Fogarty v. Department of Transportation , 200 Mich. App. 572 ( 1993 )

200 Mich. App. 572 (1993) 504 N.W.2d 710

FOGARTY
v.
DEPARTMENT OF TRANSPORTATION

Docket No. 136476.

Michigan Court of Appeals.

Submitted April 14, 1993, at Detroit. Decided July 7, 1993, at 9:15 A.M.

Frank & Stefani (by Ronn S. Nadis and David L. Haron), for the plaintiff.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and John M. Cahill, Assistant Attorney General, for the Department of Transportation.

Before: WAHLS, P.J., and MACKENZIE and TAYLOR, JJ.

PER CURIAM.

Plaintiff's decedent was killed in a car accident and plaintiff sued the Department of Transportation (DOT), alleging liability under the highway exception to the doctrine of governmental immunity, MCL 691.1402; MSA 3.996(102).^[1] The DOT unsuccessfully moved for summary disposition, and we granted its application for interlocutory appeal.

The sole issue here is whether the highway exception applies to a highway median, i.e., whether a median is part of the improved portion of the highway designed for vehicular travel. We hold that it is not.

The legislative intent of the statute was to impose a duty on the state to keep the traveled roadbed in reasonable repair. Scheurman v Dep't of Transportation, 434 Mich. 619, 631; 456 NW2d 66 (1990). However, the duty is narrowly drawn, and extends only to the improved, traveled portion of the roadbed of the highway that was designed for vehicular travel; it does not include sidewalks, crosswalks, or any other installation outside the improved portion of the highway designed for vehicular travel. MCL 691.1402(1); MSA 3.996(102) (1); Scheurman, supra, 630-631; Chaney v Dep't of Transportation, 198 Mich. App. 728, 729; 499 NW2d 29 (1993).

The grassy median at issue in this case, which separates the northbound and southbound lanes of I-75, is not part of the portion of the roadbed designed for vehicular travel. Accordingly, governmental immunity applies, and the DOT should not be held liable for the decedent's injuries. Coluccelli v Wayne Co, 196 Mich. App. 387, 389; 493 NW2d 439 (1992), in which an earlier panel of this Court reached the same result in a case involving a grassy median, was cited to this Court as binding precedent under Administrative Order No. 1990-6, 436 Mich. lxxxiv, continued in effect by Administrative Order No. 1991-11, 439 Mich. cxliv, and Administrative Order No. 1992-8, 441 Mich. cxi. Administrative Order No. 1990-6 makes binding upon this Court "the rule of law established by a prior published decision of the Court of Appeals issued on or after November 1, 1990." However, Judge MICHAEL J. KELLY'S rationale in Coluccelli is without precedential value because a majority of the judges sitting in that case concurred in the result only and did not concur in Judge KELLY'S discussion of the governmental immunity issue. Therefore, Coluccelli is not binding because, where a majority reaches a decision, but does not agree on the underlying reasoning, no point of law is established by the decision. Breckon v Franklin Fuel Co, 383 Mich. 251, 278-279; 174 NW2d 836 (1970); In re Perry, 148 Mich. App. 601, 609; 385 NW2d 287 (1986).

The Court of Claims erred in denying the DOT's motion for summary disposition based on governmental immunity. Therefore, we reverse and remand to the Court of Claims for the entry of an order granting summary disposition to the DOT.

NOTES

[1] Plaintiff also sued other parties, but those defendants are not involved in this appeal.