Court of Appeals Construes “Sidewalk” Under Highway Exception to Include Non-Adjacent Hike / Bike Path Not Within Right of Way of Roadway

This recent Court of Appeals opinion seems to skirt the definition of “sidewalk” within the meaning of the highway exception to governmental immunity in MCL 691.1402, and the definition provided in MCL 691.1401(e).  Hernandez v. Twp. of Clinton, Unpublished Decision of the Michigan Court of Appeals, released February 14, 2013 (COA Docket No. 307683).

The plaintiff was injured when his bike tire struck a hole in an asphalt-paved pathway that followed a parkway, but which was separated therefrom by a 30-foot wide grass median / neutral area.  The Court of Appeals panel cites the rule, established by the cases of Stabley v. Huron-Clinton Metropark, 228 Mich. App. 357 (1998) and Hatch v. Grand Haven Twp., 461 Mich. 457 (2000) that in order to be considered a “highway” within the meaning of the highway exception the sidewalk “must be (1) a path designed for pedestrian use, (2) usually paved, (3) running alongside and adjacent to a public road, and (4) within the right of way of that road.”  See Slip. Op. at 4 (emphasis added).

The Court of Appeals ruled that the plaintiff met his burden to plead in avoidance of immunity by the allegations.  However, the rule is that retained sovereign immunity is broadly conferred and the statutory exceptions thereto are strictly or narrowly construed.  The emphasized element above, that the sidewalk, to be considered within the exception sufficient to invoke the government’s duty, must be “within the right of way of [the] road” to which it is adjacent does not appear to be fulfilled in this case.  Only by a broad, rather than narrow, construction of the exception could a pathway separated from the true right of way of a “highway” by a 30 foot grass margin be considered a “sidewalk” within the exception.

This panel’s decision is suspect in light of the interpretive requirements applicable to the exceptions to governmental immunity.

Here is the opinion: Hernandez v. Township of Clinton

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