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142287 - McCue v O-N Minerals

Donald T. McCue, individually and as the conservator of the Estate of Debra K. McCue,
John L. Noud
(Appeal from Ct of Appeals)
(Mackinac – Carmody, R.)
O-N Minerals (Michigan) Company,
Noreen L. Slank
MaryEllen McLeod


​Donald T. McCue and his wife Debra were participating in the 2008 Annual Dick Allen Lansing to Mackinac bike tour. Debra McCue rode onto a stretch of State Highway M-134 where a private gravel road connected with the highway; O-N Minerals Company owned the land on both sides of M-134, including the gravel road, which the company used to move equipment and materials to and from its properties on both sides of the highway. O-N Minerals used the highway crossing under an easement with the state. The highway was paved with concrete and reinforced with six railroad rails at the point where the gravel road connected to the highway; the concrete around the rails had deteriorated, leaving ruts in the road. Debra McCue fell in this area and suffered serious injuries, including a fractured skull and head trauma resulting in permanent brain damage.

McCue sued O-N Minerals on his own behalf and as conservator of his wife’s estate; he alleged that O-N Minerals had a duty to maintain the highway where his wife fell and that the company breached that duty by allowing the intersection to fall into disrepair. He also contended that O-N Mineral’s failure to maintain that section caused his wife to be thrown from her bike and injured. Although McCue also sued the state of Michigan and the Michigan Department of Transportation, those defendants were dismissed from the lawsuit because the McCues had signed releases in order to participate in the DALMAC tour.
The trial court dismissed McCue’s claims against O-N Minerals, ruling as a matter of law that O-N Minerals owed Debra McCue no duty with regard to M-134, which is under the exclusive jurisdiction of the state. By virtue of the easement, the company had no obligation to maintain or repair the highway, nor any responsibility for the creation of a nuisance, if any existed, the trial court said. The trial court also denied McCue’s motion for partial summary disposition, in which McCue sought a ruling that O-N Minerals had a duty to repair the highway, but failed to do so, and that that failure caused Debra McCue’s fall.
McCue appealed, and the Court of Appeals reversed in part in an unpublished decision. There are circumstances in which a landowner’s conduct can give rise to a duty with regard to an adjacent right-of-way – namely, when the landowner has physically intruded upon the area or has done some act that either increased an existing hazard or created a new hazard, the appellate court said. Because McCue had presented evidence from which a reasonable trier of fact could conclude that O-N Minerals used the highway in a way that either caused the defect or increased the related hazard, the trial court erred by granting summary disposition in favor of O-N Minerals, the Court of Appeals determined. The appeals court agreed with the trial court’s denial of McCue’s motion for partial summary disposition, concluding that a jury could decide that O-N Minerals’ use of the highway was reasonable under the circumstances or that its use did not cause the defect. O-N Minerals appeals.