EDWINA BROWN V DEPT OF TRANSPORTATION
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
EDWINA BROWN,
UNPUBLISHED
October 28, 2004
Plaintiff-Appellee,
v
No. 248059
Court of Claims
LC No. 02-000255-MD
DEPARTMENT OF TRANSPORTATION,
Defendant-Appellant.
Before: Griffin, P.J., and Saad and O’Connell, JJ.
PER CURIAM.
Defendant appeals as of right the trial court’s order denying its motion for summary
disposition on the basis of governmental immunity. We affirm. This appeal is being decided
without oral argument pursuant to MCR 7.214(E).
Plaintiff sustained injuries when a piece of wood fell from the underside of the Greenfield
Road overpass and struck her vehicle as she drove underneath the overpass on I-96. She filed
suit alleging, among other things, that defendant breached its duty to repair and maintain the
improved portion of Greenfield Road by allowing water and ice to filter to the bottom of the
roadbed, thereby causing the wood positioned underneath the roadbed to deteriorate and fall
from the overpass. Defendant moved for summary disposition pursuant to MCR 2.116(C)(7) and
(8), arguing that plaintiff failed to plead a claim in avoidance of governmental immunity in that
she failed to allege that a defect in the traveled portion of I-96 proximately caused her injuries.
The trial court denied the motion, concluding that issues of fact existed as to whether defects
existed in the Greenfield Road roadbed and, if so, whether those defects proximately caused
plaintiff’s injuries.
We review a trial court’s decision on a motion for summary disposition de novo. Auto
Club Group Ins Co v Burchell, 249 Mich App 468, 479; 642 NW2d 406 (2001).
Generally, a governmental agency is immune from tort liability for actions taken in
furtherance of a governmental function. MCL 691.1407. There are several exceptions to
governmental immunity, including the highway exception. This exception requires a
governmental agency having jurisdiction of a highway to “maintain the highway in reasonable
repair so that it is reasonably safe and convenient for public travel.” MCL 691.1402(1). MCL
691.1402(1) imposes duties and liability on state and county road commissions only for the
traveled portion, paved or unpaved, of a roadbed actually designed for public travel, and not for
-1-
installations outside the improved portion of the roadway. Nawrocki v Macomb Co Rd Comm,
463 Mich 143, 180; 615 NW2d 702 (2000). The highway exception is narrowly construed.
Hatch v Grand Haven Charter Twp, 461 Mich 457, 464; 606 NW2d 633 (2000). Determination
of the applicability of the highway exception is a question of law subject to de novo review.
Meek v Dep’t of Transportation, 240 Mich App 105, 110; 610 NW2d 250 (2000).
Assuming, without deciding, that defendant has jurisdiction over the improved portion of
Greenfield Road,1 we hold that plaintiff has stated a cause of action not barred by governmental
immunity. In her complaint, plaintiff contends that defendant breached its duty to repair and
maintain the improved portion of Greenfield Road by allowing water and ice to filter to the
bottom of the roadway, thereby causing the wood positioned underneath the roadbed to
1
At this juncture there is a genuine issue of material fact regarding jurisdiction of the improved
portion of Greenfield Road at the I-96 overpass. Defendant’s answer to plaintiff’s request for
admission states that Wayne County, not defendant, had jurisdiction over the Greenfield
roadway:
6.
[Plaintiff’s Request for Admission to Defendant.] The State of
Michigan, Department of Transportation, maintains sole jurisdiction regarding
repair and maintenance of the subject bridge that is Greenfield road over Interstate
96.
ANSWER: The same is denied in that Wayne County Department of
Public Services has jurisdiction over Greenfield Road and pursuant to Agreement
68-1655 dated July 25, 1969 Wayne County repairs, replaces and is responsible
for a large portion of this structure.
However, in opposing defendant’s motion for summary disposition, plaintiff submitted
the affidavit of Bryan Zoltowski, which contradicts defendant’s position on the issue of
jurisdiction:
4. The area where the alleged incident occurred is not under the
jurisdiction of Wayne County and was not under the jurisdiction of Wayne
County on or about December 4, 2001, when and where the accident is alleged to
have occurred in this case.
5. On or about December 4, 2001, the Greenfield Road bridge over I-96
was under the jurisdiction of the State of Michigan. [Emphasis in original.]
In arguing against defendant’s motion for summary disposition, plaintiff’s counsel relied
on the Zoltowski affidavit and stated: “the engineer for the County of Wayne states that the
entire road is in fact a jurisdiction of the State of Michigan. The Defendant, the State of
Michigan, in this case has not filed any sort of support as to in [sic] the engineering area as to
what part of the roadbed is maintained by the state and what part of the roadbed is maintained by
the county.” Based on the contradictory evidence, an issue of fact existed as to jurisdiction.
-2-
deteriorate and fall from the overpass. In particular, paragraph 10 of plaintiff’s complaint alleges
the following breach of duty to maintain and repair the traveled portion of Greenfield Road,
which proximately caused the accident:
10. That said road, atop, contained potholes, unreasonable separations,
and other openings due to neglect in maintenance and repair causing the
accumulation of water, snow, ice and other precipitation to easily filter to the
bottom of the same, and causing said wood upon contact with said accumulation
to dismantled[sic] from the bridge, foreseeable[sic] contacting drivers operating
vehicles on Interstate 96.
Because this allegation asserts a breach of the duty to repair and maintain the roadway
itself, plaintiff has pled a claim in avoidance of governmental immunity.2 Nawrocki, supra.
Affirmed.
/s/ Richard Allen Griffin
/s/ Henry William Saad
/s/ Peter D. O'Connell
2
In denying defendant’s motion for summary disposition, the lower court did not rule on the
factual sufficiency of the claim: “. . . motion is denied without prejudice because at this point we
need to find out exactly what the defect is in the road above, in terms of whether or not there’s
some defect in the surface, as Mr. Collins [plaintiff’s counsel] has intimated here, or whether it’s
just the bottom of it.”
-3-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
