Michigan Supreme Court 

# Order

Lansing, Michigan

February 24, 2006 Clifford W. Taylor, Chief Justice

128131 Michael F. Cavanagh
Elizabeth A. Weaver Marilyn Kelly KEVIN MACLACHLAN, Personal Representative Maura D. Corrigan Robert P. Young, Jr. of the Estate of DAVID MACLACHAN, Stephen J. Markman, Deceased, Justices Plaintiff-Appellee,

v SC: 128131 COA: 252221 Ingham CC: 02-001949-NI CAPITAL AREA TRANSPORTATION AUTHORITY and JOHN DOE, Defendants,

and

CITY OF LANSING, Defendant-Appellant.

________________ _______________ __________/

On January 10, 2006, the Court heard oral argument on the application for leave to appeal the January 20, 2005 judgm ent of the Court of Appeals. On order of the Court, the application is again considered. In lieu of granting leave to ap peal, we REVERSE the judgment of the Court of Appeals and REINSTATE the Ingham Circuit Court's order granting defendant City of Lansing summary dispositio n based on governmental immunity. MCR 7.302(G)(1). There was no defect in the roadway ren dering it unsafe for public travel at all times. Cf. Haliw v City of Sterling Heights , 464 Mich 297, 310 (2001).

K ELLY , J., dissents and states as follows:

The majority reinstates the summary di sposition for defendant and finds that “[t]here was no defect in the roadway rendering it unsafe for public travel at all times.”
This conclusion is at odds w ith credible evidence th at plaintiff presented, as well as with
the Court’s own decision in Nawrocki v Macomb Co Rd Comm, 463 Mich 143 (2000).
The case should be remanded to the trial c ourt for proceedings to resolve the factual question whether the portion of the road in question was unsafe for pedestrian travel.

Plaintiff’s decedent died in a fatal automobile accide nt on December 15, 2000. Decedent was a regular rider of the Capital Area Transporta tion Authority (CATA) bus system. He stepped down from the bus that he had ridden that day on to a city street, only to find his way to the curb bl ocked. A three-to f our-foot wall of ice and snow extended
several feet into the street. Left with no access to the side walk, he began walking along
the street in search of a break in the wall that blocked his way to safety. Before he could find one, he was struck by a car. He di ed from his injuries two days later.2

In Nawrocki , this Court held that MCL 691.1402(1) imposes an actionable duty on the state to protect pedestrians from dangerous conditions in the improved portion of the roadway. Id. at 162. When the harm is to a pede strian, the question becomes whether the roadway was “actually unsafe for pedestrian travel.” Id. at 162 n 20. 1

In reversing the Court of Appeals decision and reinstating the trial court’s grant of summary disposition for the defendant, the majority ignores Nawrocki . It also ignores that a fact question exists. The testimony and pictures submitted by plaintiff (attached 2 ) suffice to raise a genuine quest ion of material fact regard ing whether the roadway in question was dangerous for pedestrian travel.

I would remand this case to the trial c ourt for further proceedings to determine whether the portion of the ro ad at issue was dangerous for pedestrian travel.

1 When the accident involves a pedestri an, the duty is en hanced, stated in
Nawrocki

, supra at 172 n 28:

We acknowledge that repairing and ma intaining the impr oved portion of the highway in a condition reas onably safe and convenient for public travel represents a higher duty of care on the part of the government than repairing and maintaining it for vehicular travel. [Emphasi s in original.]

2 Both photographs show the curb’s edge, the height of the snow bank, and the fact
that the snowbank extended into the roadbed._______________________________________ __ 3

C AVANAGH , J., joins the statement of K ELLY , J.

s0221 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.

February 24, 2006

Clerk