The Court of Appeals issued a published opinion holding that a depression on the edge of a state highway (M-22), which was located at the edge of the curb in a parallel parking spot, was a “defect” in the improved portion of the roadbed designed for vehicular travel sufficient to invoke the highway exception to governmental immunity.
In Yono v. Michigan Dep’t of Transportation, ___ Mich. App. ___ (released December 20, 2012) (Docket No. 308968), the Court addressed the plaintiff’s claim that a fall she suffered due to a depression on the surface of M-22, just before the curb and within a parallel parking space was an actionable “defect” within the meaning of the highway exception to governmental immunity.
Addressing two of the most pertinent cases, the majority explains that Nawrocki v. Macomb County Rd. Comm’n, 463 Mich. 143 (2000) held that a pedestrian could state a cause of action for injury caused by a “defect” (cracked and/or broken pavement) when the defect existed in the improved portion of the highway designed for vehicular travel. The Court then analyzed the Supreme Court’s decision in Grimes v. Dep’t of Transportation, 475 Mich. 72 (2006), in which the Court refused to extend the highway exception to the shoulders of highways because they were not “designed for vehicular travel”. Because the highway shoulder is not designed for vehicular travel, the Court in Grimes held the government only had a duty to repair and maintain that portion of the highway that contains “travel lanes”.
Applying these two cases, however, the Court of Appeals holds that the plaintiff stated a cause of action, even though, per Grimes the defect appears to have been in a portion of the highway not designed for vehicular travel, i.e., not a travel lane, per se. Slip Op. at 4-7.
The Court reasoned that in Grimes, while the Supreme Court did not give the term “travel” its broadest possible definition, it also did not narrow it to exclude specialized, dual-purpose, or limited access travel lanes. Slip Op. at 4, citing Grimes, supra at 89-91. The Court also places emphasis on whether or not and to what extent the particular location is “designed” for vehicular travel. Id. at 5.
Judge Talbot dissents. He explains the portion of the roadway where plaintiff was allegedly injured is not, in his view, “in the improved portion of the highway designed for vehicular travel”. It is rather, “at the edge of the parallel parking lane ‘abutting the concrete gutter and curb'”.
Judge Talbot also takes issue with the majority’s liberty in asserting that the Supreme Court’s failure to restrict the concept of travel gave it authority to construe the statute in a manner broader than that indicated by the Legislature.
There is merit to Judge Talbot’s dissent. It certainly appears the majority broadly construed an exception to immunity, which is prohibited when interpreting statutes that waive the government’s suit immunity. Strict or narrow interpretation of statutory provisions that allow suits against the government is a well-established principle of statutory construction that has its roots in the jurisdictional principles underlying governmental immunity.
Common-law immunity from suit and liability preexisted the Governmental Tort Liability Act. This common-law immunity could only be waived by express statutory consent. The People, through the Legislature, allow suits against the government in only a small subset of cases and circumstances. Any court that liberalizes the statutory provisions allowing such suits is at risk of overstepping its authority because only the People, through the Legislature, can vest in courts of law the subject-matter jurisdiction necessary to adjudicate the merits of a suit against the government. As it goes, the state created the courts and so is not subject to them except by unequivocal statutory consent.
It will be interesting to see what happens in this case. Read the opinion here: Yono v Dept of Transp