Court of Appeals Allows Suit Against Department of Transportation Under Highway Exception to Governmental Immunity and Holds Depression on Edge of Highway a Defect in the Improved Portion of Highway Designed for Vehicular Travel

The Court of Appeals issued a published opinion holding that a depression on the edge of a state highway (M-22), which was located at the edge of the curb in a parallel parking spot, was a “defect” in the improved portion of the roadbed designed for vehicular travel sufficient to invoke the highway exception to governmental immunity.

In Yono v. Michigan Dep’t of Transportation, ___ Mich. App. ___ (released December 20, 2012) (Docket No. 308968), the Court addressed the plaintiff’s claim that a fall she suffered due to a depression on the surface of M-22, just before the curb and within a parallel parking space was an actionable “defect” within the meaning of the highway exception to governmental immunity.

Addressing two of the most pertinent cases, the majority explains that Nawrocki v. Macomb County Rd. Comm’n, 463 Mich. 143 (2000) held that a pedestrian could state a cause of action for injury caused by a “defect” (cracked and/or broken pavement) when the defect existed in the improved portion of the highway designed for vehicular travel.  The Court then analyzed the Supreme Court’s decision in Grimes v. Dep’t of Transportation, 475 Mich. 72 (2006), in which the Court refused to extend the highway exception to the shoulders of highways because they were not “designed for vehicular travel”.  Because the highway shoulder is not designed for vehicular travel, the Court in Grimes held the government only had a duty to repair and maintain that portion of the highway that contains “travel lanes”.

Applying these two cases, however, the Court of Appeals holds that the plaintiff stated a cause of action, even though, per Grimes the defect appears to have been in a portion of the highway not designed for vehicular travel, i.e., not a travel laneper se.  Slip Op. at 4-7.

The Court reasoned that in Grimes, while the Supreme Court did not give the term “travel” its broadest possible definition, it also did not narrow it to exclude specialized, dual-purpose, or limited access travel lanes.  Slip Op. at 4, citing Grimes, supra at 89-91.  The Court also places emphasis on whether or not and to what extent the particular location is “designed” for vehicular travel.  Id. at 5.

Judge Talbot dissents.  He explains the portion of the roadway where plaintiff was allegedly injured is not, in his view, “in the improved portion of the highway designed for vehicular travel”.  It is rather, “at the edge of the parallel parking lane ‘abutting the concrete gutter and curb'”.

Judge Talbot also takes issue with the majority’s liberty in asserting that the Supreme Court’s failure to restrict the concept of travel gave it authority to construe the statute in a manner broader than that indicated by the Legislature.

There is merit to Judge Talbot’s dissent.  It certainly appears the majority broadly construed an exception to immunity, which is prohibited when interpreting statutes that waive the government’s suit immunity.  Strict or narrow interpretation of statutory provisions that allow suits against the government is a well-established principle of statutory construction that has its roots in the jurisdictional principles underlying governmental immunity.

Common-law immunity from suit and liability preexisted the Governmental Tort Liability Act.  This common-law immunity could only be waived by express statutory consent.  The People, through the Legislature, allow suits against the government in only a small subset of cases and circumstances.  Any court that liberalizes the statutory provisions allowing such suits is at risk of overstepping its authority because only the People, through the Legislature, can vest in courts of law the subject-matter jurisdiction necessary to adjudicate the merits of a suit against the government.  As it goes, the state created the courts and so is not subject to them except by unequivocal statutory consent.

It will be interesting to see what happens in this case.  Read the opinion here:  Yono v Dept of Transp

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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