Carson J. Tucker (P62209)
117 N. First St.
Suite 111
Ann Arbor, MI 48104

1. Michigan Municipal League Property & Liability Pool (MML Pool);
2. Michigan Townships Asssociation (MTA)

The state’s duty to repair and maintain highways “extends only to the improved portion of the highway designed for vehicular travel”. The defect in the parallel parking area at issue in this case (between the curb and the edge of the parallel parking area) is not within the improved portion of the highway designed for vehicular travel. The trial court should always consider the question of a government entity’s immunity from suit at the outset of a claim to ensure the jurisdictional limits of the courts over actions against the government.

Michigan Supreme Court:
In an opinion by Justice Larsen, joined by Chief Justice Young and Justices Markman and Zahra, the Supreme Court held:
Governmental immunity applies to a parallel-parking lane that is designated exclusively as such by painted lines on the highway because that lane is not designed for vehicular travel within the meaning of the of the highway exception to governmental immunity.
1. Under the governmental tort liability act, MCL 691.1401 et seq., the immunity conferred on governmental agencies is broad and the statutory exceptions to that immunity must be narrowly construed. MCL 691.1407(1) provides that except as otherwise provided in the act, a governmental agency is immune from tort liability if the governmental agency is engaged in the exercise or discharge of a governmental function. Under the highway exception, MCL 691.1402(1), each governmental agency having jurisdiction over a highway must maintain that highway in reasonable repair so that it is reasonably safe and convenient for public travel. An injured person, including a pedestrian, may recover damages from the governmental agency arising out of the agency’s failure to do so. The duty, however, extends only to the improved portion of the highway designed for vehicular travel, that is, only the travel lanes of the highway. The question in this case was whether a parking lane is a travel lane—and therefore designed for vehicular travel—within the meaning of MCL 691.1402(1).
2. Grimes v Dep’t of Transp, 475 Mich 72 (2006), held that the improved shoulder of a highway was not designed for vehicular travel because the word “travel” does not encompass the incremental movement that accompanies a vehicle’s movement from the travel lanes onto the shoulder. The fact that a shoulder could support even momentary vehicular travel (such as when a motorist momentarily swerves onto it) was not enough to transform the shoulder into a lane designed for vehicular travel. A shoulder is designed as a temporary breakdown or emergency area and is not intended or designed to be part of a traveler’s journey from one location to another. The instant case required a determination of whether a lane of designated, curbside parallel-parking spaces was designed for vehicular travel, so Grimes might be read as not directly controlling. A parallel-parking lane specifically invites drivers to end their journeys there and, sometime later, begin new journeys, in a way that a shoulder does not. Under Grimes, however, it was necessary to avoid confusing the potential uses that a highway could support with what its design was intended to accomplish. Simply because an area of a highway can support vehicular travel in ways that are not part of its design does not bring it within the highway exception. The Court of Appeals attempted to distinguish use from design, but erred by focusing too narrowly on the highway’s initial design, rather than the highway’s design at the time of Yono’s injury. The department’s ongoing duty under MCL 691.1402(1) ensures that a highway’s design is neither static nor dependent exclusively on whether a roadbed structure can support vehicular travel. Contrary to the Court of Appeals’ conclusion, paint markings and other traffic control devices can delineate how a highway is designed and redesigned over its useful life.
3. The department was entitled to governmental immunity. At the time of Yono’s injury, the area at issue was specifically marked as a parallel-parking lane. The department, under its statutory authority to draft the Manual on Uniform Traffic Control Devices, specifically differentiated lanes designed as parallel-parking lanes from lanes designed for travel. Although some lanes on a highway might be designed for dual purposes, the only traffic-control devices present in the lane at issue in this case indicated that it was designed to be used as a parallel-parking lane. The Court of Appeals erred by concluding that the momentary ingress and egress necessarily accompanying parallel parking is considered travel even though the same basic action was not considered travel in Grimes. That a person will park at the end of travel does not turn parking itself into travel.
Reversed and remanded to the Court of Claims.

On July 31, 2011, Yono allegedly injured her ankle while stepping into a pothole or crumbled asphalt near M-22 in Suttons Bay. She then filed a notice of intent in the Court of Claims and averred that the alleged highway defect was located “at the edge of the roadway of the east side of M-22, abutting the concrete gutter and curb,” which she described as being “on the improved portion of M-22 . . . designed for vehicular travel.” On November 7, 2011, Yono filed suit in the Court of Claims, relying on the “highway exception” to governmental immunity, MCL 691.1402, as the basis for MDOT’s liability.