UTAKA WALTON V WAYNE COUNTY
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STATE OF MICHIGAN
COURT OF APPEALS
UTAKA WALTON,
UNPUBLISHED
February 28, 2008
Plaintiff-Appellant,
v
No. 275370
Wayne Circuit Court
LC No. 05-526152-NO
WAYNE COUNTY,
Defendant,
and
CITY OF DETROIT,
Defendant-Appellee.
Before: White, P.J., and Hoekstra and Schuette, JJ.
PER CURIAM.
In this suit alleging negligence in the inspection and maintenance of a pedestrian
overpass, plaintiff appeals as of right the trial court’s order granting summary disposition in
favor of defendant City of Detroit (Detroit) on the basis of governmental immunity. Because the
undisputed evidence establishes that Detroit did not have jurisdiction over the overpass from
which plaintiff alleges concrete fell and came through the windshield of her car, we affirm.
This case arises out of an automobile accident in which a piece of concrete came through
the windshield of plaintiff’s car as she drove down I-96 in the city of Detroit. Plaintiff alleges
that the concrete fell from the Cherrylawn pedestrian overpass, causing injuries to her face and
hand. On appeal, plaintiff argues that the trial court erred in concluding that the overpass from
which the concrete allegedly fell was not a sidewalk, and thus did not qualify as a highway for
purposes of the highway exception to governmental immunity.1
1
The trial court also held that there was a genuine issue of material fact regarding the source of
the concrete, and thus, denied Detroit’s motion for summary disposition pursuant to MCR
2.116(C)(10). Because we find that the highway exception to governmental immunity does not
(continued…)
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We review de novo a trial court’s decision on a motion for summary disposition pursuant
to MCR 2.116(C)(7). Davis v Detroit, 269 Mich App 376, 378; 711 NW2d 462 (2006). “MCR
2.116(C)(7) tests whether a claim is barred because of immunity granted by law, and requires
consideration of all documentary evidence filed or submitted by the parties.” Wade v Dep’t of
Corrections, 439 Mich 158, 162; 483 NW2d 26 (1992). A trial court properly grants a motion
for summary disposition under MCR 2.116(C)(7) when the undisputed facts establish that the
moving party is entitled to immunity granted by law. Poppen v Tovey, 256 Mich App 351, 354,
664 NW2d 269 (2003).
Generally, a governmental agency is shielded from tort liability if it is engaged in the
exercise or discharge of a governmental function. MCL 691.1407(1); Grimes v Dep’t of
Transportation, 475 Mich 72, 76-77; 715 NW2d 275 (2006). Pursuant to the highway exception,
however, a person who sustains bodily injury or property damage “by reason of failure of a
governmental agency to keep a highway under its jurisdiction in reasonable repair and in a
condition reasonably safe and fit for travel may recover the damages suffered by him or her from
the governmental agency.” MCL 691.1402(1). MCL 691.1401(e) defines a highway as “a
public highway, road, or street that is open for public travel and includes bridges, sidewalks,
trailways, crosswalks, and culverts on the highway.”
We reject plaintiff’s assertion that the trial court erred in ruling that the Cherrylawn
overpass, which runs perpendicular to the road on which plaintiff was traveling at the time of her
injuries, was not a “sidewalk” for purposes of the highway exception to governmental immunity.
See Stabley v Huron-Clinton Metro Park Auth, 228 Mich App 363, 367-369; 579 NW2d 374
(1998) (indicating that a “sidewalk” is commonly understood to be a separate path along the side
of a road); see also Haaksma v Grand Rapids, 247 Mich App 44, 55; 634 NW2d 390 (2001).
Regardless, liability under the highway exception to governmental immunity is limited to the
entity having jurisdiction over the highway. Carr v City of Lansing, 259 Mich App 376, 381;
674 NW2d 168 (2003). This Court has held that the term jurisdiction, in the context of the
highway exception, is synonymous with control. Markillie v Bd of Co Rd Comm’rs of
Livingston, 210 Mich App 16, 22; 532 NW2d 878 (1995). As a result, liability for a defective
highway is limited “to the entity with the authority to construct, maintain, and repair it.” Id.
Additionally, only one governmental entity can have jurisdiction over a highway, as this Court
does not recognize concurrent jurisdiction. Id. at 20.
Here, in support of its motion for summary disposition, Detroit provided the affidavit of
Robert Kelley of the Michigan Department of Transportation (MDOT), who stated that the
Cherrylawn overpass is owned and maintained by MDOT. Furthermore, plaintiff admits that
there is no evidence linking Detroit to either the construction or installation of the overpass, and
that following her accident, MDOT, not Detroit, constructed repairs on the overpass. The
undisputed facts thus establish that Detroit lacked jurisdiction over the overpass in question. Id.;
Poppen, supra at 354 Because Detroit has no jurisdiction over the overpass, the highway
exception to governmental immunity cannot be asserted against it. Bennett v City of Lansing, 52
(…continued)
apply to Detroit in the present case, it is not necessary to address whether the trial court’s ruling
regarding the source of the concrete was correct.
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Mich App 289, 295; 217 NW2d 54 (1974). Accordingly, Detroit was entitled to summary
disposition in its favor under MCR 2.116(C)(7).
Affirmed.
/s/ Helene N. White
/s/ Joel P. Hoekstra
/s/ Bill Schuette
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