Michigan Supreme Court Lansing, Michigan

Robert P. Young, Jr.,
Chief Justice

Michael F. Cavanag h Marilyn Kell y Stephen J. Markma n Diane M. Hathawa y Mary Beth Kell y Brian K. Zahra,

J ustices 

# 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 c onsidered 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 rein statement 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 be cause the plaintiff did not demonstrate that the defendant, rather than the State of Michigan Department of Transportation, owed the plain tiff and his spouse a duty to ma intain 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 comm on right enjoyed by the public or that the plaintiff’s spouse’s injury wa s different from the type of harm that a member of the general public could have suffered.

C AVANAGH , 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 material2

fact remain regarding whether defendant may have had a duty sufficient to support plaintiff’s claim of negligence and whether de fendant’s actions create d a public nuisance.

Plaintiff and his wife were particip ating in the DALMAC bicycle tour when plaintiff’s wife fell from her bike and suffere d serious injuries while riding over a portion of state highway M-134 in the Upper Peninsula. Plaintiff alleges th at 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 hi ghway. The state holds an easement that allows M-134 to pass over defendant’s property. At the point where pl aintiff’s wife fell, the highway consists of a concrete pad w ith large steel rails embedded in to 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 highw ay caused the damage to the highway that resulted in plaintiff’s wife’s fall.

Even if the majority is co rrect that defendant had no duty to maintain or repair the state highway in question, I think that defe ndant arguably had a duty to inform the State of Michigan Department of Transportation (M DOT) of the damage apparently caused by defendant’s unusual use of the highway. I belie ve that this arguable duty arises out of the

fact that defendant’s use of the portion of the highway wher e plaintiff’s wife was injured is highly intense and fundamentally differe nt 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 seem ingly caused or hastened the damage to the highway a nd 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 polic y considerations” that necessarily go into determining whethe r a duty exists. Friedman v Dozorc , 412 Mich 1, 22 (1981). See, also, Dyer v Trachtman , 470 Mich 45, 49 (2 004), quoting Prosser & Keeton, Torts (5th ed), § 56, p 374.

Additionally, I agree with the Court of Appe als 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 ha s 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, becaus e 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 be lieve that defendant may have unreasonably interfered with the public’s common ri ght to use the state highway.3

Finally, with regard to the na ture of the injury required to sustain a public nuisance claim, the majority’s order inac curately states that plaintiff cannot pursue a claim because the harm suffered was not “different from the ty pe 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 determ ine 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 s pouse’s personal injury is sufficient to satisfy this requirement.

As noted, the Adkins Court cited to the Second Rest atement of Torts in discussing this requirement; thus, I believe that the Seco nd Restatement of Torts should be closely considered. Notably, the Second Restatement explains that where the conduct alleged to be a public nuisance causes “phys ical 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 high way and leaves it unguarded at night without any warning light. B, drivi ng 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 Tort s, I would affirm the Court of Appeals decision to reverse the trial court’s grant of summary disposition in fa vor of defendant.

Accordingly, I resp ectfully dissent.

M ARILYN K ELLY , J. ( dissenting ).

I join Justice C AVANAGH ’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 su pport this claim.

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

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

of the ores . . . and . . . th e 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 main tain the section of road where the accident occurred. Thus it voluntarily assumed a duty of care.

Although the general rule is that the ex clusive duty to maintain and repair the public highway belongs to the st ate, 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 intr uded 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 ha d 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 pot hole in the public alle yway which defendant

had covered with loose debris. 6

There is evidence that defe ndant in this case physica lly intruded up on the public road in a way much more ex tensive than shoveling snow or depositing debris in a pothole. The deterioration it may have caused in the ar ea 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 perpendicu lar 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 sufficien t for a jury to determine that it breached that duty.

Accordingly, summary revers al 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, i ssued 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 Mi chigan Supreme Cour t, 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

H ATHAWAY

, J. ( dissenting ).

I agree with Justices C AVANAGH and M ARILYN K ELLY that reversal of the Court of Appeals decision is unwarranted. Accordingly, I dissent.