VERA SEKULOV V LEON J BODEN
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STATE OF MICHIGAN
COURT OF APPEALS
VERA SEKULOV, Personal Representative of the
Estate of RADE SEKULOVSKI, Deceased,
FOR PUBLICATION
May 14, 2002
9:00 a.m.
Plaintiff-Appellant,
v
No. 228159
Macomb Circuit Court
LC No. 98-000497-NP
CITY OF WARREN and COUNTY OF
MACOMB,
Defendant-Appellees.
Updated Copy
August 16, 2002
Before: Neff, P.J., and Fitzgerald and Talbot, JJ.
TALBOT, J. (concurring in part and dissenting in part).
I would affirm the trial court's grant of summary disposition for both defendants. I agree
that summary disposition was properly granted in favor of defendant city of Warren for the
reasons stated in the majority opinion. However, I would also affirm the trial court's grant of
summary disposition in favor of defendant Macomb County on the basis of Nawrocki v Macomb
Co Rd Comm, 463 Mich 143; 615 NW2d 702 (2000), and Hanson v Mecosta Co Bd of Co Rd
Comm'rs, 465 Mich 492; 638 NW2d 396 (2002), which I believe apply retroactively and are
dispositive of plaintiff 's claims.
In determining whether the general rule of retroactive application applies to Nawrocki, it
is necessary to address the threshold question whether the Nawrocki decision clearly established
a new principle of law. Pohutski v Allen Park, 465 Mich 675, 696-697; 641 NW2d 219 (2002).
Accordingly, the relevant inquiry is whether our Supreme Court overruled clear and
uncontradicted case law when it overruled Pick v Szymczak, 451 Mich 607; 548 NW2d 603
(1996). Lincoln v General Motors Corp, 461 Mich 483, 491; 607 NW2d 73 (2000), citing
Michigan Educational Employees Mut Ins Co v Morris, 460 Mich 180, 189; 596 NW2d 142
(1999). I would hold that it did not.
The Pick decision was neither clear nor uncontradicted. In overruling the decision, the
Nawrocki Court noted that Pick constituted a departure from the interpretative principles of Ross
v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984), "that the
immunity conferred on governmental agencies is broad with narrowly drawn exceptions."
Nawrocki, supra at 149, 177-178. Nawrocki corrected an erroneous interpretation of MCL
691.1402(1) that was contrary not only to the established principles of Ross, but also to the plain
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language of the statute. Nawrocki, supra at 175, 180, 183. "[A] purpose of clarifying existing
law is sufficient for the retroactive application of a rule of law." Chow v O'Keefe, 217 Mich App
102, 105; 550 NW2d 833 (1996). See Lindsey v Harper Hosp, 455 Mich 56, 68-69; 564 NW2d
861 (1997); Bolt v City of Lansing (On Remand), 238 Mich App 37, 44; 604 NW2d 745 (1999).
Notably, the Nawrocki Court prefaced its analysis by observing that "[t]he failure to
consistently follow Ross, specifically with regard to the interpretation and application of the
highway exception, has precipitated an exhausting line of confusing and contradictory
decisions." Nawrocki, supra at 149. The Court recognized that "these conflicting decisions have
provided precedent that both parties in highway liability cases may cite as authority for their
opposing positions." Id. at 149-150. The Court stated that "[t]his area of the law cries out for
clarification," which it attempted to provide in the Nawrocki decision. Id. at 150. Clearly, Pick
was not settled precedent. Accordingly, because Nawrocki does not satisfy this threshold
criterion, Nawrocki has retroactive application.
Similarly, the Supreme Court in Hanson applied the plain language of subsection 1402(1)
and the principles articulated in Nawrocki in rejecting the plaintiff 's claim that the government
has a duty to correct design defects in the road. Hanson, supra at 503. The prior case law cited
in the Hanson dissent contains mere dicta on this issue and therefore carries no precedential
authority. Hanson, supra at 501, n 7. Because Hanson did not overrule clear and uncontradicted
prior case law, retroactive application is appropriate.
On the authority of Nawrocki and Hanson, plaintiff 's claim fails. Plaintiff 's claim of
inadequate signage, traffic control devices, or lighting fails to plead facts in avoidance of
governmental immunity. Nawrocki, supra at 183-184. Further, plaintiff 's claim that the county
failed to correct design defects and make improvements to the roadway and crosswalk also is
inadequate to avoid governmental immunity. Hanson, supra at 503-504. Our Supreme Court
"emphasized in Nawrocki that the highway exception does not permit claims based on conditions
arising from such points of hazard, and that the only permissible claims are those arising from a
defect in the actual roadbed itself." Id. at 503, citing Nawrocki, supra. The highway exception
to governmental immunity is inapplicable and Macomb County is entitled to summary
disposition. Hanson, supra at 503; Nawrocki, supra at 182-183; MCR 2.116(C)(7) and (C)(8).
/s/ Michael J. Talbot
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