COLLEEN ADAMS V DEPT OF TRANSPORTATION
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
COLLEEN ADAMS, for herself, and as legal
guardian for RICHARD ADAMS,
FOR PUBLICATION
October 11, 2002
9:00 a.m.
Plaintiffs-Appellants,
v
No. 230268
Court of Claims
LC No. 98-016967-CMI
DEPARTMENT OF TRANSPORTATION,
Defendant-Appellee.
Updated Copy
January 3, 2003
Before: Sawyer, P.J., and Hood, Jansen, O'Connell, Zahra, Kelly, and Murray, JJ.
JANSEN, J. (dissenting).
I respectfully dissent. I would hold that this Court's majority opinion in Sekulov v
Warren, 251 Mich App 333; 650 NW2d 397 (2002), was correct and would follow its reasoning.
When Pick v Szymczak, 451 Mich 607; 548 NW2d 603 (1996), was decided, the specific
issue whether a governmental agency had the duty to provide traffic control devices or warning
signs was, in the words of the majority opinion, "still unsettled." In Pick, id. at 619, a fourjustice majority definitively decided that governmental agencies have the duty to provide
adequate warning signs or traffic control devices at known points of hazard under the highway
exception of the governmental tort liability act, MCL 691.1402. This holding in Pick was clear
and established a new principle of law because the Supreme Court had never previously decided
this specific issue in a majority opinion. Indeed, the majority opinion in Pick set forth the
previous cases of the Supreme Court that dealt with the question of street lights, warning signs,
and traffic control devices and noted that all involved plurality decisions.1 Therefore, it is clear
that in Pick the Supreme Court held definitively, for the first time, that a governmental agency
had the duty to provide adequate warning signs or traffic control devices at known points of
hazard under the highway exception to governmental immunity.
1
The decisions were Scheurman v Dep't of Trans, 434 Mich 619; 456 NW2d 66 (1990), Salvati v
Dep't of State Hwys, 415 Mich 708; 405 NW2d 856 (1982), and Tuttle v Dep't of State Hwys,
397 Mich 44; 243 NW2d 244 (1976).
-1-
The Supreme Court's reasoning in Nawrocki v Macomb Co Rd Comm, 463 Mich 143; 615
NW2d 702 (2000), for overruling Pick—that Nawrocki represents a "return" to the "plain
language" of the statute—is simply irrelevant with respect to whether Nawrocki is to be given
retroactive or prospective application. The first question to be addressed is whether the decision
clearly established a new principle of law. Pohutski v Allen Park, 465 Mich 675, 696; 641
NW2d 219 (2002). As previously stated, Pick clearly established a new principle of law because
the Supreme Court had not decided the matter of whether governmental agencies had a duty to
provide warning signs and traffic control devices. The other factors to be weighed in
determining whether a decision should not be applied retroactively are (1) the purpose served by
the new rule, (2) the extent of reliance on the old rule, and (3) the effect of retroactivity on the
administration of justice. Id.; Lesner v Liquid Disposal, Inc, 466 Mich 95, 108-109; 643 NW2d
553 (2002).
In Nawrocki, as in Pohutski,2 the Supreme Court purported to return to the plain language
of the governmental immunity statute and correct the erroneous interpretation set forth in Pick.
In Pohutski, the Court concluded that giving its decision prospective application would further
the purpose of correcting an error in the interpretation of MCL 691.1407. See Pohutski, supra at
697. Similarly, giving Nawrocki prospective application would further the purpose of correcting
an error in the interpretation of MCL 691.1402. Also, because Pick definitively decided that
governmental agencies had a duty to provide adequate warning signs and traffic control devices
at known points of hazard, all courts, as well as all governmental agencies so responsible, had to
follow this interpretation of the statute. See Pohutski, supra at 697 (prospective application
would acknowledge the reliance by courts and insurance companies on the longstanding
interpretation of MCL 691.1407 set forth in Hadfield v Oakland Co Drain Comm'r, 430 Mich
139; 422 NW2d 205 [1988]).3 Lastly, the administration of justice would be better served by
giving Nawrocki prospective application only because the Legislature did not amend § 2 of the
governmental tort liability act in light of Pick. See Craig v Larson, 432 Mich 346, 353; 439
NW2d 899 (1989) (silence by the Legislature following judicial interpretation of a statute
suggests consent to that interpretation).
The fact that the Supreme Court in Nawrocki did not expressly state that the holding was
to be given prospective application only is completely inconsequential. This is not a factor to
determine retroactive or prospective application of a decision and, moreover, the Supreme Court
itself has given its own decisions prospective application in later opinions. See, e.g., People v
Sexton, 458 Mich 43; 580 NW2d 404 (1998), giving prospective application to People v Bender,
452 Mich 594; 551 NW2d 71 (1996).
2
The Court in Pohutski addressed § 7 of the governmental tort liability act, MCL 691.1407,
rather than MCL 691.1402 as in Nawrocki.
3
In Lesner, supra at 109, the Supreme Court stated that the case it was overruling had been
controlling authority for over 6 1/2 years and there thus appeared to be widespread reliance on
the case being overruled. Likewise, in the present situation, Pick had been controlling authority
and relied on for four years.
-2-
I would conclude that Sekulov was correctly decided and that Nawrocki should be given
prospective application only. I would reverse the trial court's grant of summary disposition in
favor of defendant and remand for further proceedings.
Hood, J., concurred.
/s/ Kathleen Jansen
/s/ Harold Hood
-3-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.