highway exception in Michigan

2026A four- -3- sentence paragraph sets forth the “highway exception,” which our Supreme Court has called “not altogether clear,” “problematic,” and “confusing for several reasons.” Duffy v Mich Dep’t of Natural Resources, 490 Mich 198, 206 ; 805 NW2d 399 (2011) (quotation marks and citations omitted). “[T]he first and second sentences of the highway exception clause apply to all governmental agencies having jurisdiction over any highway.” Nawrocki, 463 Mich at 159 .

2026To Nawrocki, this means “a county road commission’s duty is coextensive with that owed by other governmental agencies . . . under the first two sentences of the highway exception clause.” 463 Mich at 170 .

2016Accordingly, defendant is entitled to governmental immunity. 63 59 Post at 7. 60 Post at 4, quoting Random House Webster’s College Dictionary (2005). 61 Nawrocki, 463 Mich at 158 . 62 Id. at 158-159 , citing Scheurman v Dep’t of Transp, 434 Mich 619, 629-630 ; 456 NW2d 66 (1990) (opinion by RILEY, C.J.). 63 Because no fact questions remain regarding the highway’s design, we do not reach the issue of how to resolve fact questions on a motion for summary disposition involving governmental immunity under MCR 2.116(C)(7). 17 Our holding does not suggest that the highway exception requires that the

2016Accordingly, defendant is entitled to governmental immunity. 63 59 Post at 7. 60 Post at 4, quoting Random House Webster’s College Dictionary (2005). 61 Nawrocki, 463 Mich at 158 . 62 Id. at 158-159 , citing Scheurman v Dep’t of Transp, 434 Mich 619, 629-630 ; 456 NW2d 66 (1990) (opinion by RILEY, C.J.). 63 Because no fact questions remain regarding the highway’s design, we do not reach the issue of how to resolve fact questions on a motion for summary disposition involving governmental immunity under MCR 2.116(C)(7). 17 Our holding does not suggest that the highway exception requires that the

2005Two years later, the Supreme Court returned to the “still-unsettled issue of the highway exception. ...” Pick v Szymczak, 451 Mich 607, 610 ; 548 NW2d 603 (1996).

2005Two years later, the Supreme Court returned to the “still-unsettled issue of the highway exception. ...” Pick v Szymczak, 451 Mich 607, 610 ; 548 NW2d 603 (1996).

2021Rowland returned the Court to its original understanding that governmental-immunity notice provisions should be enforced as plainly written. 4 Streng v Bd of Mackinac Co Rd Comm’rs, 315 Mich App 449 ; 890 NW2d 680 (2016). 5 Rowland, 477 Mich at 205-210 (capitalization omitted). 3 “From its earliest years this Court, evidently detecting no constitutional impediments, . . . enforced governmental immunity mandatory notice provisions according to their plain language.” 6 This began to change in 1970, when in Grubaugh v St Johns, 7 this Court addressed whether the 60-day notice requirement of § 8 o

2021Rowland returned the Court to its original understanding that governmental-immunity notice provisions should be enforced as plainly written. 4 Streng v Bd of Mackinac Co Rd Comm’rs, 315 Mich App 449 ; 890 NW2d 680 (2016). 5 Rowland, 477 Mich at 205-210 (capitalization omitted). 3 “From its earliest years this Court, evidently detecting no constitutional impediments, . . . enforced governmental immunity mandatory notice provisions according to their plain language.” 6 This began to change in 1970, when in Grubaugh v St Johns, 7 this Court addressed whether the 60-day notice requirement of § 8 o

2012On the issue of jurisdiction in relationship to governmental immunity, this Court in Carr v City of Lansing, 259 Mich App 376, 381 ; 674 NW2d 168 (2003), observed: A governmental agency must have jurisdiction over a highway for it to he liable under the highway exception for breaching its duty to maintain a highway “in reasonable repair so that it is reasonably safe and convenient for public travel.” An agency has jurisdiction when it has control over the highway... . [0]nly one agency may have jurisdiction for purposes of liability under the highway exception .... [Citations omitted.] We also

2012On the issue of jurisdiction in relationship to governmental immunity, this Court in Carr v City of Lansing, 259 Mich App 376, 381 ; 674 NW2d 168 (2003), observed: A governmental agency must have jurisdiction over a highway for it to he liable under the highway exception for breaching its duty to maintain a highway “in reasonable repair so that it is reasonably safe and convenient for public travel.” An agency has jurisdiction when it has control over the highway... . [0]nly one agency may have jurisdiction for purposes of liability under the highway exception .... [Citations omitted.] We also

2012On the issue of jurisdiction in relationship to governmental immunity, this Court in Carr v City of Lansing, 259 Mich App 376, 381 ; 674 NW2d 168 (2003), observed: A governmental agency must have jurisdiction over a highway for it to he liable under the highway exception for breaching its duty to maintain a highway “in reasonable repair so that it is reasonably safe and convenient for public travel.” An agency has jurisdiction when it has control over the highway... . [0]nly one agency may have jurisdiction for purposes of liability under the highway exception .... [Citations omitted.] We also

2001See Listanski v Canton Twp, 452 Mich 678, 682 ; 551 NW2d 98 (1996).

2022“The statutory exceptions contained in the [Governmental Tort Liability Act (GTLA)] are: (1) the highway exception, MCL 691.1402, (2) the motor vehicle exception, MCL 691.1405, (3) the public building exception, MCL 691.1406, (4) the governmental hospital exception, MCL 691.1407(4), (5) the proprietary function exception, MCL 691.1413, and (6) the sewage system event exception, MCL 691.1417.” In re Bradley Estate, 494 Mich 367 , 378 n 21; 835 NW2d 545 (2013).

2022“The statutory exceptions contained in the [Governmental Tort Liability Act (GTLA)] are: (1) the highway exception, MCL 691.1402, (2) the motor vehicle exception, MCL 691.1405, (3) the public building exception, MCL 691.1406, (4) the governmental hospital exception, MCL 691.1407(4), (5) the proprietary function exception, MCL 691.1413, and (6) the sewage system event exception, MCL 691.1417.” In re Bradley Estate, 494 Mich 367 , 378 n 21; 835 NW2d 545 (2013).

2026Put differently, the highway exception creates a duty to maintain only the “ ‘traveled portion, paved or unpaved, of the roadbed actually designed for public vehicular travel.’ ” Grimes v Mich Dep’t of Transp, 475 Mich 72, 79 ; 715 NW2d 275 (2006) (concluding shoulders are not an improved portion of the highway designed for vehicular travel).

2026Put differently, the highway exception creates a duty to maintain only the “ ‘traveled portion, paved or unpaved, of the roadbed actually designed for public vehicular travel.’ ” Grimes v Mich Dep’t of Transp, 475 Mich 72, 79 ; 715 NW2d 275 (2006) (concluding shoulders are not an improved portion of the highway designed for vehicular travel).

2026Third, a “road commission’s duty under the highway exception does not include a duty to design, or to correct defects arising from the original design or construction of highways.” Hanson v Bd of Co Rd Comm’rs of Co of Mecosta, 465 Mich 492, 502 ; 638 NW2d 396 (2002).

2026Third, a “road commission’s duty under the highway exception does not include a duty to design, or to correct defects arising from the original design or construction of highways.” Hanson v Bd of Co Rd Comm’rs of Co of Mecosta, 465 Mich 492, 502 ; 638 NW2d 396 (2002).

2024An exception to this immunity is found in MCL 691.1402, the highway exception, that allows individuals to “recover the damages suffered by him or her” resulting from a municipality's failure to keep highways—including sidewalks, MCL 691.1401(c)—“in reasonable repair and in a condition reasonably safe and fit for travel[.]” When the liability allegedly arises from a sidewalk defect, a plaintiff must meet additional requirements: A municipal corporation is not liable for breach of a duty to maintain a sidewalk unless the plaintiff proves that at least 30 days before the occurrence of the relevan

2020In Bernardoni v Saginaw, 499 Mich 470, 471 ; 886 NW2d 109 (2016), the Michigan Supreme Court held that a photograph of a defect taken after an accident is not probative of the location’s past condition and is “insufficient, without more, to forestall summary disposition” under the highway exception to governmental immunity.

2014See also MCL 691.1407(1) and Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 593-608 ; 363 NW2d 641 (1984) (providing a detailed histoiy of sovereign immunity, governmental immunity, and the GTLA). 34 The six statutory exceptions to governmental immunity contained within the GTLA precede and follow the general grant of immunity in MCL 691.1407(1): “the highway exception, MCL 691.1402; the motor-vehicle exception, MCL 691.1405; the puhlic-building exception, MCL 691.1406; the proprietary-function exception, MCL 691.1413; the governmental-hospital exception, MCL 691.1407(4); and the sewa

2014See also MCL 691.1407(1) and Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 593-608 ; 363 NW2d 641 (1984) (providing a detailed histoiy of sovereign immunity, governmental immunity, and the GTLA). 34 The six statutory exceptions to governmental immunity contained within the GTLA precede and follow the general grant of immunity in MCL 691.1407(1): “the highway exception, MCL 691.1402; the motor-vehicle exception, MCL 691.1405; the puhlic-building exception, MCL 691.1406; the proprietary-function exception, MCL 691.1413; the governmental-hospital exception, MCL 691.1407(4); and the sewa

2012In Meek v Dep’t of Transp, 240 Mich App 105, 113 ; 610 NW2d 250 (2000), a highway-design-defect case, this Court held that a “barrier curb must be considered part of the improved portion of the highway designed for vehicular travel and comes within the highway exception to governmental immunity.” The Meek panel, in support of its holding, relied on Gregg v State Hwy Dep’t, 435 Mich 307, 314-315 ; 458 NW2d 619 (1990), in which our Supreme Court ruled that a highway shoulder is part of the improved portion of the highway designed for vehicular travel.

2012In Meek v Dep’t of Transp, 240 Mich App 105, 113 ; 610 NW2d 250 (2000), a highway-design-defect case, this Court held that a “barrier curb must be considered part of the improved portion of the highway designed for vehicular travel and comes within the highway exception to governmental immunity.” The Meek panel, in support of its holding, relied on Gregg v State Hwy Dep’t, 435 Mich 307, 314-315 ; 458 NW2d 619 (1990), in which our Supreme Court ruled that a highway shoulder is part of the improved portion of the highway designed for vehicular travel.

2005As expressed herein, it is my view that this latter interpretation best captures the essence of a statute that provides liability for mishaps occurring on the improved portion of the highway, but which does so without any direct reference to the location of their causality. [ Chaney, supra at 163 n. 7, 523 N.W.2d 762 .] Finally, Chief Justice Cavanagh, while concurring with the majority that immunity applies under the guardrail fact pattern, stated the following regarding his view of the highway exception in general: Admittedly, Justice Riley's plain interpretation of the highway exception res

2005As expressed herein, it is my view that this latter interpretation best captures the essence of a statute that provides liability for mishaps occurring on the improved portion of the highway, but which does so without any direct reference to the location of their causality. [ Chaney, supra at 163 n 7.] Finally, Chief Justice CAVANAGH, while concurring with the majority that immunity applies under the guardrail fact pattern, stated the following regarding his view of the highway exception in general: Admittedly, Justice Riley’s plain interpretation of the highway exception results in harsh cons

2011Indeed, we have described the highway exception as “problematic,” Nawrocki, 463 Mich at 167 n 24, and have noted that its language is “confusing for several reasons,” Suttles, 457 Mich at 643 n 5 (citation and quotation marks omitted).

2011Indeed, we have described the highway exception as “problematic,” Nawrocki, 463 Mich at 167 n 24, and have noted that its language is “confusing for several reasons,” Suttles, 457 Mich at 643 n 5 (citation and quotation marks omitted).

2025But to recover under the highway exception, a plaintiff must first comply with the notice requirements of MCL 691.1404, and “[f]ailure to provide adequate notice under this statute is fatal to a plaintiff’s claim against a government agency.” McLean v Dearborn, 302 Mich App 68, 74 ; 836 NW2d 916 (2013).

2025But to recover under the highway exception, a plaintiff must first comply with the notice requirements of MCL 691.1404, and “[f]ailure to provide adequate notice under this statute is fatal to a plaintiff’s claim against a government agency.” McLean v Dearborn, 302 Mich App 68, 74 ; 836 NW2d 916 (2013).

2025The established “statutory exceptions to the governmental immunity provided to the state and its agencies are the highway exception, MCL 691.1402; the motor-vehicle exception, MCL 691.1405; the public-building exception, MCL 691.1406; the proprietary-function exception, MCL 691.1413; the governmental-hospital exception, MCL 691.1407(4); and the sewage- disposal-system-event exception, MCL 691.1417(2) and (3).” Odom v Wayne County, 482 Mich 459 , 478 n 62; 760 NW2d 217 (2008) (citation omitted).

2025The established “statutory exceptions to the governmental immunity provided to the state and its agencies are the highway exception, MCL 691.1402; the motor-vehicle exception, MCL 691.1405; the public-building exception, MCL 691.1406; the proprietary-function exception, MCL 691.1413; the governmental-hospital exception, MCL 691.1407(4); and the sewage- disposal-system-event exception, MCL 691.1417(2) and (3).” Odom v Wayne County, 482 Mich 459 , 478 n 62; 760 NW2d 217 (2008) (citation omitted).

2001We are also aware that our Supreme Court observed in Roy that the highway exception “does not extend to injuries which arise from detached, ancillary installations, such as sidewalks, crosswalks, and bicycle paths.” Roy, supra at 331 .

2000We believe, however, that pedestrians may recover damages from the state or county road commission for personal injuries and property damage, the same as all other persons, when such injury or damage is proximately caused by a failure of the state or county road commission to carry out its duty to repair and maintain the narrowly defined location prescribed by the fourth sentence of the statutory clause: the “improved portion of the highway designed for vehicular travel.” There are four recent opinions of this Court that discuss whether, or to what extent, the highway exception extends to pede

2020Accordingly, “[a]n action may not be maintained under the highway exception unless it is clearly within the scope and meaning of the statute.” Hatch v Grand Haven Twp, 461 Mich 457, 464 ; 606 NW2d 633 (2000).

2020Accordingly, “[a]n action may not be maintained under the highway exception unless it is clearly within the scope and meaning of the statute.” Hatch v Grand Haven Twp, 461 Mich 457, 464 ; 606 NW2d 633 (2000).

2018A plaintiff seeking to establish the highway exception to governmental immunity must prove that his or her injuries resulted from a defect of the surface, “as distinct from the accumulation of ice.” Haliw v Sterling Hts, 464 Mich 297, 308 ; 627 NW2d 581 (2001).

2018A plaintiff seeking to establish the highway exception to governmental immunity must prove that his or her injuries resulted from a defect of the surface, “as distinct from the accumulation of ice.” Haliw v Sterling Hts, 464 Mich 297, 308 ; 627 NW2d 581 (2001).

1996This is a reference to note 29 of the plurality opinion, which acknowledged that in Tuttle v State Hwy Dep’t, 397 Mich 44, 45-46 ; 243 NW2d 244 (1976), “this Court found the defendant liable for a newly opened intersection that ‘was not “reasonably safe and fit for travel” by reason of inadequate signalization.’ ” In that same footnote, the plurality opinion also recognized the relevance of Salvati, supra, stating that the plurality decision [in Salvati] indicates a willingness by the Court to include the duty to post and maintain traffic signs within the highway exception statute.

1996The resolution of the controversy in this case depends on the proper interpretation of this statute. 1 B Citing the reasoning of Salvati v State Hwy Dep’t, 415 Mich 708 ; 405 NW2d 856 (1982), the majority concludes that under the highway exception a governmental agency has a “duty to provide adequate warning signs or traffic control devices at known points of hazard . . .

2020“Because this particular crosswalk is not an installation separate from the roadbed, the highway exception applies.” Id. at 681 .

2015Contrary to defendant’s suggestion before the trial court and on appeal, the Supreme Court has concluded that the highway exception includes a duty to “protect pedestrians from dangerous or defective conditions in the improved portion of the highway designed for vehicular travel, even when the injury does not arise as a result of a vehicular accident.” Nawrocki, 463 Mich at 162-163 ; see also Sebring v City of Berkley, 247 Mich App 666, 680-681 ; 637 NW2d 552 (2001) (“[T]he plain language of the highway exception cannot be construed to afford protection only when a dangerous or defective condi