Ridley v. City of Detroit

639 N.W.2d 258 (2001) 246 Mich. App. 687 Andrew Jean RIDLEY, Personal Representative of the Estate of Jeffrey Ridley, Deceased, Plaintiff-Appellee, v. CITY OF DETROIT, Department of Public Lighting, Defendant-Appellant, and Guyanne C. Collins, Defendant. Docket No. 194350. Court of Appeals of Michigan. Submitted January 9, 2001, at Lansing. Decided July 17, 2001, at 9:05 a.m. Released for Publication October 9, 2001. Mosabi Hamed, Southfield, for the plaintiff. Phyllis A. James, Corporation Counsel, and Joanne D. Stafford, Supervising Assistant Corporation Counsel, Detroit, for the city of Detroit. Frank K. Penirian, Jr., Detroit, Amicus Curiae. Before: SAWYER, P.J., and MURPHY and DOCTOROFF, JJ. ON REMAND DOCTOROFF, J. This case is before us on remand [1] from the Supreme Court for reconsideration in light of Evens v. Shiawassee Co. Rd. *259 Comm'rs, 463 Mich. 143, 615 N.W.2d 702 (2000). In our previous decision, we affirmed the trial court's entry of judgment for plaintiff, rejecting defendant's[2] argument that plaintiff's claim was barred by governmental immunity. Ridley v. Detroit, 231 Mich.App. 381, 590 N.W.2d 69 (1998). After reviewing the Evens decision, we conclude that the Supreme Court's modification of the highway exception to governmental immunity does not apply to the facts of this case and we reaffirm our previous holding. In our previous opinion, we briefly summarized the facts of this case as follows: On July 25, 1992, at approximately midnight, Jeffrey Ridley was attacked on Jefferson Avenue by a group of eight to ten men. After the beating, Jeffrey tried to stand, but was struck by an automobile driven by defendant Collins and knocked down. Jeffrey was struck again by another automobile a minute or two later. He died. Several witnesses at trial testified that the street lights along Jefferson Avenue were not functioning on the night Jeffrey was killed and had not been functioning for some time. The trial court found that defendant [city of Detroit] had been negligent in failing to provide street lighting and found liability and damages for plaintiff. [Ridley, supra at 383-384, 590 N.W.2d 69.] Defendant argued that plaintiff's claim was barred by governmental immunity because its liability was limited to defects arising out of its failure to maintain the improved portion of the highway designated for vehicular traffic, citing M.C.L. § 691.1402(1). However, we found that the portion of the statute limiting liability to "the improved portion of the highway designed for vehicular travel" applied only to the state and county road commissions, and that, as a municipality, defendant's liability would not be limited by the final clause of M.C.L. § 691.1402(1). Ridley, supra at 385-386, 590 N.W.2d 69. In its decision in Evens, our Supreme Court sought to clarify existing authority establishing the limits of the highway exception to governmental immunity. The Court began by carefully examining the language of M.C.L. § 691.1402 and concluded that the highway exception to governmental immunity establishes a general duty on all governmental agencies to maintain the highways under their jurisdiction in reasonable repair. Evens, supra at 160, 615 N.W.2d 702. The Supreme Court further concluded, consistent with our holding in Ridley, that the last clause of M.C.L. § 691.1402(1) limiting liability only to the improved portion of the highway designated for vehicular travel applies specifically to the state and county road commissions. Evens, supra at 161-162, 615 N.W.2d 702. Because the defendants in both Evens and its companion case, Nawrocki v. Macomb Co. Rd. Comm., were county road commissions, the Supreme Court found that the last clause of the statute applied to limit the defendant's liability in both cases. Id. at 172, 184, 615 N.W.2d 702. However, in this case, defendant is a municipality, not the state or a county road commission. Because the defendants in Evens and Nawrocki were county road commissions, the Supreme Court did not address what, if any, limitations to the highway exception to governmental immunity apply to units of government that are not the state or county road commissions. Hence, the Supreme Court's opinion in Evens did not alter the essential holding of *260 our previous decision. In fact, the language of Evens implicitly affirms our holding that the final clause of M.C.L. § 691.1402(1) applies only to the state or county road commissions. Therefore, we reaffirm our conclusion that defendant's liability in this case is not limited to maintaining the improved portion of the highway designated for vehicular traffic. We also held in our previous opinion that a streetlight is not a utility pole and is not excluded by definition from the highway exception to governmental immunity. Ridley, supra at 387, 590 N.W.2d 69. Whether a streetlight is included within the definition of a utility pole under M.C.L. § 691.1401(e)[3] and would thereby be excluded from the definition of a highway was not at issue in either Evens or Nawrocki and was not addressed by the Supreme Court's opinion in those cases. Therefore, our previous holding remains unaltered. However, one of the holdings of our previous decision does require new analysis in light of the Evens decision. Defendant argued that it should not be liable for the decedent's injuries because the lack of lighting on Jefferson Avenue was not an unreasonably unsafe condition. However, we reached the opposite conclusion, specifically finding that, under the facts of the case, the lack of lighting was unreasonably unsafe. Ridley, supra at 388, 590 N.W.2d 69. As noted above, the Supreme Court in Evens construed the language of M.C.L. § 691.1402(1) as creating a general duty on the part of governmental agencies to maintain highways in their jurisdiction "in reasonable repair." Evens, supra at 160, 615 N.W.2d 702. In Ridley, we evaluated defendant's liability on the basis of whether the lack of illumination was "unreasonably unsafe." Ridley, supra at 387-388, 590 N.W.2d 69. Therefore, we must reevaluate this conclusion on the basis of the more specific standard announced in Evens. Taking into account the revised standard, we nevertheless conclude that we reached the correct result in Ridley. Because we held that a streetlight is not excluded from the definition of a highway under M.C.L. § 691.1401(e), defendant was under a duty to maintain the streetlights on Jefferson Avenue in reasonable repair. Evens, supra at 160, 615 N.W.2d 702. As we stated in Ridley: The determination of reasonableness in the context of liability of a governmental agency to maintain highways "must necessarily be made by overview of the factors of a given case, such as the danger imposed by the defective article or lack of safety device or design, the increase in safety provided by the new device or design, the cost of repair or installation, and others." [Ridley, supra at 388, 590 N.W.2d 69, quoting Hall v. Dep't of State Hwys., 109 Mich.App. 592, 605, 311 N.W.2d 813 (1981).] We are persuaded that streetlights designated to illuminate a heavily traveled urban highway that, according to eyewitnesses, had not been functioning for at least two months before the accident at issue in this case could not be considered to be in reasonable repair.[4] Because defendant *261 failed to meet its duty to maintain the streetlights in reasonable repair, we again reject defendant's argument that it should not have been found liable. Affirmed. MURPHY, J., concurred. SAWYER, P.J. (concurring in part and dissenting in part). I agree with the majority to the extent that they conclude that the Supreme Court's decision in Evens v. Shiawassee Co. Rd. Comm'rs, 463 Mich. 143, 615 N.W.2d 702 (2000), does not affect this case because Evens dealt with state and county liability whereas this case involves a municipality. However, I write separately to state that I continue to believe that this matter was incorrectly decided originally and that I continue to adhere to the views expressed in my original dissent. Ridley v. Detroit, 231 Mich.App. 381, 390, 590 N.W.2d 69 (1998) (Sawyer, P.J., dissenting). Accordingly, I urge the Supreme Court to take this case up on the merits and reverse. NOTES [1] Ridley v. Detroit, 463 Mich. 932, 622 N.W.2d 65 (2000). [2] Defendant Guyanne C. Collins is not a party to this appeal. For purposes of this opinion, the term defendant will be used only to refer to the city of Detroit. [3] The version of M.C.L. § 691.1401(e) that was in effect in 1992 defined "highway" as "every public highway, road, and street which is open for public travel and shall include bridges, sidewalks, crosswalks, and culverts on any highway. The term highway does not include alleys, trees, and utility poles." [4] This Court recently addressed the scope of a municipality's duty under the highway exception to governmental immunity in light of our Supreme Court's decision in Nawrocki v. Macomb Co. Rd. Comm., 463 Mich. 143, 615 N.W.2d 702 (2000), the companion case to Evens, supra. In Weakley v. Dearborn Heights (On Remand), 246 Mich.App. 322, 632 N.W.2d 177 (2001), this Court reversed its previous holding and affirmed the trial court's order granting summary disposition in favor of the defendant with regard to the plaintiff's claims concerning a missing section of a public sidewalk on which the plaintiff tripped. Although this Court in Weakley reached an apparent contrary result to our decision in this case, we see no conflict where the Weakley Court agreed with our determination that the appropriate duty of the municipality is to maintain the highway in reasonable repair. Id.