MICHAEL VELA V WAYNE COUNTY AIRPORT AUTHORITY (Per Curiam Opinion)
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STATE OF MICHIGAN
COURT OF APPEALS
MICHAEL VELA,
UNPUBLISHED
July 26, 2011
Plaintiff-Appellee,
v
WAYNE COUNTY AIRPORT AUTHORITY,
No. 298478
Wayne Circuit Court
LC No. 08-113813-NO
Defendant/Third-Party PlaintiffAppellant,
and
AMERICAN AIRLINES, INC.,
Third-Party Defendant.
Before: TALBOT, P.J., and HOEKSTRA and GLEICHER, JJ.
PER CURIAM.
Defendant Wayne County Airport Authority appeals by right the trial court’s orders
denying its motions for summary disposition under MCR 2.116(C)(7). We affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
Plaintiff, employed as a fleet service clerk for American Airlines, was driving a TUG and
three attached trailers on West Service Drive. According to plaintiff, the TUG was bouncing
from “entering [a] rough patch” when its left front tire hit a pothole. The pothole jerked the
TUG to the right. Plaintiff attempted to adjust the TUG back to the left to avoid hitting the curb,
but the continued bouncing of the TUG and the swaying and tilting of the trailers, caused by
rough patches in the pavement, prevented plaintiff from regaining control of the TUG. The TUG
hit the curb, plaintiff was thrown from the TUG, and the TUG landed on top of plaintiff.
Plaintiff sued defendant under the public highway exception to governmental immunity.
Defendant moved for summary disposition under MCR 2.116(C)(7). Defendant argued that
plaintiff’s notice failed to comply with the requirements of MCL 691.1404(1) because plaintiff
did not specify the exact location of the pothole. Defendant also argued that West Service Drive
was not a “highway” subject to the public highway exception because West Service Drive did
not extend beyond airport property. The trial court denied defendant’s motions. It held that
MCL 691.1404(1) did not require specific identification of the pothole’s location. It stated that
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plaintiff believed a portion of West Service Drive was defective and that plaintiff provided “a
very specific” location of the defects. The trial court also held that West Service Drive was a
“highway” because it was publicly maintained and accessible by the public. This appeal ensued.
II. STANDARDS OF REVIEW
We review de novo a trial court’s decision on a motion for summary disposition. Moser
v Detroit, 284 Mich App 536, 538; 772 NW2d 823 (2009). Summary disposition is proper under
MCR 2.116(C)(7) if “[t]he claim is barred because of . . . immunity granted by law . . . .” We
accept as true all well-pleaded allegations and construe them in the nonmoving party’s favor,
unless contradicted by affidavits, depositions, admissions, or other documentary evidence
submitted by the parties. Willett v Waterford Charter Twp, 271 Mich App 38, 45; 718 NW2d
386 (2006). We also review de novo issues of statutory interpretation. Ward v Mich State Univ
(On Remand), 287 Mich App 76, 79; 782 NW2d 514 (2010).
III. THE PUBLIC HIGHWAY EXCEPTION
On appeal, defendant argues that it is entitled to summary disposition because plaintiff’s
claim is barred by governmental immunity. First, defendant claims that West Service Drive is
not a “highway” because it does not extend beyond airport property. Second, defendant asserts
that plaintiff’s notice did not comply with MCL 691.1404(1) because the notice failed to provide
the exact location of the pothole.
A. “HIGHWAY”
Pursuant to the governmental tort liability act (GTLA), MCL 691.1401 et seq.,
governmental agencies are generally immune from tort liability. MCL 691.1407(1); Rowland v
Washtenaw Co Rd Comm, 477 Mich 197, 202; 731 NW2d 41 (2007).1 This grant of immunity is
subject to six statutory exceptions, Rowland, 477 Mich at 203 n 3, including the public highway
exception, MCL 691.1402. The public highway exception provides:
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. . . . [MCL 691.1402(1).]
1
The parties do not dispute that defendant is a governmental agency. See MCL 691.1401(b)
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“No action may be maintained under the highway exception unless it is clearly within the scope
and meaning of the statute.” Richardson v Warren Consol Sch Dist, 197 Mich App 697, 702;
496 NW2d 380 (1992) (emphasis, quotation marks, and citation deleted).2
Defendant argues that plaintiff’s claim falls outside the public highway exception
because West Service Drive, which is located entirely within airport property, is not a
“highway.”3 We disagree.
The GTLA provides the following definition of “highway”:
“Highway” means 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.
[MCL 691.1401(e).]
Resolution of defendant’s argument requires construction of the phrase “a public
highway, road, or street.” The goal of statutory interpretation is to ascertain and give effect to
the intent of the Legislature. Tevis v Amex Assurance Co, 283 Mich App 76, 81; 770 NW2d 16
(2009). If the language of the statute is clear and unambiguous, the Legislature is presumed to
have intended the meaning clearly expressed, and the statute must be enforced as written.
Ameritech Publishing, Inc v Dep’t of Treasury, 281 Mich App 132, 136; 761 NW2d 470 (2008).
“[A] court may read nothing into an unambiguous statute that is not within the manifest intent of
the Legislature as derived from the words of the statute itself.” Roberts v Mecosta Co Gen Hosp,
466 Mich 57, 63; 642 NW2d 663 (2002). Undefined words should be given their plain and
ordinary meaning, PNC Nat’l Bank Ass’n v Dep’t of Treasury, 285 Mich App 504, 506; 778
NW2d 282 (2009), and resort to a dictionary may be appropriate, TMW Enterprises Inc v Dep’t
of Treasury, 285 Mich App 167, 172; 775 NW2d 342 (2009).
We note that defendant presents no argument that West Service Drive is not “open for
public travel.” The evidence presented by plaintiff establishes that West Service Drive is “open
for public travel.” West Service Drive is accessible from either Goddard Road or Burton Drive.
2
Defendant does not dispute that it has jurisdiction over West Service Drive.
3
We find unavailing plaintiff’s assertion that Yeomans v Wayne Co, unpublished opinion per
curiam of the Court of Appeals, issued July 19, 2005 (Docket No. 252216), precludes defendant
from arguing that West Service Drive is not a “highway.” In Yeomans, this Court held that a
temporary drive created for the use of buses was a public highway, road, or street open for public
travel and that, consequently, the plaintiff’s claims against Wayne County and the Wayne
County Airport Authority relating to her injuries that resulted from stepping into a pothole in the
drive were not barred by governmental immunity. The temporary drive at issue in Yeomans was
not West Service Drive. Moreover, although the temporary drive may have been completely
within airport property, this fact was not relied on by the Court in holding that the temporary
drive was a public highway open for public travel. The Court did not address or decide the issue
whether a service drive was a “highway” because it was located entirely within airport property.
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There are no signs or restrictions prohibiting any member of the public from using West Service
Drive. See Maskery v Univ of Mich Bd of Regents, 468 Mich 609, 618; 664 NW2d 165 (2003)
(stating that a public building is not open for use by the public when the governmental agency
has restricted entry to persons who are qualified on the basis of some individualized, limiting
criteria). We also note that West Service Drive is a “public” drive; it is not privately owned and
maintained.
West Service Drive is a “highway, road, or street,” as those words are commonly
understood. West Service Drive is paved with concrete and travel lanes are demarcated by
double yellow lines down the center of the pavement. Crosswalks are painted on West Service
Drive. Road signs, such as pedestrian crossings and stop signs, are installed along the side of
West Service Drive. Moreover, as already stated, West Service Drive connects to two other
roads, Goddard Road and Burton Drive, and members of the public routinely use West Service
Drive to access a Post Office and various other public places located on defendant’s property.
We find no merit to defendant’s argument that because West Service Drive does not
extend beyond airport property, it is not a “highway, road, or street.”4 A “highway” is “a main
road, esp. one between towns or cities,” “any public road or waterway,” or “any main or ordinary
route, track, or course.” Random House Webster’s College Dictionary (1992). A “road” is “a
long, narrow stretch with a leveled or paved surface, made for traveling by motor vehicle,
carriage.” Id. “Street” is a “paved public thoroughfare, as in a town or city, including sidewalks.
Id. There is nothing in these definitions, nor in any of the statutory or dictionary definitions cited
by plaintiff, that require a “highway, road, or street” to extend beyond one piece of property. We
have also reviewed the four cases cited by defendant,5 and find nothing in them to support the
proposition that a paved vehicular passageway, which is open to the public and used for public
travel, is not a “highway, road, or street” simply because it does not extend beyond one piece of
property. Because we may not read anything into a statute that is not derived from the words of
the statute itself, we refuse to read into the public highway exception the requirement that a
“highway” must extend beyond one piece of property. Accordingly, we affirm the trial court’s
order denying defendant’s motion for summary disposition that was based on West Service
Drive not being a “highway.”
B. NOTICE
4
We note that defendant’s argument generally cannot be made in cases involving the public
highway exception. Governmental agencies that have jurisdiction over “highways,” such as the
Department of Transportation, municipal corporations, or county road commissions, do not own
or control one specific piece of property. It is the unique nature of defendant that allows
defendant to make its argument.
5
Roby v Mount Clemens, 274 Mich App 26; 731 NW2d 494 (2006); Detroit Edison Co v
Spartan Express, Inc, 225 Mich App 629; 572 NW2d 39 (1997); Richardson 197 Mich App 697;
Ward v Frank’s Nursery & Crafts, Inc, 186 Mich App 120; 463 NW2d 442 (1990).
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To bring a claim under the highway exception, a plaintiff must provide notice to the
governmental agency. MCL 691.1404(1); Plunkett v Dep’t of Transp, 286 Mich App 168, 176;
779 NW2d 263 (2009). MCL 691.1404(1) provides:
As a condition to any recovery for injuries sustained by reason of any
defective highway, the injured person, within 120 days from the time the injury
occurred, except as otherwise provided in subsection (3) shall serve a notice on
the governmental agency of the occurrence of the injury and the defect. The
notice shall specify the exact location and nature of the defect, the injury
sustained and the names of the witnesses known at the time by the claimant.
A notice that does not specify the “exact location” of the defect does not comply with MCL
691.1404(1). Jakupovic v Hamtramck, 489 Mich 939; 798 NW2d 12 (2011).
Defendant argues that because plaintiff’s notice did not specify the exact location of the
pothole the notice did not comply with MCL 691.1404(1). We disagree.
Here, the pothole was a significant factor in the accident. After the TUG’s front left tire
hit the pothole, the TUG veered to the right. However, the pothole was not the only defect that
caused plaintiff’s accident. Plaintiff’s deposition testimony and affidavit establish that other
defects in West Service Drive, such as broken and uneven pavement, contributed to the accident.
After the TUG hit the pothole, the TUG and the trailers continued to bounce and sway from
hitting “rough patches.” The bouncing and swaying prevented plaintiff from regaining control of
the TUG before it hit the curb.
We conclude that plaintiff’s notice provided the “exact location” of the defects even
though it did not specifically identify the pothole’s location. It was plaintiff’s theory, and it is
borne out by plaintiff’s testimony and affidavit, that the defective road surface of West Service
Drive, and not just the pothole, caused plaintiff’s accident. Plaintiff’s notice provided the “exact
location” of the defective road surface. Plaintiff’s notice included two letters, a police-drawn
sketch of the accident scene, and eight colored photographs. The first letter stated that the
accident occurred 500-600 feet east of the Checkpoint 1 entry, near a bus drop off area and a
crosswalk. The second letter stated that the defective road surface was located in the eastbound
lane of West Service Road next to a bus stop area in front of Northwest Building 514. The letter
also stated that the defective road surface was located between points “A” and “B” on the policedrawn sketch. Moreover, the eight photographs showed the defects in the road surface.
Accordingly, plaintiff’s notice by word, sketch, and picture informed defendant of the “exact
location” of the defective road surface. We affirm the trial court’s order denying defendant’s
motion for summary disposition that was based on lack of proper notice.
Affirmed.
/s/ Michael J. Talbot
/s/ Joel P. Hoekstra
/s/ Elizabeth L. Gleicher
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