DELORES J WHITE V DEPT OF TRANSPORTATION

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STATE OF MICHIGAN COURT OF APPEALS DELORES J. WHITE, UNPUBLISHED May 5, 1998 Plaintiff-Appellant, v No. 199918 Court of Claims LC No. 96-016376 CM DEPARTMENT OF TRANSPORTATION, Defendant-Appellee. Before: Bandstra, P.J., and MacKenzie and N.O. Holowka*, JJ. MEMORANDUM. Plaintiff appeals by right summary disposition in favor of defendant, predicated on governmental immunity, in this action for personal injuries suffered when plaintiff, while on foot, tripped and fell in a pothole on a highway under defendant’s jurisdiction. This appeal is being decided without oral argument pursuant to MCR 7.214(E). As the Michigan Supreme Court said in Mason v Wayne Co Bd of Comm’rs, 447 Mich 130, 137; 523 NW2d 791 (1994), amended 451 Mich 1236; 549 NW2d 575 (1996), “[p]edestrians who trek upon Michigan highways must and do venture beyond the protective mandates of MCL 691.1402(1); MSA 3.996(102)(1).” Plaintiff ’s attempt to distinguish Mason on the basis that in that case the pedestrian in question was crossing within a crosswalk, for which an express exclusion is found in the governmental immunity statute, is without merit, because as this Court noted in Suttles v Dep’t of Transportation, 216 Mich App 166, 171; 548 NW2d 671 (1996), the Mason Court further commented that pedestrians crossing outside crosswalks face the additional hurdle of comparative negligence. That plaintiff was crossing the highway outside a crosswalk, therefore, does not establish a basis for imposing liability notwithstanding governmental immunity, but rather affords defendant an additional defense if, for some other reason, governmental immunity were not applicable. Because immunity is applicable and is a complete defense under these circumstances, comparative negligence need not, of course, be considered. * Circuit judge, sitting on the Court of Appeals by assignment. -1­ We affirm. /s/ Richard A. Bandstra /s/ Barbara B. MacKenzie /s/ Nick O. Holowka -2­

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