THOMAS LAMEAU V CITY OF ROYAL OAK
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STATE OF MICHIGAN
COURT OF APPEALS
THOMAS LAMEAU, Personal Representative of
the ESTATE OF JOHN M. CRNKOVICH,
deceased,
FOR PUBLICATION
July 13, 2010
Plaintiff-Appellee,
v
No. 290059
Oakland Circuit Court
LC No. 07-083761-NO
CITY OF ROYAL OAK,
Defendant-Appellant,
and
DETROIT EDISON COMPANY,
Defendant-Appellee,
and
GAGLIO PR CEMENT CORPORATION1,
ELDEN DANIELSON, and BRIAN WARJU,
Defendants.
THOMAS LAMEAU, Personal Representative of
the ESTATE OF JOHN M. CRNKOVICH,
deceased,
Plaintiff-Appellee,
v
No. 292006
Oakland Circuit Court
1
Defendant, Gaglio Cement PR Corporation, filed an appeal in this matter (Docket No. 289947),
which has been stayed pending the filing of a bankruptcy petition. LaMeau v City of Royal Oak,
unpublished order of the Court of Appeals, entered April 29, 2010 (Docket Nos. 289947,
290059, 292006).
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CITY OF ROYAL OAK and GAGLIO PR
CEMENT CORPORATION,
LC No. 07-083761-NO
Defendants,
and
DETROIT EDISON COMPANY,
Defendant-Appellee,
and
ELDEN DANIELSON and BRIAN WARJU,
Defendants-Appellants.
Before: TALBOT, P.J., and FITZGERALD and M.J. KELLY, JJ.
TALBOT, P.J. (dissenting)
I respectfully dissent from the majority’s opinion and would reverse the trial court’s
denial of defendants’ motions for summary disposition based on their assertion of governmental
immunity.
This lawsuit arises from an accident that occurred on May 24, 2006, at 11:00 p.m., on
defendant City of Royal Oak’s (hereinafter “City”) sidewalk. At that time, plaintiff Thomas
Lameau’s decedent, John M. Crnkovich, died of blunt force head and neck trauma after striking a
guy2 wire strung at an angle from defendant Detroit Edison Company’s (hereinafter “DTE”)
utility pole across and anchored on the opposite side of the sidewalk. It is undisputed that, at the
time of the accident, the decedent was riding a motorized scooter, without benefit of lights or a
helmet, and had a blood alcohol level of 0.13 g/dL in addition to the presence of cannabinoids in
his system. Defendant Gaglio PR Cement Corporation (hereinafter “Gaglio”) had a contract with
the City for installation of the sidewalk where this accident occurred. Defendants Elden
Danielson and Brian Warju are engineers employed by the City, involved in the design,
placement and oversight of the construction project for the sidewalk.
This Court reviews de novo a trial court's grant or denial of a motion for summary
disposition. Ardt v Titan Ins Co, 233 Mich App 685, 688; 593 NW2d 215 (1999). A motion for
summary disposition brought pursuant to MCR 2.116(C)(10) serves to test the factual sufficiency
of the claims. Corley v Detroit Bd of Ed, 470 Mich 274, 278; 681 NW2d 342 (2004). In
2
The parties and record alternatively reference this as a “guy wire” or “guide wire.”
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accordance with MCR 2.116(C)(10), the moving party is entitled to a grant of summary
disposition upon a successful demonstration that no genuine issue of material fact exists.
Coblentz v Novi, 475 Mich 558, 569; 719 NW2d 73 (2006). Mere speculation and conjecture
cannot give rise to a genuine issue of material fact. Quinto v Cross & Peters Co, 451 Mich 358,
371-372; 547 NW2d 314 (1996). A motion for summary disposition brought in accordance with
MCR 2.116(C)(8) tests the legal sufficiency of the allegations claimed in the pleadings. Feyz v
Mercy Mem Hosp, 475 Mich 663, 672; 719 NW2d 1 (2006). In contrast, when deciding a
motion under MCR 2.116(C)(7), a court must consider the pleadings, admissions, affidavits, and
other documentary evidence within the record in the light most favorable to the nonmoving party
to determine whether any genuine issue of material fact exists, which would necessitate the
conduct of a trial. See Amburgey v Sauder, 238 Mich App 228, 231; 605 NW2d 84 (1999).
The issues raised by defendants concern the applicability of governmental immunity. In
general, governmental agencies are deemed to be immune from tort liability for actions taken in
furtherance of their governmental functions. MCL 691.1407(1). “[T]he immunity conferred
upon governmental agencies is broad, and the statutory exceptions thereto are to be narrowly
construed.” Nawrocki v Macomb Co Rd Comm, 463 Mich 143, 158; 615 NW2d 702 (2000)
(emphasis in the original). A governmental function has been defined to encompass “an activity
. . . expressly or impliedly mandated or authorized by constitution, statute, local charter or
ordinance, or other law.” MCL 691.1401(f). The fact that the City’s construction of a sidewalk
comprises a governmental function is not in dispute.
The City is immune from liability while engaged in a governmental function, unless a
statutory exception is found to be applicable. The only exception alleged to be at issue under the
circumstances of this case is the highway exception, MCL 691.1402, which provides in relevant
part:
(1) Except as otherwise provided in section 2a, each 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.
Of particular relevance is the term “highway” as defined in MCL 691.1401(e), as follows: “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.”
As discussed by our Supreme Court in Estate of Buckner v City of Lansing, 480 Mich
1243, 1244; 747 NW2d 231 (2008)3:
3
“We treat the Supreme Court’s order as binding precedent.” Gonzalez v St John Hosp and Med
(continued…)
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The term “highway” includes “sidewalks.” MCL 691.1401(e). In order to show
that a governmental agency failed to “maintain [a] highway in reasonable repair,”
a plaintiff must demonstrate that a “defect” exists in the highway. [Citations
omitted.]
Because the parties do not dispute jurisdiction in this matter, the issue that must be resolved is
whether the guy wire strung across the sidewalk comprises a “defect,” as contemplated by the
statute. Plaintiff contends that the guy wire was anchored into the sidewalk and thus is part of its
construction and constitutes a defect. In contrast, the City argues that the guy wire is part of the
utility pole owned and under the jurisdiction of Detroit Edison, which is specifically excluded
from the definition of the term highway, pursuant to MCL 691.1401(e). As such, neither the
pole, nor the wire that extends from it, is part of the sidewalk and, therefore, comprise an
exception for purposes of immunity. In addition, the City cites to MCL 691.1402a, which
provides in relevant part:
(1) Except as otherwise provided by this section, a municipal corporation has no
duty to repair or maintain, and is not liable for injuries arising from, a portion of a
county highway outside of the improved portion of the highway designed for
vehicular travel, including a sidewalk, trailway, crosswalk, or other installation.
This subsection does not prevent or limit a municipal corporation's liability if both
of the following are true:
(a) At least 30 days before the occurrence of the relevant injury, death, or damage,
the municipal corporation knew or, in the exercise of reasonable diligence, should
have known of the existence of a defect in a sidewalk, trailway, crosswalk, or
other installation outside of the improved portion of the highway designed for
vehicular travel.
(b) The defect described in subdivision (a) is a proximate cause of the injury,
death, or damage.
(2) A discontinuity defect of less than 2 inches creates a rebuttable inference that
the municipal corporation maintained the sidewalk, trailway, crosswalk, or other
installation outside of the improved portion of the highway designed for vehicular
travel in reasonable repair.
Specifically, the City contends that any “defect” must be in the materials or construction actually
comprising the sidewalk, which plaintiff cannot demonstrate and has not alleged. See MCL
691.1402a(2). Plaintiff responds that MCL 691.1402a(2) is not applicable because a
“discontinuity defect” is not at issue. However, MCL 691.1402a(1) would impose liability.
The initial matter to be resolved is whether the term “defect” encompasses the current
factual situation. Contrary to the majority’s conclusion, I would find that the trial court erred in
declining to award summary disposition to the City because a question of fact does not exist
(…continued)
Ctr, 275 Mich App 290, 304 n 3; 739 NW2d 392 (2007).
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regarding whether the guy wire constitutes a “defect.” As argued by the City, the fact that
pursuant to MCL 691.1401(e), “The term highway does not include alleys, trees, and utility
poles” leads to an implication in favor of the grant of summary disposition. “The goal of
statutory interpretation is to discern and give effect to the intent of the Legislature from the
statute’s plain language.” Houdek v Centerville Twp, 276 Mich App 568, 581; 741 NW2d 587
(2007). “[I]f the language of the statute is clear and unambiguous, no interpretation is necessary
and the court must follow the clear wording of the statute.” American Alternative Ins Co v
Farmers Ins Exch, 470 Mich 28, 30; 679 NW2d 306 (2004). The relevant statutory language
specifically excludes utility poles, and it is disingenuous to suggest that any appendage extending
from that pole should be treated as a separate or distinguishable entity.
Further, in accordance with Black’s Law Dictionary (8th ed), the word “defect” is defined
as “[a]n imperfection or shortcoming, esp. in a part that is essential to the operation or safety of a
product.” In applying this definition, our Supreme Court has explicitly restricted sidewalk
defects as imperfections occurring in the walkway itself. In Estate of Buckner, the Court stated:
Because the accumulation, by itself, of ice and snow on a sidewalk, regardless of
whether it accumulated through natural causes or otherwise, does not constitute a
“defect” in the sidewalk, plaintiffs have not shown that defendant violated its duty
to “maintain” the sidewalk “in reasonable repair.” [Estate of Buckner, 480 Mich
1244.]
Further buttressing the restrictive use of the term “defect” is the Court’s emphasis on the
meaning of the words “repair” and “maintain.” Specifically:
“Maintain” and “repair” are not technical legal terms. In common usage,
“maintain” means “to keep in a state of repair, efficiency, or validity: preserve
from failure or decline.” Webster's Third New International Dictionary,
Unabridged Edition (1966), p. 1362. Similarly, “repair” means “to restore to a
good or sound condition after decay or damage; mend.” Random House Webster's
College Dictionary (2000), p. 1119. [Hanson v Mecosta Co Rd Comm’rs, 465
Mich 492, 502; 638 NW2d 396 (2002).]
This is consistent with our Supreme Court’s instruction in Nawrocki that statutory exceptions to
governmental immunity “are to be narrowly construed.” Nawrocki, 463 Mich at 158. Thus, the
majority’s effort to expand the term “defect” to encompass the guy wire is contrary to both its
plain meaning and prior case law.
Interpretation by our Supreme Court of the language comprising MCL 691.1402
precludes an alternative level of analysis. Specifically, MCL 691.1402(1) provides, in relevant
part:
[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
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travel may recover the damages suffered by him or her from the governmental
agency. [Emphasis added.]
Although the phrase “and in a condition reasonably safe and fit for travel” indicates the potential
for the imposition of liability, our Supreme Court has determined that this phrase cannot be read
or applied separately from the phrase “[t]o maintain the highway in reasonable repair.” As
discussed in Nawrocki:
The first sentence of the statutory clause, crucial in determining the scope of the
highway exception, describes the basic duty imposed on all governmental
agencies, including the state, having jurisdiction of any highway: “[to] maintain
the highway in reasonable repair so that it is reasonably safe and convenient for
public travel.” This sentence establishes the duty to keep the highway in
reasonable repair. The phrase “so that it is reasonably safe and convenient for
public travel” refers to the duty to maintain and repair. The plain language of this
phrase thus states the desired outcome of reasonably repairing and maintaining
the highway; it does not establish a second duty to keep the highway “reasonably
safe.” [Nawrocki, 463 Mich 160 (citation omitted).]
Because plaintiff has failed to demonstrate the existence of a “defect,” as that term is defined and
applied, the trial court erred in determining that a question of fact existed as both the statutory
language and case law preclude such a determination.
The majority also implies that immunity is not available based on the City’s decision to
construct the sidewalk in the path of the guy wire, resulting in a defective design. However, this
Court has recently addressed design defects and the applicability of the highway exception,
noting in relevant part:
With respect to design defects, the Supreme Court in Hanson v Mecosta
Co Rd Comm’rs[, 465 Mich at 503] held that “the highway exception does not
include a duty to design, or to correct defects arising from the original design or
construction of highways.” The Court explained, “Nowhere in the statutory
language is there a duty to install, to construct or to correct what may be
perceived as a dangerous or defective “design.” [Plunkett v Dep’t of Transp, 286
Mich App 168, 183-184; 779 NW2d 263 (2009) (footnotes omitted, emphasis in
original).]
Specifically:
“[T]he focus of the highway exception is on maintaining what has already
been built in a state of reasonable repair so as to be reasonably safe and fit for
public . . . travel.” The plain language of the highway exception to governmental
immunity provides that the road commission has a duty to repair and maintain,
not a duty to design or redesign. [Id. at 184 (footnote omitted, emphasis in
original).]
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Hence, the majority’s implication that construction of the sidewalk in the path of the guy wire
comprised a design defect precluding the applicability of governmental immunity is inconsistent
with previous rulings of this Court and our Supreme Court.4 As discussed in Hanson:
What the plaintiff sought in this case was to create a duty to design, or redesign,
the roadway to make it safer by eliminating points of special danger or hazard.
However, there is no such design duty included in the statute. Nowhere in the
statutory language are phrases such as “known points of hazard” or “points of
special danger.” We 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. [Hanson, 465 Mich at 503 (footnote omitted).]
As such the majority’s attempt to broaden the meaning of the statutory language is misplaced,
given the Court’s indication that a hazard is not the equivalent of a defect.
With reference to the claims pertaining to Danielson and Warju, MCL 691.1407(2)
delineates the circumstances permitting the invocation of governmental immunity by employees
and provides:
Except as otherwise provided in this section, and without regard to the
discretionary or ministerial nature of the conduct in question, each officer and
employee of a governmental agency, each volunteer acting on behalf of a
governmental agency, and each member of a board, council, commission, or
statutorily created task force of a governmental agency is immune from tort
liability for an injury to a person or damage to property caused by the officer,
employee, or member while in the course of employment or service or caused by
the volunteer while acting on behalf of a governmental agency if all of the
following are met:
(a) The officer, employee, member, or volunteer is acting or reasonably
believes he or she is acting within the scope of his or her authority.
(b) The governmental agency is engaged in the exercise or discharge of a
governmental function.
(c) The officer’s, employee’s, member’s, or volunteer’s conduct does not
amount to gross negligence that is the proximate cause of the injury or damage.
This appeal concerns the applicability of MCL 691.1407(2)(c), regarding plaintiff’s assertions
that the actions of Danielson and Warju constituted gross negligence and were the proximate
cause of the injury, thereby establishing liability.
4
I would further contend that any distinctions between the factual circumstances of this case and
Plunkett regarding a sidewalk versus a roadbed do not necessitate a different ruling.
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In determining the applicability of immunity, gross negligence is statutorily defined as
“conduct so reckless as to demonstrate a substantial lack of concern for whether an injury
results.” MCL 691.1407(7)(a); see also, Costa v Community Emergency Med Serv, Inc, 475
Mich 403, 411; 716 NW2d 236 (2006). “Simply alleging that an actor could have done more is
insufficient [to establish gross negligence] under Michigan law, because, with the benefit of
hindsight, a claim can always be made that extra precautions could have influenced the result.”
Tarlea v Crabtree, 263 Mich App 80, 90; 687 NW2d 333 (2004). Rather, gross negligence
implies the existence of “a willful disregard of precautions” to address “safety and a singular
disregard of substantial risks.” Id.
Again, I cannot concur with the majority’s reasoning and conclusion on this issue. While
a question of fact may exist regarding whether the conduct of these defendants rises to the level
of gross negligence, liability is precluded, as it cannot be reasonably concluded that their conduct
could be construed as “the proximate cause of the injury or damage.” Consistent with the
governmental tort liability act, government employees may be held liable for grossly negligent
conduct only if the alleged conduct is “the” proximate cause of the injury sustained. MCL
691.1407(2). “The proximate cause” is defined as “the one most immediate, efficient, and direct
cause preceding an injury.” Robinson v Detroit, 462 Mich 439, 459; 613 NW2d 307 (2000).
Consequently, it is insufficient if defendants’ actions comprise simply “a” proximate cause.
Tarlea, 263 Mich App at 92. Summary disposition may be granted pursuant to MCR
2.116(C)(7) only if reasonable jurors could not find that the government employees were “the”
proximate cause of the injuries. Robinson, 462 Mich at 463 (citation omitted).
Applying Robinson to the factual circumstances in this case, the trial court erred in failing
to grant summary disposition in favor of Danielson and Warju. It cannot reasonably be disputed
that defendants’ actions in designing and constructing the sidewalk to cross the guy wire and
their failure to assure movement of the obstruction in a timely manner by Detroit Edison,
arguably contributed to, and initiated, a chain of events that led to the decedent’s injury.
Consequently, the conduct attributable to these defendants could easily be construed to have
comprised “a” proximate cause of plaintiff's injuries. However, defendants’ actions were not
“the” proximate cause of the decedent’s injury as that phrase has been interpreted in Robinson.
Despite defendants’ initial actions, the decedent did not incur injury until he was traveling at
night without lights or helmet, at a potentially unsafe speed, while drunk and struck the guy wire,
which Detroit Edison had failed to relocate; despite the utility’s acknowledgement that
movement of the guy wire comprised a “rush job.” Hence, decedent’s own behavior, combined
with that of Detroit Edison comprised a more “direct” and “immediate” cause of the injuries
incurred than the actions attributed to Danielson and Warju. Consequently, any negligence on
the part of Danielson and Warju was simply too remote to overcome the grant of immunity
afford by MCL 691.1407.
/s/ Michael J. Talbot
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