Marchyok v. City of Ann Arbor

679 N.W.2d 703 (2004) 260 Mich. App. 684 In re Estate of Janis Marchyok, Deceased. Katharine MARCHYOK and Delores Foster, Individually and as Co-Personal Representatives of the Estate of Janis Marchyok, deceased, and Douglas Marchyok, as Next Friend of Patrick Marchyok, Michael Marchyok and Richard Foster, Minors, Plaintiffs-Appellants, v. CITY OF ANN ARBOR, Defendant-Appellee. Docket No. 242409. Court of Appeals of Michigan. Submitted November 5, 2003, at Lansing. Decided February 24, 2004, at 9:05 a.m. Chapman and Associates, P.C. (by Brian J. Richtarcik), Bloomfield Hills, for the plaintiffs. Robert W. West, Assistant City Attorney, Ann Arbor, for the defendant. Before: O'CONNELL, P.J., and JANSEN and WILDER, JJ. JANSEN, J. In this wrongful death action, plaintiffs Katharine Marchyok, Delores Foster, Patrick Marchyok, Michael Marchyok, and Richard Foster appeal as right from an order granting defendant city of Ann Arbor's motion for summary disposition. We affirm. *704 The present case arises from an accident that occurred at the intersection of Catherine Street and Glen Street in Ann Arbor, Michigan. The decedent was walking west on the sidewalk on the north side of Catherine Street. While the pedestrian signal was showing "walk," the decedent attempted to cross Glen Street. At this same moment, the traffic light for westbound vehicles on Catherine Street turned green. The decedent was struck and killed by a bus turning right on to Glen Street. Plaintiffs brought suit. Defendant moved for summary disposition, relying on the doctrine of governmental immunity. The trial court granted defendant's motion for summary disposition on the basis of governmental immunity. Plaintiffs first argue that under M.C.L. § 257.610(a), municipalities must provide such traffic control devices as they deem necessary to regulate traffic and that defendant had notice of the dangerous conditions at the intersection in question yet failed to correct the problem. Plaintiffs contend that this constituted breach of an affirmative duty and created a cause of action against defendant. We disagree. We review de novo decisions to grant or deny summary disposition. Veenstra v. Washtenaw Country Club, 466 Mich. 155, 159, 645 N.W.2d 643 (2002). And the same standard applies to the interpretation and application of statutes. Eggleston v. Bio-Medical Applications of Detroit, Inc., 468 Mich. 29, 32, 658 N.W.2d 139 (2003). The Michigan Supreme Court has distinguished statutes that impose a duty to install traffic control devices from those that create causes of action for failing to maintain highways. Nawrocki v. Macomb Co. Rd. Comm., 463 Mich. 143, 181, 615 N.W.2d 702 (2000). An individual can seek to have a municipality held liable under the highway exception to governmental immunity pursuant to M.C.L. § 691.1402. Id. But the duty "implicating the installation, maintenance, repair, or improvement of traffic signs is expressly created" by a separate provision. Id. The statute imposing the duty to install traffic control devices, M.C.L. § 257.610(a), provides, in relevant part, the following: Local authorities ... shall place and maintain such traffic control devices upon highways under their jurisdiction as they may deem necessary to indicate and to carry out the provisions of this chapter or local traffic ordinances or to regulate, warn or guide traffic. Our Supreme Court emphasized the point that municipalities are required to do what they deem necessary to control traffic. Nawrocki, supra at 182, 615 N.W.2d 702. The statute grants municipalities discretion. Id. The statute does not contemplate the "imposition of a duty the breach of which subjects the agencies to tort liability." Id. at 181-182, 615 N.W.2d 702. Because there is no tort liability for a breach of the duties imposed by M.C.L. § 257.610(a), plaintiffs fail to state a claim on which relief can be granted. Therefore, upon review de novo, we find that summary disposition under MCR 2.116(C)(8) was proper. Plaintiffs next contend that defendant can be held liable under the highway exception to governmental immunity for the negligent failure to install or maintain traffic control devices. Plaintiffs argue that our Supreme Court's decision in Nawrocki, supra, only excludes the state and county road commissioners from such liability. We disagree. Summary disposition under MCR 2.116(C)(7) "is proper when a claim is barred by immunity granted by law." Fane v. Detroit Library Comm., 465 Mich. *705 68, 74, 631 N.W.2d 678 (2001). In order to get past such a motion, the plaintiff must "allege facts justifying the application of an exception to governmental immunity." Id. M.C.L. § 691.1407(1) grants immunity from tort liability to agencies in "exercising or discharging governmental functions." Weaver v. Detroit, 252 Mich.App. 239, 243, 651 N.W.2d 482 (2002). The act confers broad immunity and its exceptions must be narrowly construed. Nawrocki, supra at 158, 615 N.W.2d 702. Our Supreme Court has specifically applied this narrow construction to the highway exception provided in M.C.L. § 691.1402. Nawrocki, supra at 158, 615 N.W.2d 702. In Nawrocki, the Court held that the state and county road commissions are only liable for negligence in repairing and maintaining the "`roadbed actually designed for public vehicular travel,'" not traffic control devices. Id. at 180, 615 N.W.2d 702, quoting Scheurman v. Dep't of Transportation, 434 Mich. 619, 631, 456 N.W.2d 66 (1990). And the Court further noted that "traffic signals and signs are not implicated in the broad definition of highway in M.C.L. § 691.1401(e)." Nawrocki, supra at 182 n. 37, 615 N.W.2d 702. In a case involving a municipality, and where a pedestrian was killed by a falling light pole, this Court held "that, as with traffic signals and signs," the plain language of the statute does not support the conclusion that streetlight poles are part of the definition of the term "highway" in M.C.L. § 691.1401(e). Weaver, supra at 245, 651 N.W.2d 482, citing Nawrocki, supra at 180, 182 n. 37, 615 N.W.2d 702. Plaintiffs cite Cox v. Dearborn Hts., 210 Mich.App. 389, 534 N.W.2d 135 (1995), in support of their argument that traffic control devices are part of the highway for purposes of a municipality's liability for failure to repair and maintain traffic control devices. Our Supreme Court in Nawrocki, supra at 182 n. 37, 615 N.W.2d 702, noted the following: The dissent accuses us of "shifting" the liability for traffic control devices, including traffic signs, from the state and county road commissions, to local municipalities. While the purpose of our holding today is merely to return to a principled application of the plain language of the highway exception, we are constrained to respond to the dissent's misapprehension of the governmental immunity statute. Clearly, traffic signals and signs are not implicated in the broad definition of "highway" in M.C.L. § 691.1401(e); MSA 3.996(101)(e): "`Highway' means a public highway, road, or street that is open for public travel and includes bridges, sidewalks, trailways, crosswalks, and culverts on the highway. The term highway does not include alleys, trees, and utility poles." ... However, because traffic control devices are clearly not implicated in the broad definition of "highway," there can be no "shifting" of liability from the state and county road commissions to local municipalities. Plaintiffs, in this case, indicated that footnote 37 from Nawrocki, supra, was dicta and that Cox, supra, supported their argument. But this Court in Carr v. Lansing, 259 Mich.App. 376, 384-388, 674 N.W.2d 168 (2003), recently determined that the footnote was more than dicta and implicitly overruled Cox, supra,[1] as follows: *706 The [Nawrocki] Court's comments in footnote 37 [of Nawrocki, supra,] are more than mere dicta; they must be read as implicitly overruling Cox. The "governmental immunity statute as a whole" does not permit tort liability for inadequate signage or obstructed sight lines. Nawrocki, supra at 182, 615 N.W.2d 702. See also [Hanson v. Mecosta Co. Rd. Comm'rs, 465 Mich. 492, 502-503, 638 N.W.2d 396 (2002).] Indeed, in cases decided after Nawrocki, this Court has extended the holding... to municipalities. In Weakley v. Dearborn Hts., 240 Mich.App. 382, 387, 612 N.W.2d 428 (2000), ... this Court held that under the highway exception a municipality had a "duty to provide barriers or warning signs" with regard to points of special hazard. Our Supreme Court ... remanded Weakley for reconsideration in light of Nawrocki. Weakley [v. City of Dearborn Hts.], supra, 463 Mich. 980, 624 N.W.2d 188 (2001). On reconsideration, Weakley v. Dearborn Hts. (On Remand), 246 Mich.App. [322, 328, 632 N.W.2d 177] (2001), this Court cited Cox, supra, but held that the city "did not have a duty to make the sidewalk reasonably safe by placing a barrier or warning device around the portion of the sidewalk that was under repair." But this Court in Ridley [v. Detroit (On Remand), 246 Mich.App. 687, 691, 639 N.W.2d 258 (2001)], held that [Nawrocki, supra] did not apply to municipalities; consequently, a city could be liable under the highway exception for inadequate illumination because a "streetlight is not a utility pole and is not excluded by definition from the highway exception to governmental immunity." A special panel of this Court .... disagreed with the Ridley panel's analysis. Weaver, supra, 252 Mich.App. at 245, 651 N.W.2d 482. The special panel found the distinction the Ridley (On Remand) panel relied on between the state and county road commissions on the one hand, and municipalities on the other hand, to be "insignificant ... [in light of] the central theme of the Supreme Court's decision in Nawrocki... that `the immunity conferred upon governmental agencies is broad, and the statutory exceptions thereto are to be narrowly construed[,]' Nawrocki, supra at 158, 615 N.W.2d 702, [and that] `no action may be maintained under the highway exception unless it is clearly within the scope and meaning of [M.C.L. § 691.1402(1)].'" Weaver, supra, 252 Mich.App [at] 245, 651 N.W.2d 482, quoting Weakley, supra at 326, 612 N.W.2d 428 (emphasis in original). This Court held the city was immune from claims that it negligently maintained a streetlight pole because "a streetlight pole is not part of the `highway' " as defined in M.C.L. § 691.1401(e). Weaver, supra, 252 Mich.App. [at] 245, 651 N.W.2d 482. Although the Weaver special panel did not specifically reach the question of whether the Ridley (On Remand) panel correctly held that a municipality could be liable for inadequate street lighting, Weaver, supra, 252 Mich.App. [at] 246, 651 N.W.2d 482, our Supreme Court *707 thereafter vacated Ridley (On Remand) and remanded it again for reconsideration again in light of Weaver, supra, 252 Mich.App.239, 651 N.W.2d 482. Ridley v. City of Detroit (Ridley v Collins), 468 Mich. 862, 659 N.W.2d 228 (2003). On reconsideration in light of Weaver, the Ridley (On Second Remand) panel concluded that "because illumination is not part of the actual highway, the highway exception to governmental immunity does not apply and defendant city was entitled to judgment as a matter of law." Ridley v. City of Detroit (On Second Remand), 258 Mich.App. 511, 513, 673 N.W.2d 448 (2003).... After reviewing Weaver, supra, the Ridley (On Second Remand) panel reluctantly concluded that illumination "is not included within the statutory definition of `highway' [and] does not represent a defect in the highway itself because it is not part of the highway." Id. at 515, 673 N.W.2d 448. The panel reasoned that if inadequate signage is not within the highway exception, neither is inadequate illumination.... * * * ... [T]raffic control or warning signs, or sightlines, are not part of the "highway" as M.C.L. § 691.1401(e) defines that term. And in light of the emerging case law, it is clear that Cox, supra, has been overruled to the extent that it holds that the highway exception includes a "duty to maintain ... highways... [that] encompasses the duty to install adequate traffic signs." Cox, supra at 394-395, 534 N.W.2d 135. Because traffic control devices are not part of the highway under M.C.L. § 691.1401(e), we find that the highway exception to governmental immunity does not apply to the instant case. See Carr, supra; see also Nawrocki, supra at 182 n. 37, 615 N.W.2d 702; Weaver, supra at 245, 651 N.W.2d 482. Therefore, upon review de novo, we conclude that the trial court did not err in granting defendant's motion for summary disposition under MCR 2.116(C)(7). Affirmed. WILDER, J., concurred. O'CONNELL, P.J. (dissenting). I respectfully dissent. The primary issue in this case concerns the definition of "highway" as it applies to municipalities, and the scope of a municipality's responsibility for a "highway" within its jurisdiction. Unquestionably, the statutory definition of "highway" includes "crosswalks." M.C.L. § 691.1401(e). Therefore, according to the plain language of M.C.L. § 691.1402, a person may recover damages for personal injury or property damage caused by a city's failure "to keep a [crosswalk[1] under its jurisdiction in reasonable repair and in a condition reasonably safe and fit for travel...." In contrast to county road commissions and the state,[2] the Legislature did not limit a plaintiff's recovery from municipalities to damages arising only from defects in the "improved portion of the highway designed for vehicular travel." *708 Id. It could have applied this "roadbed" restriction[3] to cities as well, but it did not. Farrington v. Total Petroleum, Inc., 442 Mich. 201, 210, 501 N.W.2d 76 (1993). I would follow established and binding precedent and reiterate that traffic control devices are part of the "highway" and incorporated into the highway exception to municipal immunity. Cox v. Dearborn Hts., 210 Mich.App. 389, 397, 534 N.W.2d 135 (1995). By holding otherwise, the majority grafts a severe and unintended limitation onto the legislative design and seriously erodes the municipal accountability that the Legislature intended to create. The majority's analysis posits that Cox lacks value as binding precedent today, but such a declaration requires close scrutiny of the majority's analysis and cited authority. The majority incorrectly states that our Supreme Court in Nawrocki v. Macomb Co. Rd. Comm., 463 Mich. 143, 180, 615 N.W.2d 702 (2000), based its decision regarding the liability of county road commissions and the state on the understanding that traffic control devices were not part of the definition of "highway" under M.C.L. § 691.1401(e). On the contrary, Nawrocki expressly limited its analysis to the clear legislative intent that the state and the county road commissions were only liable for defects to the roadbed according to the fourth sentence of M.C.L. § 691.1402(1). Nawrocki, supra at 179-180, 183-184, 615 N.W.2d 702. Therefore, the majority misplaces its reliance on any substantive portion of Nawrocki. Furthermore, before the footnote that contains the dicta that the majority cites as dispositive, Nawrocki recognizes that the Legislature's definition of "highway" could otherwise arguably include traffic control devices if it were not for the fourth sentence of M.C.L. § 691.1402(1). Nawrocki, supra at 182 n. 36, 615 N.W.2d 702. The statute's fourth sentence plainly does not apply to this case, so contrary to the ruling in Carr v. Lansing, 259 Mich.App. 376, 384, 674 N.W.2d 168 (2003), Nawrocki refrained from deciding whether the term "highway" could encompass traffic control devices as the term pertains to municipalities. The expressly limited application of Nawrocki to the duty of the state and counties should dispose of any notion that Nawrocki overruled Cox, implicitly or otherwise.[4] Carr obviously conflicts with Cox. We released Cox in 1995 and released Carr in 2003. According to MCR 7.215(J)(1), the first opinion released by this Court is binding on subsequent panels. Novak v. Nationwide Mut. Ins. Co., 235 Mich.App. 675, 690, 599 N.W.2d 546 (1999). Moreover, O'Hare v. Detroit, 362 Mich. 19, 106 N.W.2d 538 (1960), which is consistent with Cox, is a Supreme Court decision. Inexplicably, the majority opinion adopts the reasoning of Carr and improperly fails to acknowledge the significance of O'Hare. See Soltis v. First of America Bank-Muskegon, 203 Mich.App. 435, 441, 513 N.W.2d 148 (1994). *709 Delving deeper into the cases that support the majority's position fails to unearth any overriding justification for holding contrary to our established precedent. For example, the majority relies, as did Carr, on the decision in Weaver v. Detroit, 252 Mich.App. 239, 243, 651 N.W.2d 482 (2002), but that decision dealt with a streetlamp and barely mentioned Cox. Moreover, none of the majority's supporting cases considered O'Hare, supra at 23, 106 N.W.2d 538, which expressly recognizes municipal liability for installed but improperly maintained signage. In O'Hare, supra at 23-24, 106 N.W.2d 538, our Supreme Court stated, "It seems obvious to us that once a municipality has decided to exercise the discretion vested in it to declare one street a through street and erect a stop sign facing the subordinate street, the stop sign becomes an important part of the physical appurtenances of the street." Because our Supreme Court has never overruled either Cox or O'Hare, the majority can only assume that these precedential cases no longer remain in force. Similarly, Carr improperly fails to follow Cox and O'Hare where it should, and also completely avoids the substance of the municipal issue by declaring its stop sign part of a state intersection. Carr, supra at 381-383, 674 N.W.2d 168. Therefore, contrary to the majority's suppositions, Carr does not bind our decision today, and the majority misplaces its reliance on it. In contrast to the questionable assumptions about legislative intent adopted by the majority and its cited cases, the Legislature, in M.C.L. § 691.1402a, plainly indicates its intent to include defective traffic control devices and other defective "installations" as part of the highway exception to municipal immunity. The statute begins by limiting a municipality's liability for defects on county roads. It then adds, however, that the caveat for county roads "does not prevent or limit a municipal corporation's liability if ... 30 days before the occurrence ... the municipal corporation knew ... of the existence of a defect in a sidewalk, trailway, crosswalk, or other installation outside of the improved portion of the highway designed for vehicular travel." M.C.L. § 691.1402a (emphasis added). Given this language, it is irrational to assume that the Legislature did not intend to hold municipalities liable for defective installations, such as traffic control devices.[5] Such a dismissive reading of this statute improperly renders the "installation" language mere surplusage and its *710 meaning nugatory. It is also irrational to assume that the Legislature intended to hold a municipality liable for installations on county roads but not on roads completely under its jurisdiction.[6] The legislative edict is clear—Municipalities, repair your highways or face the consequences.[7]Cox and O'Hare correctly hold municipalities liable for defective installations, including traffic control devices, and we are bound to follow those cases today. Because Ann Arbor's alleged failure to keep the crossing signal repaired was ostensibly a failure to "keep" the crosswalk in "a condition reasonably safe and fit for travel," I would remand to the trial court for its preliminary determination of this issue. M.C.L. § 691.1402 (emphasis added). NOTES [1] In response to the dissent, we note that it is interesting that the dissent cites MCR 7.215(J)(1), as this is the same rule that requires us to follow the precedent established by Carr, supra. We further note that there has been a judicial practice of, and there is authority to support, a panel of this Court finding that a binding opinion of another panel of this Court has been implicitly overruled by a subsequent Supreme Court decision. See Barnes v. Int'l Business Machines Corp., 212 Mich.App. 223, 225-226, 537 N.W.2d 265 (1995); Zwolinski v. Dep't of Transportation (After Remand), 210 Mich.App 496, 499, 534 N.W.2d 163 (1995); People v. Alexander (After Remand), 207 Mich.App. 227, 230, 523 N.W.2d 653 n. 1; 207 Mich.App. 227, 523 N.W.2d 653 (1994); see also Gilmore v. Parole Bd., 247 Mich.App. 205, 214, 635 N.W.2d 345 (2001). [1] The fact that a crosswalk falls under the definition of "highway" found in M.C.L. § 691.1401(e) justifies the substitution of the word "crosswalk" for the word "highway" in the quotation. [2] County road commissions and the state are not liable for crosswalks by the express language of M.C.L. § 691.1402. However, this distinction only underscores the difference between this case, which deals with the city of Ann Arbor, and the cases cited by the majority that deal with county road commissions and the state. [3] In Nawrocki v. Macomb Co. Rd. Comm., 463 Mich. 143, 183, 615 N.W.2d 702 (2000), the Supreme Court explained the restriction by suggesting that the Legislature severed a highway into two parts—"the portion of the roadbed designed for vehicular travel," and the balance of the highway. Nawrocki proposes that the duty of the state and county road commissions extends only to the improved portion. Municipalities, however, are responsible for the entire highway, including sidewalks, culverts, crosswalks, etc. M.C.L. § 691.1402(1); M.C.L. § 691.1401(e). [4] I am unfamiliar with the judicial practice of overruling binding precedent by implication, so I leave it to the majority to explain the practical effects of such a doctrine on our obligations under MCR 7.215(J)(1). [5] When the three statutes are read together, the Legislature's design becomes apparent. It makes sense for individual municipalities to bear the cost of known defective installations under their control rather than holding the entire state or the county liable for those defects. The statutory design recognizes that individual citizens may not possess the political strength to change a defect in a different county or a different township on the other side of their county, but can force their local governments to correct any defects. By holding municipalities liable for defective installations, the Legislature protects individual citizens from the catastrophic results of dangerous sidewalks, dilapidated footbridges, malfunctioning stoplights, and other highway defects by putting responsibility for such defects on the political organizations that have the strongest incentive to correct them—municipalities. More important than the Legislature's justifications, however, is its intent. Only by closing one's eyes to the language in M.C.L. § 691.1402a can one hold that it manifests the Legislature's ignorance or whimsy rather than a simple intent to hold municipalities liable for reasonable maintenance of their installations. By liberating municipalities from their designated responsibility, the majority undermines the legislative plan and leaves injured citizens to pay for the ramifications that flow from defective maintenance of their cities' infrastructures. Therefore, when the majority undermines the system designed by the Legislature, it not only oversteps its function of enforcing the law as written but also unnecessarily fails to serve the interests of this state's citizenry. [6] I note that any strict limitation of the definitional language in M.C.L. § 691.1401 to those objects specifically included in the definition of "highway" would render nugatory all the exclusions that follow the list of included items. The definition would not need to exclude anything if the Legislature intended to include only the listed items. The more logical approach recognizes that the Legislature merely intended to outline the scope of the term "highway" by providing concrete examples of included and excluded items. While not as clear-cut as we may like, the Legislature employed this method as a means of leaving close questions to the judiciary: a responsibility we should accept rather than avoid. [7] The Legislature intentionally allows municipalities to face suit as a means of ensuring that our older cities will diligently repair their roads, including the roads' appurtenances. The threat of potential lawsuits keeps our cities' roads, sidewalks, and crosswalks safe and in constant repair.