Pomeroy v. Department of Transportation , 175 Mich. App. 556 ( 1988 )

175 Mich. App. 556 (1988) 438 N.W.2d 264

POMEROY
v.
DEPARTMENT OF TRANSPORTATION
POMEROY
v.
CITY OF FLINT

Docket Nos. 99938, 105464.

Michigan Court of Appeals.

Decided December 7, 1988.

David Melkus, for plaintiff.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and Brenda E. Turner, Assistant Attorney General, for the Department of Transportation.

Douglas M. Philpott, P.C. (by Douglas M. Philpott), for the City of Flint.

Before: DANHOF, C.J., and CYNAR and G.R. DENEWETH,^[*] JJ.

PER CURIAM.

Plaintiff's decedent, David R. Pomeroy, died as a result of injuries suffered on May 7, 1982, when the vehicle in which he was a passenger left the road and struck a concrete structure located 11.5 feet from Twelfth Street, at the intersection of Hammerberg Road, in the City of Flint. Plaintiff appeals as of right from a March 27, 1987, order from the Court of Claims dismissing plaintiff's claims against defendants State of Michigan and its agencies, and from a September 24, 1987, Genesee Circuit Court order granting defendant City of Flint's motion for summary disposition with respect to plaintiff's statutory claim only. Plaintiff's complaint had alleged, as to all defendants, nuisance and breach of the duty to maintain the highway in reasonable repair pursuant to MCL 691.1402; MSA 3.996(102). We consolidated the cases for appeal and we affirm.

Plaintiff first argues that the Court of Claims erred by dismissing plaintiff's nuisance claim. The Court of Claims had earlier granted defendant's motion for summary disposition on plaintiff's statutory claim for failure to maintain the highway in reasonable repair. This Court affirmed in an unpublished opinion per curiam, decided April 17, 1986 (Docket No. 78972). Plaintiff now argues that defendant State of Michigan may be liable as the creator of an intentional nuisance despite its having transferred jurisdiction over the structure to the City of Flint following its construction in 1968 and 1969. The transfer of jurisdiction, plaintiff argues, should not relieve defendant from liability for design and construction defects. We disagree.

Plaintiff does not dispute that the concrete structure, located off Twelfth Street in the City of Flint, acts as a storm sewer junction chamber connecting a higher sewer line with another sewer line fifteen feet lower. The structure was constructed during the winter months of 1968 and 1969 under contract with the Michigan State Highway Department. The structure was built on behalf of, and in consultation with, the City of Flint. Following its construction, jurisdiction over the structure was returned to the City of Flint. When the accident occurred, the City of Flint had responsibility for maintaining both Twelfth Street and the concrete sewer junction.

This Court has held, on several occasions, that liability for nuisance is limited to the government agency having jurisdiction over the highway at the time of the accident. Smith v Dep't of Transportation, 157 Mich. App. 12, 18; 403 NW2d 87 (1987); Lipka v Macomb Co Bd of Road Comm'rs, 155 Mich. App. 624; 400 NW2d 698 (1986), and cases cited therein. In Lipka, the Court reasoned that the statutory provision, MCL 691.1402; MSA 3.996(102), which invests responsibility with the government agency having jurisdiction over the highway should be extended to claims of intentional nuisance. We find the reasoning contained in our prior decisions to be sound and, in this case, decline to hold otherwise.

Plaintiff next argues that defendant City of Flint may be liable for its role in creating and maintaining the roadside obstruction under the highway liability act, MCL 691.1402; MSA 3.996(102), notwithstanding the fact that the vehicle which collided with the obstruction went well beyond the traveled portion of the highway pursuant to the "four-wheel rule." Again, we disagree.

The statutory exceptions to the broad grant of governmental immunity are to be strictly construed. Ross v Consumers Power Co (On Rehearing), 420 Mich. 567, 618; 363 NW2d 641 (1984). The applicable exception to governmental immunity in this case is provided by MCL 691.1402; MSA 3.996(102), which provides in relevant part "[t]he duty of the state and the county road commissions to repair and maintain highways, and the liability therefor, shall extend only to the improved portion of the highway designed for vehicular travel and shall not include sidewalks, crosswalks or any other installation outside of the improved portion of the highway designed for vehicular travel...." This statutory exception to governmental immunity applies to municipalities such as defendant City of Flint. MCL 691.1401(a) and (d); MSA 3.996(101)(a) and (d); Michonski v Detroit, 162 Mich. App. 485, 592; 413 NW2d 438 (1987).

We note that, as stated by this Court in Davis v Chrysler Corp, 151 Mich. App. 463, 469; 391 NW2d 376 (1986), the provision limiting the zone of responsibility to the improved portion of the highway refers only to the state and the county road commissions. Municipalities remain liable for the balance of the areas coming within the definition of highways, bridges, sidewalks, crosswalks and culverts. This Court has defined the duty to maintain a highway in reasonable repair as including the shoulder and adjacent guardrails and to areas within the reach of a vehicle without any of its wheels leaving the shoulder. Carney v Dep't of Transportation, 145 Mich. App. 690, 696; 378 NW2d 574 (1985), lv den 424 Mich. 889 (1986). Although the four-wheel rule does not define this area with mathematical precision, its design is to establish the duty to maintain a shoulder in reasonable repair such that the average vehicle would be reasonably safe in the event that it became necessary to drive on the shoulder, or the vehicle accidentally deviated from the portion of the road designed for travel. In this case, it is undisputed that the concrete structure was located approximately 11.5 feet from the paved portion of the road. The circuit court had before it all necessary construction drawings, specifications, measurements, photographs, affidavits and interrogatory answers sufficient to conclude that there was no genuine issue of material fact. MCR 2.116(C)(10). We agree that the claim asserted could not be supported at trial because of a deficiency which could not be overcome. See Rizzo v Kretschmer, 389 Mich. 363; 207 NW2d 316 (1973).

Further, where the edge of a highway is defined by a curb, there is no duty to maintain the shoulder of the road and the four-wheel rule does not apply. Anderson v Macomb Co Road Comm, 143 Mich. App. 735; 372 NW2d 651 (1985), lv den 424 Mich. 882 (1986). In this case, Twelfth Street at the intersection of Hammerberg is, without dispute, bordered by a curb. Plaintiff argues that the curb was defective in that it was a "mountable" curb. However, plaintiff's complaint includes no such allegation and the argument will not be heard for the first time in this Court. People v Coons, 158 Mich. App. 735; 405 NW2d 153 (1987), lv den 428 Mich. 900 (1987). We find no error.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.