MDOT's immunity affirmed by high court

By Cory Linsner
BridgeTower Media Newswires
 
The Michigan Supreme Court has denied leave to appeal in a case that said governmental immunity shields the Michigan Department of Transportation from tort liability where a cyclist was injured when her bike hit a broken road marker.

In Norman v. Department of Transportation, cyclist Danielle Norman argued that the roadway’s design called for a fact inquiry. The appellate court, however, did not find that persuasive; reasonable minds could not differ on evidence offered by MDOT, they explained.

Also, photos produced by the department “unequivocally established” that the area where Norman rode her bike was within a buffer zone that was “off-limits to vehicular and bicycle travel,” wrote Judge James Robert Redford for the court. “The buffer zones plainly were not lanes of travel.”

As a result, she could not use the highway exception to immunity.

Redford’s opinion was joined by Judges Thomas C. Cameron and Stephen L. Borrello.

Bike ride

Danielle Norman was riding her bike near Michigan Avenue in Detroit when she hit a broken reflective delineator marker, fell and was injured. She sued the Michigan Department of Transportation, arguing that tort liability existed under the highway exception to governmental immunity because her accident happened on an improved portion of the highway and MDOT had failed to properly maintain it.

Instead of responding, MDOT moved for summary disposition under MCR 2.116(C)(7), claiming it was entitled to governmental immunity. Along with its supporting brief, the agency provided an affidavit from its safety engineer with engineering drawings of the design on Michigan Avenue and photos of the area where Norman said she fell.

When Norman did not timely respond, the Court of Claims granted MDOT’s motion. Governmental immunity was appropriate because the evidence showed that the highway exception did not apply, the court said. Norman moved for reconsideration, but the trial court found her arguments lacked merit.

Highway exception highlights

The appellate court relied on a trio of holdings to support their ruling — Nawrocki v. Macomb County Road Commission, which clarified the scope of the highway exception to governmental immunity in 2000, Grimes v. Dep’t of Transportation from 2006, and Yono v. Dep’t of Transportation decided a decade later.

The Nawrocki court said that, if the condition that caused the injury “‘is not located in the actual roadbed designed for vehicular travel, the narrowly drawn highway exception is inapplicable ….’”

Grimes, meanwhile, said shoulders on highways aren’t designed for vehicular travel so they aren’t within the highway exception.

The Grimes court explained that “the plain language of the highway exception made clear that it did not apply simply because motorists could use the shoulder since the Legislature very specifically limited the exception’s application to portions of the highway designed for vehicular travel, not areas just available for temporary use to accommodate disabled or stopped vehicles,” Redford said. “The Court clarified that the Legislature ‘did not intend to extend the highway exception indiscriminately to every “improved portion of the highway[,]”‘ ‘[r]ather, it limited the exception to the segment of the “improved portion of the highway’ that is ‘designed for vehicular travel.’”

Ten years later, the Yono court contemplated if the highway exception could be applied to a designated parallel parking space on the side of a highway under MDOT’s authority.

As in Grimes, the court’s primary focus rested on whether the area had been designed for vehicular travel. While a parking spot invites drivers to use it to park, it is not intended for travel.

“[T]o analyze and determine whether a portion of a highway is designed for vehicular travel, courts ‘must consider how the Department [of Transportation] had designed the highway at the time of the alleged injury’” Redford said. “The Court found that the area of the alleged injury featured traffic control devices, i.e., the paint delineating the parking spaces, which indicated that the area had been designed for parallel parking use and not as a travel lane.”

Enlightening evidence

MDOT provided plenty of supporting evidence in this case, including photos of where Norman was injured, testimony from an MDOT safety engineer and engineering design drawings that clearly portrayed lanes used for travel, turning and bicycles, parallel parking areas and the “buffer zones” between the parking areas and bike lanes.

It was unmistakable that the buffer zone was not “an improved portion of the highway designed for vehicular travel,” according to Redford.

“Application of the analytical principles directed by our Supreme Court in Grimes and Yono required the trial court to conclude as it did that the buffer zones are not improved portions of the highway designed for vehicular travel,” Redford said. “The buffer zone where plaintiff’s accident occurred, which only incidentally could be traveled upon, did not constitute a portion of the highway designed for vehicular or bicycle travel.”

Since governmental immunity protected MDOT from tort liability in this case, there was no error by the trial court.

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