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 of Clinton, Unpublished Decision of the Michigan Court of Appeals, released February 14, 2013 (COA Docket No. 307683).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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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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