Bachman v. Wroten , 196 Mich. App. 258 ( 1992 )

196 Mich. App. 258 (1992) 492 N.W.2d 792

BACHMAN
v.
WROTEN

Docket No. 132092.

Michigan Court of Appeals.

Decided October 5, 1992, at 9:35 A.M.

Driggers, Schultz, Herbst & Paterson (by Burke T. Lewis), for the plaintiff.

Cummings, McClorey, Davis & Acho, P.C. (by Gail P. Massad and Michael E. Rosati), for the City of Howell.

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

WEAVER, P.J.

This case arises out of an automobile accident between a truck and a car. Plaintiff, Ronald Sean Bachman, the driver of the car, claimed that defendant City of Howell improperly maintained the street because it was aware that trucks regularly parked on the side of the street while waiting to turn into a fuel depot. On July 27, 1990, the circuit court granted in part and denied in part the city's motion for summary disposition. The city appeals by leave granted. We reverse.

On March 25, 1987, defendant Michael Wroten stopped his truck on the right side of Marion Street in Howell, Michigan, and waited to turn left into a fuel depot. Although it was parked on the shoulder of the road, part of the truck extended into Marion Street. The truck's four-way flashers were activated, and Wroten had sat there for a minute or two when plaintiff's car struck the rear end of the truck as plaintiff ascended a hill on Marion Street and was blinded by the rising sun.

Plaintiff alleged that the city was liable under an exception to the governmental immunity act, MCL 691.1401 et seq.; MSA 3.996(101) et seq. Plaintiff contended that trucks using the fuel depot regularly stopped on Marion Street, that the city knew of and permitted this practice, that the city breached its duty under the act by failing to post warning signs, and that the city was liable under the theory of intentional nuisance.

On December 27, 1989, the city filed a motion for summary disposition pursuant to MCR 2.116(C) (7), (8), and (10). The city sought a finding of governmental immunity based on MCL 691.1407; MSA 3.996(107). Plaintiff contended that the "highway exception" to governmental immunity, provided in MCL 691.1402; MSA 3.996(102), applied. The court's order of partial summary disposition denied the city's motion with regard to the claim that it was negligent in permitting trucks to park along Marion Street while waiting to enter the fuel depot.^[1] The court ruled that permitting trucks to park along the street constituted permitting an obstruction to continue, and that this practice breached the city's duty to keep the street in a condition reasonably safe and fit for travel.

Defendant argues that the highway exception to governmental immunity is not applicable to the facts of this case. The city asserts that, because the practice was intermittent, it did not have notice of the practice of trucks stopping and waiting to turn, and that the stopping of trucks is not an obstruction for which it is liable.

The city is a governmental entity protected from liability by the governmental immunity act, MCL 691.1401; MSA 3.996(101). The exception to governmental immunity for defective highways, MCL 691.1402; MSA 3.996(102), provided in pertinent part at the time of trial:

Each governmental agency having jurisdiction over any highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. Any person sustaining bodily injury or damage to his property by reason of failure of any governmental agency to keep any highway under its jurisdiction in reasonable repair, and in condition reasonably safe and fit for travel, may recover the damages suffered by him from such governmental agency.

The highway exception waives the absolute immunity of governmental entities with regard to defective highways under their jurisdiction. Scheurman v Dep't of Transportation, 434 Mich. 619, 630; 456 NW2d 66 (1990). The highway exception is a narrowly drawn exception to a broad grant of immunity. Id. MCL 691.1403; MSA 3.996(103) also provides:

No governmental agency is liable for injuries or damages caused by defective highways unless the governmental agency knew, or in the exercise of reasonable diligence should have known, of the existence of the defect and had a reasonable time to repair the defect before the injury took place. Knowledge of the defect and time to repair the same shall be conclusively presumed when the defect existed so as to be readily apparent to an ordinarily observant person for a period of 30 days or longer before the injury took place.

The primary issue before us is whether the intermittent stopping of trucks on the street was a defect.

In ruling that the practice of trucks stopping and waiting to turn was an obstruction, the trial court relied on Kowalczyk v Bailey, 379 Mich. 568; 153 NW2d 660 (1967). However, Kowalczyk is factually distinguishable because the single parked car in that case was apparently parked for much more than a few minutes. See Kowalczyk v Bailey, 1 Mich. App. 551; 137 NW2d 285 (1965). In this case, the question is whether a practice of parking trucks amounts to an obstruction.

Accepting all plaintiff's factual allegations as true, we find that the practice of trucks stopping did not result in the creation of an obstruction. The city did not actively create an obstruction, the trucks stopped for only a few minutes, and the practice of trucks stopping is not related to the maintenance or repair of highways. To hold the city liable under these facts would contradict the purpose of the highway exception, which does not include placing upon governmental entities an unrealistic duty to ensure that travel upon the highways will always be safe. Scheurman, supra.

Plaintiff's claims against the city more closely resemble a suit for failure to enforce its traffic laws. However, the city's duty to enforce traffic laws is owed to the general public, not to any one person. Simonds v Tibbitts, 165 Mich. App. 480, 483; 419 NW2d 5 (1987).

Furthermore, governmental immunity is broad in scope while its exceptions are narrowly drawn. Ross v Consumers Power Co (On Rehearing), 420 Mich. 567, 618; 363 NW2d 641 (1984). The trial court's application of the highway exception to these facts is broad rather than narrow. The trial court erred in denying the city's motion for summary disposition because plaintiff's claim that the practice of trucks stopping resulted in the creation of an obstruction is so clearly unenforceable as a matter of law that no factual development could possibly justify a right to recovery. Pawlak v Redox Corp, 182 Mich. App. 758, 763; 453 NW2d 304 (1990).

Reversed.

NOTES

[1] The court granted the city summary disposition with regard to the plaintiff's claims of intentional nuisance and failure to post warning signs. There is no appeal from these rulings.