JANE F MCINTOSH V STATE OF MICH
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STATE OF MICHIGAN
COURT OF APPEALS
JANE F. McINTOSH, JOHN McINTOSH and
BETTY A. GUZIK, as Personal Representative of
the Estate of ALBERT J. GUZIK,
FOR PUBLICATION
February 20, 2001
9:10 a.m.
Plaintiffs-Appellants,
ON REMAND
No. 203017
Court of Claims
LC No. 95-015954-CM
STATE OF MICHIGAN, DEPARTMENT OF
TRANSPORTATION (MDOT),
Defendant-Appellee.
Updated Copy
April 13, 2001
Before: M.J. Kelly, P.J., and Hood and Markey, JJ.
M.J. KELLY, P.J.
This matter is before us on remand from our Supreme Court for reconsideration of our
previous determination that plaintiffs' claims against defendant fell within the highway exception
to governmental immunity. 463 Mich 899 (2000). We are to reconsider our previous decision in
light of Evens v Shiawassee Co Rd Comm'rs, 463 Mich 143; 615 NW2d 702 (2000).1 In Evens,
our Supreme Court overruled Pick v Szymczak, 451 Mich 607; 548 NW2d 603 (1996). In our
previous opinion, we relied on the Pick decision in determining that plaintiffs' claims fell within
the highway exception to governmental immunity. After further review, and in light of the
Court's holding in Evens, we now affirm the Court of Claims' grant of summary disposition.
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The facts of this case were set out in our previous opinion, McIntosh v Dep't of
Transportation, 234 Mich App 379, 380; 594 NW2d 103 (1999), vacated and remanded 463
Mich 899 (2000).
On November 23, 1993, Jane F. McIntosh was driving her 1988 Buick and
Albert J. Guzik was driving his 1991 Ford pickup truck on westbound I-96 near
Old Plank Road in Lyon Township. William Jones was driving his 1985 Camaro
on eastbound I-96 in the center lane near Old Plank Road. Jones, who was
driving at an excessive rate of speed, abruptly veered to the right onto the right
shoulder, swerved left across the eastbound lanes of traffic, lost control of his car,
and entered the center grassy median. When he entered the median, his car
became airborne, crossed the median, entered the westbound lanes of I-96, and
struck Guzik's pickup truck, which exploded on impact. After striking the pickup
truck, Jones' car rolled and struck several vehicles, including McIntosh's car.
Guzik was killed on impact and McIntosh was severely injured.
Subsequently, plaintiffs brought claims against defendant "based on the allegation that the
highway was defective in that either the grassy median separating the westbound and eastbound
traffic lanes of I-96 should have been wider or a median barrier should have been installed."
McIntosh, supra at 381.
Defendant moved for partial summary disposition, claiming that
plaintiffs' claims did not fall within the highway exception to governmental immunity. The
Court of Claims granted defendant's motion.2 Because of our Supreme Court's recent decision in
Evens, we are compelled to affirm the Court of Claims' grant of summary disposition in favor of
defendant, however reluctantly.
In Evens, the plaintiff sustained serious injuries in an automobile accident at the
intersection of Newburg Road and Byron Road in Shiawassee County. The plaintiff was driving
north on Byron Road at the time of his accident. Byron Road was regulated by stop signs, posted
on both the left and right sides of the roadway. Traffic on Newburg Road was not required to
stop at this particular intersection. After stopping at the stop sign, the plaintiff entered the
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intersection with Newburg Road, where he collided with a car traveling west on Newburg Road,
which had the right of way. Thereafter, the plaintiff sued the defendant, Shiawassee County
Road Commissioners (SCRC), "arguing that they negligently failed to maintain the intersection
in reasonable repair and in a condition safe and convenient for public travel. Specifically, Evens
argued that the SCRC owed him a duty to install additional stop signs or traffic signals at the
intersection." Evens, supra at 154. Subsequently, the SCRC moved for summary disposition,
arguing that "county road commissions could not be held liable for a failure to install traffic signs
on the theory that signs are outside the improved portion of the highway designed for vehicular
travel and are not covered by the highway exception." Evens, supra at 154. The circuit court
granted the SCRC's motion. The Supreme Court in Evens affirmed the circuit court decision.
The Evens Court held that the state and county road commissions' duty, under the
highway exception, MCL 691.1402(1); MSA 3.996(102)(1), is only to repair and maintain the
improved portion of the highway designed for vehicular travel and that the duty is limited
exclusively to dangerous or defective conditions within the actual roadway designed for
vehicular travel. Evens, supra at 183-184. Specifically, the Court held:
The state and county road commissions' duty, under the highway
exception, is only implicated upon their failure to repair or maintain the actual
physical structure of the roadbed surface, paved or unpaved, designed for
vehicular travel, which in turn proximately causes injury or damage. A plaintiff
making a claim of inadequate signage, like a plaintiff making a claim of
inadequate street lighting or vegetation obstruction, fails to plead in avoidance of
governmental immunity because signs are not within the paved or unpaved
portion of the roadbed designed for vehicular travel. Traffic device claims, such
as inadequacy of traffic signs, simply do not involve a dangerous or defective
condition in the improved portion of the highway designed for vehicular travel.
[Id. (citation omitted).]
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The median between the eastbound and westbound lanes of I-96 is, obviously, outside the
actual physical structure of the roadbed surface designed for vehicular travel. It is not a road
surface condition. The width of the median and the lack of a median barrier are basically design
features. The Evens decision makes it clear that defendant had no duty, under the highway
exception to governmental immunity, to correct these design defects.
Id. at 183-184.
Defendants' duty only extended to a dangerous or defective condition of the roadway designed
for vehicular travel. Id. There is no dispute that the median area between the eastbound and
westbound lanes of I-96 is outside the actual physical structure of the roadbed surface designed
for vehicular travel.
In sum, plaintiffs' claim of improper or dangerous median design is not a claim involving
a dangerous or defective condition in the improved portion of the roadway designed for vehicular
travel. Therefore, they have failed to plead in avoidance of governmental immunity. Hence,
summary disposition was properly granted in favor of defendant.
Affirmed.
/s/ Michael J. Kelly
/s/ Harold Hood
/s/ Jane E. Markey
1
Evens is the companion case to Nawrocki v Macomb Co Rd Comm, 463 Mich 143; 615 NW2d
702 (2000).
2
After the Court of Claims granted defendant partial summary disposition, the parties stipulated
the entry of an order dismissing plaintiffs’ remaining claims.
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