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Opinion Date: 09/11/2012
e-Journal Date: 09/20/2012
Full Text Opinion

Practice Area(s):   Municipal
Negligence & Intentional Tort

Issues: Governmental immunity; Whether the "highway exception" to governmental immunity applied; The Governmental Tort Liability Act (GTLA)(MCL 691.1401 et seq.); Plunkett v. Department of Transp.; Haaksma v. Grand Rapids; MCL 691.1407(1); MCL 691.1402; Rowland v. Washtenaw Cnty. Rd. Comm'n; Nawrocki v. Macomb Cnty. Rd. Comm'n; Grimes v. Department of Transp.; Duffy v. Department of Natural Res.; "Roadbed" not defined by MCL 691.1402(1); Stabley v. Huron-Clinton Metro Park Auth.; Moser v. Detroit; Whether the plaintiff's claim for damages arising from the decedent's pre-impact fright was barred by the GTLA and the Wrongful Death Act; MCL 600.2922; Wesche v. Mecosta Cnty. Rd. Comm'n; Goldman v. Detroit United R.R.
Court: Michigan Court of Appeals (Unpublished)
Case Name: Estate of Hagerty-Kraemer v. Board of Manistee Cnty. Rd. Comm'rs
e-Journal Number: 52628
Judge(s): Per Curiam - Servitto, Fitzgerald, and Talbot

The court held, inter alia, that the trial court's determination that the highway exception to governmental immunity applied in this case was correct. Based on the record, the defendant-Board had a duty to maintain and repair the road - a duty the Board carried out by grading L Road and applying clay and brine. On the day of the accident, the roadbed surface disbursed into a blinding cloud of dust that made the road unsafe for public travel. At about 6:00 PM on 5/28/10, the decedent passed a motorist going in the opposite direction while traveling on L Road. The other vehicle allegedly caused the roadbed surface to disperse into a blinding cloud of dust. The decedent traveled about 378 feet into the dust cloud before her vehicle veered off the roadway and struck a tree, killing her. The ME opined that death was instantaneous and that the decedent did not suffer any conscious pain or suffering. The decedent's injuries were allegedly caused when she was blinded by the dust cloud and lost all sense of direction before the ruts in the unpaved road made her lose control of her vehicle and the four-foot edge of soft sand caused her to veer into the tree. The Board moved for summary disposition alleging that the decedent's claim was barred by governmental immunity. The trial court denied the motion, holding that the highway exception to governmental immunity applied and that damages for her conscious pain and suffering were available. "The immunity conferred upon governmental agencies is broad, and statutory exceptions to [governmental immunity] are to be narrowly construed." "Thus, in order for the highway exception to apply, the alleged dangerous or defective condition must be located in the actual roadbed designed for vehicular travel." The Board argued that because the duty only extends to the "improved portion of the highway designed for vehicular travel," there is no duty when the road is "unimproved." The court noted that the highway exception applies to unpaved roads, such as L Road. The Supreme Court has defined road as "a leveled or paved surface, made for traveling by motor vehicle." Although L Road is not paved, it is a level surface designed for vehicular travel. Thus, it is a highway within the meaning of MCL 691.1401(c). Also, grading the road and applying clay and brine brought the road within the meaning of "improved." The Board argued that the dust cloud was not a defect in the roadbed structure and the highway exception did not apply. The court concluded that the dust cloud originated from the roadbed surface and was arguably a defect in the physical surface of the roadbed and not a natural accumulation where it was not the accumulation of a foreign natural substance like ice or snow. The court affirmed in part and reversed in part (as to the availability of damages for the decedent's pre-impact fright).

Full Text Opinion

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