DENISE JOHNSON-MCINTOSH V CITY OF DETROIT
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STATE OF MICHIGAN
COURT OF APPEALS
DENISE JOHNSON-MCINTOSH and ALVIN
MCINTOSH, as Next Friends of DAESHA
JOHNSON, a MINOR,
FOR PUBLICATION
May 5, 2005
9:25 a.m.
Plaintiffs-Appellees,
v
No. 244349
Wayne Circuit Court
LC No. 01-124542-NZ
CITY OF DETROIT,
Defendant-Appellant,
and
Official Reported Version
TOMMY NATHAN MCGEE, JR., and TOMMY
NATHAN MCGEE III,
Defendants.
Before: Owens, P.J., and Saad, Bandstra, Smolenski, Meter, Donofrio, and Fort Hood, JJ.
METER, J. (dissenting).
I respectfully dissent. If this case involved a defective traffic control device on a
noncounty highway over which Detroit had jurisdiction, then statutory language, common sense,
and case law support the conclusion that Detroit may be held liable for the injury in question.
Conversely, if this case involved a defective traffic control device on a county highway over
which Detroit had jurisdiction, then Detroit may be held liable if the two conditions set forth in
MCL 691.1402a(1) were satisfied. I would remand this case for further proceedings.
I. Pertinent Statutes
In general, "a governmental agency is immune from tort liability if the governmental
agency is engaged in the exercise or discharge of a governmental function." MCL 691.1407(1).
The so-called "highway exception to governmental immunity" is found at MCL 691.1402, which
states, in part:
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(1) Except as otherwise provided in [MCL 691.1402a], 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 who sustains 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 a 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, trailways,
crosswalks, or any other installation outside of the improved portion of the
highway designed for vehicular travel.
[1]
MCL 691.1402a states, in part:
(1) Except as otherwise provided by this section, a municipal corporation
has no duty to repair or maintain, and is not liable for injuries arising from, a
portion of a county highway outside of the improved portion of the highway
designed for vehicular travel, including a sidewalk, trailway, crosswalk, or other
installation. This subsection does not prevent or limit a municipal corporation's
liability if both of the following are true:
(a) At least 30 days before the occurrence of the relevant injury, death, or
damage, the municipal corporation knew or, in the exercise of reasonable
diligence, should have known 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.
(b) The defect described in subdivision (a) is a proximate cause of the
injury, death, or damage.
The term "highway" is defined by MCL 691.1401(e), which states:
"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.
II. Statement of the Issue
The issue in the present case is whether Detroit may be held liable for an injury allegedly
caused by a defective traffic signal located at the intersection of West Seven Mile Road and
Pennington Street in Detroit. The parties appear to disagree regarding whether the traffic signal
1
Detroit is considered both a "municipal corporation" and a "governmental agency" by virtue of
MCL 691.1401(a), (b), and (d).
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at issue controlled the traffic on a county highway or a city road. Therefore, I will analyze this
case under both factual situations.
III. Analysis
A. Noncounty Highway
Assuming that this case involves a noncounty highway, MCL 691.1402a becomes
irrelevant, and the focus shifts to MCL 691.1402. Under that section, a municipality clearly is
liable for failing to maintain a "highway in reasonable repair so that it is reasonably safe and
convenient for public travel." Moreover, the duty of a municipality to keep a highway in
reasonable repair is not statutorily limited, as it is with "state and . . . county road commissions,"
to "the improved portion of the highway designed for vehicular travel . . . . " MCL 691.1402(1).
Therefore, the pertinent question becomes whether a traffic signal is included within the
definition of "highway."
As noted, MCL 691.1401(e) states:
"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.
The majority concludes that a traffic signal does not fall within the definition of "highway." I
disagree. Indeed, it is simply a matter of common sense that the duty to maintain a "highway" in
proper condition entails the proper maintenance of a traffic signal that controls the flow of traffic
on that highway. While the definition of "highway" in MCL 691.1401(e) does not specifically
list the phrases "traffic signals" or "traffic control devices," it also does not include the term
"asphalt" or the phrase "rumble strips," even though serious defects in those items would clearly
subject a municipality to liability. Certain items are implicit within the term "highway" itself. It
is simply incongruous that a municipality would have a duty to maintain road surfaces, bridges,
sidewalks, trailways, crosswalks, and culverts, while not having a duty to maintain traffic
signals, which are crucial to the ability of a pedestrian or a traveler in a vehicle to use a road or a
crosswalk safely.
This commonsense conclusion—that the duty to maintain a highway encompasses the
duty to maintain traffic control devices pertaining to that highway—is fully supported by this
Court's decision in Cox v Dearborn Hts, 210 Mich App 389, 397; 534 NW2d 135 (1995), in
which the Court stated, "[W]e today make explicit that municipalities may face liability where a
pedestrian is injured as a result of allegedly inadequate traffic control devices." Contemplating
the differing duties applied to municipalities as opposed to state and county road commissions
under MCL 691.1402, the Cox Court stated, in part:
While we are puzzled with regard to the Legislature's disparate treatment
of municipalities vis-a-vis the state and county road commissions, our role is to
enforce the law as written. Furthermore, our duty is to interpret the law, not make
new laws. [Cox, supra at 397.]
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The Cox Court also referred to Justice Boyle's concurring opinion in Chaney v Dep't of
Transportation, 447 Mich 145; 523 NW2d 762 (1994). Cox, supra at 397. In Chaney, Justice
Boyle stated that there are logical, statutory, and historical reasons for concluding that
governmental agencies should be subject to liability for failing to maintain traffic signals and
signs in reasonable repair. Chaney, supra at 175-176 (opinion of Boyle, J.).
It is true that in Nawrocki v Macomb Co Rd Comm, 463 Mich 143, 182 n 37; 615 NW2d
702 (2000),2 the Supreme Court, responding to the dissenting opinion in that case, stated 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 MCL 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." MCL 691.1402; MSA
3.996(102) creates an exception to governmental immunity for the state or county
road commissions' failure to maintain and repair the "improved portion of the
highway designed for vehicular travel." Thus, there is a gap that exists between
the "improved portion of the highway designed for vehicular travel," and the
broader confines of "highway," defined in subsection 1(e). MCL 691.1402a;
MSA 3.996(102a) seeks to fill this gap, at least with respect to county highways.
[Emphasis in original.] 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.
[Emphasis added.]
The majority opinion in the instant case places great emphasis on this footnote. I, however, find
that it constitutes nonbinding obiter dicta because it was simply not necessary to resolve the
pertinent issue in Nawrocki. See Dessart v Burak, 252 Mich App 490, 496; 652 NW2d 669
(2002) (discussing obiter dicta).
2
In Nawrocki, supra at 179-180, 183-184, the Court held, among other things, that state and
county road commissions cannot be held liable for the failure to repair and maintain traffic
control devices because such devices are not part of "the improved portion of the highway
designed for vehicular travel" as delineated in MCL 691.1402(1).
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In Carr v City of Lansing, 259 Mich App 376, 383-384; 674 NW2d 168 (2003), the Court
concluded that footnote 37 of Nawrocki, supra at 182, does in fact constitute binding precedent.
The Court stated the following:
Although, the trial court in the instant case dismissed footnote 37 in
Evens-Nawrocki as dictum, this Court has noted that dictum is a "'judicial
comment made during the course of delivering a judicial opinion, but one that is
unnecessary to the decision in the case and therefore not precedential (though it
may be considered persuasive).'" People v Higuera, 244 Mich App 429, 437; 625
NW2d 444 (2001), quoting Black's Law Dictionary (7th ed). Nevertheless, the
Higuera Court recognized that, "'"[w]hen a court of last resort intentionally takes
up, discusses and decides a question germane to, though not necessarily decisive
of, the controversy, such decision is not a dictum but is a judicial act of the court
which it will thereafter recognize as a binding decision."'" Higuera, supra at 437,
quoting Detroit v Michigan Pub Utilities Comm, 288 Mich 267, 299-300; 286
NW 368 (1939), in turn quoting Chase v American Cartage Co, Inc, 176 Wis 235,
238; 186 NW 598 (1922). So, a "decision of the Supreme Court is authoritative
with regard to any point decided if the Court's opinion demonstrates 'application
of the judicial mind to the precise question adjudged, regardless of whether it was
necessary to decide the question to decide the case.'" Higuera, supra at 437,
quoting People v Bonoite, 112 Mich App 167, 171; 315 NW2d 884 (1982).
Clearly, whether the Court's decision in Evens would "shift liability" for signage
to municipalities was germane to the Court's holding regarding immunity of the
state and county road commissions and displayed the "application of the judicial
mind" to the question. Consequently, the Evens Court's comments in footnote 37
are more than mere dicta; they must be read as implicitly overruling Cox. [Carr,
supra at 383-384.]
I do not agree with this analysis set forth by the Carr Court. Indeed, the Nawrocki
Court's paragraph-long analysis in a footnote of its opinion should not be considered an
"application of the judicial mind" such that the analysis is transformed from obiter dicta into
binding precedent. This is especially true because the Supreme Court in footnote 37 of Nawrocki
made no mention of O'Hare v Detroit, 362 Mich 19, 24-26; 106 NW2d 538 (1960), a case in
which the Supreme Court concluded that a municipality's duty to maintain streets in reasonable
repair encompasses the duty to maintain stop signs in reasonable repair. One would hope that a
true "application of the judicial mind" to a question would include a discussion of decades-long
precedent, such as O'Hare, that is evidently being overruled in the course of resolving the
question at hand. That O'Hare is not discussed in footnote 37 of Nawrocki supports my
conclusion that the footnote constitutes mere obiter dicta.
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Moreover, and importantly, I am not bound by Carr (despite my disagreement with it)
under MCR 7.215(J)(1)3 because Cox, which conflicts with Carr, was released before Carr. As
noted in Novak v Nationwide Mut Ins Co, 235 Mich App 675, 690; 599 NW2d 546 (1999), "in
cases of conflicting opinions issued on or after November 1, 1990, the Court is to follow the first
opinion that addresses the matter at issue." See also Marchyok v Ann Arbor, 260 Mich App 684,
694; 679 NW2d 703 (2004) (O'Connell, J., dissenting). Moreover, O'Hare, as a Supreme Court
case, obviously takes precedence over Carr.
Further, my conclusion that municipalities may be held liable for defective traffic control
devices on noncounty highways is not undermined by either Weaver v Detroit, 252 Mich App
239; 651 NW2d 482 (2002), or Stevenson v Detroit, 264 Mich App 37; 689 NW2d 239 (2004),
the latter of which I authored. These cases involved municipalities, and the decisions relied
heavily on the definition of "highway" in MCL 691.1401(e). See Weaver, supra at 240, 245-246
(streetlight pole, which fell on the plaintiff 's decedent, not considered part of highway), and
Stevenson, supra at 43 (berm not considered part of highway). I do not find these cases
dispositive because a streetlight pole and a berm are fundamentally different from traffic control
devices. As noted in Stevenson, supra at 45 n 2, "a defective 'berm' as defined in the instant case
is fundamentally different from a defective traffic control device, which can directly affect a
person's use of the street itself." This observation from Stevenson applies equally, in my opinion,
to the question of a streetlight pole versus a traffic control device. A reasonable and
commonsense construction of the term "highway" includes traffic control devices.4
In sum, I believe that statutory language, common sense, and case law support the
conclusion that a municipality may be held liable for improperly maintaining traffic control
devices on a noncounty highway under its jurisdiction. The duty of a municipality to keep a
highway in reasonable repair simply is not limited, as it is with "state and . . . county road
commissions," to "the improved portion of the highway designed for vehicular travel . . . . "
3
MCR 7.215(J)(1) states that
[a] panel of the Court of Appeals must follow the rule of law established by a
prior published decision of the Court of Appeals issued on or after November 1,
1990, that has not been reversed or modified by the Supreme Court, or by a
special panel of the Court of Appeals as provided in this rule.
4
In Ridley v Detroit (On Second Remand), 258 Mich App 511, 514-516; 673 NW2d 448 (2003),
this Court concluded, albeit reluctantly, that a municipality could not be held liable for
inadequate illumination of a highway because illumination was not included within the definition
of "highway" in MCL 691.1401(e). Although the issue is not before me, illumination arguably
falls within the definition of "highway" in the same commonsense manner that traffic control
devices do. At any rate, I am not bound by the Ridley holding because it dealt with illumination
and not traffic control devices and because the Cox decision preceded it. See Novak, supra at
690. Moreover, the Ridley Court's discussion regarding traffic control devices, see Ridley, supra
at 515-518, constitutes nonbinding obiter dicta.
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MCL 691.1402(1). Moreover, a reasonable construction of the term "highway" includes traffic
control devices, and both Cox and O'Hare support my conclusion today.
B. County Highway
With regard to a county highway, my analysis is straightforward, given my conclusion in
part A that traffic control devices are implicitly part of a "highway." MCL 691.1402a indicates
that municipalities may be held liable, when certain conditions are met, for improperly
maintaining portions of a county highway that are "outside of the improved portion of the
highway designed for vehicular travel . . . ." Case law has made clear that traffic control devices
are not part of the "improved portion of the highway designed for vehicular travel . . . ."
Nawrocki, supra at 179-180, 183-184. MCL 691.1402a therefore indicates that a municipality
may be held liable for the improper maintenance of a traffic control device on a county highway
if the municipality had notice of the defect that caused the injury in question.5
IV. Conclusion
If this case involved a traffic control device on a noncounty highway over which Detroit
had jurisdiction, then Detroit clearly was subject to liability. If this case involved a traffic
control device on a county highway over which Detroit had jurisdiction, then Detroit was subject
to liability if the two conditions set forth in MCL 691.1402a(1) were satisfied.
I would remand this case for further proceedings.
/s/ Patrick M. Meter
5
A municipality's liability under MCL 691.1402a(1) is limited by certain environmental
protection laws that apparently are not at issue here. See MCL 691.1402a(3).
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