Hanson v. Mecosta County Road Commissioners

                                                                       Michigan Supreme Court
                                                                       Lansing, Michigan 48909
____________________________________________________________________________________________
                                                                C hief Justice                   Justices
                                                                Maura D. Cor rigan	              Michael F. Cavanagh




O pinion
                                                                                                 Elizabeth A. Weaver
                                                                                                 Marilyn Kelly
                                                                                                 Clifford W. Taylor
                                                                                                 Robert P. Young, Jr.
                                                                                                 Stephen J. Markman

____________________________________________________________________________________________________________________________

                                                                                 FILED JANUARY 3, 2002





                LUCIA J. HANSON, Individually

                and as Personal Representative

                of the Estate of NELS THOMAS

                HANSON, Deceased,


                        Plaintiff-Appellee,


                v	                                                                               No. 117176


                BOARD OF COUNTY ROAD

                COMMISSIONERS OF THE COUNTY

                OF MECOSTA, a Municipal

                Corporation,


                        Defendant-Appellant,


                and 


                DALLAS JOSEPH SULLIVAN,


                     Defendant.

                _____________________________

                LUCIA J. HANSON, Individually

                and as Personal Representative

                of the Estate of NELS THOMAS

                HANSON, Deceased,


                        Plaintiff-Appellant,


                v
                                                                               No. 117973


                BOARD OF COUNTY ROAD

                COMMISSIONERS OF THE COUNTY

OF MECOSTA, a Municipal

Corporation,


       Defendant-Appellee,


and


DALLAS JOSEPH SULLIVAN,


     Defendant.

________________________________

PER CURIAM


       The plaintiff’s decedent died as a result of a motor


vehicle accident on a road under the jurisdiction of defendant


Mecosta County Board of Road Commissioners.    Plaintiff sued


both the other driver and the road commission, contending that


the accident was caused in part by the defective condition of


the roadway, and that this claim was within the highway


exception     to    the    governmental   immunity   statute.


MCL 691.1402(1).    Among other things, the plaintiff alleged


that the slope of the road at the crest of a hill prevented


drivers from seeing each other in time to avoid a collision.


The circuit court granted summary disposition for the road


commission, and, on rehearing, the Court of Appeals affirmed.


       The plaintiff’s allegations regarding the slope of the


road present a claim of defective design, which is not within


the road commission’s duty to maintain and repair the highway


under § 1402(1).    We therefore affirm the decisions of the


lower courts.





                               2

                                    I


     Plaintiff’s decedent, Nels Hanson, was seriously injured


in a head-on automobile collision on August 3, 1994, and died


the following day.       Decedent and the other driver, defendant


Dallas Joseph Sullivan, were driving in opposite directions on


160th Avenue, an unpaved road in Mecosta County.              It appears


that the accident occurred as both vehicles were approaching


the crest of a hill.         Plaintiff maintained that Sullivan had


crossed    over   the    center    line,   though   expert     testimony


developed during discovery suggested that both drivers may


have done so.1


     The   essence      of   plaintiff’s   claim    against    the   road


commission was that the section of highway in question was


unsafe because of the limited sight distance caused by the


curvature of the hill.         Specifically, plaintiff alleged that


the road commission breached its duties by:


          a.    Failing   to    keep   the    improved,

     travelled portion of 160th Avenue in a reasonable

     state of repair and reasonably safe and convenient

     for public travel;


          b. Failing to grade and profile 160th Avenue

     on the hill north of 22 Mile Road to conform to the

     applicable standards for sight distance;


          c. Maintaining the grade and profile of

     160th Avenue on the hill north of 22 Mile Road so

     that southbound motorists did not have a safe sight

     distance as they climbed the hill;



     1

       Plaintiff’s claim against defendant Sullivan was

resolved by acceptance of a mediation evaluation under

MCR 2.403.


                                    3

         d. Failing to provide adequate warning to

    southbound motorists of the limited sight distance

    on the hill north of 22 Mile Road;


         e. Failing to reduce the speed limit on

    160th Avenue in recognition of the danger posed by

    the limited sight distance;


         f. Failing to maintain 160th Avenue at a

    proper and adequate width given the limited sight

    distance caused by the grade and profile of the

    hill to provide motorists reasonable margins of

    error in their driving patterns and allow oncoming

    vehicles to safely pass each other at the crest of

    the hill;


         g. Failing to provide proper or adequate

    shoulder area for emergency use by motorists

    climbing the hill; and


         h. Carelessly and negligently breaching its

    statutory duties.


    Among other defenses, the road commission contended that


plaintiff’s claim was barred because it was not within the


highway   exception   to   the   governmental   immunity   statute,


MCL 691.1402(1), which provides:


          (1)   Except   as    otherwise   provided   in

     section 2a, each 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 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 liability, procedure, and

     remedy as to county roads under the jurisdiction of

     a county road commission shall be as provided in

     section 21 of chapter IV of 1909 PA 283, MCL

     224.21. 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


                                  4

      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.


      The circuit court granted summary disposition for the


defendant, concluding that the highway exception did not apply


and that the road commission was protected by governmental


immunity.      The court also rejected the plaintiff’s nuisance


theory.2


      The plaintiff appealed to the Court of Appeals.                      The


Court’s initial decision affirmed in part and reversed in


part.3       The Court concluded that summary disposition was


properly granted on the nuisance theory. However, it reversed


on   the    highway    exception.     The   Court      relied   on    Pick   v


Szymczak,      451    Mich   607;   548   NW2d   603    (1996),      for   the


proposition that the duty of highway maintenance includes a


duty to erect adequate warning signs or traffic control


devices at a “point of hazard” or a “point of special danger”.


The Court of Appeals said that the evidence submitted created


a genuine issue of material fact about whether the hill crest


was a point of danger to such an extent that the defendant had


a duty to provide adequate warning signs.





      2
           That issue is not raised in the present appeals.

      3

        Unpublished opinion per curiam, issued June 9, 2000

(Docket No. 217869).


                                     5

     On June 30, 2000, the defendant road commission filed an


application for leave to appeal to this Court,4 and on the


same day the plaintiff filed a motion for rehearing in the


Court of Appeals.     While that motion was pending, on July 28,


2000, we decided Nawrocki v Macomb Co Rd Comm,            463 Mich 143;


615 NW2d 702 (2000), which clarified the law regarding the


highway exception and overruled Pick.            In light of Nawrocki,


the Court of Appeals granted rehearing and reversed itself on


the highway exception issue, affirming the circuit court’s


grant of summary disposition.5


     The plaintiff has filed an application for leave to


appeal from that decision.6


                                  II


     This case involves a review of a decision on a motion for


summary     disposition,   and   presents   an    issue   of   statutory


construction, both of which we review de novo.            Hazle v Ford


Motor Co, 464 Mich 456, 461; 628 NW2d 515 (2001); Brown v


Michigan Health Care Corp, 463 Mich 368, 374; 617 NW2d 301


(2000). 




     4
          Docket No. 117176.

     5

       Unpublished opinion per curiam, issued October 3, 2000

(Docket No. 217869). Judge JANSEN dissented from the highway

exception portion of the opinion, believing that several of

the allegations of plaintiff’s complaint were sufficient to

avoid governmental immunity even under the principles

announced in Nawrocki.

     6
          Docket No. 117973.


                                   6

                                     III


       In Nawrocki and its companion case, Evens v Shiawassee Co


Rd Comm’rs, we relied on Ross v Consumers Power Co (On


Rehearing), 420 Mich 567; 363 NW2d 641 (1984), for the basic


principle that the immunity conferred on governmental agencies


is a broad one, with only narrowly drawn exceptions. 420 Mich


618.    In rejecting Brian Evens’ claim that the repair and


maintenance      obligation       imposed   by    the   highway   exception


includes a duty to install, maintain, repair, or improve


traffic control devices, we examined the plain language of


§ 1402(1).      While we agreed with Pick that the first sentence


of the statutory clause creates a general duty to repair and


maintain highways so they are reasonably safe and convenient


for public travel, we noted that the duty with regard to state


and    county   road    commissioners       is    significantly       limited,


extending    “only     to   the    improved      portion   of   the    highway


designed for vehicular travel.”             We explained:


            Nowhere in this language, or anywhere else in

       the statutory clause, do phrases such as “known

       points of hazard,” “points of special danger,”

       “integral parts of the highway,” or “traffic sign

       maintenance” appear. We are not persuaded that the

       highway exception contemplates “conditions” arising

       from “point[s] of hazard,” “areas of special

       danger,” or “integral parts of the highway,”

       outside the actual roadbed, paved or unpaved,

       designed for vehicular travel.      None of these

       phrases or concepts appears anywhere within the

       provision of the highway exception. To continue to

       rely upon these phrases in determining the scope of

       the highway exception is contrary to the language

       selected by the Legislature in creating this



                                      7

     exception.   [463 Mich 176-177 (emphasis supplied).]


     In light of those principles, we concluded that Pick must


be overruled and the liability of state and county road


commissions limited.   We said:


          The state and county road commissions’ duty,

     under the highway exception, is only implicated

     upon their failure to repair or maintain the actual

     physical structure of the roadbed surface, paved or

     unpaved, designed for vehicular travel, which in

     turn   proximately   causes   injury   or   damage.

     Scheurman [v Dep’t of Transportation, 434 Mich 619,

     631; 456 NW2d 66 (1990)].     A plaintiff making a

     claim of inadequate signage, like a plaintiff

     making a claim of inadequate street lighting or

     vegetation obstruction, fails to plead in avoidance

     of governmental immunity because signs are not

     within the paved or unpaved portion of the roadbed

     designed for vehicular travel.      Traffic device

     claims, such as inadequacy of traffic signs, simply

     do not involve a dangerous or defective condition

     in the improved portion of the highway designed for

     vehicular travel.


          Evens argues that the SCRC failed to install

     additional traffic signs or signals that might

     conceivably have made the intersection safer.

     Because the highway exception imposes no such duty

     on the state or county road commissions, we reverse

     the decision of the Court of Appeals and reinstate

     the trial court’s grant of summary disposition to

     the SCRC. [463 Mich 183-184 (emphasis supplied).]


                               IV


     The majority of the plaintiff’s allegations in this case


involve the very sorts of warning and traffic control sign


claims rejected in Nawrocki.   Such claims are clearly outside


the purview of the highway exception, and we affirm the grant


of summary disposition to the road commission with respect to


these claims.



                               8

                                V


      In addition to her claims involving inadequate warning,


the plaintiff alleged that the defendant breached its duty by:


           b. Failing to grade and profile 160th Avenue

      on the hill north of 22 Mile Road to conform to the

      applicable standards for sight distance;


           c. Maintaining the grade and profile of

      160th Avenue on the hill north of 22 Mile Road so

      that southbound motorists did not have a safe sight

      distance as they climbed the hill . . . .


      The plaintiff argues that these allegations do involve


the   actual   roadway   designed   for   vehicular   travel,   thus


avoiding the principles stated in Nawrocki.           The Court of


Appeals majority disagreed, holding that Nawrocki made clear


that these types of claims do not implicate the statutory duty


of the road commission to repair and maintain the roadbed: 


           In the present case, there is no dispute that

      the actual roadbed surface itself was well

      maintained.     Although plaintiff focused her

      argument on the limited sight distance where the

      crash occurred, the limited sight distance is not a

      road surface condition.    Rather, it is a design

      feature that is a product of the terrain through

      which the road traverses.    We believe that under

      the statute in question, as interpreted in

      [Nawrocki], the road commission’s duty does not

      include a duty to correct design defects. Had the

      Legislature intended the correction of design

      defects to be included, it would have included such

      a requirement in the statutory language, and not

      assumed that such a requirement would be inferred

      under “maintenance and repair.” As we observed in

      our original opinion, this design feature created a

      point of hazard that prior to [Nawrocki] created an

      issue of fact.    In overruling Pick, supra, the

      Supreme Court instructed that the highway exception

      to governmental immunity does not contemplate

      conditions   arising   from   points   of   hazard.



                                9

     [Nawrocki], supra at 176-177. At best, plaintiff

     can only establish a point of hazard resulting from

     the limited sight distance at the crest of the hill

     where this occurrence happened, rather than a

     defect in the actual roadbed surface. [Slip op, pp

     2-3.] 


The dissenting Court of Appeals judge stated:


          I   cannot  believe     that   the  Legislature

     “intended” that a governmental entity responsible

     for designing and building a road would be immune

     from   liability where     the    design  itself  is

     dangerous, but the road itself contained no

     “potholes” or other defects in the surface itself.

     [Slip op, p 2 (JANSEN , P.J.).]


This latter statement is contrary to the plain language of the


statute,   which   carves     out   a   limited   exemption   from


governmental immunity and imposes on the state and county road


commissions a narrow duty to “repair and maintain . . . the


improved portion of the highway designed for vehicular travel


. . . .”   MCL 691.1402(1).    Nowhere in the statutory language


is there a duty to install, to construct or to correct what


may be perceived as a dangerous or defective “design.”7


     7
       We disagree with dicta in cases such as Killeen v Dep’t

of Transportation, 432 Mich 1, 4-5; 438 NW2d 233 (1989),

Arnold v State Hwy Dep’t, 406 Mich 235, 237-238; 277 NW2d 627

(1979), and Peters v State Hwy Dep’t, 400 Mich 50, 57; 252

NW2d 799 (1977), that the duty to maintain a road in a

reasonably safe condition includes the duty to correct defects

arising from the original design or construction of highways.



     Although the dissent criticizes us for “dismissing” such

cases, the dissent itself recognizes that “the primary issue

in Killeen involved jurisdiction over a highway . . . .” Post

at 3, n 5.    The dissent further recognizes that the other

cases, “did not specifically reach the design defect issue.”

Id. Yet, the dissent seems to believe that this Court should

elevate conclusory statements of dicta, lacking in any


                                10

Moreover, it is not the province of this Court to make policy


judgments or to protect against anomalous results.            See


Nawrocki, supra at 171, n 27.


     We agree with the Court of Appeals majority and hold that


the road commission’s duty under the highway exception does


not include a duty to design, or to correct defects arising


from the original design or construction of highways.     In the


highway exception, the Legislature has said that the duty of


the road commission is to “maintain the highway in reasonable


repair so that it is reasonably safe and convenient for public


travel.”    The statute further provides that the specific duty


of the state and county road commissions is to “repair and


maintain”    highways.    “Maintain”   and   “repair”   are   not


technical legal terms.    In common usage, “maintain” means “to




statutory analysis, above the plain words of the statute.

However, our judicial task is to give meaning to the intent of

the Legislature, as expressed in the statutory text.

Accordingly, we decline to elevate such statements above the

plain words of the highway exception.


     Moreover, the dissent relies upon the doctrine of

legislative acquiescence in stating that "[t]he Legislature’s

failure to change the language [in response to the dicta

contained in the above decisions] suggests its intent to make

a design defect actionable.” Post at 6. However, even apart

from the fact that these decisions involve dicta to which few

legislative bodies would feel the need to respond, this Court

has made it clear that the doctrine of legislative

acquiescence "is a highly disfavored doctrine of statutory

construction; sound principles of statutory construction

require that Michigan courts determine the Legislature's

intent from its words, not from its silence." Donajkowski v

Alpena Power Co, 460 Mich 243, 261; 596 NW2d 574 (1999)

(emphasis in the original). 


                               11

keep in a state of repair, efficiency, or validity: preserve


from failure or decline.”   Webster’s Third New International


Dictionary, Unabridged Edition (1966), p 1362.     Similarly,


“repair” means “to restore to a good or sound condition after


decay or damage; mend.”      Random House Webster’s College


Dictionary (2000), p 1119. We find persuasive the analysis of


Wechsler v Wayne Co Rd Comm, 215 Mich App 579, 587-588; 546


NW2d 690 (1996) that


     [t]he Legislature thus did not purport to demand of

     governmental   agencies  having   jurisdiction   of

     highways that they improve or enhance existing

     highways, as by widening existing lanes or banking

     existing curves; that they augment existing

     highways, as by adding left-turn lanes; or that

     existing highways be expanded, as by adding new

     travel lanes or extending a highway into new

     territory. The only statutory requirement and the

     only mandate that, if ignored, can form the basis

     for tort liability is to "maintain" the highway in

     reasonable repair.


          Thus, . . . highway authorities are under no

     statutory obligation to reconstruct a highway

     whenever some technological safety advancement has

     been developed. Rather, the focus of the highway

     exception is on maintaining what has already been

     built in a state of reasonable repair so as to be

     reasonably safe and fit for public vehicular

     travel.


The plain language of the highway exception to governmental


immunity provides that the road commission has a duty to


repair and maintain, not a duty to design or redesign.


     What the plaintiff sought in this case was to create a


duty to design, or redesign, the roadway to make it safer by


eliminating points of special danger or hazard.      However,



                             12

there is no such design duty included in the statute. Nowhere


in the statutory language are there phrases such as “known


points          of    hazard”    or   “points    of   special     danger.”      We


emphasized in Nawrocki that the highway exception does not


permit claims based on conditions arising from such points of


hazard, and that the only permissible claims are those arising


from a defect in the actual roadbed itself.8                   Accordingly, the


plaintiff’s claims that 160th Avenue was poorly designed and


that       it    did    not    provide    an   adequate   sight    distance     are


insufficient to avoid governmental immunity.


       Reasonable minds can differ about whether it is sound


public policy to so limit the duty imposed on authorities


responsible for our roads and highways. However, our function


is     not       to    redetermine       the   Legislature’s      choice   or    to


independently assess what would be most fair or just or best


public policy.                Our task is to discern the intent of the



       8
       In Nawrocki, we stated that the duty imposed upon state

and county road commissions to “repair and maintain . . . the

improved portion of the highway designed for vehicular travel”

is implicated only when the alleged “defect,” or “dangerous or

defective condition,” is located within the actual roadbed

itself. See id. at 161-162. We used the terms “defect” and

“dangerous or defective condition” in Nawrocki to describe the

status of the highway following a breach of the road

commission’s specific duty to “repair and maintain” the

highway. The terms “defect” and “dangerous or defective

condition” do not expand the statutory duty, but instead

describe the general conditions that trigger the statutory

duty to “repair and maintain.” In other words, if the road

commission’s statutory duty is breached, it follows that the

highway is in a state of disrepair, a synonym of which is

“defect.”


                                           13

Legislature from the language of the statute it enacts. Ross,


supra at 596. The Legislature has clearly limited the duty of


the road commission to the repair and maintenance of the


roadways, and the plaintiff’s claim does not fall within that


scope.   Thus, we affirm the judgments of the Court of Appeals


and the Mecosta Circuit Court.


     CORRIGAN , C.J., and WEAVER , TAYLOR , YOUNG , and MARKMAN , JJ.,


concurred.





                                 14

                S T A T E    O F   M I C H I G A N


                            SUPREME COURT





LUCIA J. HANSON, individually

and as personal representative

of the estate of NELS THOMAS

HANSON, deceased,


       Plaintiffs-Appellees,


v                                                     No. 117176


BOARD OF COUNTY ROAD

COMMISSIONERS OF THE COUNTY

OF MECOSTA, a municipal

corporation,


       Defendant-Appellant,


and


DALLAS JOSEPH SULLIVAN,


     Defendant.

___________________________________

LUCIA J. HANSON, individually

and as personal representative

of the estate of NELS THOMAS

HANSON, deceased,


       Plaintiffs-Appellants,


v                                                     No. 117973

BOARD OF COUNTY ROAD

COMMISSIONERS OF THE COUNTY

OF MECOSTA, a municipal

corporation,


       Defendant-Appellee,


and


DALLAS JOSEPH SULLIVAN,


     Defendant.

___________________________________

KELLY, J. (dissenting).


       I cannot agree with the majority's conclusion that the


highway exception to governmental immunity1 does not extend to


a duty to design safe roadways.              I would reverse the Court of


Appeals decision that plaintiff's design defect claim is


barred by governmental immunity.


       The majority approaches the issue of design defects as


one of first impression, relying on Nawrocki v Macomb Co Road


Comm,2 and selected dictionary definitions of "maintain" and


"repair."        It fails to discuss any case law dealing with


governmental          immunity   and    a      highway's   design      defect,


dismissing       in    a   footnote    three    such   examples   as    dicta.


Without acknowledging that it is doing so, the majority is


again overturning the longstanding precedent of this Court.


       As recently as 1989, this Court held a governmental



       1

            MCL 691.1402(1).

       2

            463 Mich 143; 615 NW2d 702 (2000).


                                        2

entity that defectively designed a highway liable for a loss


suffered as a result of the defect.                Killeen v Dep't of


Transportation,     432   Mich   1,   4-5;   438    NW2d   233   (1989).


Moreover, in Arnold v State Hwy Dep't,3 this Court explicitly


stated:      "[D]efects in the construction of highways [are]


within the bounds of the [highway exception] statute."              That


conclusion echoed this Court's statement in Peters v State Hwy


Dep't,4 where it asserted: "[L]iability for defective highways


is an express exception to the general sovereign immunity


scheme created by statute," including a "defect in the design


or construction of the highway."         Until now, those decisions


have not been called into question.5


     More     recently,   this   Court   decided     Nawrocki,    supra.


Admittedly, the majority opinion in Nawrocki stands for the




     3

          406 Mich 235, 237; 277 NW2d 627 (1979).

     4

          400 Mich 50, 57; 252 NW2d 799 (1977).

     5
      The majority dismisses references to design defects "in

cases such as" Killeen, supra, as dicta, meaning statements

unnecessary to support the decision of the Court. Black's Law

Dictionary (6th ed). Although the primary issue in Killeen

involved jurisdiction over a highway, the conclusion that

design defects are actionable was critical to the highway

department's liability. Id. at 13. Moreover, this Court did

not specifically reach the design defect issue in other cases

only because no one disputed that defects in design and

construction fall within the highway exception. See Arnold,

supra at 237-238; Peters, supra at 55-57. This implies that

the fact has been well accepted. Accordingly, even as dicta,

this Court's repeated assertions that the highway exception

includes design defects are persuasive.


                                  3

proposition that the highway exception is limited to hazardous


conditions of the actual road surface designed for vehicular


travel. Nawrocki, supra at 176-177. However, with respect to


governmental liability for highway design defects, I do not


read that decision as overruling any of the cases cited


herein.


      A hazard on the traveled surface of a road can certainly


be caused by a design defect, as this case demonstrates.


Plaintiff has alleged that the county failed to create a safe


surface for travel because the road was designed with too


steep a grade.    I would hold that plaintiff's design defect


claim survives Nawrocki to the extent that she contends that


the   design   defect   rendered   the   road   surface    unsafe   for


travel.6


      A logical reading of the highway exception supports that


conclusion.     The statute provides for a cause of action


against a governmental agency for failure "to keep a highway


under its jurisdiction in reasonable repair and in a condition


reasonably safe and fit for travel . . . ."               It instructs


agencies "having jurisdiction over a highway [to] maintain the


highway in reasonable repair so that it is reasonably safe and




      6

       Certainly, some roadways must traverse terrain making

it impossible to avoid arguably unsafe conditions. However,

whether a road was designed to be reasonably safe considering

the terrain it must traverse is a question of fact for a jury.


                                   4

convenient for public travel."          MCL 691.1402(1) (emphasis


added). 


     The majority construes that language to mean that the


government has no duty other than to keep a highway in its


original condition.        However, implicit in a duty to maintain


a reasonably safe highway is a duty to design a reasonably


safe highway in the first place.         It mocks common sense to


construe "maintain" to permit an agency that designed a


dangerous roadway to escape liability as long as it keeps the


road in that same condition.            The Legislature must have


intended "maintain" to include "design and build."


     In 1886, this Court examined a predecessor statute7 to


the current highway exception statute and reached the same


conclusion as I do in this case.            The language of both


statutes requires the governmental agency having authority


over a particular highway to "keep" the highway in reasonable


or good repair and "in a condition reasonably safe and fit for


travel." See Carver v Detroit & Saline Plank-Road Co, 61 Mich


584, 589; 28 NW 721 (1886).         Speaking for the Court then,


Justice Champlin stated:


          I have no doubt that the defects in highways

     covered by the act of 1879 extend to defects in

     construction, as well as defects through omission

     to repair, and to neglect to keep the public

     highways in a condition reasonably safe and fit for



     7

          1879 PA 244. 


                                   5

     travel by day or by night; and unless it is so

     kept, it constitutes a defect in the highway, for

     which, if injury results, an action will lie. [Id.

     at 590.]


     I reaffirm that longstanding assessment.            Also, I note


that the Legislature could have used different language when


it codified governmental immunity and specifically carved out


the highway exception.      Presumably it acted with knowledge of


this Court's interpretation of the language it chose.              The


Legislature's failure to change the language suggests its


intent   to   make   a   design   defect   actionable.    See   Gordon


Sel-Way, Inc v Spence Bros, Inc, 438 Mich 488, 505; 475 NW2d


704 (1991); Craig v Larson, 432 Mich 346, 353; 439 NW2d 899


(1989).


     On the basis of the highway exception's wording and this


Court's longstanding precedent, I conclude that a highway


design defect is actionable as an exception to governmental


immunity.     I would reverse the Court of Appeals decision to


the contrary.


     CAVANAGH , J., concurred with KELLY , J.





                                    6