ANTHONY A ADELEYE MD V DEPT OF TRANSPORTATION
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STATE OF MICHIGAN
COURT OF APPEALS
ANTHONY A. ADELEYE, M.D.,
UNPUBLISHED
July 16, 2009
Plaintiff-Appellee,
v
No. 280585
Court of Claims
LC No. 06-000094-MD
DEPARTMENT OF TRANSPORTATION,
Defendant-Appellant.
Before: Murray, P.J., and Markey and Wilder, JJ.
PER CURIAM.
Defendant appeals the trial court’s denial of its motion for summary disposition, brought
under MCR 2.116(C)(7) (governmental immunity) and MCR 2.116(C)(8) (failure to state a claim
on which relief may be granted). For the reasons set forth below, we affirm the trial court’s
order.
I.
Facts and Proceedings
Plaintiff was driving in the left northbound lane of the Lodge Freeway (M-10) when a
piece of concrete crashed through his windshield and struck him, causing injuries. The incident
occurred at or near the M-39 overpass that crossed M-10. Plaintiff filed suit alleging that
defendant breached its duty to repair and maintain the road “in reasonable repair and in a
condition safe and fit for travel” by allowing the M-39 roadbed “to deteriorate to such a degree
as to form cracks, separations, potholes and other openings, allowing water to filter through to
the bottom of the roadbed, causing concrete to dismantle from the bridge . . . .”
Defendant filed a motion for summary disposition pursuant to MCR 2.116(C)(7) and (8).
Defendant argued that plaintiff’s claims did not fall within the highway exception to
governmental immunity because plaintiff did not allege that a defective condition of the roadbed
surface of M-39 made the travel lanes of that road not reasonably safe and convenient for public
travel. In addition, defendant argued that plaintiff’s claim that it breached its duty to repair and
maintain the M-39 overpass superstructure fell outside the highway exception because the
support structure was not the traveled portion of the roadbed. In response, plaintiff asserted that
the M-39 overpass was in disrepair, and submitted an affidavit from a professional engineer who
stated that the deteriorated condition had existed for more than 30 days prior to the accident.
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The trial court denied defendant’s motion, finding that plaintiff stated an actionable claim
based on the assertion that defendant’s breach of its duty to repair and maintain M-39 resulted in
the deterioration of the M-39 roadbed and caused danger to those persons driving on M-10. In
addition, the trial court concluded that plaintiff stated a cause of action because the improved
portion of the highway included the structure that supported the actual roadbed.
II.
Analysis
We review a trial court’s decision on a motion for summary disposition de novo. Smith v
YMCA, 216 Mich App 552, 554; 550 NW2d 262 (1996). MCR 2.116(C)(7) provides for
summary disposition based on governmental immunity. As our Court has previously stated:
Under MCR 2.116(C)(7), the trial court must accept as true the contents of the
complaint, unless they are contradicted by documentary evidence submitted by
the moving party.” A trial court may also consider the parties' pleadings,
affidavits, depositions, admissions, and other documentary evidence filed to
determine whether the defendant is entitled to immunity. [Roby v City of Mount
Clemens, 274 Mich App 26, 28-29; 731 NW2d 494 (2006) (footnotes and
citations omitted).]
MCR 2.116(C)(8) on the other hand provides for summary where the nonmoving party “has
failed to state a claim on which relief can be granted.” Claims made under this subsection
must be “so clearly unenforceable as a matter of law that no factual development
could possibly justify recovery.” In reviewing the outcome of a motion under
MCR 2.116(C)(8), we consider the pleadings alone. We accept the factual
allegations in the complaint as true and construe them in a light most favorable to
the nonmoving party. [Kuznar v Raksha Corp, 481 Mich 169, 176; 750 NW2d
121 (2008), quoting Maiden v Rozwood, 461 Mich 109, 119; 597 NW2d 817
(1999).]
Generally, a governmental agency is immune from tort liability for actions taken in
furtherance of a governmental function. MCL 691.1407. Under this legislative scheme,
immunity is intended to be broad in scope, while the several exceptions to governmental
immunity are to be narrowly construed. Roby, supra at 29. The exception at issue here is
commonly referred to as the highway exception, MCL 691.1402(1), and provides in pertinent
part that:
Except as otherwise provided in section 2a, each governmental agency
having jurisdiction over a highway shall maintain the highway in reasonable
repair so that it is reasonably safe and convenient for public travel. A person who
sustains bodily injury or damage to his or her property 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. The liability, procedure,
and remedy as to county roads under the jurisdiction of a county road commission
shall be as provided in section 21 of chapter IV of 1909 PA 283, MCL 224.21.
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The duty of the state and the county road commissions to repair and maintain
highways, and the liability for that duty, extends only to the improved portion of
the highway designed for vehicular travel and does not include sidewalks,
trailways, crosswalks, or any other installation outside of the improved portion of
the highway designed for vehicular travel. [Emphasis added.]
According to the emphasized language, MCL 691.1402(1) imposes liability on the state
only for injuries resulting from the failure to repair and maintain “the improved portion of the
highway designed for vehicular travel” but not for “any other installations outside of the
improved portion of the highway designed for vehicular travel.” Id. Thus, in Nawrocki v
Macomb Co Rd Comm, 463 Mich 143, 183; 615 NW2d 702 (2000), the Court held that the
Legislature limited state liability to only “the actual physical structure of the roadbed surface”
designed for vehicular travel. See, also, Fortunate v Dep’t of Transportation, 208 Mich App
467, 468; 528 NW2d 743 (1994) (“The highway exception to governmental immunity . . .
extends only to the traveled portion of the roadbed actually designed for vehicular travel.”);
Iovino v Dep’t of Transportation, 244 Mich App 711, 715; 625 NW2d 129 (2001).
As noted above, plaintiff was driving on M-10, but the concrete piece that crashed
through his windshield fell from some portion of the M-39 (Southfield) overpass. However,
plaintiff does not merely allege that his injury was caused by the defective overpass structure.
Rather, plaintiff clearly asserts that the crash was caused by defendant’s failure “to maintain and
repair the Southfield roadbed, causing it to deteriorate to such a degree as to form cracks,
separations, potholes and other openings, allowing water to filter through to the bottom of the
roadbed, causing concrete to dismantle from the bridge, foreseeably contacting drivers operating
their vehicles on M-10 beneath the overpass.” (Emphasis added.) Accepting these factual
allegations as true and construing them in the light most favorable to plaintiff, we cannot say that
plaintiff failed to state a claim upon which relief may be granted. Kuznar, supra at 176. Indeed,
were the factual development of the record to show that the improved portion of the Southfield
roadbed designed for vehicular travel deteriorated to such a degree that water filtered through
and caused the concrete piece at issue to injure plaintiff, plaintiff’s claim would be sustainable
under the highway exception.
We note that in denying defendant’s motion, the trial court reasoned that the overpass
structure constitutes part of the improved portion of the highway based on Webster’s dictionary
definition that “a structure is the arrangement or interrelationship of all the parts of the whole.”
Such a conclusion, however, is inconsistent with the plain language of MCL 691.1402(1), which
extends defendant’s duty of repair and maintenance “only to the improved portion of the
highway1 designed for vehicular travel and does not include . . . any other installation outside of
the improved portion of the highway designed for vehicular travel.” (Footnote added.) Applying
this language, our Supreme Court has held that “only the travel lanes of a highway are subject to
the duty of repair and maintenance specified in MCL 691.1402.” Grimes v Dep’t of
Transportation, 475 Mich 72, 91; 715 NW2d 275 (2006) (footnote omitted). The overpass
1
A bridge – and thus an overpass structure – is a “highway” as defined by MCL 691.1401(e).
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structure that supported M-39 is not itself the surface of the roadbed designed for vehicular
travel. Nawrocki, supra at 180. Rather, it is the support structure for the improved portion of the
highway designed for vehicular travel, much like the paved shoulder is a supportive structure to
the traveled portion of a highway. See Grimes, supra at 91. As the Grimes Court noted when
discussing the limiting language of MCL 691.1402:
The Legislature modified the phrase “the improved portion of the highway” with
the phrase “designed for vehicular travel.” It did not intend to extend the highway
exception indiscriminately to every “improved portion of the highway.”
Otherwise, it would not have qualified the phrase. Rather, it limited the exception
to the segment of the “improved portion of highway” that is “designed for
vehicular travel.” Because the Legislature created this distinction, it believed
there are improved portions of highway that are not designed for vehicular travel.
Hence, this Court ought to respect this distinction as we parse the statutory
language. [Id. at 89-90.]
Thus, were the factual development of the record unable to show that conditions on the
traveled portion of the M-39 roadbed were causative of plaintiff’s injury, and instead were only
to show that the support structure itself was causative, plaintiff’s claim would fail. In any event,
in light of the current disposition of this case, we will not reverse the trial court’s order where it
reached the right result for the wrong reason.2 Taylor v Laban, 241 Mich App 449, 458; 616
NW2d 229 (2000).
2
We are mindful of this Court’s holding in Moser v Detroit, ___ Mich App ___; ___ NW2d ___
(2009), that MDOT was immune from suit where a chunk of concrete fell from a bridge overpass
onto the plaintiff’s car because the “fascia of the bridge is a part of the improved portion of the
highway designed for vehicular travel.” Although the case at hand is not ripe for application of
Moser, we express our disagreement with Moser’s failure to recognize the limiting nature of
MCL 691.1402 as interpreted in Nawrocki, Grime, Roby, and Iovino. Indeed, as the dissenting
opinion in Moser expressed:
[I]n Grimes [supra at 91], the Michigan Supreme Court held that “only the travel
lanes of a highway are subject to the duty of repair and maintenance specified in
MCL 691.1402(1).” The Supreme Court had previously held in Nawrocki [supra
at 162], that “if the condition is not located in the actual roadbed designed for
vehicular travel, the narrowly drawn highway exception is inapplicable . . . .” Id.
at 180 (citation omitted). The term “roadbed” is defined as “the material of which
a road is composed.” Random House Webster's College Dictionary, 2001, p
1140. The Supreme Court’s reference to “travel lanes” and “roadbed” make clear
that only the portion of the road upon which a vehicle is driven is subject to the
“narrowly drawn highway exception.” Nawrocki, supra at 180. Vehicles are not
driven on the fascia of a bridge. As such, plaintiff has failed to show a defect in
the improved portion of the highway which would subject the state to liability in
this case. [Moser, supra, (Wilder, P.J., dissenting).]
(continued…)
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Affirmed.
/s/ Christopher M. Murray
/s/ Jane E. Markey
/s/ Kurtis T. Wilder
(…continued)
In any event, as just noted, application of Moser to this case is premature.
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