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04/07/86 EDWIN ZYSKOWSKI v. GERALD G. HABELMANN

April 7, 1986

EDWIN ZYSKOWSKI, PERSONAL REPRESENTATIVE OF THE ESTATE OF BRUCE ZYSKOWSKI, DECEASED, PLAINTIFF-APPELLANT,
v.
GERALD G. HABELMANN, CITY OF DETROIT AND BOARD OF COUNTY ROAD COMMISSIONERS OF THE COUNTY OF WAYNE, DEFENDANTS-APPELLEES



J.h. Shepherd, P.j., and J. H. Gillis and P. J. Clulo,* JJ.

The opinion of the court was delivered by: Shepherd

Plaintiff, Edwin Zyskowski, commenced this wrongful death action as personal representative of the estate of his son the deceased, Bruce Zyskowski, who was struck and killed by a motorist during the early morning hours of March 15, 1980, while walking on Outer Drive in Detroit's River Rouge Park. The complaint alleged negligence against the motorist, defendant Habelmann, and negligence and intentional nuisance against defendants City of Detroit and the Wayne County Board of Road Commissioners for their alleged failure to maintain the street lights along the road. From a March 8, 1984, jury verdict of no cause of action, plaintiff appeals as of right, alleging that there were a number of errors in the trial below.

Decedent was at the home of a friend drinking and playing cards before his death. Decedent's brother testified that decedent consumed about four mixed drinks before leaving at about 1:30 a.m. He went for a walk in Rouge Park, as he often did at night. At about 3 a.m. he was struck by a vehicle driven by defendant Habelmann in the right southbound lane of Outer Drive about 600 to 800 feet north of Warren Avenue in Detroit. Habelmann testified that he was driving at between 25 to 30 miles per hour when he simultaneously saw and hit a brown object that appeared in his path. Over plaintiff's objections, the court permitted Wayne County Medical Examiner Dr. Werner Spitz to testify that decedent had a blood alcohol level of .18 percent at the time of his death. Dr. Spitz opined that a person in that condition would likely have impaired judgment, tunnel vision and no depth perception.

Habelmann and the investigating police officer testified that the nearby street lights were not working at the time of the accident. Outer Drive is a county road over which defendant Wayne County Road Commission admitted jurisdiction for maintenance and repair. However, according to the testimony of officials from both the city and the county, although the county owns the lights, the city, pursuant to a 1928 agreement, was responsible for the maintenance and relamping of the lights. There was also testimony by a city official that the lights were strictly intended for ornamental use. Several city and county employees also testified that there had been Discussions between the city and the county and within the city about making improvements to the lighting along Outer Drive in Rouge Park.

At the close of the proofs, the trial court directed a verdict for the city on the negligence count. The jury found no cause of action on the remaining negligence and nuisance counts against all of the defendants. We reverse the verdict on the negligence count as to the county only and remand for a new trial. We affirm the jury's verdict of no cause of action on the nuisance counts and on the negligence count against defendant driver. We also affirm the directed verdict in favor of the city on the negligence count.

I

Plaintiff first argues that the trial court should have instructed the jury that the county had the duty to maintain the lights along the county road rather than leaving resolution of the duty issue to the jury.

By statute, governmental units are immune from tort liability when engaged in the exercise or discharge of a governmental function. MCL 691.1407; MSA 3.996(107). The design, construction and maintenance of a road constitutes the exercise of a governmental function. Potes v State Highway Dep't, 128 Mich App 765, 768; 341 NW2d 210 (1983). However, a statutory exception to immunity provides that an agency is not immune from liability for improperly maintained roads under the agency's jurisdiction. MCL 691.1402; MSA 3.996(102) states in part:

"Each governmental agency having jurisdiction over any highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. Any person sustaining bodily injury or damage to his property by reason of failure of any governmental agency to keep any highway under its jurisdiction in reasonable repair, and in condition reasonably safe and fit for travel, may recover the damages suffered by him from such governmental agency." (Emphasis added.)

Jurisdiction over county roads is expressly conferred upon the county in MCL 224.21; MSA 9.121, which provides in part:

"It is hereby made the duty of the counties to keep in reasonable repair, so that they shall be reasonably safe and convenient for public travel, all county roads, bridges and culverts that are within their jurisdiction and under their care and control and which are open to public travel."

At trial, the city and county each denied responsibility for maintaining the lighting, although the county admitted that it had responsibility for maintaining Outer Drive, a county road. The case law is clear that MCL 691.1402 is to be strictly construed and "jurisdiction" is given a narrow interpretation. Bennett v Lansing, 52 Mich App 289, 294-295; 217 NW2d 54 (1974), lv den 399 Mich 840 (1977), Potes, supra, p 769. Governmental immunity limits liability to the single governmental agency which has jurisdiction of the road at the time of the accident. 128 Mich App 769. Jurisdiction of county roads is placed exclusively on the county by statute. Moreover, the county cannot divest itself of jurisdiction over county roads by a maintenance agreement with a local municipality, as was the case here. Bennett, supra; Potes, supra; Beyer v Fraternal Order of Eagles, Aerie No 668, 123 Mich App 492; 333 NW2d 314 (1983). This Court stated in Bennett, supra, pp 295-296 (failure of the city to maintain a traffic light at the intersection of two state trunk lines):

"While at first blush it seems odd that the state must answer for the omission of a local unit of government, it must be remembered that if local units of government were not absolved of liability with respect to maintenance of state trunkline highways, local units of government would be less willing to undertake the responsibility of said maintenance on behalf of the state."

Since the city in the present case clearly did not have jurisdiction over Outer Drive, it is immune from tort liability for any alleged failure to properly maintain the road or lighting, and the trial court appropriately entered a directed verdict in favor of the city on the negligence claim. The duty, if any, to maintain the lighting rested with the county and will be addressed next.

Plaintiff requested an instruction "that maintenance of the highway includes maintenance of lighting along the highway". The trial court refused to give the instruction and instead gave the jury a general instruction that the governmental agency having jurisdiction of the road had a duty to maintain the road in reasonable repair "so that it is reasonably safe and convenient for public travel".

In effect, the court left the hotly contested issue of duty to maintain the lighting to the jury. We agree with plaintiff that the question of whether the county had a duty to maintain the lighting as part of the maintenance of the road under MCL 691.1402 is a question of law for the court and not a factual issue for the jury. See Anderson v Macomb Road Comm, 143 Mich App 735; 372 NW2d 651 (1985), Moerman v Kalamazoo Road Comm, 129 Mich App 584; 341 NW2d 829 (1983), rev'd on other grounds on reh 141 Mich App 154 (1985). The trial court's failure to make this legal determination requires reversal.

As noted above, the liability of a governmental agency for injuries caused by improperly maintained roads is purely statutory. The statute, however, imposes an important limitation on liability:

"The duty of the state and the county road commissions to repair and maintain highways, and the liability therefor, shall extend only to the improved portion of the highway designed for vehicular travel and shall not include sidewalks, crosswalks or any other installation outside of the improved portion of the highway designed for vehicular travel." MCL 691.1402; MSA 3.996(102).

The phrase "improved portion of the highway designed for vehicular traffic" is generally given an expansive interpretation. In Bennett, supra, a traffic light was held to be an integral part of the improved portion of a highway. Similarly, in Salvati v Dep't of State Highways, 415 Mich 708; 330 NW2d 64 (1982), the Supreme Court held that traffic signs were part of the improved portion of the highway. The Supreme Court stated:

"A traffic sign, once erected, becomes an integral part of the physical structure of the highway, and thus the duty to maintain a highway in reasonable repair encompasses the maintenance of traffic signs. A governing unit may incur liability under the broad concept of 'traffic sign maintenance' in the following ways: for failing to properly maintain a sign placed on the roadway, O'Hare v Detroit, 362 Mich 19; 106 NW2d 538 (1960); for failing to erect any sign or warning device at a point of hazard, Bonneville v Alpena, 158 Mich 279; 122 NW 618 (1909); Mullins v Wayne County, 16 Mich App 365; 168 NW2d 246 (1969); for positioning an improper system of signs on the roadway, National Bank of Detroit v Dep't of State Highways, 51 Mich App 415; 215 NW2d 599 (1974); or for placing a sign which inadequately informs approaching motorists of a hazard, Lynes v St Joseph County Road Comm, 29 Mich App 51; 185 NW2d 111 (1970)." (Footnote omitted.) 415 Mich 715.

In Pate v Dep't of Transportation, 127 Mich App 130, 135; 339 NW2d 3 (1983), this Court, relying on Salvati, held that once a traffic sign is erected, it becomes an integral part of the improved portion of a road and thereafter the statute imposes a duty to maintain the sign in proper repair.

Another panel of this Court recently observed that "the statutory duty extends to the maintenance of conditions that affect the safety of motorists using the improved portion of the highway designed for vehicular travel". Moerman, supra, p 562. In the present case it is clear that the lighting on a road affects the safety of motorists using the improved portion of the highway. In many urban areas street lighting is an integral and necessary part of road design. We conclude that once the county installed the lights along Outer Drive, it assumed a duty to maintain the lights in proper repair. While the reasonableness of the county's actions and the adequacy of the lighting (as well as the cause of the accident) were questions for the jury, the determination of which governmental agency had the statutory duty to repair and maintain the street lighting and whether the lights were part of the "improved portion" of the road were questions for the court. Accordingly the verdict with respect to defendant road commission's negligence must be reversed.

II

The trial court gave the following instruction to the jury on plaintiff's intentional nuisance claims against both governmental defendants:

"Now a nuisance is a condition which is harmful, offensive or dangerous to persons or property.

"An intentional nuisance is one wherein the creator intended to bring about the condition which is in fact found to be a nuisance.

"Where a party intends to bring about a condition which is dangerous and the party knew or must have known that harm was substantially certain to follow as a result of the defendant's actions, then that party may be found liable for an intentionally created nuisance." (Emphasis added.)

Plaintiff had sought an instruction that substituted "might result" for "substantially certain to follow". On appeal he again asserts that the "might result" instruction is the proper test. This issue is without merit.

The "substantially certain" test can be traced to footnote 2 of Justice Moody's Concurring opinion in Rosario v Lansing, 403 Mich 124, 143; 268 NW2d 230 (1978), which quoted the following language from Prosser, Torts (4th ed), § 87:

"Occasionally [intentional nuisances] proceed from a malicious desire to do harm for its own sake; but more often they are intentional merely in the sense that the defendant has created or continued the condition causing the nuisance with full knowledge that the harm to the plaintiff's interests is substantially certain to follow." (Emphasis in original.)

Since Rosario, this Court has consistently employed the "substantially certain" test given by the trial court in the present case. See Ford v Detroit, 91 Mich App 333; 283 NW2d 739 (1979), Cobb v Fox, 113 Mich App 249, 257-258; 317 NW2d 583 (1982), Ovist v Hancock, 123 Mich App 276, 278-279; 333 NW2d 250 (1983), Pate, supra, p 110 ("substantially likely"); Jenkins v Detroit, 138 Mich ...


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