GERARD GRAHAM V CITY OF LIVONIA
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STATE OF MICHIGAN
COURT OF APPEALS
GERARD GRAHAM,
UNPUBLISHED
Plaintiff-Appellant,
v
No. 188629
Wayne Circuit Court
LC No. 94-420677
CITY OF LIVONIA, ORCHARD, HILTZ &
MCCLIMENT, INC., and RIC-MAN
CONSTRUCTION, INC.,
Defendants-Appellees.
Before: Holbrook, Jr., P.J., and White and A.T. Davis, Jr.*, JJ.
HOLBROOK, JR., P.J., dissenting.
I respectfully dissent.
The question whether a defendant is entitled to governmental immunity pursuant to MCL
691.1402; MSA 3.996(102) presents a question of law for the court to decide. Moning v Alfono,
400 Mich 425, 436-437; 254 NW2d 759 (1977). Defendant City raised the affirmative defense of
governmental immunity in its first responsive pleading, but failed to raise the specific issue of immunity as
it applies to pedestrians walking in roadways designed for vehicular travel until the hearing on
defendant’s motion for summary disposition. Defendant’s delay in raising the specific issue until oral
argument in the trial court did not preclude the trial court from deciding the legal issue at that time, and
does not preclude this Court from deciding the issue as a matter of law now. Wechsler v Wayne
County Road Com'n, 215 Mich App 579, 585-586, n 3; 546 NW2d 690 (1996); Alexander v
Riccinto, 192 Mich App 65, 70; 481 NW2d 6 (1991). “Issues of law are not resolved on the basis of
evidentiary presentations.” Wechsler, supra.
In this case, plaintiff tripped as he walked across a service drive intended for vehicular traffic
only. “Pedestrians who trek upon Michigan highways must and do venture beyond the protective
mandates of MCL 691.1402(1); MSA 3.996(102)(1).” Mason v Wayne Co Bd of Comm'rs, 447
Mich 130, 137; 523 NW2d 791 (1994). See also Suttles v Dep’t of Transportation, 216 Mich App
* Circuit judge, sitting on the Court of Appeals by assignment.
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166; 548 NW2d 671 (1996). Accordingly, given the facts pleaded by plaintiff in his complaint, I would
hold that summary disposition was properly granted to defendant city pursuant to MCR 2.116(C)(7).
/s/ Donald E. Holbrook, Jr.
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