In July 2011, Helen Yono fell, suffering a broken ankle and other injuries, while walking back to her car. The car was parked in the parallel parking lane along M-22 in Suttons Bay.
Yono sued the Michigan Department of Transportation in November 2011. She alleged that under MCL 691.1402(1), MDOT had a duty to keep M- 22 in reasonable repair, breached that duty, and proximately caused her injuries.
MDOT moved to dismiss her claims, asserting governmental immunity. MDOT claimed it was immune from suit because the area where Yono fell was not the “improved portion of the highway designed for vehicular travel.” MDOT agreed that it had a duty to maintain M-22, but contended that that duty applied only to the “travel lanes” and not to the parallel parking area.
Yono responded that the highway extended from curb to curb and that the parallel parking lanes are “designed for vehicular travel,” so MDOT could not claim governmental immunity. Among other matters, Yono asserted that the facts of her case closely matched those in Nawrocki v Macomb County Road Commission, 463 Mich 143 (2000). In Nawrocki, the Michigan Supreme Court held that the road commission was not entitled to immunity even though the plaintiff fell near the edge of the highway where she had parked.
The trial court judge determined that the portion of the highway designated for parallel parking was “designed for vehicular travel” within the meaning of MCL 691.1402(1); the judge observed that cars “have to travel on that to park.” The court also noted that the parallel parking lane was not a shoulder and not intended for emergencies alone. Accordingly, MDOT had a duty to keep that portion of the highway in reasonable repair under MCL 691.1402(1) and was not entitled to immunity, the judge held.
MDOT appealed, but in a 2-1 published opinion, the Court of Appeals affirmed the trial court: “The trial court did not err when it concluded that the area of the highway at issue constituted part of the improved portion of the highway that was ‘designed for vehicular travel’ within the meaning of MCL 691.1402(1).”
In general, government agencies are immune from tort liability “when engaged in the exercise or discharge of a governmental function, such as constructing and maintaining a highway. MCL 691.1401(f); MCL 691.1407(1). Our Legislature has, however, established an exception to this immunity for those governmental agencies that have jurisdiction over a highway,” the majority explained.
MCL 691.1402(1) provides in part:
A person who sustains bodily injury or damage to his or her property by reason of failure of a governmental agency to keep a highway under its jurisdiction in reasonable repair and in a condition reasonably safe and fit for travel may recover the damages suffered by him or her from the governmental agency.
“A governmental agency’s duty—and, accordingly, its potential for liability—does not extend to the whole highway; rather, the Legislature provided that ‘the duty of [a governmental agency] to repair and maintain highways, and the liability for that duty, extends only to the improved portion of the highway designed for vehicular travel …’ MCL 691.1402(1),” the majority noted.
The Supreme Court stated in Nawrocki that the “improved portion designed for vehicular travel” encompasses only the “traveled portion, paved or unpaved, of the roadbed actually designed for public vehicular travel.” In Nawrocki, a woman who fell on broken pavement in the roadway after stepping out of a parked car was deemed to have stated a claim that she was injured on the improved portion of the highway designed for vehicular travel. But the Supreme Court held in another case that the shoulder of the road is not “designed for public vehicular travel,” the Court of Appeals noted: “[T]he question is whether the improved portion was specifically designed for vehicular travel.”
MDOT contended that parking lanes are not travel lanes, but the Court of Appeals rejected that argument: “Under the Department’s preferred definition … the Department would have no duty to repair or maintain left-turn lanes, merge lanes, on- and off-ramps, right-turn lanes, lanes designed to permit vehicles to access the opposite side of a divided highway, such as median U-turn lanes and emergency turnarounds, or even the excess width provided on rural highways to permit drivers to proceed around vehicles that are waiting to turn left. Yet in each case, the lanes, or parts of lanes, are plainly designed for vehicular travel— albeit limited travel. We cannot give MCL 691.1402(1) a contrived meaning that contravenes its plain and ordinary sense.”
M-22 is a “contiguous whole” that includes the parking lanes, which are “not physically separated from the center of the highway by a median, driveway, or other barrier. Absent the painted markings, the area for parallel parking would be indistinguishable from the remainder of the highway. It is also evident that the lanes designated for parking were designed to permit vehicles to merge both from the center lanes to the parking lanes and from the parking lanes to the center lanes.”
Moreover, the panel said, the “undisputed evidence” showed that the parking lanes were designed to be used for limited vehicular travel when not occupied by parked cars: “M-22, within the village of Suttons Bay, is an extrawide two-lane or, alternatively, four-lane thoroughfare that contains paint markings in that portion of the highway closest to the curb to facilitate the orderly parking of vehicles. The fact that a driver may legally park within this portion of the highway, and thereby obstruct its use as a thoroughfare, does not alter its character; it is still plainly designed for regular, if limited, vehicular travel.”
The dissenting judge said that “design” should not be conflated with “contemplated use”: “Thus, the mere fact that the public uses a portion of highway for vehicular travel does not mean that it is designed for that use.”
“The portion of the road on which Yono was allegedly injured clearly was not designed for vehicular travel. Rather, it was at the edge of the parallel parking lane ‘abutting the concrete gutter and curb.’ The lane in which the alleged defect was located was designed for parallel parking, as is evidenced by the demarcations on the pavement.” While the parallel parking lanes might be used to merge into or from the travel lanes or to make a right turn, those would be only “momentary” uses that would not “transform the purpose of [the parking lanes’] design,” the judge stated.
The dissent said that the majority had misunderstood MDOT’s argument: “The Department in no way claims that a travel lane is restricted to a lane that is part of the thoroughfare…. To reach its conclusion, the majority ignores the argument actually being made by the Department. The Department contends that in the instant case, the roadway at issue is specifically designated by painted markings for parallel parking and is not merely a highway or residential street that permits on-street parking without any designation.” The fact that the parking lanes were not separated by a “median, driveway, or other barrier” did not mean that the lanes were designed for vehicular travel: “[T]here were painted markings on the road indicating that the lane was intended for parking and the parking lane was narrower than the travel lane. As such, the roadway at issue was distinguishable from the remainder of the highway, making it clear that the lane was not designed for vehicular travel.”
MDOT appealed. In an order dated September 20, 2013, the Supreme Court directed the case to be put on the oral argument schedule to determine “whether to grant the application or take other action.” The Court instructed the parties to address “whether the parallel parking area where the plaintiff fell is in the improved portion of the highway designed for vehicular travel within the meaning of MCL 691.1402(1).”