THOMAS DEKORTE V DEPT OF TRANSPORTATION
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STATE OF MICHIGAN
COURT OF APPEALS
THOMAS DEKORTE and MARY DEKORTE,
UNPUBLISHED
June 28, 2005
Plaintiffs-Appellants,
v
No. 252490
Court of Claims
LC No. 00-017714-MD
DEPARTMENT OF TRANSPORTATION,
Defendant-Appellee.
Before: Owens, P.J., and Cavanagh and Neff, JJ.
PER CURIAM.
Plaintiffs appeal as of right an order granting defendant’s motion for summary disposition
pursuant to MCR 2.116(C)(7). We affirm.
Plaintiffs argue on appeal that the trial court erred in granting summary disposition in
favor of defendant because there remained a genuine issue of material fact regarding whether a
defect existed in the actual roadbed. After de novo review, considering the pleadings and
documentary evidence, we disagree and conclude that plaintiff has failed to establish an
exception to governmental immunity granted by law. See MCR 2.116(C)(7); McGoldrick v
Holiday Amusements, Inc, 242 Mich App 286, 289-290; 618 NW2d 98 (2000).
The highway exception to governmental immunity provides that a governmental agency
having jurisdiction over a highway is liable in tort for breach of the duty to "maintain the
highway in reasonable repair so that it is reasonably safe and convenient for public travel." MCL
691.1402(1); Nawrocki v Macomb Co Rd Comm, 463 Mich 143, 157; 615 NW2d 702 (2000).
However, this duty is only implicated when there is a failure to repair or maintain the actual
physical structure of the roadbed surface, paved or unpaved, designed for vehicular travel. Id. at
184. Traffic signals and signs are not part of the highway as that term is defined by statute.
MCL 691.1401(e); Nawrocki, supra at 182-183 n 37.
Here, plaintiffs’ complaint alleges that defendant failed to “install proper traffic control
signals,” failed to upgrade the traffic control signals and inspect the roadway on a regular basis
for maintenance, and failed to ensure that there was a clearance interval to allow traffic to clear
before the light turned green in either direction. Clearly, the complaint purports a theory of
liability premised on a defective traffic signal, a condition outside of the actual roadbed designed
for vehicular travel. See id.; Marchyok v Ann Arbor, 260 Mich App 684, 688; 679 NW2d 703
(2004).
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Although plaintiffs attempted to establish that misplaced loop sensors located in the
actual roadbed constituted a defect in its physical structure, the evidence did not support that
contention. In his affidavit, Department of Transportation engineer Thomas Rathbun indicated
that the loop leads of the loop sensors could only have been crossed at two locations, either at a
hand hole or at the control box, both of which were outside the actual roadbed and beyond the
curb. Further, plaintiffs’ expert Donald Cleveland testified in his deposition that he doubted that
there was a failure in the wires in the loop sensors located in the roadbed. And, City of Grand
Rapids traffic engineer Jeffrey Janke testified in his deposition that the loop sensors were
properly installed in the roadbed, but the loop leads were misconnected to the homerun cable at
the hand hole or control box. He further testified that the problem could have been repaired at
locations other than at the sensors located in the roadbed. In sum, plaintiffs’ claim does not arise
from a defect in the actual roadbed designed for vehicular travel; accordingly, it fails as a matter
of law under the highway exception to governmental immunity. See MCL 691.1402(1).
Affirmed.
/s/ Donald S. Owens
/s/ Mark J. Cavanagh
/s/ Janet T. Neff
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