MALLETT, Chief Justice.
In these combined cases, we granted leave to determine whether the highway exception to governmental immunity applies to accidents involving pedestrians. M.C.L. § 691.1402(1); M.S.A. § 3.996(102)(1). In Suttles, the Court of Appeals affirmed the trial court's grant of defendant's motion for summary disposition. 216 Mich.App. 166, 548 N.W.2d 671 (1996). In Brown, the Court of Appeals, by peremptory order, reversed the trial court's denial of defendant's motion for summary disposition. Because the factual record inSuttles is unclear, we would remand the case with instructions to the trial court. We would affirm the decision of the Court of Appeals in Brown because it correctly applied Mason v. Wayne Co. Bd. of Comm'rs, 447 Mich. 130, 523 N.W.2d 791 (1994).
SUTTLES v. DEP'T OF TRANSPORTATION
On March 15, 1992, plaintiff's decedent got out of the passenger side of an automobile that was parked outside a church on Saginaw Street in downtown Flint, Michigan. She alleges that she slipped and fell because of an unnatural accumulation of ice and snow on the highway next to the curbed parking area. Her personal representative originally filed a complaint in the Genesee Circuit Court against the city of Flint. The city filed a motion for summary disposition, alleging that before the accident the state of Michigan had jurisdiction over Saginaw Street because it was a designated state trunkline. The circuit court granted the city's motion. Plaintiff then refiled the complaint in the Court of Claims, naming the state of Michigan, Department of Transportation, as defendant. The Court of Claims granted defendant's motion for summary disposition pursuant to MCR 2.116(C) (7) and this Court's opinion in Mason, supra. Plaintiff appealed, and the Court of Appeals affirmed the Court of Claims order dismissing plaintiff's complaint on governmental immunity grounds.
BROWN v. DEP'T OF TRANSPORTATION
On July 1, 1993, plaintiff's next friend was struck and injured while attempting to cross the intersection of M-119, West Bluff Street, and State Street in the city of Harbor Springs, Michigan. M-119 is a part of the state trunkline in Harbor Springs that runs in an east-west direction. State Street runs north-south and West Bluff Street runs east-west until it deadends into M-119, which, at the intersection in dispute, angles in a northerly direction into West Bluff Street. At all times relevant to this appeal, State and West Bluff streets were under the jurisdiction of the city of Harbor Springs.
As plaintiff's next friend and her companion approached the intersection on M-119 while heading toward downtown Harbor Springs, they intended to cross the intersection by way of the crosswalk installed as part of the traveled portion of the M119 highway.
Plaintiff filed the instant action against the city of Harbor Springs in the Emmet Circuit Court and against the Department of Transportation in the Court of Claims. The two cases were consolidated in the circuit court. The city and department moved for summary disposition pursuant to MCR 2.116(C)(7) and (8), which the trial court denied.
It is well settled in this state that governmental agencies are immune from tort liability while engaging in a governmental function unless an exception applies. M.C.L. § 691.1407; M.S.A. § 3.996(107); Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 618, 363 N.W.2d 641 (1984). It is also well settled that the exceptions are to be narrowly construed.Id.; Reardon v. Dep't of Mental Health, 430 Mich. 398, 411, 424 N.W.2d 248 (1988). Here, this Court is again faced with the task of interpreting the highway exception to governmental immunity. M.C.L. § 691.1402(1); M.S.A. § 3.996(102)(1).
In Suttles, the trial court granted defendant's motion for summary disposition pursuant to MCR 2.116(C)(7). In Brown, the lower court granted defendant's motion for summary disposition pursuant to MCR 2.116(C) (7) and (8). In determining whether a plaintiff's claim is barred by governmental immunity, we must consider all documentary evidence, including any pleadings, depositions, admissions, or any other documentary
A motion pursuant to MCR 2.116(C)(8) tests the legal sufficiency of the complaint and allows only consideration of the pleadings. Id. Under both (C)(7) and (8) motions, courts must accept all well-pleaded facts as true and construe them in a light most favorable to the nonmoving party. Id. at 162-163, 483 N.W.2d 26. A motion under MCR 2.116(C)(8) may only be granted where the claims alleged are so clearly unenforceable as a matter of law that no factual development could possibly justify recovery. Id. at 163, 483 N.W.2d 26.
We acknowledge that the notion of governmental immunity, its interpretation, and its practical application have been difficult at times, stemming in part from the decisions of this Court and from the confusing nature of the statute itself.
The import of this specific limitation indicates, we believe, the Legislature's intent to significantly limit a pedestrian's ability to recover. With this background in mind, we proceed with these cases, while keeping to our mandate of interpreting the exceptions to governmental immunity narrowly. See Ross and Reardon, supra.
Today we address the specific question whether pedestrians are covered by the highway exception to governmental immunity. A review of M.C.L. § 691.1402(1); M.S.A. § 3.996(102)(1) and previous decisions of this Court lead us to conclude that pedestrians may come within the exception in limited situations.
Recent decisions of this Court provide guidance in this area. In Roy v. Dep't of Transportation, the plaintiff
The issue presented in Roy was whether a bicycle path that ran parallel to, but detached from, the traveled portion of the roadway was part of the highway, so as to fall within the highway exception to governmental immunity. We held, under the facts of that case, that the plaintiff's claim was barred by governmental immunity. In reaching that result, we noted:
A case that presented both an issue and set of facts similar to Roy was Gregg v. State Hwy. Dep't, 435 Mich. 307, 458 N.W.2d 619 (1990). The plaintiff in Gregg was injured when his fourteen-speed racing bicycle hit a pothole and overturned. Again, we considered whether the bicycle path in that case was part of the highway so as to fall within the highway exception to governmental immunity. We held that because the bicycle path in Gregg was part of "the west shoulder of [the] highway," unlike Roy where the path was not a part of, but ran parallel to, the roadway, the plaintiff's claim fell within the exception. Id. at 310, 458 N.W.2d 619.
Justice Brickley utilized the following rationale from Roy to support this Court's finding that the plaintiff's claim in Gregg was not barred by governmental immunity:
"[T]he exception to immunity found in § 2 of the governmental immunity act does not apply to bicycle paths. The [highway exception to immunity] does not apply to `an installation outside of the improved portion of the highway designed for vehicular travel.' A bicycle path is not designed
We concluded in Gregg:
The crux of the analysis we utilized in Roy and Gregg applies to the facts of these cases as well. We noted that "`the statute does not offer general protection to pedestrians or motorists without regard to location.'" Gregg, supra at 312, 458 N.W.2d 619, quoting Roy, supra at 341, 408 N.W.2d 783.
We more recently addressed the applicability of the highway exception to an injured pedestrian in Mason v. Wayne Co. Bd of Comm'rs. There, the plaintiff alleged that the county was liable for failing to install school warning signs near an elementary school in Detroit. A majority of this Court rejected that argument because "[t]he plaintiffs' action ... [did] not present a special danger to vehicles. The highway exception abrogates governmental immunity at `points of special danger to motorists....'" Id. at 135, 523 N.W.2d 791, quoting 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). We noted that because the limiting sentence of the highway exception
The following analysis from Mason supports this interpretation:
[T]he phrase "designed for vehicular travel" can only be reasonably interpreted to mean "intended for vehicular travel." The explicit removal of exclusively pedestrian installations from the highway exception, coupled with the express language of the provision itself, permits but one conclusion: Pedestrians who trek upon Michigan highways must and do venture beyond the
In Roy and Gregg, we indicated that we examined not the class of individual, but the area on which the individual traveled. As long as the individual was injured on the improved portion of the highway and was not injured in any of the three areas listed in M.C.L. § 691.1402(1); M.S.A. § 3.996(102)(1), we have consistently held that that individual stated a cause of action so as to avoid governmental immunity.
In light of this, we now turn to the facts of these combined cases in an effort to further the legislative purpose underlying the highway exception to governmental immunity, keeping in mind our mandate to construe the conditions and restrictions of the statute narrowly.
Plaintiff Suttles contends that as long as a person is on the improved portion of the highway and is not within the specifically exempted areas of crosswalks, sidewalks, or other pedestrian installations, the government is not entitled to immunity. Plaintiff Brown alleges that because of a design defect at the intersection in question, the defendant breached its duty to maintain the improved portion of the highway safe for vehicular travel.
Plaintiff Suttles got out from the passenger's side of the vehicle in which she was traveling and was injured when she allegedly slipped and fell on an unnatural accumulation of ice and snow. The record is replete with varying accounts regarding the specifics surrounding plaintiff's injury. For example, in her deposition taken before her death, the plaintiff indicated, at one point, that she was on the improved portion of the highway at the time she fell. Later, she indicated that she was on the curb or sidewalk when she was injured.
There was also conflicting testimony regarding the location of the ice and snow. The plaintiff indicated the accumulation was both on the sidewalk and on the improved portion of the highway. The plaintiff's personal representative testified in his deposition that he found the plaintiff laying on the sidewalk next to the ice and snow that had been piled on the sidewalk and spilled over onto the curb. The accounts regarding snowfall on the day in question also conflicted.
Finally, the maintenance workers and the security personnel from the office building located immediately adjacent to the area where plaintiff was injured also testified. The city of Flint's street maintenance supervisor testified as well. These individuals gave different accounts regarding whose responsibility it was to remove snow and ice, and the origin, size, and location of the snow accumulation in this case.
To the extent the answers to these and other issues relate to the duty, if any, owed to plaintiff by defendant at the time of her
The record indicates the vehicle in which the plaintiff was traveling parallel parked along the curb in a portion of the highway that had been specifically designated for parking by an alcove-like curbed area. This Court's holding in Mason provided that if a plaintiff is injured on a sidewalk, in a crosswalk, or on any other installation outside the improved portion of the highway designed for vehicular travel, no duty is owed to that plaintiff by the state or a county. If, on remand, it is determined that plaintiff was on the sidewalk when she fell, the analysis is simple: The defendant did not owe a duty to her.
If, however, it is found that the plaintiff fell and was injured by a defect in the improved portion of the highway, then she may have pleaded a cause of action so as to avoid governmental immunity.
We reiterate, however, that the immediately preceding discussion should not be interpreted to mean the defendant is automatically liable to the plaintiff even if it is found that she was injured on the improved portion of the highway designed for vehicular travel. Plaintiff must still demonstrate the requisite elements of a negligence cause of action. If on remand the trial court determines that the plaintiff has sufficiently pleaded a cause of action so as to avoid governmental immunity, the existence of a duty owed to plaintiff by defendant has been established. Plaintiff must then prove defendant breached that duty, and that the breach was the proximate and factual cause of her injury.
Plaintiff Brown's next friend was injured when she was struck by an automobile
For the foregoing reasons, we would reverse Suttles and remand the case to the trial court with instructions for further factual development, and we would affirm the Court of Appeals decision in Brown.
BOYLE, J., concurred with MALLETT, C.J.
TAYLOR, J., not participating in Brown.
TAYLOR, Justice (concurring only in Suttles).
In Suttles, I concur in the lead opinion's result and most of its analysis. I write separately only to clarify that I believe that applicability of the highway exception to governmental immunity, M.C.L. § 691.1402(1); M.S.A. § 3.996(102)(1), turns on the location of the alleged defect, not the location where the alleged injury occurred.
WEAVER, Justice (concurring in part and dissenting in part).
I concur in Suttles and I agree with the result in Brown. I write separately because I disagree with the lead opinion's holding in Brown that neither the state nor a county owe a duty to a pedestrian while the pedestrian is in a crosswalk.
I continue to agree with Justice Riley's dissent in Pick v. Szymczak, 451 Mich. 607, 632-656, 548 N.W.2d 603 (1996), which held that the highway exception statute does not impose a duty to repair defects in design or construction. Because I believe that the state or county is bound to fix a design or construction defect only when that defect would leave the physical surface of the road in disrepair and therefore unsafe, I would hold that the plaintiff in Brown did not plead a claim that avoids governmental immunity. Nonetheless, I agree with Justice Cavanagh's opinion in Brown that when a plaintiff's injury occurs in a crosswalk, but the plaintiff alleges that the defect was in the improved portion of the highway, the plaintiff's claim should go forward.
MICHAEL F. CAVANAGH, Justice (dissenting).
I dissent from the lead opinion's reasoning and conclusion in Brown v. Dep't of Transportation. I find that the reasoning of the lead opinion departs from the language of the statute, and I am unable to conclude that there is any support in the statute or prior case law for the two-part test articulated in footnote 10 of the lead opinion. M.C.L.
I find this portion of the statute, as it relates to Brown, to be clear. Under the language of the statute, "a person" may recover damages "from the governmental agency" where that agency breached its "duty ... to repair and maintain highways" and the "liability for that duty, extends only to the improved portion of the highway designed for vehicular travel...." The liability for that duty does not extend to "repair[ing] and maintain[ing]" sidewalks, crosswalks, or any other installation outside the improved portion of the highway designed for vehicular travel. Because plaintiff in Brown did not allege that the state had a duty to repair or maintain a crosswalk, but instead alleged that the state had a duty to repair and maintain the intersection preceding the crosswalk, which was part of the improved portion of the highway, plaintiff's claim should go forward.
The lead opinion has taken the statute and has twisted its meaning into an awkward holding that states that even though the improved portion of the road may be defective, a person may not recover if injured while traversing a crosswalk. Plaintiff in this case did not allege that the state failed to maintain the crosswalk in a safe condition; rather, she alleged that theimproved portion of the highway designed for vehicular travel was not safe. The mere mention of a crosswalk should not defeat a plaintiff's claim, especially where the plaintiff has alleged a defect in the improved portion of the road.
Plaintiff alleged that the design of the intersection preceding the crosswalk was defective because it violated industry standards relative to design and site distance requirements for intersections. Furthermore, in the six years preceding Abby DeRusha's injuries, there were at least six vehicle-to-vehicle accidents resulting from the same design and sight distance defects that contributed to Abby's injuries. Contrary to the intent of the Legislature, the lead opinion's holding would allow recovery for injuries sustained by passengers of the vehicles alleging the same defect alleged by Abby DeRusha, but would deny recovery to Abby DeRusha only because she was crossing the street at a crosswalk.
The Legislature intended that the focus of the highway exception should be on the nature or location of the claimed defect, not on the status of the person injured or the place where the injury occurred. I cannot accept the lead opinion's strained interpretation of the statute. Indeed, the decision in Roy v. Dep't of Transportation, 428 Mich. 330, 341, 408 N.W.2d 783 (1987), supports this proposition. "The criterion used by the Legislature was not based on the class of travelers, but on the road on which they travel."
While the lead opinion relies on Mason v. Wayne Co. Road Comm., 447 Mich. 130, 523 N.W.2d 791 (1994) to support its position, that case really bolsters plaintiff's interpretation of the statute by stating, "[t]he highway exception specifically excepts the state and counties from liability for defectsin crosswalks, the defect alleged by the plaintiff...." Id.at 135, 523 N.W.2d 791 (emphasis added). However, in our case, plaintiff Brown did not allege a defect in the crosswalk, rather she alleged a defect in the improved portion of the highway.
I cannot agree with the lead opinion's conclusion because it erroneously focuses on where the alleged injury occurred and the class of persons who are injured, rather than focusing on where the defect occurred. Under the lead opinion's reasoning, "First, a court must determine whether the plaintiff's accident occurred on the improved portion of the highway designed for vehicular travel." Op. at 302, n. 10 (emphasis added). "The next question ... is whether the plaintiff's
A brief review of our prior case law will illustrate my point. In Roy, supra, we held that a bicycle path adjacent to, but separate and detached from, a highway was not part of the improved portion of the road designed for vehicular travel. The primary focus was on the location of the allegeddefect. We stated, "[t]he criterion used by the Legislature was not based on the class of travelers, but the road on which they travel." Id. at 341, 408 N.W.2d 783 (emphasis added).
InScheurman v. Dep't of Transportation, 434 Mich. 619, 456 N.W.2d 66 (1990), we focused on where the alleged defect occurred. We stated that the failure to install lighting along a state trunk line did not subject the government to potential liability 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.
In Gregg v. State Hwy. Dep't, 435 Mich. 307, 458 N.W.2d 619 (1990), we again focused on where the alleged defect occurred. In that case, the plaintiff was injured when his bicycle struck a pothole located within two white lines demarking a bicycle path within the paved portion of the road and preceding its paved shoulder. We held that the plaintiff, even though a bicyclist and not a motorist, was a member of the class of travelers to be protected, and the bicycle path was part of the "improved portion of the road designed for vehicular travel." Id.at 312, 458 N.W.2d 619.
In Chaney v. Transportation Dep't, 447 Mich. 145, 523 N.W.2d 762 (1994), again we focused on the location of the defect. We held that because a bridge railing was not physically located within the improved portion of the highway designed for vehicular travel, and because it did not integrally and directly affect safe travel on the improved portion of the highway, the highway exception was not applicable.
In Mason, supra, we focused on the location of the alleged defect. In that case, a school boy ran into the street while traversing a crosswalk and was struck by a car whose driver ran a red light. Plaintiff sued, alleging that the county road commission failed to install appropriate safety devices, including school warning signs. This Court, in an opinion written by Justice Boyle, recognized that the statute excludes "`sidewalks, crosswalks, and other installations' from the duty of maintenance and repair...." Mason, 447 Mich. at 137, 523 N.W.2d 791, quoting Roy, supra at 336, 408 N.W.2d 783 (emphasis added). We reaffirmed this by stating that "[t]he highway exception specifically excepts the state and counties from liability for defects in crosswalks.... Id. at 135, 523 N.W.2d 791. This Court's focus was clearly on the location of the defect, rather than the location of the injury. The government was immune from liability not because plaintiff was in a crosswalk when she was injured, but because the defect was outside the improved portion of the road or in a crosswalk.
It is clear from the statutory language and our case law that the statute defines the government's duty by telling it what portions of the road it must maintain and repair, not to whom it owes a duty or where the injury occurs.
Finally, I question the prudence of the lead opinion's holding as it relates to jaywalkers. While it is true that this state recognizes comparative negligence, a jaywalker would be permitted to recover under the same facts as this case, whereas someone lawfully crossing at a crosswalk would be completely barred from recovery. From a public policy standpoint, it seems obvious to me that the focus should not be on where the alleged injury occurred. Rather, the focus is properly
For the reasons stated, I respectfully dissent from the decision of the lead opinion in Brown.
As to the Suttles case, I concur in the result reached by the lead opinion.
BRICKLEY and MARILYN J. KELLY, JJ., concurred with MICHAEL F. CAVANAGH, J.