Alpert v. City of Ann Arbor , 172 Mich. App. 223 ( 1988 )

172 Mich. App. 223 (1988) 431 N.W.2d 467

ALPERT
v.
CITY OF ANN ARBOR
ALPERT
v.
DEPARTMENT OF TRANSPORTATION

Docket Nos. 95766, 96112.

Michigan Court of Appeals.

Decided October 17, 1988.

Lakin, Worsham & Victor, P.C. (by Larry A. Smith), for plaintiff.

R. Bruce Laidlaw, for the City of Ann Arbor.

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

Before: KELLY, P.J., and SULLIVAN and M.J. SHAMO,^[*] JJ.

KELLY, P.J.

These cases are consolidated on appeal. Plaintiffs brought separate actions against the City of Ann Arbor and the Michigan Department of Transportation. Plaintiffs also brought an action against the driver and the owner of the car that struck plaintiff Michelle Alpert; however, that action is not part of this appeal.

The trial court entered an order granting the City of Ann Arbor's motion for summary disposition which plaintiffs are now appealing. The trial court, acting as the Court of Claims, denied the MDOT'S motion for summary disposition, and the state appealed. These are the two consolidated actions. We affirm in part and reverse in part.

On April 26, 1984, at approximately 11:30 P.M., University of Michigan student Michelle Alpert attempted to walk across Washtenaw Avenue, just north of Hill Street, in the City of Ann Arbor. This section of Washtenaw Avenue has four lanes, two southbound and two northbound, and runs through a residential area consisting of homes, fraternity and sorority houses, and churches. While standing near the double yellow line in the middle of the road, waiting for southbound traffic to clear, Michelle was struck by a northbound car and suffered severe injuries.

In their suits against the MDOT, and later the City of Ann Arbor, plaintiffs essentially alleged that the lighting on Washtenaw Avenue where the accident occurred was inadequate to ensure reasonable safety for public travel. The portion of Washtenaw Avenue at issue did have street lights. However, plaintiffs argued that the artificial light provided was below safety standards. The driver of the car alleged that he did not see plaintiff until it was too late to avoid her.

The state and all governmental units are generally immune from tort liability when engaged in the exercise or discharge of a governmental function. MCL 691.1407; MSA 3.996(107). The Supreme Court has recognized four statutory exceptions to the broad grant of immunity given to governmental units by the governmental immunity act. MCL 691.1401 et seq.; MSA 3.996(101) et seq. See Ross v Consumers Power Co (On Rehearing), 420 Mich. 567, 593-594; 363 NW2d 641 (1984). The exception at issue here is the defective highway exception of MCL 691.1402; MSA 3.996(102), which provides:

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 liability, procedure and remedy as to county roads under the jurisdiction of a county road commission shall be as provided in section 21, chapter 4 of Act No. 283 of the Public Acts of 1909, as amended, being section 224.21 of the Compiled Laws of 1948. The 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. No action shall be brought against the state under this section except for injury or loss suffered on or after July 1, 1965. Any judgment against the state based on a claim arising under this section from acts or omissions of the state highway department shall be payable only from restricted funds appropriated to the state highway department or funds provided by its insurer.

It is undisputed that Washtenaw Avenue is a state trunkline highway. In Beyer v Fraternal Order of Eagles, Aerie No 668, 123 Mich. App. 492, 497; 333 NW2d 314 (1983), this Court made clear the following:

The state has jurisdiction over all state trunkline highways. Const 1963, art 5, § 28. By statute, the state must incur all maintenance costs and legal liabilities for state trunkline highways, relieving counties, townships, incorporated cities and villages of these responsibilities. MCL 250.61; MSA 9.901.

This liability is not shifted to another unit of government by way of a contractual maintenance agreement; only the state is liable for state trunkline highways. Id. See also Killeen v MDOT, 151 Mich. App. 7; 390 NW2d 676 (1986).

On the basis of this conclusion we find no error in the trial court's decision granting the City of Ann Arbor's motion for summary disposition. We are left then to decide whether the denial of the state's motion for summary disposition was appropriate.

In Scheurman v MDOT, 162 Mich. App. 774; 413 NW2d 496 (1987), a similar fact situation was presented. There, the plaintiff's decedent attempted to cross eastbound Eight Mile Road on foot, at night, and was struck and killed by an automobile. The plaintiff brought an action against the state based on the facts that Eight Mile Road was a state trunkline highway and the state had failed to provide adequate lighting. Defendant in Scheurman contended, as it does here, that MCL 691.1402; MSA 3.996(102) extended state liability only to the "improved portion of the highway designed for vehicular travel" and that did not include street lighting.

The Scheurman Court concluded that "the type of lighting alleged here would be an integral part of the improved portion of the highway necessary for vehicular travel." Scheurman, supra at 779. In reaching this conclusion the Scheurman Court relied in large part on Zyskowski v Habelmann, 150 Mich. App. 230, 239-240; 388 NW2d 315 (1986), vacated 429 Mich. 873 (1987). When Zyskowski was vacated, the Supreme Court remanded the case back to this Court for consideration of all issues raised on appeal. On remand, the panel in Zyskowski did an about-face, concluding "that the illumination or lack of illumination does not constitute part of the `improved portion of the highway designed for vehicular travel' such that the county can be held liable for its failure to repair and maintain the lighting under the statutory exception to governmental immunity." Zyskowski v Habelmann (On Remand), 169 Mich. App. 98, 104; 425 NW2d 711 (1988). The only real factual difference between Scheurman and Zyskowski is that the plaintiff's decedent in Zyskowski was killed while walking along a county road as opposed to a state trunkline highway.

A third similar fact situation was presented in Michonski v Detroit, 162 Mich. App. 485; 413 NW2d 438 (1987). There, the plaintiff was injured while doing maintenance on a street light, normally maintained by the City of Detroit, and located next to Woodward Avenue, a state trunkline highway. The state was granted summary disposition on the plaintiff's claim. Because the plaintiff made no argument on appeal concerning the court's granting of the state's motion, the issue of the state's liability was deemed abandoned and not considered.

Although concluding that the trial court was correct in determining that the plaintiff's injury did not arise out of the defendant's (the city's) failure to keep the highway maintained since Woodward Avenue was a state trunkline highway not within the city's jurisdiction, the Michonski panel nonetheless concluded summary disposition with regard to the city was improper. This Court concluded that the trial court's determination that the defective highway exception did not encompass a light pole located on a berm (not a sidewalk) was erroneous as a matter of law since, "[i]n contrast to the state and counties, the liability of municipalities under MCL 691.1402; MSA 3.996(102) is not limited to improved portions of highways designed for vehicular travel." Michonski, supra at 494, quoting Davis v Chrysler Corp, 151 Mich. App. 463, 469; 391 NW2d 376 (1986).

Section 2 of the governmental immunity act, the defective highway exception to governmental immunity, specifically limits the exception for the state and county to "only ... 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." MCL 691.1702; MSA 3.996(102). This limitation of the exception to immunity for the state and counties is in contrast to the liability imposed on municipalities and other units of government by § 2 of the act.

Section 2 of the act is one of only four narrowly drawn exceptions to the broad grant of governmental immunity given by the act. See Ross, supra at 618. See also MCL 691.1407; MSA 3.996(107). In light of the broad grant of immunity, and the narrow exception given where state liability is concerned in § 2 of the act, we agree with the Zyskowski (On Remand) decision. We decline to extend the § 2 exception to include street lighting as part of the improved portion of the highway with regard to liability of the state and counties.

Affirmed in part, and reversed in part.

NOTES

[*] Recorder's Court judge, sitting on the Court of Appeals by assignment.