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Ridley v. City of Detroit9/23/2003
FOR PUBLICATION
ON SECOND REMAND
Plaintiff successfully brought this wrongful death action after plaintiff's decedent was beaten by a gang of thugs, left in the middle of Jefferson Avenue in the City of Detroit and run over by one or more automobiles, resulting in his death. We are asked to determine whether plaintiff pled in avoidance of governmental immunity. We hold that, because illumination is not part of the actual highway, the highway exception to governmental immunity does not apply and defendant city was entitled to judgment as a matter of law.
In our original opinion, we upheld the verdict in favor of plaintiff, concluding that the failure to maintain a streetlight and provide adequate lighting of the street comes within the highway exception to governmental immunity and a municipality's duty to maintain a highway in reasonable repair under MCL 691.1402(1). The Supreme Court remanded the matter to us for reconsideration in light of its opinion in Evens v Shiawassee Co Rd Comm'rs , a companion case to Nawrocki v Macomb Co Rd Comm, 463 Mich 143; 615 NW2d 702 (2000). On remand, we held that Evens did not apply to this case because it dealt with the liability of a county road commission, not the liability of a city. Ridley v Detroit (On Remand), 246 Mich App 687; 639 NW2d 258 (2001). But the conclusion in our earlier opinions that negligent maintenance of a streetlight comes within the highway exception was subsequently rejected by a special panel of this Court convened in Weaver v Detroit, 252 Mich App 239; 651 NW2d 482 (2002) . In Weaver , this Court held that a streetlight pole is not part of the highway and, therefore, the highway exception does not extend to the maintenance of streetlight poles. Our Supreme Court has again remanded this matter to us, now to reconsider our earlier decision in light of the special panel's determination in Weaver .
The Supreme Court in Nawrocki , supra at 172, concluded that the duty to maintain highways extends to making roads safe for pedestrian travel. In Nawrocki , the plaintiff was injured when she stepped from the curb onto broken pavement in the road. Id. at 152. The Court concluded that, although the county road commission's duty to maintain the road did not extend beyond the roadbed itself, its duty extended to making the road safe for both vehicular and pedestrian traffic. Id. at 172. In Evens , the companion case to Nawrocki , the plaintiff was injured when involved in a motor vehicle accident in an intersection. Id. at 153-154. Evens argued that the county road commission should have installed additional stop signs or traffic signals at the intersection. Id. at 154. The Court concluded that a county road commission's duty extends only to the maintenance of the roadbed itself, not to signs which lie outside the roadbed. Id. at 183. Although the Court primarily based its reasoning on the fact that a county road commission's duty extends only to the roadbed itself, it is of particular interest to this case that the Court also noted that traffic signals and signs fall outside the statutory definition of "highway" as well. Id. at 182-183 n 37. In fact, the Court specifically commented that, because signals and signs fall outside the definition of "highway," there was no shifting of liability from the state and counties to local municipalities where the liability is premised upon inadequate signage or signals. Id.
This then brings us to the special panel's decision in Weaver . In Weaver , supra at 241, the plaintiff's decedent was killed when a bus struck a light pole, which then fell on the decedent. The plaintiff's theory was that the light pole had been inadequately maintained and, therefore, fractured
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