ROBERT S MOSER II V CITY OF DETROITAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
ROBERT S. MOSER, II,
June 23, 2009
Wayne Circuit Court
LC No. 06-629396-NP
CITY OF DETROIT and WAYNE COUNTY,
Advance Sheets Version
MICHIGAN DEPARTMENT OF
Before: Wilder, P.J., and Meter and Servitto, JJ.
Defendant Michigan Department of Transportation appeals as of right the circuit court’s
order denying its motion for summary disposition. Because the fascia of the bridge is a part of
the improved portion of the highway designed for vehicular travel, we affirm.
Plaintiff was injured when a chunk of concrete fell from the fascia of an overpass (the
Cass Avenue Bridge) and crashed through his windshield as he drove on I-75 below Cass
Avenue. Although Cass is a city-owned street, defendant has contractually agreed to maintain
and repair all of its bridge’s structure; the city maintains only the Cass Avenue roadway surface.
The parties stipulated that defendant had exclusive control and jurisdiction over the bridge and to
the dismissal of the city and the county defendants. Defendant then moved for summary
disposition pursuant to MCR 2.116(C)(7), asserting that plaintiff’s claims were barred by
governmental immunity. According to defendant, the highway exception to governmental
immunity, MCL 691.1402, only imposes liability for failing to maintain and repair the improved
portion of the highway designed for vehicular travel, and the fascia of the bridge is not a part of
that improved portion. The circuit court denied the motion, opining that a bridge, which is
included in the definition of “highway,” for which defendant is liable for repairing and
maintaining, includes the fascia in its superstructure and is therefore part of the improved and
traveled portion of the highway.
We review de novo a trial court’s decision on a motion for summary disposition. Spiek v
Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). The applicability of the
highway exception to governmental immunity is a question of law subject to de novo
consideration on appeal. Stevenson v Detroit, 264 Mich App 37, 40-41; 689 NW2d 239 (2004).
A governmental agency is generally immune from tort liability “if the governmental
agency is engaged in the exercise or discharge of a governmental function.” MCL 691.1407.
However, statutory exceptions to governmental immunity do exist and include what is
commonly called “the highway exception.” The purpose of this exception is to enhance the
safety of travel on public highways. Chaney v Dep’t of Transportation, 447 Mich 145, 154; 523
NW2d 762 (1994). MCL 691.1402(1) articulates the highway exception:
[E]ach 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 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. . . .
“Highway” is defined in MCL 691.1401(e) as “a public highway, road, or street that is open for
public travel and includes bridges, sidewalks, trailways, crosswalks, and culverts on the
highway. The term highway does not include alleys, trees, and utility poles.” The highway
exception to immunity is narrowly construed. Grimes v Dep’t of Transportation, 475 Mich 72,
78; 715 NW2d 275 (2006).
A governmental agency must have jurisdiction over a highway for it to be liable under
the highway exception for breaching its duty to maintain a highway in reasonable repair. Carr v
City of Lansing, 259 Mich App 376, 381; 674 NW2d 168 (2003). In Markillie v Livingston Co
Bd of Rd Comm’rs, 210 Mich App 16, 22; 532 NW2d 878 (1995), this Court held that the word
“jurisdiction” in MCL 691.1402(1) “is synonymous with ‘control.’” In this case, defendant has
exclusive control over the maintenance and repair of the structure, except for the very surface of
Cass Avenue, and the parties do not dispute that defendant has control and jurisdiction over the
bridge itself. The only question before this Court is whether the crumbling fascia of the structure
constitutes a defect in the highway for which the state is liable.
According to defendant, the highway exception permits a claim in avoidance of
governmental immunity only when the defect causing injury or damage arose from a condition in
the improved portion of the highway designed for vehicular travel. Defendant contends that the
fascia is not a part of the bridge deck and thus not a part of the driving surface, such that the
highway exception is inapplicable. We disagree.
In Grimes, supra at 91, the 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).” Accordingly, it held that
the shoulder of the road is outside the scope of the state’s duty to repair and maintain the
highway. Id. In Nawrocki v Macomb Co Rd Comm, 463 Mich 143, 162; 615 NW2d 702 (2000),
our Supreme Court opined on the liability of the state and counties with respect to highway
conditions: “if the condition is not located in the actual roadbed designed for vehicular travel, the
narrowly drawn highway exception is inapplicable . . . .” Id. at 180. Conversely, “[t]he state and
county road commissions’ duty, under the highway exception, is . . . 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.” Id. at 183.
Of note, the Nawrocki Court indicated that “if the condition proximately causing injury or
property damage is located in the improved portion of the highway designed for vehicular travel,
not otherwise expressly excluded, the state or county road commissions’ statutory duty under the
highway exception is implicated.” Id. at 171. The definition of “highway” in MCL 691.1401(e)
includes bridges, the bridge at issue was designed for vehicular travel, and bridges are not
expressly excluded in the explanation in MCL 691.1402(1) of those areas to which the duty of
the state and the county road commissions to repair and maintain highways extends. The only
areas specifically excluded from the duty to repair and maintain are “sidewalks, trailways,
crosswalks or any other installation outside of the improved portion of the highway designed for
vehicular travel.” MCL 691.1402(1).
More importantly, in Nawrocki, our Supreme Court recognized the highway exception in
connection with the “improved portion of the highway,” not just a road’s surface, with the
“actual physical structure of the roadbed surface.” Nawrocki, supra at 183. The word “structure”
suggests not just the surface area or top layer of construction materials, but to “[s]omething made
up of a number of parts that are held or put together in a particular way.” American Heritage
Dictionary (4th ed). The Supreme Court’s use of “roadbed surface,” instead of “road surface,” in
stating the rule, implicates not just a road’s two-dimensional surface that actually comes into
contact with traffic, but also its construction components found underneath the surface.
Such an interpretation is supported by the testimony of Paul Dlugopolski, a bridge
inspector for the Michigan Department of Transportation. Mr. Dlugopolski testified that the
deck of a bridge is the part of a bridge that cars drive over. Mr. Dlugopolski testified that the
deck is the part of the bridge on top of beams that cars travel on and includes the bottom, top,
and sides. He testified that the deck fascia is the concrete side of the bridge. Mr. Dlugopolski
testified that the top of the deck is where the tires meet the deck, and the bottom is the underside
of the deck. He testified that you cannot have a top without the bottom and that the deck is the
traveled roadway. From this testimony, it appears that the deck of a roadway is comprised of a
top, a bottom, and sides. If the sides are a part of the deck, and the deck is identified as the
traveled portion of the roadway, then the sides are a part of the traveled roadway.
The fact is, a road is not a two dimensional surface comprised of only length and width.
Logically, then, the maintenance of the improved portion of the highway includes the
maintenance of the sides and underside of the highway. If the sides and underside are allowed to
deteriorate, the highway is just as subject to collapse or other dangers, as it would be if the
surface were allowed to deteriorate (perhaps even more so). To hold that the “improved portion
of the highway” consists only of a road surface that the tires touch would not only be
inconsistent with Nawrocki, it would also be contrary to the purpose of MCL 691.1402, which is
to enhance the safety of travel on public highways. Chaney, supra.
We find that, under Nawrocki, the state is subject to liability in this case. Pieces of the
bridge structure (which were part of the improved portion of the roadway, designed for vehicular
travel) falling onto the highway below, created an unsafe condition on the traveled portion of the
roadbed actually designed for vehicular travel. This defect rendered the improved portion of I75, below the Cass Avenue bridge, unfit for public travel.
Meter, J., concurred.
/s/ Patrick M. Meter
/s/ Deborah A. Servitto