UTAKA WALTON V DEPT OF TRANSPORTATION
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
UTAKA WALTON,
UNPUBLISHED
November 7, 2006
Plaintiff-Appellee,
v
No. 271271
Court of Claims
LC No. 05-000163-MD
MICHIGAN DEPARTMENT OF
TRANSPORTATION,
Defendant-Appellant.
Before: Fort Hood, P.J., and Murray and Donofrio, JJ.
PER CURIAM.
Defendant appeals as of right an order denying its motion for summary disposition. We
reverse. This case is being decided without oral argument pursuant to MCR 7.214(E).
This case arises out of injuries suffered by plaintiff when she was driving on I-96 and was
hit by a piece of concrete that fell from an elevated crosswalk above I-96. On appeal, defendant
argues that the crosswalk is not an improved portion of the highway. Therefore, the highway
exception to governmental immunity does not apply, and governmental immunity bars plaintiff’s
claim. Accordingly, the crux of this appeal centers on whether the public highway exception to
governmental immunity applies.
This Court reviews a trial court’s determination regarding a motion for summary
disposition de novo. MacDonald v PKT, Ind, 464 Mich 322, 332; 628 NW2d 33 (2001). A
motion under MCR 2.116(C)(7) “tests whether a claim is barred because of immunity granted by
law, and requires consideration of all documentary evidence filed or submitted by the parties.”
Maskery v Univ of Michigan Bd of Regents, 468 Mich 609, 613; 664 NW2d 165 (2003), quoting
Glancy v Roseville, 457 Mich 580, 583; 577 NW2d 897 (1998). In making this determination,
well-pleaded allegations are accepted as true and construed in favor of the nonmoving party.
Dampier v Wayne Co, 233 Mich App 714, 720; 592 NW2d 809 (1999). Determination of the
applicability of the highway exception is a question of law subject to de novo consideration on
appeal. Meek v Dep’t of Transportation, 240 Mich App 105, 110; 610 NW2d 250 (2000), rev’d
on other grounds 475 Mich 72 (2006). A motion under MCR 2.116(C)(10) tests the factual
support of a plaintiff’s claim. Auto-Owners Ins Co v Allied Adjusters & Appraisers, Inc, 238
Mich App 394, 397; 605 NW2d 685 (1999). “In reviewing a motion for summary disposition
brought under MCR 2.116(C)(10), we consider the affidavits, pleadings, depositions, admissions,
or any other documentary evidence submitted in a light most favorable to the nonmoving party to
-1-
decide whether a genuine issue of material fact exists.” Singer v American States Ins, 245 Mich
App 370, 374; 631 NW2d 34 (2001). Summary disposition is appropriate only if there are no
genuine issues of material fact, and the moving party is entitled to judgment as a matter of law.
MacDonald, supra at 332.
Although the government enjoys broad tort immunity pursuant to MCL 691.1407(1),
there are six exceptions to governmental immunity, including the highway exception. MCL
691.1402(1). The highway exception to governmental immunity, MCL 691.1402(1), provides,
in part:
[E]ach governmental agency having jurisdiction over any 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.
The purpose of the exception is to enhance the safety of travel on public highways. Meek, supra
at 111. The highway exception to immunity is narrowly construed. Grimes v Dep’t of
Transportation, 475 Mich 72, 78; 715 NW2d 275 (2006).
The issue pertinent to this appeal is whether the structure in question can be considered a
“highway” pursuant to MCL 691.1402(1), and if so, whether it is a part of the “improved portion
of the highway designed for vehicular travel.” In MCL 691.1401(e), “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. The term
highway does not include alleys, trees, and utility poles.
As to defendant, the highway exception to governmental immunity extends liability only to the
improved portion of the highway designed for vehicular travel. MCL 691.1402. The crosswalk
in question is approximately nine feet wide and eight and one half feet high, and extends over I96. An affidavit of an engineer employed with defendant states that “the Cherrylawn pedestrian
crossover is a fenced-in, elevated walkway,” “the Cherrylawn pedestrian crossover is not wide
enough, nor intended for vehicular traffic,” and “the Cherrylawn pedestrian crossover is solely
for use by pedestrians.” Although plaintiff has made bare assertions to the contrary, she
presented no documentary evidence to contest defendant’s claims concerning the nature of the
overpass. Plaintiff contends that the overpass is a highway as defined by MCL 691.1402(1)
because it is open for vehicular traffic in the form of motorcycles, which are considered vehicles.
Auto-Owners Ins Co v Hoadley, 201 Mich App 555, 558-559; 506 NW2d 595 (1993). However,
even if plaintiff could show that motorcycles have traveled across the overpass, she certainly has
not proven that the overpass was intended for such use. The Court, in Grimes, supra, shed light
on the phrase “designed for vehicular travel.” In holding that shoulders are not designed for
-2-
vehicular travel, the Court reasoned “that vehicular traffic might use an improved portion of the
highway does not mean that that portion was ‘designed for vehicular travel.’” Grimes, supra at
90. The affidavit presented by defendant’s engineer explicitly states that the pedestrian
crossover is solely for use by pedestrians and not intended for vehicular travel.
To the extent that plaintiff is arguing that I-96, upon which she was traveling, was unfit
for public travel, this claim must fail. The state and county road commissions’ duty is only
implicated by the failure to repair or maintain the actual physical structure of the roadbed
surface. Nawrocki v Macomb Co Rd Com’n, 463 Mich 143, 183; 615 NW2d 702 (2002). The
structure in question is not a part of the roadbed surface of I-96. To the extent that plaintiff is
arguing that the overpass structure is a highway, her claim is defeated by the language of MCL
691.1402(1), which provides that the duty of the state and country road commissions “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.”
Defendant’s contention that the crosswalk is an installation outside of the improved
portion of the highway is supported by case law. In Fortunate v Michigan Dept of Transp, 208
Mich App 467; 528 NW2d 743 (1994), the plaintiff was injured when someone threw a concrete
block onto her vehicle from a pedestrian bridge. Although the plaintiff’s injuries arose from the
intervening act of a tortfeasor and not a bridge in disrepair, this Court based its ruling in favor of
the defendant on the conclusion that the bridge was outside the traveled portion of the roadbed
and was designed for pedestrian traffic. Fortunate, supra at 468. In Sebring v City of Berkley,
247 Mich App 666; 637 NW2d 552 (2001), the plaintiff was injured when she tripped and fell
over a defect in the pavement while walking in the crosswalk portion of a highway. This Court
ruled that the crosswalk was located within the improved portion of the roadway, and thus, was
subject to the highway exception. Importantly, this Court noted that it distinguished between a
crosswalk as an installation separate from the roadbed (e.g., an elevated walkway) and a
crosswalk that exists simply as an area within the roadbed, noting that the former fell outside of
the improved portion of the highway designed for vehicular travel. Sebring, supra at 679-680.
In sum, plaintiff’s claims are barred by governmental immunity. The highway exception
is a narrowly drawn exception to a broad grant of immunity, and there must be strict compliance
with the conditions and restrictions of the statute. Nawrocki, supra at 158-159. Plaintiff failed
to show that the overpass structure was a highway or that I-96 itself was unfit for public travel.
Reversed.
/s/ Karen M. Fort Hood
/s/ Christopher M. Murray
/s/ Pat M. Donofrio
-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.
