THOMAS P MCCARTHY V DEPT OF TRANSPORTATION
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STATE OF MICHIGAN
COURT OF APPEALS
THOMAS P. MCCARTHY,
UNPUBLISHED
Plaintiff-Appellee
v
No. 198951
Court of Claims
LC No. 91-013173-CM
MICHIGAN DEPARTMENT OF
TRANSPORTATION,
ON REMAND
Defendant-Appellant,
and
AUTO CLUB INSURANCE ASSOCIATION,
Defendant-Appellee.
Before: Taylor, P.J. and Griffin and Markey, JJ.
MARKEY, J. (concurring),
I concur in the result engendered by the analyses of both of my colleagues; however, I agree
only in part with each of their discussions.
Initially, I agree with Judge Taylor that because this matter is before us on remand from the
Supreme Court for reconsideration in light of Pick v Szymczak, 451 Mich 607; 548 NW2d 603
(1996), it is incumbent for us to do as instructed. On the other hand, I agree with Judge Griffin that
Pick does not resolve this case. Defendant initially raised the issue of governmental immunity, that issue
was appealed to the Michigan Supreme Court, and it remains a viable issue properly, and indeed
mandatorily, before us on remand. Although defendant MDOT’s supplemental brief after remand on
the governmental immunity issue is extremely succinct, MDOT had addressed the issue thoroughly in
earlier filings. Moreover, the Supreme Court in Pick relied on cases cited and discussed by MDOT
previously and in its holding simply clarifies its position on the signage issue as it relates to governmental
immunity. Thus, we cannot in any way conclude that MDOT waived the governmental immunity issue.
-1
The Pick court premised the pertinent part of its analysis on the earlier decision of Salvati v
State Highway Dep’t, 415 Mich 708; 330 NW2d 64 (1982), and stated:
The six justices unanimously agreed, however, that the governmental duty of
maintenance with regard to public roads encompassed a duty to provide warning signs:
“A governing unit may incur liability under the broad concept of ‘traffic sign
maintenance’. . . for failing to erect any sign or warning device at a point of hazard, . . .
or for placing a sign which inadequately informs approaching motorists of a
hazard. [Salvati, 415 Mich 715 (Coleman, J., joined by Fitzgerald, C.J. and Ryan,
J.).]
A governmental agency having jurisdiction of a highway has the obligation to
post traffic signs and to warn motorists at points of special danger. Liability may arise
for failing to erect a sign or barrier warning at a point of hazard, or for posting a sign
which inadequately warns of an approaching danger. [Id. at 721 (Levin, J., joined
by Kavanagh and Williams, JJ.) (citations omitted).]” [
Pick, supra at 618 -619;
emphasis added.]
Pick goes on to define point of hazard “as any condition that directly affects vehicular travel on the
improved portion of the roadway so that such travel is not reasonably safe. To constitute a point of
hazard for purposes of the highway exception, the condition must be one that uniquely affects vehicular
travel on the improved portion of the roadway, as opposed to a condition that generally affects the
roadway and its surrounding environment.” Pick, supra at 623.
Here, the trial court, sitting as a court of claims, made specific factual findings as to the hazard of
preferential icing on the bridge at issue1 and that the one “BRIDGE MAY BE ICY” diamond-shaped
yellow sign placed before the entrance of the bridge was not seen by the seven witnesses in this case or
any of the persons involved in the accident in Colovos v MDOT, 450 Mich App 861; 539 NW2d 375
(1995), an accident at issue that occurred two years earlier on the same stretch of bridge and also
involved the same sign and preferential icing.
As a result of its factual findings, the Court of Claims found that the single sign was an
inadequate warning constituting a breach of defendant’s statutory duty as it “was not adequate to fulfill
the purposes for which it was intended. As placed, the sign has repeatedly failed to attract the attention
of passing motorists, and therefore, failed to fulfill the purposes for which it was intended. The failure to
adequately alert drivers to icing conditions constitutes a breach of defendant’s statutory duty and was a
proximate cause of the accident and Thomas McCarthy’s injuries and damages.”
In contrast, in Colovos, this same trial court found that although the defendant had breached its
statutory duties as articulated herein, it found that the drivers in Colovos were already driving in a
prudent manner so that the breach did not constitute a proximate cause of their injuries. Ultimately, the
Michigan Supreme Court affirmed on that basis. Colovos, supra.
-2
A trial court’s findings of fact may not be set aside unless they are clearly erroneous. Tuttle v
Dep’t of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976). “[A] finding is ‘clearly
erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is
left with the definite and firm conviction that a mistake has been committed.” Id. The record below will
not allow me to find the trial court’s factual determination to be “clearly erroneous.” Moreover, in its
legal conclusion, the trial court found that the bridge, with its existing sign, “failed to fulfill the purposes
for which it was intended”, language which nearly echoes that previously cited from Pick. Cf. Wechsler
v Wayne County Rd Comm, 215 Mich 579, 590, 594-595, 600; 546 NW2d 690 (1996), wherein a
properly functioning stop light was found “suitable and appropriate to the task” on an area of highway
not considered a “special hazard” so that there was no duty to make a “reasonably safe highway” safer
by the installation of “extraordinary traffic-control devices.” Upon de novo review of the trial court’s
legal conclusion, I can find no error. See Burgess v Clark, 215 Mich App 542, 545; 547 NW2d 59
(1996); Krueger v Lumbermen’s Mutual Casualty Co, 112 Mich App 511, 514-515 and n2; 316
NW2d 474 (1982). Thus, because plaintiff is entitled to prevail on the governmental immunity issue, we
must next address the set-off question.
Defendant MDOT argues that it is entitled to a set-off for the medical benefits paid and to be
paid to plaintiff as a result of the injuries he suffered in the automobile accident because those benefits
constitute a collateral source. I agree and with respect to that issue, I join in and concur with the
analysis and conclusion reached by Judge Griffin.
/s/ Jane E. Markey
1
Apparently, both Judge Taylor and Judge Griffin agree that the preferential icing which occurred here
was, in fact, a point of hazard.
-3
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