DAVID HENDERSON V DAVID PHILIP MASON
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STATE OF MICHIGAN
COURT OF APPEALS
DAVID HENDERSON and MARY
LIBERADZKI,
UNPUBLISHED
December 27, 2002
Plaintiffs-Appellants,
v
No. 235415
Court of Claims
LC No. 2000-017681
DEPARTMENT OF TRANSPORTATION,
Defendant-Appellee.
DAVID HENDERSON and MARY
LIBERADZKI,
Plaintiffs-Appellants,
v
No. 235445
Wayne Circuit Court
LC No. 00-020903-NI
DAVID PHILIPS MASON,
Defendant-Appellee,
and
DEPARTMENT OF TRANSPORTATION,
Defendant.
Before: Hood, P.J., and Smolenski and Kelly, JJ.
PER CURIAM.
Plaintiffs appeal as of right from a trial court order dismissing their claim under the
highway exception to governmental immunity, MCL 691.1402(1), against defendant Michigan
Department of Transportation (“defendant”). We affirm. This case is being decided without oral
argument pursuant to MCR 7.214(E).
Plaintiffs first argue that the Michigan Supreme Court opinion in Nawrocki v Macomb Co
Rd Comm, 463 Mich 143; 615 NW2d 702 (2000), should not be applied retroactively to this case
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to bar plaintiffs’ theories of liability predicated on defendant’s alleged negligence related to the
operation of a traffic light and the presence of a utility pole in the median of a street. However,
after the filing of plaintiffs’ brief, a special panel of this Court held that “Nawrocki must be given
full retroactive effect.” Adams v Dep’t of Transportation, ___ Mich App ___; ___ NW2d ___
(Docket No. 230268, issued October 11, 2002), slip op, p 5. Thus, we must apply Nawrocki to
this case. See MCR 7.215(I)(6) (special panel decision “is binding on all panels of the Court of
Appeals unless reversed or modified by the Supreme Court”). As plaintiffs forthrightly
acknowledge, Nawrocki precludes the imposition of liability on defendant under the highway
exception based on the traffic light and utility pole because these objects are not part of the
actual roadway designed for vehicular travel. Nawrocki, supra at 184.
Plaintiffs similarly argue that the holding in Hanson v Mecosta Co Rd Comm’rs, 465
Mich 492, 502; 638 NW2d 396 (2002), that the highway exception to governmental immunity
does not include a duty to design or correct defects arising from an original design should not be
applied retroactively to bar their theory that the intersection pertinent to this case was negligently
designed. However, the Michigan Supreme Court in Hanson stated that it emphasized in
Nawrocki that “the only permissible claims [under the highway exception] are those arising from
a defect in the actual roadbed itself.” Hanson, supra at 503. Further, the Court expressed
agreement with the Court of Appeals decision in Hanson that Nawrocki made clear that defective
design claims are not within the scope of the highway exception. Hanson, supra at 500-502.
Thus, Hanson must be viewed as simply an application of Nawrocki and, accordingly, Hanson
falls within the scope of the holding in Adams that Nawrocki must be given full retroactive
effect. Thus, plaintiffs cannot prevail on their highway exception claim under a design defect
theory. In sum, the trial court correctly dismissed plaintiff’s highway exception claim against
defendant because Nawrocki and Hanson must be given full retroactive effect.
Affirmed.
/s/ Harold Hood
/s/ Michael R. Smolenski
/s/ Kirsten Frank Kelly
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