Court of Appeals Rules that “Dust Cloud” is a Defect in the Improved Portion of Highway Sufficient to Invoke the “Highway Exception” to Governmental Immunity and Defeat County’s Dispositive Motion Despite Supreme Court’s Order in Previous Case Holding the Contrary in Somewhat Analogous Circumstances – Or – When is an Order an Order…

Here is an interesting case, for many reasons, not the least of which is the Court of Appeals acknowledgment of the existence of a Supreme Court order, which, by all appearances contains “a concise statement of the applicable facts and reasons for the decision” and as such should be binding precedent applicable to defeat the Plaintiff’s case.

The rule, as stated, has been that a Supreme Court order that is a “final…disposition of an application and that contains a concise statement of the applicable facts and reasons for the decision is binding precedent.”  Dykes v. William Beaumont Hosp., 246 Mich. App. 471, 483 (2001).

The Court of Appeals willingness to gloss over the apparently precedential effect of a recent Supreme Court Order is likely reversible error.

The other interesting aspect of the case appears to be the application of the highway exception to governmental immunity, MCL 691.1402, to a “dust cloud” created when two cars traveling in opposite directions on an unpaved road created said cloud and the decedent was killed after she lost control of her vehicle in the cloud of dust, veered off the roadway into the soft sand on the edge, and struck a tree.  The Court of Appeals panel concludes that a question of fact existed as to whether the “dust” or the “dust cloud” was a defect in the improved portion of the highway sufficient to invoke the “highway exception” to governmental immunity.  See MCL 691.1402(1).

Quite a few Supreme Court opinions, not the least of which is Nawrocki v. Macomb County Rd. Commission, 463 Mich 143, 158 (2000), cited by the Court of Appeals here, contain an accurate statement and application of the so-called “highway exception” to governmental immunity.  The panel in this case actually recites the proper standard and conclusion from Nawrocki, to wit, “in order for the highway exception to apply, the alleged dangerous or defective condition must be located in the actual roadbed designed for vehicular travel.”  Slip. Op. at 3, citing Nawrocki, supra at 161-62.

However, the panel goes on to conclude that the cloud of dust originated from the roadbed and thus constituted a defect in the improved portion of the highway despite the fact that it was not an inherent defect integrated into the improved portion of the roadbed but rather was more akin to a condition like loose gravel on pavement, etc., i.e., see Paletta….  See Slip Op. at 4-5.

Which is why it is curious, to say the least, that the Court then goes on to ignore the Supreme Court’s Order in Paletta, which appears to fulfill all the requirements necessary to discern precedential and therefore binding effect, as enunciated above from the Dykes decision, among many others.   Id. at 6, n. 31.

The Court at once concludes Paletta is not binding per Dykes, supra, but then in the last sentence of the footnote, distinguishes the factual circumstances of Paletta, which really begs the question:  If Paletta does not contain a concise statement of the applicable facts and the reasons for the Court’s decision and is not binding, then how can it be distinguishable?

Seems the panel was hedging a bit here, just in case.  But the real issue, whether a cloud of dust kicked up on any portion of any number of (and there are many) unpaved roads in Michigan is going to be a defect in the improved portion of the highway sufficient to defeat the government’s suit immunity under the “highway exception” will likely have to be addressed at a higher level.

See the Court of Appeals Opinion here:  In re Estate of Kraemer v. Manistee Co Rd Commn

Cf. the Supreme Court’s Order in Paletta here: Paletta Order

If anyone has questions about this case or its potential future consequences, please call me to discuss at (248) 283-0763.


About cjtucker06

Owner of law firm since July 2014; Handles all types of appellate matters and assists other lawyers with complex litigation and insurance coverage issues; Admitted to the Supreme Court of the United States, the Sixth Circuit Court of Appeals and the State Bar of Michigan; Expertise in prosecuting and defending appeals with several significant successes in the Sixth Circuit Court of Appeals, the Michigan Supreme Court and the Michigan Court of Appeals; Author of briefs amicus curiae in the Michigan Supreme Court for the Michigan Defense Trial Counsel and the Insurance Institute of Michigan; Represents Insurance Companies, Major International Business, Governmental Entities, Law Enforcement Officers and County Sheriffs. Board of Directors, Michigan Defense Trial Counsel Amicus Committee Co-Chair, Michigan Defense Trial Counsel Military - Retired Major in the Judge Advocate General (JAG) Corps of the United States Army, Brigade Judge Advocate and Staff JAG officer for the Maneuver Training Center, Camp Grayling, Michigan; Recipient of the Army's Meritorious Service Medal (the highest medal of honor available to Soldiers serving in non-combat roles); 2012 Graduate of the Judge Advocate Officer Advanced Course, at The Judge Advocate Legal Center and School, Charlottesville, Virginia. United States Navy Reserves, Combat Warfare Qualification, January 1989 to July 2003 Former law clerk to Justice Stephen J. Markman, Michigan Supreme Court, Research Attorney, Michigan Court of Appeals. Insurance Coverage Associate Plunkett Cooney; Environmental Law Attorney at Squire Sanders, now Squire Patton Boggs; Master's Degree in Environmental Law; Environmental Law Scholar, ALI/ABA Washington, D.C., Juris Doctorate, Vermont Law School, Environmental Editor, Vermont Law Review; Treasurer and Finalist, Moot Court Advisory Board.
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