DIANE GUTIERRIEZ V CITY OF DETROIT
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STATE OF MICHIGAN
COURT OF APPEALS
WALLACE LEE HORACE,
UNPUBLISHED
February 26, 2002
Plaintiff-Appellant,
v
No. 227452
Wayne Circuit Court
LC No. 98-836928-NO
CITY OF DETROIT,
Defendant-Appellee.
DIANE
GUTIERRIEZ
GUTIERRIEZ,
and
MANUEL
Plaintiffs-Appellants,
and
BLUE CROSS BLUE SHIELD OF MICHIGAN,
Intervening Plaintiff,
v
No. 227453
Wayne Circuit Court
LC No. 98-836929-NO
CITY OF DETROIT,
Defendant-Appellee.
Before: Smolenski, P.J., and Doctoroff and Owens, JJ.
MEMORANDUM.
In these consolidated cases, plaintiffs appeal as of right from a circuit court order
granting defendant’s motion for summary disposition. We affirm. These appeals are being
decided without oral argument pursuant to MCR 7.214(E).
On August 15, 1997, plaintiffs Wallace Horace and Diane Gutierriez suffered injuries
when a tree limb fell on top of the vehicle in which they were seated, while parked in the public
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street. They claimed that the city was liable for its failure to maintain the tree under the highway
exception to governmental immunity. The trial court ruled that defendant was immune from suit.
The trial court’s ruling on a motion for summary disposition is reviewed de novo. Kefgen
v Davidson, 241 Mich App 611, 616; 617 NW2d 351 (2000). A motion premised on immunity
granted by law is properly considered under MCR 2.116(C)(7). “This Court reviews all the
affidavits, pleadings, and other documentary evidence submitted by the parties and, where
appropriate, construes the pleadings in favor of the nonmoving party. A motion brought
pursuant to MCR 2.116(C)(7) should be granted only if no factual development could provide a
basis for recovery.” Cole v Ladbroke Racing Michigan, Inc, 241 Mich App 1, 6-7; 614 NW2d
169 (2000).
Each governmental agency having jurisdiction over a highway is liable in tort for breach
of the duty to “maintain the highway in reasonable repair so that it is reasonably safe and
convenient for public travel.” MCL 691.1402(1). The term highway is defined as “a public
highway, road, or street that is open for public travel and includes bridges, sidewalks, trailways,
crosswalks, and culverts on the highway” but not “alleys, trees, and utility poles.” MCL
691.1401(e) (emphasis added).
Because a tree is excluded by definition from the statutory definition of “highway,” MCL
691.1402(1) created no liability on the part of the city for its failure to maintain the tree involved
in the present case. Ehlers v Dep’t of Transportation, 175 Mich App 232, 234-235; 437 NW2d
642 (1988). McKeen v Tisch (On Remand), 223 Mich App 721; 567 NW2d 487 (1997), does not
compel a contrary result because it was decided under Pick v Szymczak, 451 Mich 607; 548
NW2d 603 (1996), which has since been overruled. Nawrocki v Macomb Co Rd Comm, 463
Mich 143, 180; 615 NW2d 702 (2000). Therefore, the trial court did not err in ruling that
defendant was immune from liability.
Affirmed.
/s/ Michael R. Smolenski
/s/ Martin M. Doctoroff
/s/ Donald S. Owens
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