the plain meaning of the statutory language and

the context thereof enacted by the Legislature, we conclude that a shoulder, unlike

a travel lane, is not the improved portion of a highway designed for vehicular

travel. Accordingly, the order of the Court of Claims denying summary

disposition on the basis of Gregg is reversed, the judgment of the Court of

Appeals affirming that order is reversed, and this case is remanded to the Court of

Claims for further proceedings consistent with this opinion.

I. Facts and Procedural History

On the morning of March 24, 2000, Alan Thisse traveled north on I-75 in

the far left lane of the three-lane highway. Thisse testified in his deposition that as

he passed an entrance ramp he ran over a mound of dirt that forced his vehicle

onto the left shoulder of the highway. The left shoulder consisted of a three-foot-

wide strip of asphalt with an adjoining two-foot-wide gravel strip. The asphalt

portion of the shoulder shared the same grade as the travel lanes. The gravel

portion, however, was lower.2 Thisse’s two left tires dropped onto the gravel

surface. As Thisse left the highway travel lane, plaintiff Michael Grimes had just

entered onto northbound I-75. It is alleged that when Thisse recovered and

reentered the highway, the grade differential between the gravel and the asphalt

2
The parties dispute the severity of the grade differential.

2

surfaces caused Thisse to lose control of his vehicle, veer into the far right lane,

and crash into Grimes’s vehicle. As a result of the accident, plaintiff Michael

Grimes suffered permanent quadriplegia.

Plaintiffs Michael Grimes and his wife Tamara filed actions against Alan

and Douglas Thisse and defendant Michigan Department of Transportation

(MDOT).3 Plaintiffs brought negligence and nuisance claims against MDOT,

claiming that MDOT negligently maintained the gravel portion of the shoulder

where Thisse left the roadway. They argued that MDOT designed the shoulder

intending that the gravel portion would gradually slope away from the asphalt

portion. However, plaintiffs allege that MDOT failed to maintain that gradual

slope, resulting in the drop-off that proximately caused plaintiffs’ injuries.

MDOT moved for summary disposition pursuant to MCR 2.116(C)(7),

asserting governmental immunity as a defense. It argued that the shoulder fell

outside the scope of the highway exception because it was not an improved

portion of the highway designed for vehicular travel. Relying on Gregg, the Court

of Claims denied MDOT’s motion for summary disposition.4

3
Plaintiff Tamara Grimes sued derivatively for loss of consortium.
Plaintiffs’ claims against Alan Thisse, the driver, and Douglas Thisse, the owner
of the vehicle, are not part of this appeal.
4
The parties stipulated in the order of denial to dismiss all other allegations
and agreed that plaintiffs could “only proceed on their claim regarding an alleged
defective shoulder as it relates to the failure of MDOT to repair and maintain the
shoulder.”

3

 The Court of Appeals affirmed the judgment of the Court of Claims.5 In a

short unpublished per curiam decision, the panel relied on Gregg as well as

subsequent Court of Appeals cases following Gregg in holding that a shoulder is

part of the improved portion of the highway designed for vehicular travel.6 The

panel also held that this Court’s subsequent decision in Nawrocki v Macomb Co

Rd Comm7 had not affected the jurisprudential validity of Gregg.

MDOT filed an application for leave to appeal, which this Court granted.8

II. Standard Of Review

This Court reviews motions for summary disposition under MCR

2.116(C)(7) de novo.9 Questions of statutory interpretation are also reviewed de

novo.10 When this Court interprets statutory language, our primary goal is to

discern the intent of the Legislature as expressed in the text of the statute.11 Where

5
Unpublished opinion per curiam, issued December 16, 2004 (Docket No.
249558).
6
Meek v Dep’t of Transportation, 240 Mich App 105, 114; 610 NW2d 250
(2000); Soule v Macomb Co Bd of Rd Comm’rs, 196 Mich App 235, 237; 492
NW2d 783 (1992).
7
463 Mich 143; 615 NW2d 702 (2000).
8
474 Mich 877 (2005).
9
Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999).
10
Mitan v Campbell, 474 Mich 21, 23; 706 NW2d 420 (2005).
11
Dibenedetto v West Shore Hosp, 461 Mich 394, 402; 605 NW2d 300
(2000).

4

the language is clear and unambiguous, our inquiry ends and we apply the statute

as written.12

III. Analysis

a. Governmental Immunity and the Highway Exception

The governmental tort liability act (GTLA)13 broadly shields a

governmental agency14 from tort liability “if the governmental agency is engaged

in the exercise or discharge of a governmental function.”15 The act enumerates

several exceptions to governmental immunity that permit a plaintiff to pursue a

claim against a governmental agency.16 This case concerns what is known

colloquially as the “highway exception.” That provision states, in pertinent part:

[E]ach governmental agency having jurisdiction over a
highway shall maintain the highway in reasonable repair so that it is
reasonably safe and convenient for public travel. A person who

12
Huggett v Dep’t of Natural Resources, 464 Mich 711, 717; 629 NW2d
915 (2001).
13
MCL 691.1401 et seq.
14
A governmental agency is “the state or a political subdivision.” MCL
691.1401(d). The state, in turn, includes “the state of Michigan and its agencies,
departments [and] commissions . . . .” MCL 691.1401(c). Defendant, as a
department of the state, is protected by the provisions of this act.
15
MCL 691.1407(1).
16
The Legislature codified the following exceptions: the highway
exception, MCL 691.1402; the motor vehicle exception, MCL 691.1405; the
public building exception, MCL 691.1406; the proprietary function exception,
MCL 691.1413; the governmental hospital exception, MCL 691.1407(4); and the
sewage disposal system exception, MCL 691.1417.

5

 sustains bodily injury or damage to his or her property by reason of
failure of a governmental agency to keep a highway under its
jurisdiction in reasonable repair and in a condition reasonably safe
and fit for travel may recover the damages suffered by him or her
from the governmental agency . . . . The duty of the state and the
county road commissions to repair and maintain highways, and the
liability for that duty, extends only to the improved portion of the
highway designed for vehicular travel and does not include
sidewalks, trailways, crosswalks, or any other installation outside of
the improved portion of the highway designed for vehicular travel.
[17]

The GTLA provides its own definition of “highway,” which is “a public

highway, road, or street that is open for public travel and includes bridges,

sidewalks, trailways, crosswalks, and culverts on the highway.”18 This definition

of a highway excludes “alleys, trees, and utility poles.”19 Beyond defining the

term “highway,” the GTLA does not define these additional terms. It also does

not define “shoulder” or include shoulder among the list of features such as

bridges and sidewalks that are deemed to be part of a highway.

The scope of the highway exception is narrowly drawn. Under its plain

language, every governmental agency with jurisdiction over a highway owes a

duty to “maintain the highway in reasonable repair so that it is reasonably safe and

convenient for public travel.” However, when the governmental agency is the

state or a county road commission, as is the case here, the Legislature constricted

17
MCL 691.1402(1) (emphasis added).

18
MCL 691.1401(e).

19
Id.

6

the scope of the highway exception by limiting the portion of the highway covered

by that exception. For these agencies, the highway exception does not extend to

an installation “outside” the improved portion of the highway such as a sidewalk,

trailway, or crosswalk, although these features are included in the general

definition of a “highway.” The duty of these agencies to repair and maintain does

not extend to every “improved portion of highway.” It attaches only “to the

improved portion of the highway” that is also “designed for vehicular travel.” As

we discuss later in this opinion, such narrowing of the duty supplies important

textual clues regarding the Legislature’s intent concerning whether a shoulder falls

within or without the protection afforded by the GTLA.

Although the specific issues considered in Nawrocki v Macomb Co Rd

Comm,20 are not before us today, that case is particularly instructive in this case.21

In Nawrocki, this Court reconciled several of our previous inconsistent highway

exception cases, and clarified the scope of the governmental agency’s duty under

the highway exception. We held in Nawrocki that “if the condition is not located

in the actual roadbed designed for vehicular travel, the narrowly drawn highway

20
463 Mich 143; 615 NW2d 702 (2000).
21
In Nawrocki, this Court decided two issues. First, the highway exception
protects pedestrians who are injured by the defendant state or county road
commission’s failure to repair and maintain the improved portion of the highway
designed for vehicular travel. Id. at 184. Second, the highway exception does not
permit “signage” claims. That is, the state and country road commissions owed no
duty to install, maintain, repair, and improve traffic control devices. Id.

7

exception is inapplicable . . . .”22 Put differently, the highway exception creates a

duty to maintain only the “‘traveled portion, paved or unpaved, of the roadbed

actually designed for public vehicular travel.’”23 Our focus, then, consistent with

Nawrocki, is determining whether a shoulder is actually designed for public

vehicular travel.

b. Gregg v State Hwy Dep’t

Plaintiffs urge this Court to affirm the judgments of the lower courts on the

basis of our decision in Gregg v State Hwy Dep’t,24 which we decided before

Nawrocki. In Gregg, this Court considered whether the highway exception was

available to a bicyclist injured by a defect in “a designated bicycle path on the

inner portion of the paved shoulder of a state highway.”25 The plaintiff suffered

extensive injuries when he struck a pothole on the bicycle path and overturned his

22
Id. at 162.
23
Id. at 180 (citation omitted).
24
435 Mich 307; 458 NW2d 619 (1990).
25
Id. at 309. The defendant in Gregg raised a second argument that
bicyclists could not bring suit under the highway exception. We rejected that
claim by resorting to the plain language of the highway exception, which permits
“a person who sustains bodily injury or damage to his or her property by reason of
failure of a governmental agency to keep a highway under its jurisdiction in
reasonable repair and in a condition reasonably safe and fit for travel” to recover
damages for injuries suffered in the improved portion of the roadway designed for
vehicular travel. MCL 691.1402(1). This separate holding in Gregg is consistent
with our decision in Nawrocki that a pedestrian may sue for an injury occurring in
the improved portion of the highway designed for vehicular travel. See Nawrocki,
supra at 184.

8

bicycle. For purposes of deciding whether the trial court had properly granted the

defendant’s motion for summary disposition, this Court relied on a photograph of

the accident scene, which pictured a bicycle path situated between the “traveled

portion of the highway and its paved shoulder.”26 The majority in Gregg reversed

the judgment granting summary disposition that had been entered in favor of the

defendant, concluding that the shoulder was designed for vehicular travel.

Gregg’s first task was to distinguish the bicycle path in that case from the

bicycle path at issue in Roy v Dep’t of Transportation.27 Roy also involved an

injury sustained on a bicycle path, and we concluded there that the plaintiff’s

claim was barred by governmental immunity. In distinguishing the two cases, the

Gregg majority placed a great deal of reliance on where the bicycle path in that

case was located in relationship to the roadbed.28 Whereas the bicycle path in

Gregg “comprised part of the inner portion of the shoulder,” the bicycle path in

Roy ran “parallel to” and was “detached from” the highway. As a result, Gregg

26
Gregg, supra at 310.
27
428 Mich 330; 408 NW2d 783 (1987).
28
The Gregg majority also made a superficial attempt to square its holding
with an earlier decision from this Court, Goodrich v Kalamazoo Co, 304 Mich
442; 8 NW2d 130 (1943). Goodrich had held that a shoulder next to the roadway
that was a three-foot-wide dirt and gravel shoulder with a tree planted
“approximately 30 inches” from the pavement was not part of the traveled portion
of the road. The Gregg majority recognized but made little effort to differentiate
Goodrich, acknowledging that it “would probably conclude” that such a shoulder
was not an “improved portion” of a highway if the factual situation in Goodrich
had been before the Gregg Court. Gregg, supra at 313.

9

expressly rested its holding “on the assumption that the bicycle path at issue

comprised part of the inner portion of the shoulder closest to the roadway,”29 later

conceding that it would have been a closer question “if the bike path had been on

the outer fringes of the shoulder . . . .”30

After distinguishing Roy, the Gregg majority offered several reasons to

support its conclusion that the shoulder encompassing the bicycle path fell within

the highway exception. It noted the uninterrupted line of cases from the Court of

Appeals beginning in 1971 holding that a shoulder was designed for vehicular

travel.31 Because the Legislature did not overrule that line of cases when it

amended the GTLA over the years, this served as proof to the Gregg majority that

the Legislature approved of this line of cases construing the highway exception.

The Gregg majority also held that it “flies in the face of common

experience” to say that a shoulder is not designed for vehicular travel. It opined:

Any motorist who has ever experienced a highway
emergency understands that shoulders are essential to a safe modern
highway. To get on or off a shoulder to stop, park, or leave standing
a vehicle, motorists must travel on the shoulder.

29
Id. at 310.
30
Id. at 317 n 5.
31
See, e.g., Johnson v Michigan, 32 Mich App 37, 39; 188 NW2d 33
(1971); Van Liere v State Hwy Dep’t, 59 Mich App 133, 136; 229 NW2d 369
(1975); Hall v Dep’t of State Hwys, 109 Mich App 592, 602 n 4; 311 NW2d 813
(1981); McKee v Dep’t of Transportation, 132 Mich App 714, 721; 349 NW2d
798 (1984); Roux v Dep’t of Transportation, 169 Mich App 582, 586; 426 NW2d
714 (1988).

10

 At the high speeds of modern vehicles, such an endeavor
often results in significant travel, “in the ordinary sense,” on the
shoulder of a highway. Indeed, it seems quite extraordinary, if not
fictional, to assume that vehicles do not travel on shoulders or that
shoulders are not designed for vehicular travel, albeit of a temporary
sort.[32]

In further support of its holding, the Gregg majority cited what it believed

to be apposite definitions from the Michigan Vehicle Code (MVC).33 It noted that

the MVC defines “highway” more broadly than “roadway.” Whereas in the MVC

a highway encompasses “the entire width between the boundary lines,”34 a

roadway is only that portion of the highway “improved, designed, or ordinarily

used for vehicular travel.”35 According to the Gregg majority, the Legislature’s

use of the broader term “highway” in the highway exception of the GTLA evinced

its intent to sweep the shoulder into that exception. Otherwise, it reasoned, the

Legislature would have used the more narrowly defined term “roadway” to cabin

the scope of the highway exception.

Justice Griffin dissented from the Gregg majority opinion, arguing, among

other things, that the plain language of the highway exception excluded the

32
Gregg, supra at 315.

33
MCL 257.1 et seq.

34
MCL 257.20.

35
MCL 257.55.

11

shoulder.36 He emphasized that the highway exception extends only to a portion
37
of the highway, that is, the portion “designed for vehicular travel.”

c. Gregg was Wrongly Decided and Poorly Reasoned

Although the Court of Claims and the Court of Appeals relied on Gregg to

deny defendant summary disposition, we overrule Gregg’s conclusion that a

shoulder is “designed for vehicular travel.” That conclusion rested heavily on the

fact that the inner portion of the shoulder included a designated bicycle path. The

Gregg majority expressed doubt that it would have reached the same conclusion

had the designated bicycle path been located further from the edge of the travel

lane of the highway.38 This unusual factual premise—an integrated, dedicated

bicycle path—from the standpoint of statutory construction is irrelevant. We

36
Chief Justice Riley wrote a separate dissent concurring in Justice
Griffin’s analysis.
37
Justice Griffin also discussed at length the importance of the MVC
definitions and their applicability to the GTLA. While we agree with much of
Justice Griffin’s dissent, we do not rely on the MVC to reach our decision. See
the discussion later in this opinion.
38
See n 28 of this opinion and the accompanying text. In this case, the
shoulder was immediately adjacent to I-75, a well-traveled interstate highway, and
contained no designated bicycle path.

We see no principled basis for the distinction Gregg drew between a
bicycle path located near to or farther from the travel lanes of a highway. A
bicycle path included anywhere within the shoulder of a road would not otherwise
be an “installation outside the improved portion of the highway” if, as Gregg
arguably concluded, a shoulder itself constitutes an improved portion of the
highway designed for vehicular travel.

12

believe Gregg is consequently so internally inconsistent that it does not yield a

meaningful rule applicable to all shoulders on Michigan’s highways. Frankly,

upon close inspection, Gregg is an enigma. Its core assumption is that the location

of the integrated bicycle path determined the outcome of that case. We cannot

ascertain why the location of the integrated bicycle path—whether it was located

on the inner portion or the outer fringe of the shoulder—bore so heavily or at all

on the question whether the shoulder was designed for vehicular travel.39

Furthermore, the Gregg majority’s analysis, as we will show, is not based on the

text of the GTLA and is seriously flawed. Therefore, we overrule Gregg and its

progeny to the extent that they can be read to suggest that a shoulder is “designed

for vehicular travel.”

d. Gregg’s Reasoning is Erroneous

In our view, there are several fatal flaws in the analysis offered by Gregg.

It failed to pay serious attention to the plain meaning of the text of the highway

exception and it made other unpersuasive arguments.

First, the Gregg majority inappropriately relied on the doctrine of

legislative acquiescence for the proposition that prior Court of Appeals decisions

that had broadly construed the highway exception to encompass all shoulders were

consistent with the Legislature’s intent. This doctrine of legislative acquiescence

is founded on the notion that decisions that have not been legislatively overturned

39
See n 38 of this opinion.

13

are tacitly approved by the Legislature. The doctrine is “highly disfavored” in this

Court’s jurisprudence, which prescribes that courts are to discern the Legislature’s

intent “‘from its words, not from its silence.’”40 That the Legislature did not

amend the existing language of the highway exception in response to earlier Court

of Appeals cases does not suggest that the Legislature believed those cases were

rightly decided.

Moreover, unlike the Gregg majority, we decline to rely on the Court’s

conception of motorists’ “common experience” with road shoulders as a proper

canon of statutory construction. Were this Court competent to make such a

normative judgment about motorists’ common experience, it would be particularly

inappropriate to apply that judgment here where it departs from the plain statutory

language used by the Legislature. This subtle appeal to common experience

arguably substituted the Gregg majority’s policy preference for the policy

preference of the Legislature. In analyzing the highway exception, we must be

governed by the statutory language.41

Unlike the Gregg Court, we also decline to consult the definitions

contained in the MVC to inform our construction regarding the scope of the

highway exception. Closer inspection of the MVC reveals why Gregg’s reliance

40
Nawrocki, supra at 177 n 33, quoting Donajkowski v Alpena Power Co,
460 Mich 243, 261; 596 NW2d 574 (1999) (emphasis omitted).
41
We expect jurors to apply their “common experience” in assessing facts.
Judges should apply law in interpreting statutes.

14

on an unrelated statute to construe another is a perilous endeavor to be avoided by

our courts. The GTLA expressly incorporates only one definition from the MVC.

Section 5, also known as the motor vehicle exception, refers the reader to the

definition of “owner” in the MVC.42 The absence of any other reference to the

MVC in the GTLA, coupled with the explicit incorporation of “owner” in the

motor vehicle exception indicates that the Legislature intended to limit the

applicability of the MVC in the GTLA.43

Even more troubling than the Gregg majority’s frank violation of the rules

of statutory construction was the fact that it used provisions of the MVC in a

highly selective manner. One of the “crucial” questions before the Gregg Court

was “whether the paved shoulder is ‘designed for vehicular travel.’”44 Gregg

preferentially selected and relied on only some of the MVC defined terms to

answer that question. The Gregg majority cited the MVC definitions of

“roadway” and “highway” to support its conclusion that a shoulder was part of the

42
MCL 691.1405; see also Stanton v Battle Creek, 466 Mich 611; 647
NW2d 508 (2002).
43
See Farrington v Total Petroleum, Inc, 442 Mich 201, 210; 501 NW2d
76 (1993) (“Courts cannot assume that the Legislature inadvertently omitted from
one statute the language that it placed in another statute, and then, on the basis of
that assumption, apply what is not there.”); Detroit v Redford Twp, 253 Mich 453,
456; 235 NW 217 (1931) (“Courts cannot attach provisions not found therein to an
act of the legislature because they have been incorporated in other similar acts.”),
citing Michigan v Sparrow, 89 Mich 263, 269; 50 NW 1088 (1891).
44
Gregg, supra at 313.

15

improved portion of the highway designed for vehicular travel, but curiously failed

to rely on the most relevant term defined in the MVC— “shoulder.” One can only

speculate why the Gregg majority brushed aside this term, which the MVC

actually defines as “that portion of the highway contiguous to the roadway

generally extending the contour of the roadway, not designed for vehicular travel

but maintained for the temporary accommodation of disabled or stopped vehicles

otherwise permitted on the roadway.”45

Justice Griffin’s dissent reminded the majority of this fact, to which the

majority unconvincingly responded that what it termed “another section” of the

MVC stated, “‘“Shoulder” means that portion of a highway or street on either side

of the roadway which is normally snowplowed for the safety and convenience of

vehicular traffic.’”46 It is not clear why the Gregg majority believed this

provision negated the MVC’s specific definition of “shoulder,” particularly

because this provision does not support the conclusion that a shoulder is designed

for vehicular travel, whereas the MVC’s definition of a shoulder specifically states

that a shoulder is not so designed. Had the Gregg majority relied on the most

relevant definition, the one found in the MVC, it could not have reached the result

45
MCL 257.59a (emphasis added).
46
Gregg, supra at 315, quoting former MCL 257.1501(k) (emphasis in
Gregg). In actuality, the quoted section was part of the former Michigan
Snowmobile Act, not the MVC. The former provision is now found at MCL
324.82101(p).

16

it did.47 Once the Gregg majority inappropriately committed itself to using the

language of the MVC rather than construing the actual words of the highway

exception, the MVC should have pressed the Court to reach the opposite

conclusion.

More important, the GTLA provides its own definition of “highway.”48

There is no apparent ambiguity in the GTLA’s definition of “highway” that would

warrant resort to another statute’s definition of the same term. Hence, the Gregg

majority’s use of the MVC definition was inconsistent with our canons of statutory

construction.

In sum, the Gregg majority’s conclusion that a shoulder is designed for

vehicular travel and the reasons supporting that conclusion are entirely

unpersuasive and must be abandoned.49

47
If the Gregg majority had examined faithfully the entire MVC, it would
have found additional support to conclude that a shoulder is not designed for
vehicular travel. The MVC requires a person to drive within the travel lanes or
risk a civil infraction. For example, the driver of a vehicle may not “overtake and
pass another vehicle upon the right by driving off the pavement or main-traveled
portion of the roadway.” MCL 257.637(2). Thus the organic traffic laws of this
state, as provided in the MVC, limit vehicular travel to the travel lanes.
48
MCL 691.1401(e).
49
Although this Court respects and gives considerable weight to the
doctrine of stare decisis, we are “not constrained to follow precedent when
governing decisions are unworkable or are badly reasoned.” Robinson v Detroit,
462 Mich 439, 464; 613 NW2d 307 (2000). For the reasons stated earlier in this
opinion, we believe Gregg was a badly reasoned decision. However, we must
move beyond those considerations under a stare decisis analysis and examine the
effects of overruling Gregg. Id. at 466.
(continued . . .)

17

 e. A Shoulder is not “Designed for Vehicular Travel”

Turning from Gregg to the text of the highway exception itself, we hold

that the shoulder is not “designed for vehicular travel.” Plaintiffs’ theory, boiled

down to its core, is that a shoulder is meant to be a travel lane. Guided by the

statutory language chosen by the Legislature, we reject plaintiffs’ contention. A

shoulder may be capable of supporting some form of vehicular traffic, but it is not

a travel lane and it is not “designed for vehicular travel.”

The GTLA does not expressly define “shoulder” or the phrase “designed

for vehicular travel.” Nor does the highway exception explicitly indicate whether

a shoulder is “designed for vehicular travel.” Consequently, to aid our inquiry, we

must consider the plain and ordinary meaning of the phrase “the improved portion

(. . . continued)

One of the most significant considerations is “the effect on reliance
interests and whether overruling would work an undue hardship because of that
reliance.” Id. We find no reliance interests at work that support the continuation
of Gregg’s erroneous interpretation of the highway exception. Motorists traverse
shoulders because of the exigencies of highway travel. They do not traverse
shoulders because our case law might permit them to recover against the
governmental agency in the event of an accident. Indeed, to do so would be a
violation of the MVC. MCL 257.637. Gregg is not the sort of case that fosters a
reliance interest or shapes future individual conduct. Therefore, we do not believe
we work an undue hardship in overruling Gregg. Further, by correcting Gregg’s
erroneous construction of the highway exception, we restore “legitimate citizen
expectations” that the Court will not arrogate to itself the legislative power to
make public policy. Robinson, supra at 467.

18

of the highway designed for vehicular travel” and the context in which the

Legislature employed this phrase.50

MDOT does not contest that road shoulders are “designed” with the

intention that they be used by vehicles. It contests that shoulders are designed as

travel lanes. This is a distinction that turns on the meaning of “travel.” Taken in

its broadest and most literal sense, “travel” in the highway exception could include

the shortest incremental movement by a vehicle on an improved surface.51

Therefore, in an emergency, when a motorist momentarily swerves onto the

shoulder, the motorist can be said to have traveled on the shoulder. Were this

broadly inclusive definition of “travel” appropriate, we might be persuaded by

plaintiffs’ argument that a shoulder is designed for vehicular travel. However, we

reject this broad definition proposed by plaintiffs.

Adopting a broad definition of “travel” would read any meaning out of the

phrase “designed for vehicular travel.” When interpreting statutes, we “must give

effect to every word, phrase, and clause in a statute and avoid an interpretation that

would render any part of the statute surplusage or nugatory.”52 The Legislature

50
MCL 8.3a; Horace v City of Pontiac, 456 Mich 744, 755-756; 575
NW2d 762 (1998).
51
See Random House Webster’s College Dictionary (1995), defining
“travel” as “to go from one place to another . . . .”
52
State Farm Fire & Cas Co v Old Republic Ins Co, 466 Mich 142, 146;
644 NW2d 715 (2002).

19

modified the phrase “the improved portion of the highway” with the phrase

“designed for vehicular travel.” It did not intend to extend the highway exception

indiscriminately to every “improved portion of the highway.” Otherwise, it would

not have qualified the phrase. Rather, it limited the exception to the segment of

the “improved portion of highway” that is “designed for vehicular travel.”

Because the Legislature created this distinction, it believed there are improved

portions of highway that are not designed for vehicular travel. Hence, this Court

ought to respect this distinction as we parse the statutory language.

Plaintiffs in effect urge this Court to adopt the expansive definition of

“travel.” If “travel” is broadly construed to include traversing even the smallest

distance, then it must follow that every area surrounding the highway that has been

improved for highway purposes is “designed for vehicular travel” since such

improved portions could support even momentary vehicular “travel.”53 Under

53
The only conceivable limitation of the highway exception under this
expansive view is that the duty does not extend to an “installation outside of the
improved portion of the highway designed for vehicular travel.” MCL
691.1402(1) (emphasis added). However, it is not clear, if every improved portion
of highway is designed for vehicular travel, where the improved portion of the
highway designed for vehicular travel ceases.

For example, on the motion for summary disposition, the parties submitted
photos that depict the area of I-75 around the accident scene. Clearly, much of
this area is an “improved portion of the highway.” That is, most of the area
surrounding the actual roadbed bears the mark of human improvement for
highway purposes. For example, separating the northbound and southbound lanes
of I-75 is an intentionally sloped grassy median shaped in that fashion for any
number of highway-related purposes. Plaintiffs’ theory would require that we
conclude that this entire swath of land, which looks dramatically different from the
(continued . . .)

20

plaintiffs’ interpretation, then, every “improved portion of the highway” is also

“designed for vehicular travel.” This interpretation renders these phrases

redundant and contravenes a settled rule of statutory interpretation. It also

conflates two disparate concepts: design and contemplated use. That vehicular

traffic might use an improved portion of the highway does not mean that that

portion was “designed for vehicular travel.” Therefore, in an effort to give

meaning to every word of the highway exception and to honor the Legislature’s

expressed intent, we reject plaintiffs’ construction of the highway exception.

We believe that, taken as a whole, the language of the highway exception

supports the view that a shoulder, unlike a travel lane, is not designed for vehicular

travel. Consequently, we adopt a view of “travel” that excludes the shoulder from

the scope of the highway exception. Thus, we hold that only the travel lanes of a

highway are subject to the duty of repair and maintenance specified in MCL

691.1402(1).54

(. . . continued)

wood and shrubbery lines on either side of I-75, was an improved portion of

highway designed for vehicular travel.

54
In construing the GTLA, this Court has often relied on the principle set
forth in Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 618; 363
NW2d 641 (1984), that exceptions to governmental immunity are construed
narrowly and the grant of immunity is construed broadly. It is unnecessary to rely
on this Ross principle to decide this case. We reject plaintiffs’ argument that the
shoulder is designed for vehicular travel, and we overrule Gregg in order to
construe the statutory language reasonably and give effect to every word and
phrase in the highway exception.

21

 Also, our decision is consistent with Nawrocki. We had no opportunity in

Nawrocki to consider the validity of Gregg as it relates to the question presented in

this case. However, our determination that the shoulder is not designed for

vehicular travel reinforces Nawrocki’s reading of the highway exception that it

encompassed only the “‘traveled portion, paved or unpaved, of the roadbed

actually designed for public vehicular travel.’”55

IV. Response to the Dissent

Although the dissent would reaffirm Gregg, it fails to rebut the peculiarities

and flaws in Gregg’s reasoning highlighted above and rests heavily on the doctrine

of legislative acquiescence, which this Court has clearly discredited and rejected.56

Furthermore, the dissent offers no serious rebuttal to our construction of the

highway exception. We do not harbor, as the dissent accuses, a “subjective fear”

that Gregg exposes the governmental agency to “unlimited liability.”57 Rather,

this Court simply seeks to give effect to each word and phrase employed by the

Legislature. A shoulder may be capable of supporting vehicular traffic, but this

fact does not answer the legal question whether the Legislature intended to

designate shoulders as an “improved portion of the highway designed for

vehicular travel” and thereby expose a governmental agency to tort liability for

55
Nawrocki, supra at 180 (citation omitted).
56
See Donajkowski v Alpena Power Co, 460 Mich 243, 258-262; 596
NW2d 574 (1999).
57
Post at 8.

22

defects in a shoulder. If plaintiffs’ definition of “travel” were to prevail, then a

key phrase in the highway exception is rendered surplusage. This is inconsistent

with our settled rules of statutory construction.

V. Conclusion

We overrule Gregg because it was internally inconsistent and it appealed to

inappropriate methods of statutory construction. Consistent with the language of

the highway exception, we conclude that the shoulder is not designed for vehicular

travel. As this Court previously held in Nawrocki, the focus of the highway

exception is the actual physical roadbed. Moreover, by concluding that the

shoulder is not “designed for vehicular travel,” we fulfill our obligation to give

effect to every word of the highway exception.

Accordingly, we reverse the order of the Court of Claims and the judgment

of the Court of Appeals and remand this case to the Court of Claims for further

proceedings consistent with this opinion.

Robert P. Young, Jr.
Clifford W. Taylor
Elizabeth A. Weaver
Maura D. Corrigan
Stephen J. Markman

23

 STATE OF MICHIGAN

SUPREME COURT

MICHAEL GRIMES and TAMARA
GRIMES,

Plaintiffs-Appellees,

V No. 127901

MICHIGAN DEPARTMENT OF
TRANSPORTATION,

Defendant-Appellant.

KELLY, J. (dissenting).

The issue presented is whether the shoulder of the road is part of the

“improved portion of the highway designed for vehicular travel” for purposes of

the highway exception to governmental immunity. MCL 691.1402(1). Unlike

the majority, I would reaffirm this Court’s holding in Gregg v State Hwy Dep’t,1

and hold that a shoulder is “designed for vehicular travel.” Therefore, I would

affirm the decision of the Court of Appeals.

STANDARD OF REVIEW

The trial court denied defendant’s motion for summary disposition. We

review such rulings de novo. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d

817 (1999).

1
435 Mich 307; 458 NW2d 619 (1990).
 In making our de novo review, we are called on to determine an issue

involving statutory construction. Such matters are questions of law that also are

reviewed de novo. Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 62; 642 NW2d

663 (2002). Our primary goal in construing the meaning of statutes is to

determine the intent of the Legislature. Everyone on the Court is in accord that, if

a statute’s language is clear and unambiguous, it must be enforced as written.

People v Laney, 470 Mich 267, 271; 680 NW2d 888 (2004). Also, it is generally

agreed that the Legislature is presumed to have intended the meaning expressed in

the words it wrote. Roberts, supra at 63. All words and phrases are “construed

and understood according to the common and approved usage of the language . . .

.” MCL 8.3a.

ANALYSIS

The immunity of government from suit is made possible by the

governmental tort liability act (GTLA), MCL 691.1401 et seq. It sets forth the

basic tenets of governmental immunity: “Except as otherwise provided in this act,

a governmental agency is immune from tort liability if the governmental agency is

engaged in the exercise or discharge of a governmental function.” MCL

691.1407(1). There are a few exceptions. One is contained in MCL 691.1402(1),

which is commonly referred to as the “highway exception.” It provides, in

relevant part:

[E]ach governmental agency having jurisdiction over a
highway shall maintain the highway in reasonable repair so that it is
reasonably safe and convenient for public travel. A person who

2

 sustains bodily injury or damage to his or her property by reason of
failure of a governmental agency to keep a highway under its
jurisdiction in reasonable repair and in a condition reasonably safe and
fit for travel may recover the damages suffered by him or her from the
governmental agency . . . The duty of the state and the county road
commissions to repair and maintain highways, and the liability for
that duty, extends only to the improved portion of the highway
designed for vehicular travel and does not include sidewalks,
trailways, crosswalks, or any other installation outside of the improved
portion of the highway designed for vehicular travel. [Emphasis
added.]

“Highway” is defined by the GTLA as “a public highway, road, or street

that is open for public travel and includes bridges, sidewalks, trailways,

crosswalks, and culverts on the highway.” MCL 691.1401(e). “Shoulder” is not

defined in the GTLA.

I believe that this Court’s decision in Gregg correctly interpreted these

statutory provisions. It recognized that, for purposes of the highway exception to

governmental immunity, a shoulder is part of the highway “designed for vehicular

travel.” Gregg, supra at 317. The Gregg Court reached its decision for three

reasons.

First, the Court noted that, beginning in 1971, the Court of Appeals has

consistently held that the shoulder of a highway is designed for vehicular travel.

Id. at 314.2 In making this ruling, the Court applied the concept of legislative

2
See, e.g., Johnson v Michigan, 32 Mich App 37, 39; 188 NW2d 33
(1971); Van Liere v State Hwy Dep’t, 59 Mich App 133, 136; 229 NW2d 369
(1975); Hall v Dep’t of State Hwys, 109 Mich App 592, 602 n 4; 311 NW2d 813
(1981); McKee v Dep’t of Transportation, 132 Mich App 714, 721; 349 NW2d
(continued . . .)

3

acquiescence. Since the Legislature chose not to amend the GTLA in the face of

numerous holdings of the Court of Appeals, it acquiesced in the Court of Appeals

interpretation of the law. Id.

Second, the Court held that it would fly in the face of “common

experience” to hold that a highway shoulder is not designed for vehicular travel.

Id. at 315. The Court reasoned that all motorists understand that, because a

shoulder is an essential safety feature of a highway, it is part of the highway.

Specifically, the Court stated that

[t]o get on or off a shoulder to stop, park, or leave standing a vehicle,
motorists must travel on the shoulder.

At the high speeds of modern vehicles, such an endeavor
often results in significant travel, “in the ordinary sense,” on the
shoulder of a highway. Indeed, it seems quite extraordinary, if not
fictional, to assume that vehicles do not travel on shoulders or that
shoulders are not designed for vehicular travel, albeit of a temporary
sort. [Id.]

Third, the Court considered relevant definitions found in the Michigan

Vehicle Code (MVC). MCL 257.1 et seq. Id. Specifically, it considered the MVC

definitions of “highway” and “roadway.” It noted that the MVC definition of

“highway”3 is broader than the definition of “roadway.”4 It then concluded that

(. . . continued)

798 (1984); Roux v Dep’t of Transportation, 169 Mich App 582, 586; 426 NW2d

714 (1988).

3
MCL 257.20 defines “highway” to include “the entire width between the
boundary lines.”
4
MCL 257.55 defines “roadway” to include only the portion of a highway
“improved, designed, or ordinarily used for vehicular travel.”

4

the Legislature’s use of the word “highway” rather than “roadway” in the highway

exception statute showed that it intended that shoulders be considered as designed

for vehicular travel. Id. at 315-316.

The majority concludes that the rationale presented in Gregg is

unpersuasive. It states that Gregg should be overruled because, under the

majority’s “strict construction” approach, a shoulder is not “designed for vehicular

travel.”

MCL 8.3a and numerous recent decisions from this Court emphasize that

we should give words their ordinary meanings in construing statutes.5 In fact, this

Court often refers to dictionary definitions to interpret the meanings of words. A

dictionary is a codification of the “common experience” meanings of words. I

believe that the Gregg Court properly emphasized the mandate of MCL 8.3a when

it held that “it seems quite extraordinary, if not fictional, to assume that vehicles

do not travel on shoulders or that shoulders are not designed for vehicular travel,

albeit of a temporary sort.” Gregg, supra at 315.

Moreover, Gregg’s holding is consistent with dictionary definitions for

“design” and “travel.” Random House Webster’s College Dictionary (1995)

5
See, e.g., People v Monaco, 474 Mich 48; 710 NW2d 46 (2006); Griffith v
State Farm Mut Automobile Ins Co, 472 Mich 521, 526; 697 NW2d 895 (2005);
Halloran v Bhan, 470 Mich 572, 578; 683 NW2d 129 (2004); Gilbert v
DaimlerChrysler Corp, 470 Mich 749, 763; 685 NW2d 391 (2004); Koontz v
Ameritech Services, Inc, 466 Mich 304, 312; 645 NW2d 34 (2002).

5

defines “design” as “to intend for a definite purpose[.]” It defines “travel” as “to

move or pass from one place or point to another.”

Defense counsel’s admission at oral argument comported with the Gregg

Court’s “common experience” reasoning. Counsel conceded that shoulders are

designed for vehicular travel “of a sort.” Emergency vehicles travel on the

shoulder, and the Michigan Department of Transportation (MDOT) typically

diverts vehicular traffic onto shoulders during construction. Given these facts,

defense counsel admitted that shoulders are designed for travel “of a sort.”6

Certainly, MDOT would not permit motorists to drive their vehicles from

one place to another on a portion of the highway that is not designed for vehicular

travel. These facts, together with traditional notions of statutory construction,

strongly support Gregg’s reasoning. The majority’s conclusion that the “common

experience” approach is inconsistent with the statutory language is flawed in light

of this Court’s current practices and MCL 8.3a.

The majority also takes issue with Gregg’s use of legislative acquiescence.

This issue has arisen numerous times in the last several years. I continue to

believe that we should consider legislative acquiescence when construing statutes.

See Donajkowski v Alpena Power Co, 460 Mich 243, 270-273; 596 NW2d 574

(1999) (Kelly, J., dissenting). Since 1971, when appellate cases began defining

“designed for vehicular travel,” the Legislature has amended the highway

6
The majority does not even attempt to contradict this admission.

6

exception three times. But it did not see fit to alter the judicial interpretation of

those words.7 The Legislature’s acceptance of Gregg is highly persuasive.8

In summary, I believe that Gregg was correctly decided. I would affirm it

on the basis of (1) basic accepted principles of statutory interpretation, (2) defense

counsel’s unrebutted admission that a shoulder is designed for vehicular travel “of

a sort,” (3) MDOT’s use of shoulders for diversion of vehicular traffic during

construction, and (4) the fact that the law in question has remained unaltered since

1971.

In holding that shoulders are not “designed for vehicular travel,” the

majority admits that several interpretations are available but chooses the narrowest

one possible.9 Essentially, it argues that giving the words “designed for vehicular

travel” their plain ordinary meaning swallows the exception, because a vehicle

could travel on every improved part of a highway. This argument has three flaws:

First, the majority fails to remember that, although drivers rarely travel on

medians or embankments, they do routinely travel short distances on shoulders.

7
The Legislature amended the statute in 1990, 1996, and 1999.
8
The majority asserts that the Court’s ruling in Gregg was based on the
assumption that the Legislature had acquiesced in the Court’s earlier decisions.
This ignores the fact that the Gregg Court went further. It based its holding
primarily on an interpretation of the language of MCL 691.1402(1) that gave an
ordinary meaning to the word “travel.”
9
The majority suggests that it does not need to apply Ross v Consumers
Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984) to this case. In
actuality, the majority does apply Ross and reads the statute narrowly.

7

Moreover, MDOT specifically requires vehicles to travel on shoulders for long

distances. The same cannot be said for other highway improvements.

Second, as explained in Wexford Med Group v City of Cadillac,10 a court

should not make an interpretation not intended by the Legislature because it fears

what will develop if it interprets the language as written. Id. at 220 n 10. The

majority suggests that giving the statute’s language a meaning other than the

narrowest possible meaning would create the risk of unlimited liability, which is

something it must avoid. Its conclusion contradicts Wexford, apparently out of a

subjective fear.

Third, the only issue before the Court is whether a shoulder is designed for

vehicular travel. Whether other improved portions of the highway are designed

for vehicular travel is a question best left to cases that raise and explore that

possibility.

Ultimately, the majority’s reasoning fails because of the language of the

statute and because of the fact that vehicles do indeed travel on shoulders that

were designed for travel. By contrast, the reasoning in Gregg is soundly

supported by the meaning of the words in the statute and by common practice.

Moreover, Gregg is properly in line with the majority’s rules of statutory

interpretation.

10
474 Mich 192; ___ NW2d ___ (2006).

8

 CONCLUSION

I would reaffirm this Court’s decision in Gregg and hold that the shoulder

of a highway is “designed for vehicular travel” within the meaning of the highway

exception to governmental immunity. I base this position on (1) time-honored

principles of statutory interpretation, (2) defense counsel’s unrebutted admission

that a shoulder is designed for vehicular travel, (3) MDOT’s actions of actually

diverting traffic onto the shoulders of highways, and (4) the fact that Michigan

courts have followed this interpretation since 1971. Therefore, I would affirm the

decision of the Court of Appeals.

Marilyn Kelly

Cavanagh, J., concurred only in the result proposed by Kelly, J.

Michael F. Cavanagh

9