SUPREME COURT DEFINES/LIMITS SCOPE OF EXCEPTION TO GOVERNMENTAL IMMUNITY

Charles F. Behler
Chairperson-Governmental Law Practice Group
Smith Haughey Rice & Roegge
Grand Rapids, Michigan

On July 28, 2000, the Michigan Supreme Court issued its opinion in the consolidated cases of Nawrocki v Macomb County Road Commission and Evens v Shiawassee County Road Commission.

The issue considered in Nawrocki was whether a road commission’s duty, under the statutory exception to governmental immunity, extended to pedestrians. The Evens case concerned the issue of whether the statutory exception to governmental immunity established liability for defective signs, warnings, or traffic control devices.

The statute considered by the court is MCLA 691.1402, which establishes an exception to the statutory immunity of governmental agencies from tort liability, in pertinent part, as follows:

Each governmental agency having jurisdiction over any highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel…The duty of the state and the county road commissions to repair and maintain highways, and the liability therefore, shall extend only to the improved portion of the highway designed for vehicular travel and shall not include sidewalks, crosswalks, or any other installation outside of the improved portion of the highway designed for vehicular travel.

In Nawrocki, the court determined that the class of persons given standing to make a claim against a road authority is set forth in the first sentence of the statute, those persons involved in “public travel.” The area of the road commission right-of-way to which the duty to maintain in a reasonably safe and convenient condition applies is “the improved portion of the highway designed for vehicular travel…”

Therefore, a pedestrian, such as plaintiff Nawrockci, may recover from a road commission if he sustains an injury resulting from the failure of the road commission to maintain the portion of the roadway designed for vehicular travel in a reasonably safe condition.

The decision of the court in the Evens case is particularly significant. It was noted that prior panels of the Supreme Court considering the statutory language referred to above interpreted the statute to include, in the physical area covered by the statute, “integral parts of the highway,” “known points of hazard,” “points of special danger,” and “traffic sign maintenance” none of which appear in the statute. See Pick v Szymczak. The court overruled those prior decisions, specifically the Pick decision, and ruled that the plain meaning of the statute must be given effect.

After an exhaustive analysis, the court determined that “the improved portion of the highway designed for vehicular travel” refers only to the actual roadway surface.

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.

Applying that interpretation of the statutory exception to governmental immunity to plaintiff Evens’ allegation that the defendant road commission failed to install adequate traffic control devices, the court ruled as follows:

… We hold that the state or county road commissions have no duty, under the highway exception, to install, maintain, repair, or improve traffic control devices, including traffic signs.

The court noted that their decision was limited to the liability of the state and county road commissions, not their duty. Specifically, the court noted that, pursuant to MCLA 257.610(a), county road commissions, “shall place and maintain such traffic control devices upon highways under their jurisdiction as they may deem necessary to indicate and to carry out the provisions of (the Motor Vehicle Code) to regulate, warn or guide traffic. All such traffic control devices hereafter erected shall conform to the state manual and specifications.”

In short, a road commission continues to be duty bound to install traffic control devices, in its discretion, which comply with the requirements of the Michigan Manual of Uniform Traffic Control Devices. However, road commissions have no civil liability for the failure to exercise that duty. Civil liability of road commissions is limited to the failure to repair and maintain the actual roadbed itself.

This interpretation of the statutory exception to governmental immunity has only been applied to the facts of the Evens case. Unanswered questions exist with regard to the application of this interpretation of the statute to other factual scenarios. For example, it is unclear as to how this decision would be applied to the following situations:

1. Crashes resulting from substances on the roadway, such as standing water, gravel on a paved surface, or an “unnatural” accumulation of ice and snow.
    
2. Absent or defective markings on the “roadbed surface” (e.g., part 3 of the Michigan Manual of Uniform Traffic Control Devices).
    
3. The geometrics of the “roadbed surface,” including crowning, superelevation, and alignment.
    
4. Inadequate sight distance created by the “roadbed surface” on a vertical curve.
    
5. A defective horizontal curve “of the roadbed surface.”
    

Only time will tell how the courts will apply the Evens decision to these and other factual scenarios.

It must be kept in mind that this decision does not apply to theories of liability which are not subject to the limitations contained in the statutory exception to governmental immunity. For example, this decision in no way affects cases against a road commission alleging a trespass-nuisance. Typically, trespass-nuisance cases have been brought for damages to real property or the contents thereof. However, the legal definition of trespass-nuisance includes personal injury. At least one pending Kent County case includes an allegation of personal injury resulting in a trespass-nuisance resulting from water over a roadway. The trial court has confirmed the applicability of the trespass-nuisance principle to the facts of that case.

It can be anticipated that plaintiff’s attorneys will attempt to circumvent the statute, and the Evens decision interpreting it, by suing road commission employees directly.

Road commission employees may be sued for actions taken in the course and scope of their employment and duties if their actions are alleged to constitute “gross negligence” and resulted in injury. While there is some support for the theory that a government employee can have no duty greater than that of the government agency for whom he or she works, it is anticipated that individual road commission employees may be sued for their failure to repair or maintain a roadway—particularly if they are in a supervisory capacity—where the road commission cannot be sued in light of the Evens decision.

At least one plaintiff’s attorney has responded to the Evens decision by alleging that the road commission is not entitled to the protection of the statute because the actions of the road commission where “ultra vires.” In other words, it is alleged that the road commission’s activities were beyond its legal authority and that, therefore, it was not performing a governmental function. Consequently, it is alleged that the statute, and therefore the application of the Evens decision, are not applicable to the road commission in that matter involving a double fatality crash. It can also be anticipated that theories of liability formerly based directly on allegations concerning the installation or maintenance of traffic control devices will be restated by creative plaintiff’s attorneys in such a way so as to involve the roadway surface in some manner in an attempt to avoid the consequences of this decision.

The Michigan Supreme Court has, without question, substantially limited road commission liability. The full extent of that limitation will be dependent upon the subsequent application of this decision to a myriad of factual situations as well as the constitution of the Supreme Court following the November election.

Additionally, because the Supreme Court and the media have invited the legislature to rewrite “the outrageously imperfect language” of the highway exception, the longevity of his expanded protection from liability may be subject to ongoing political consideration.