VERA SEKULOV V LEON J BODEN
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STATE OF MICHIGAN
COURT OF APPEALS
VERA SEKULOV, Personal Representative of the
Estate of RADE SEKULOVSKI, Deceased,
FOR PUBLICATION
May 14, 2002
9:00 a.m.
Plaintiff-Appellant,
v
No. 228159
Macomb Circuit Court
LC No. 98-000497-NP
CITY OF WARREN and COUNTY OF
MACOMB,
Defendants-Appellees.
Updated Copy
August 16, 2002
Before: Neff, P.J., and Fitzgerald and Talbot, JJ.
NEFF, P.J.
Plaintiff Vera Sekulov appeals as of right from the trial court's orders granting summary
disposition in favor of defendants city of Warren and Macomb County. We reverse in part,
affirm in part, and remand for further proceedings.
I
In February 1997, plaintiff 's decedent, Rade Sekulovski, was struck and killed by an
oncoming vehicle as he crossed Mound Road in Warren on his way to work at a Chrysler plant.
Sekulovski was crossing at a designated crosswalk, which led from an employee parking lot on
the west side of Mound Road, across seven lanes of highway, to the plant on the east side of
Mound Road. The driver of the vehicle was also a Chrysler employee and had just driven out of
the parking lot onto the highway. The crosswalk traversed the traveled portion of the highway,
i.e., the roadbed. Plaintiff filed a negligence action against the driver of the vehicle and
defendants city of Warren and Macomb County. Plaintiff settled her claim against the driver.
The trial court subsequently granted summary disposition in favor of defendants.
II
Plaintiff argues that the trial court erred in granting summary disposition in favor of
Macomb County. We agree. This case involves review of a decision on a motion for summary
disposition and also presents a question of statutory construction, both of which are subject to
review de novo. Hanson v Mecosta Co Rd Comm'rs, 465 Mich 492, 497; 638 NW2d 396 (2002).
The trial court granted summary disposition to Macomb County under MCR 2.116(C)(7) (claim
barred by immunity granted by law). In reviewing a motion under this subrule, the trial court
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must consider any supporting evidence submitted by the parties, including affidavits,
depositions, and admissions, to determine whether the claim is barred by immunity granted by
law. McGoldrick v Holiday Amusements, Inc, 242 Mich App 286, 289-290; 618 NW2d 98
(2000).
Governmental immunity is the public policy limiting imposition of tort liability on a
governmental agency. Nawrocki v Macomb Co Rd Comm, 463 Mich 143, 155-156; 615 NW2d
702 (2000). Immunity from tort liability, as codified by the governmental immunity act, MCL
691.1401 et seq., "is expressed in the broadest possible languageāit extends immunity to all
governmental agencies for all tort liability whenever they are engaged in the exercise or
discharge of a governmental function." Nawrocki, supra at 156. The five specific statutory
exceptions to governmental immunity are to be narrowly construed. Id. at 156, 158; Robinson v
Detroit, 462 Mich 439, 455; 613 NW2d 307 (2000).
In avoidance of governmental immunity, plaintiff relies on the statutory highway
exception, MCL 691.1402(1), which, at the time this action arose, provided:
Each governmental agency having jurisdiction over a highway shall
maintain the highway in reasonable repair so that it is reasonably safe and
convenient for public travel. A person sustaining bodily injury or damage to his
or her property by reason of failure of a governmental agency to keep a highway
under its jurisdiction in reasonable repair, and in condition reasonably safe and fit
for travel, may recover the damages suffered by him or her from the governmental
agency. . . . The duty of the state and the county road commissions to repair and
maintain highways, and the liability for that duty, extends only to the improved
portion of the highway designed for vehicular travel and does not include
sidewalks, crosswalks, or any other installation outside of the improved portion of
the highway designed for vehicular travel.
In Nawrocki, supra at 176, and its companion case, Evens v Shiawassee Co Rd Comm'rs,
the Supreme Court, relying on Ross v Consumers Power Co (On Rehearing), 420 Mich 567; 363
NW2d 641 (1984), noted that the duty of the state and county road commissions "is significantly
limited, extending only to the improved portion of the highway designed for vehicular travel."
(emphasis in original). The Court stated:
The state and county road commissions' duty, under the highway
exception, is only implicated upon their failure to repair or maintain the actual
physical structure of the roadbed surface, paved or unpaved, designed for
vehicular travel, which in turn proximately causes injury or damage. A plaintiff
making a claim of inadequate signage, like a plaintiff making a claim of
inadequate street lighting or vegetation obstruction, fails to plead in avoidance of
governmental immunity because signs are not within the paved or unpaved
portion of the roadbed designed for vehicular travel. Traffic device claims, such
as inadequacy of traffic signs, simply do not involve a dangerous or defective
condition in the improved portion of the highway designed for vehicular travel.
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Evens argues that the SCRC failed to install additional traffic signs or
signals that might conceivably have made the intersection safer. Because the
highway exception imposes no such duty on the state or county road
commissions, we reverse the decision of the Court of Appeals and reinstate the
trial court's grant of summary disposition to the SCRC. [Nawrocki, supra at 183184 (citation omitted).]
Plaintiff contends that the decision in Nawrocki should be applied prospectively only.
We agree. The general rule is that judicial decisions are to be given complete retroactive effect.
Lincoln v General Motors Corp, 461 Mich 483, 491; 607 NW2d 73 (2000). Prospective
application has generally been limited to decisions that overrule clear and uncontradicted case
law. Id. By its own express terms, Nawrocki overruled clear and uncontradicted case law,
specifically Pick v Szymczak, 451 Mich 607; 548 NW2d 603 (1996), so the general rule is
inapplicable, and Nawrocki has only prospective application. Lincoln, supra; Nawrocki, supra at
180.
In this case, plaintiff alleged that Macomb County breached its duty to design roadways,
crosswalks, and pedestrian traffic lights in a reasonably safe manner. Specifically, plaintiff
alleged that Macomb County (1) failed to maintain appropriate signage, (2) failed to maintain
adequate traffic control devices, (3) failed to make improvements to the roadway and crosswalk
despite notice of previous, similar accidents, and (4) failed to provide adequate lighting to
illuminate the area.
Nawrocki overruled existing law on which plaintiff relied in commencing, litigating, and
settling her claims in this action. Id. at 176-177, 180. In overruling this precedent, Nawrocki
thus eliminated under the highway exception any claim premised on areas of special danger and
the installation, maintenance, repair, or improvement of traffic control devices, including
signage. Id. at 176-177, 180, 183. In this context, giving Nawrocki full retroactive effect is
unjust and unwarranted. Pohutski v Allen Park, 465 Mich 675; 641 NW2d 219 (2002).
More recently, in Hanson, supra, the plaintiff 's claims that a county road was poorly
designed were determined to be insufficient to avoid governmental immunity. The Court
explained: "Nowhere in the statutory language is there a duty to install, to construct or to correct
what may be perceived as a dangerous or defective 'design.'" Id. at 501 (emphasis in original).
Accordingly, we must also determine whether Hanson is to be applied prospectively only. As
Justice Kelly points out in her dissent in Hanson, a significant body of law before Hanson held
governmental entities liable for defective highway design. Id. at 505. Accordingly, following
the analysis applied above, we conclude that Hanson, like Nawrocki, overruled clear and
uncontradicted case law and should have prospective application only.
III
The question then becomes whether plaintiff has sufficiently pleaded a cause of action in
avoidance of governmental immunity, and we hold that she has. In granting summary
disposition in favor of Macomb County, the trial court ruled that the simple fact that the accident
occurred in a crosswalk precluded plaintiff 's cause of action. However, this notion of automatic
preclusion has been rejected by this Court, even considering the strictures of Nawrocki. Sebring
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v City of Berkley, 247 Mich App 666, 680; 637 NW2d 552 (2001). In reaching the conclusion
that a pedestrian's claim that alleges a dangerous defect in the improved portion of the highway
that also happens to fall within the crosswalk is not barred by governmental immunity, Judge
Holbrook's well-reasoned opinion provides the historical context of governmental immunity as it
relates to crosswalks, and carefully explains why automatic preclusion on this ground is
unwarranted. Id. at 676-680.
Given that plaintiff 's action is not automatically barred by governmental immunity
simply because the accident occurred in the crosswalk, we conclude that the allegations of her
complaint, along with the affidavits filed in opposition to defendant's motion for summary
disposition, satisfy the pre-Nawrocki and pre-Hanson requirements for a valid cause of action.
Plaintiff alleged design defects for which, as pointed out in Justice Kelly's Hanson dissent, there
has long been governmental liability, and the affidavit of her expert witness establishes a claim
that a point of special danger existed pursuant to Pick, supra at 621. Summary disposition in
favor of defendant Macomb County was improperly granted.
IV
We conclude that the trial court properly granted summary disposition to defendant city
of Warren under MCR 2.116(C)(10). In reviewing a motion under MCR 2.116(C)(10), a trial
court considers the affidavits, pleadings, admissions, and documentary evidence filed in the
action or submitted by the parties in the light most favorable to the party opposing the motion. A
trial court may grant a motion for summary disposition if the affidavits and other documentary
evidence show that there is no genuine issue in respect to any material fact and the moving party
is entitled to judgment as a matter of law. Smith v Globe Life Ins Co, 460 Mich 446, 454; 597
NW2d 28 (1999).
The governmental immunity act limits liability under the highway exception to the
governmental agency having jurisdiction over the highway at the time of the injury. Sebring,
supra at 684; Markillie v Livingston Co Bd of Co Rd Comm'rs, 210 Mich App 16, 19; 532 NW
2d 878 (1995). Only one governmental agency at a time can have jurisdiction over a highway;
there is no concurrent jurisdiction. Sebring, supra at 684; Markillie, supra at 20.
We disagree with plaintiff that the submitted evidence established a genuine issue of
material fact regarding jurisdiction. On the contrary, the evidence established that Macomb
County had jurisdiction over the location of the accident on Mound Road. It is undisputed that
Macomb County was responsible for maintenance of the traffic signals, crosswalk signals, and
pedestrian lights at the accident site and that Macomb County controlled and regulated the timing
of pedestrian lights and traffic lights at the crosswalk at issue. More significantly, it was
undisputed that Mound Road between Eight Mile and Nine Mile roads was a county road. MCL
224.21(2) provides that the county must keep in reasonable repair all county roads, bridges, and
culverts used for public travel within its jurisdiction. The county can transfer jurisdiction to a
city only by written agreement and with the consent and resolution of both parties. MCL
247.852. Because no evidence was submitted indicating that such a transfer occurred,
jurisdiction rested with Macomb County. Even if Warren may have had some involvement or
input with certain aspects of the roadway, because jurisdiction rested with Macomb, and because
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Warren cannot have concurrent jurisdiction, the trial court did not err in dismissing the case
against the city of Warren.1
Affirmed with respect to the city of Warren, reversed with respect to Macomb County,
and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.
Fitzgerald, J., concurred.
/s/ Janet T. Neff
/s/ E. Thomas Fitzgerald
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We also reject plaintiff 's claim that summary disposition was premature because discovery was
not complete. Plaintiff has not demonstrated that there was a reasonable chance that further
discovery would uncover factual support for her position. Hasselbach v TG Canton, Inc, 209
Mich App 475, 482; 531 NW2d 715 (1994).
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