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 -1- 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 -2-

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