Order Michigan Supreme Court
Lansing, Michigan
February 24, 2006 Clifford W. Taylor,
Chief Justice
128131 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
KEVIN MACLACHLAN, Personal Representative Maura D. Corrigan
of the Estate of DAVID MACLACHAN, Robert P. Young, Jr.
Deceased, Stephen J. Markman,
Justices
Plaintiff-Appellee,
v SC: 128131
COA: 252221
Ingham CC: 02-001949-NI
CAPITAL AREA TRANSPORTATION
AUTHORITY and JOHN DOE,
Defendants,
and
CITY OF LANSING,
Defendant-Appellant.
_________________________________________/
On January 10, 2006, the Court heard oral argument on the application for leave to
appeal the January 20, 2005 judgment of the Court of Appeals. On order of the Court,
the application is again considered. In lieu of granting leave to appeal, we REVERSE the
judgment of the Court of Appeals and REINSTATE the Ingham Circuit Court's order
granting defendant City of Lansing summary disposition based on governmental
immunity. MCR 7.302(G)(1). There was no defect in the roadway rendering it unsafe
for public travel at all times. Cf. Haliw v City of Sterling Heights, 464 Mich 297, 310
(2001).
KELLY, J., dissents and states as follows:
The majority reinstates the summary disposition for defendant and finds that
“[t]here was no defect in the roadway rendering it unsafe for public travel at all times.”
This conclusion is at odds with credible evidence that plaintiff presented, as well as with
the Court’s own decision in Nawrocki v Macomb Co Rd Comm, 463 Mich 143 (2000).
The case should be remanded to the trial court for proceedings to resolve the factual
question whether the portion of the road in question was unsafe for pedestrian travel.
Plaintiff’s decedent died in a fatal automobile accident on December 15, 2000.
Decedent was a regular rider of the Capital Area Transportation Authority (CATA) bus
system. He stepped down from the bus that he had ridden that day onto a city street, only
to find his way to the curb blocked. A three-to four-foot wall of ice and snow extended
several feet into the street. Left with no access to the sidewalk, he began walking along
the street in search of a break in the wall that blocked his way to safety. Before he could
find one, he was struck by a car. He died from his injuries two days later.
2
In Nawrocki, this Court held that MCL 691.1402(1) imposes an actionable duty on
the state to protect pedestrians from dangerous conditions in the improved portion of the
roadway. Id. at 162. When the harm is to a pedestrian, the question becomes whether the
roadway was “actually unsafe for pedestrian travel.” Id. at 162 n 20.1
In reversing the Court of Appeals decision and reinstating the trial court’s grant of
summary disposition for the defendant, the majority ignores Nawrocki. It also ignores
that a fact question exists. The testimony and pictures submitted by plaintiff (attached2)
suffice to raise a genuine question of material fact regarding whether the roadway in
question was dangerous for pedestrian travel.
I would remand this case to the trial court for further proceedings to determine
whether the portion of the road at issue was dangerous for pedestrian travel.
1
When the accident involves a pedestrian, the duty is enhanced, stated in
Nawrocki, supra at 172 n 28:
We acknowledge that repairing and maintaining the improved portion of
the highway in a condition reasonably safe and convenient for public travel
represents a higher duty of care on the part of the government than
repairing and maintaining it for vehicular travel. [Emphasis in original.]
2
Both photographs show the curb’s edge, the height of the snow bank, and the fact
that the snowbank extended into the roadbed.
3
CAVANAGH, J., joins the statement of KELLY, J.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
February 24, 2006 _________________________________________
s0221 Clerk