Carson Tucker | Lacey & Jones LLP | 600 S Adams Rd, Suite 300 |
Birmingham, MI 48009 | 248-283-0763

1. Macomb County, Department of Roads
2. Road Commission for Oakland County

In the GTLA, the Legislature provided its own internalized definition of “highway”. “Highway” as used in MCL 691.140(1)(e) and MCL 691.1402(1) is further defined by the Michigan Supreme Court’s significant jurisprudence as the traveled portion of the roadway, paved or unpaved, actually designed for public, vehicular travel. Given the narrow interpretation mandated for statutes waiving the govennnent’s suit immunity and the broad grant of immunity, and the fact that the defmition of “highway” provided by the Legislature suffers from “no apparent ambiguity”, resort to speculation about what should or should not be included as “part” of a highway is prohibited. Any road crew would have prior notice of the types of defect alleged in Plaintiff’s complaint. They exist in many locations outside the traveled portions of highways over which
govermnental entities have jurisdiction within the meaning ofMCL 691.1402. While a cause for caution to the reasonable person, and even dangerous under the proper circumstances, these defects are not “actionable defects” thereby triggering the government’s duty under the second sentence of MCL 691.1402(1). Imposing a duty to make highways safe or safer, if these defects are considered actionable defects, would place an undue burden on the government. It must be remembered that “a central purpose of governmental immunity is to prevent a drain on the state’s financial resources, by avoiding even the expense of having to contest on the merits any claim barred by governmental immunity.

On January 16, 2014, the Court heard oral argument on the application for leave to appeal the December 20, 2012 judgment of the Court of Appeals. On order of the Court, the application is again considered. MCR 7.302(H)(1). In lieu of granting leave to appeal, we REMAND this case to the Court of Appeals for further proceedings not inconsistent with this order. Under MCR 2.116(C)(7), summary disposition is proper when a claim is barred by immunity granted by law. To survive such a motion, the plaintiff must allege facts justifying the application of an exception to governmental immunity. Wade v Dep’t of Corrections, 439 Mich 158, 163 (1992). In reviewing the motion, a court must review all documentary evidence submitted by the parties, accepting as true the contents of the complaint unless affidavits or other appropriate documents specifically contradict them. Sewell v Southfield Public Schools, 456 Mich 670, 674 (1998); MCR 2.116(G)(5). On remand, the Court of Appeals shall consider: (1) what standard a court should apply in determining as a matter of law whether a portion of highway was “designed for vehicular travel,” as used in MCL 691.1402(1); and (2) whether the plaintiff has pled sufficient facts to create a genuine issue of material fact under this standard.
We do not retain jurisdiction.

In July 2011, Yono drove with her daughter to Suttons Bay, Michigan to shop. Yono parked in a parallel parking spot along M-22, which is otherwise known as St. Joseph Street
within Suttons Bay, across the street from the business she wished to patronize. She went to the business, and after she discovered that the business was closed, she crossed back to her car. As she was nearing the sidewalk next to her car, Yono stepped into a depression, rolled her ankle, and fell. She suffered a broken ankle along with other injuries. Yono sued the Department for damages arising from her injuries in November 2011. In her complaint, Yono alleged that, under MCL 691.1402(1), the Department had a duty to keep M-22 in reasonable repair, breached that duty, and proximately caused her injuries.