Michigan Supreme Court

Lansing, Michigan

Robert P. Young, Jr.,

 Chief Justice

Michael F. Cavanagh

Marilyn Kelly

Stephen J. Markman

Diane M. Hathaway

Mary Beth Kelly

Brian K. Zahra, Justices

Order 

December 16, 2011 

12 November 2011 

142287 

DONALD T. McCUE, individually and as the 

conservator of the ESTATE OF DEBRA K. 

McCUE, 

Plaintiff-Appellee, 

v SC: 142287 

 COA: 294661 

Mackinac CC: 08-006594-NO 

O-N MINERALS (MICHIGAN) COMPANY, 

Defendant-Appellant. 

_________________________________________/ 

 On order of the Court, leave to appeal having been granted and the briefs and oral 

argument of the parties having been considered by the Court, we REVERSE the 

November 4, 2010 judgment of the Court of Appeals and we REMAND this case to the 

Mackinac Circuit Court for reinstatement of the August 31, 2009 order granting summary 

disposition to the defendant and denying the plaintiff’s motion for partial summary 

disposition. The plaintiff’s claim of negligence failed because the plaintiff did not 

demonstrate that the defendant, rather than the State of Michigan Department of 

Transportation, owed the plaintiff and his spouse a duty to maintain or repair the State 

highway in question. See MCL 691.1402(1). Similarly, the plaintiff failed to state a 

claim for public nuisance because he did not demonstrate that the defendant acted in a 

way that unreasonably interfered with a common right enjoyed by the public or that the 

plaintiff’s spouse’s injury was different from the type of harm that a member of the 

general public could have suffered. 

 CAVANAGH, J. (dissenting). 

 I respectfully dissent from this Court’s order reversing the Court of Appeals 

because I believe that the Court of Appeals correctly concluded that defendant is not 

entitled to summary disposition. Specifically, I believe that genuine issues of material 
2

fact remain regarding whether defendant may have had a duty sufficient to support 

plaintiff’s claim of negligence and whether defendant’s actions created a public nuisance. 

 Plaintiff and his wife were participating in the DALMAC bicycle tour when 

plaintiff’s wife fell from her bike and suffered serious injuries while riding over a portion 

of state highway M-134 in the Upper Peninsula. Plaintiff alleges that the portion of the 

highway where his wife fell was extensively damaged. Defendant owns the property 

through which M-134 passes at the location where the fall occurred and conducts mining 

operations on both sides of the highway. The state holds an easement that allows M-134 

to pass over defendant’s property. At the point where plaintiff’s wife fell, the highway 

consists of a concrete pad with large steel rails embedded into the concrete. As permitted 

by an agreement with the state, defendant routinely crosses M-134 on the concrete pad 

with its heavy trucks and equipment, including tracked bulldozers. Plaintiff alleges that 

defendant’s repeated, intense use of the highway caused the damage to the highway that 

resulted in plaintiff’s wife’s fall. 

 Even if the majority is correct that defendant had no duty to maintain or repair the 

state highway in question, I think that defendant arguably had a duty to inform the State 

of Michigan Department of Transportation (MDOT) of the damage apparently caused by 

defendant’s unusual use of the highway. I believe that this arguable duty arises out of the 

fact that defendant’s use of the portion of the highway where plaintiff’s wife was injured 

is highly intense and fundamentally different from the public’s use, and that use 

potentially either increased the hazard on the public highway that existed at the time of 

the injury or created a new hazard on the public highway. See Berman v LaRose, 16 

Mich App 55, 59 (1969). Because defendant’s intense use seemingly caused or hastened 

the damage to the highway and defendant was in the best position to know when repairs 

were needed, I think that imposing a duty on defendant to inform MDOT of the damage 

is a fair balancing of the “competing policy considerations” that necessarily go into 

determining whether a duty exists. Friedman v Dozorc, 412 Mich 1, 22 (1981). See, 

also, Dyer v Trachtman, 470 Mich 45, 49 (2004), quoting Prosser & Keeton, Torts (5th 

ed), § 56, p 374. 

 Additionally, I agree with the Court of Appeals that genuine issues of material fact 

exist regarding whether the damage arguably caused by defendant’s use of the highway 

amounted to a public nuisance. This Court has stated that a public nuisance includes an 

activity that “create[s] an interference in the use of a way of travel.” Twp of Garfield v 

Young, 348 Mich 337, 342 (1957), citing Attorney General ex rel Muskegon Booming Co 

v Evart Booming Co, 34 Mich 462 (1876). Thus, because defendant’s prolonged, intense 

use of the highway potentially interfered with the use of a state highway by creating or 

accelerating the damage to the highway, I believe that defendant may have unreasonably 

interfered with the public’s common right to use the state highway. 
3

 Finally, with regard to the nature of the injury required to sustain a public nuisance 

claim, the majority’s order inaccurately states that plaintiff cannot pursue a claim because 

the harm suffered was not “different from the type of harm that a member of the general 

public could have suffered.” Emphasis added. However, this Court has stated that a 

“plaintiff[] must show harm of a kind different from that suffered by other members of 

the general public exercising the right common to the general public that was the subject 

of interference.” Adkins v Thomas Solvent Co, 440 Mich 293, 306 n 11 (1992), citing 4 

Restatement Torts, 2d, § 821C. Thus, a court must determine whether the harm suffered 

by a plaintiff is different from the harm actually suffered by the general public, not 

merely whether a member of the general public “could have suffered” the harm that the 

plaintiff suffered. I think that plaintiff’s spouse’s personal injury is sufficient to satisfy 

this requirement. 

 As noted, the Adkins Court cited to the Second Restatement of Torts in discussing 

this requirement; thus, I believe that the Second Restatement of Torts should be closely 

considered. Notably, the Second Restatement explains that where the conduct alleged to 

be a public nuisance causes “physical harm to [a plaintiff’s] land or chattels, the harm is 

normally different in kind from that suffered by other members of the public and the tort 

action may be maintained.” 4 Restatement Torts, 2d, § 821C, comment d. Moreover, 

the Restatement provides the following helpful example: 

A digs a trench across the public highway and leaves it unguarded at night 

without any warning light. B, driving along the highway, drives into the 

trench and breaks his leg. B can recover for the public nuisance. [Id. 

(emphasis added).] 

Because the facts and injury suffered in this case are closely analogous to the example 

provided by the Second Restatement of Torts, I would affirm the Court of Appeals 

decision to reverse the trial court’s grant of summary disposition in favor of defendant. 

 Accordingly, I respectfully dissent. 

 MARILYN KELLY, J. (dissenting). 

I join Justice CAVANAGH’s dissenting statement. I write separately to note that I 

think defendant did have a duty to plaintiff under a negligence theory. Moreover, 

plaintiff has raised genuine issues of fact sufficient to support this claim. 

In defendant’s easement agreement with the state, defendant reserved the right to 

“construct and maintain such . . . roads . . . as may be necessary for the . . . transportation 

of the ores . . . and . . . the right to go over and across the lands [therein] described.”1

 

 

1

 The Easement Agreement, Liber 90, pg 598. 
4

Defendant specifically reserved a right to maintain the section of road where the accident 

occurred. Thus it voluntarily assumed a duty of care. 

Although the general rule is that the exclusive duty to maintain and repair the 

public highway belongs to the state, in rare cases a private landowner can have this duty. 

In Berman v LaRose the Court of Appeals stated: 

[T]here is no duty, absent a statute, of an abutting owner as to 

the condition of the sidewalk or public way, unless the 

landowner has physically intruded upon the area in some 

manner or has done some act which either increased the 

existent hazard or created a new hazard.2

 

Using the Berman rule, the Michigan Court of Appeals in Staskievitz v City of Ann Arbor 

and Bagel Factory, Inc,

3

 found that a private landowner had a duty to a person injured on 

the public roadway. In that case, defendant Bagel Factory shoveled snow into the public 

roadway resulting in an injury to plaintiff when she fell.4

 The Court of Appeals also 

found a duty to a private defendant in Ward v Frank’s Nursery & Crafts, Inc.

5

 There, 

plaintiff was injured after tripping over a pothole in the public alleyway which defendant 

had covered with loose debris.6

 

 There is evidence that defendant in this case physically intruded upon the public 

road in a way much more extensive than shoveling snow or depositing debris in a 

pothole. The deterioration it may have caused in the area of roadway in question 

appeared to have been far in excess of normal wear and tear. The indentions next to the 

metal rails, which ran perpendicular to traffic, were as deep as two inches. Therefore, 

defendant had a duty to plaintiff to maintain the roadway where the accident occurred, 

and there is evidence sufficient for a jury to determine that it breached that duty. 

 Accordingly, summary reversal of the Court of Appeals decision is unwarranted, 

and I respectfully dissent from it. 

 

2

 16 Mich App 55, 57 (1969). 

3

 Unpublished Court of Appeals opinion, issued April 22, 1997 (Docket No. 191675). 

4 Id. 

5

 186 Mich App 120, 133 (1990), interloc lv den 437 Mich 1033 (1991). 

6 Id. 
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the 

foregoing is a true and complete copy of the order entered at the direction of the Court. 

 _________________________________________ 

 Clerk

December 16, 2011 

t1213 

 

5

 HATHAWAY, J. (dissenting). 

 I agree with Justices CAVANAGH and MARILYN KELLY that reversal of the Court 

of Appeals decision is unwarranted. Accordingly, I dissent.