ADAMS v. DEPARTMENT OF TRANSPORTATION, 251 Mich. App. 801 (2002)

651 N.W.2d 88

No. 230268.Michigan Court of Appeals.
Released June 7, 2002, at 9:00 a.m.; vacated July 2, 2002. Updated August 30, 2002.

ORDER ENTERED JULY 2, 2002 Adams v Dep’t of Transportation, Docket No. 230268. The Court orders that a special panel shall be convened pursuant to MCR 7.215(I) to resolve the conflict between this case and Sekulov v City of Warren, 251 Mich. App. 333; 650 N.W.2d 397 (2002).

The Court further orders under MCR 7.215(I)(5) that the opinion released on June 7, 2002 is vacated.

The appellant may file a supplemental brief within 21 days of the Clerk’s certification of this order. Appellees may file a supplemental brief within 21 days of service of appellant’s brief. Nine copies must be filed with the Clerk of the Court.

McDonald J., did not participate.

Before: Wilder, P.J., and Bandstra and Hoekstra, JJ.

PER CURIAM.

In this appeal as of right, plaintiff asserts that Nawrocki v Macomb Co Rd Comm, 463 Mich. 143; 615 N.W.2d 702 (2000),[1] should be given prospective application only and, if not, that Nawrocki is distinguishable from the present case and thus inapplicable. In essence, plaintiff claims that the Court of Claims’ grant of summary disposition in favor of defendant on the basis of Nawrocki was inappropriate because Nawrocki
should be applied prospectively only. We reverse the Court of Claims’ grant of summary disposition in favor of defendant, but only because we are bound by this Court’s recent decision in Sekulov v City of Warren, 251 Mich. App. 333; 650 N.W.2d 397 (2002), which concludes that Nawrocki
should have prospective application only. MCR 7.215(I)(1). Were it not for the recently released Sekulov decision, we would hold that th Nawrocki decision applies retroactively, that plaintiff’s claims do not survive post-Nawrocki, and thus that the Court of Claims’ grant of summary disposition in favor of defendant was proper.

This cases arises from an automobile accident in Montcalm County in October 1997. Because of a snowstorm, a power outage occurred in the county, thus disabling the traffic signal at M-46 and Federal Highway (Old

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US-131). As Richard Adams drove southbound on Federal Highway through that intersection with the disabled traffic signal, his automobile and a delivery truck traveling on M-46 collided. Adams sustained severe head injuries as a result of the accident and is legally incapacitated.

Plaintiff, Richard’s wife and legal guardian, filed this lawsuit in the Court of Claims against defendant Michigan Department of Transportation (hereinafter MDOT), alleging negligence, gross negligence, and wilful and wanton conduct. Plaintiff asserted that MDOT, through the Montcalm County Road Commission, failed to erect temporary portable stop signs or take other suitable safety measures at the intersection.[2] Before trial, MDOT moved for summary disposition on the basis of the Michigan Supreme Court’s then recent decision in Nawrocki, supra. After oral argument on MDOT’s motion, the Court of Claims granted summary disposition in favor of MDOT. This appeal ensued.

Plaintiff argues that our Supreme Court’s decision in Nawrocki should only be applied prospectively because it overturned clear, uncontradicted, and long-held case law and because retroactive application would be unjust to plaintiff and the bench and bar. Specifically, plaintiff contends that before the Nawrocki decision, “Michigan courts consistently ruled [that] MDOT or road commissions could be held liable for failure to install, repair or maintain traffic control devices.” Plaintiff further asserts that Nawrocki should not be applied retroactively in the interests of fairness and equity because plaintiff relied on the Supreme Court’s previous decision in Pick v Szymczak, 451 Mich. 607; 548 N.W.2d 603 (1996), which Nawrocki overruled, when investing time and resources in the present lawsuit. Whether a decision should be applied retroactively or prospectively is a question of law that we review de novo. Sturak v Ozomaro, 238 Mich. App. 549, 559; 606 N.W.2d 411 (1999); see also People v Sexton, 458 Mich. 43, 52; 580 N.W.2d 404 (1998). Likewise, we review de novo the Court of Claims’ grant of summary disposition. Spiek v Dep’t of Transportation, 456 Mich. 331, 337; 572 N.W.2d 201 (1998).

We begin our analysis by noting the well-recognized statutorily provided principle that, in general, governmental agencies are immune from tort liability. MCL 691.1407(1). However, certain exceptions to this broad grant of immunity exist, including the highway exception, MCL 691.1402(1), which is narrowly construed. Hatch v Grand Haven Twp, 461 Mich. 457, 464; 606 N.W.2d 633 (2000). In Nawrocki, supra at 151-152, when specifically addressing the companion case, Evens v Shiawassee Co Rd Comm’rs, our Supreme Court clarified the extent of immunity with respect to traffic signals:

[W]e hold that the state or county road commissions’ duty, under the highway exception, does not extend to the installation, maintenance, repair, or improvement of traffic control devices, including

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traffic signs, but rather is limited exclusively to dangerous or defective conditions within the improved portion of the highway designed for vehicular travel; that is, the actual roadbed, paved or unpaved, designed for vehicular travel.

The question before us here is whether the Nawrocki decision is to be given retroactive effect.[3] In general, judicial decisions are applied retroactively. Lincoln v General Motors Corp, 461 Mich. 483, 491; 607 N.W.2d 73 (2000); Michigan Educational Employees Mut Ins Co v Morris, 460 Mich. 180, 189; 596 N.W.2d 142 (1999). Prospective application is limited generally to those decisions overruling clear and uncontradicted case law. Id.

Recently, our Supreme Court acknowledged that when determining whether a decision should not have retroactive application, the threshold question is “whether the decision clearly established a new principle of law.” Pohutski v Allen Park, 465 Mich. 675, 696; 641 N.W.2d 219 (2002), citing Riley v Northland Geriatric Center (After Remand), 431 Mich. 632, 645-646; 433 N.W.2d 787 (1988) (Griffin, J.).[4] In Pohutski, the Supreme Court acknowledged that in overruling prior precedent, the Court must take into consideration the entire situation confronting the Court Id. In doing so, the Pohutski Court determined that “practically speaking our holding is akin to the announcement of a new rule of law, given the erroneous interpretations set forth in Hadfield [v Oakland Co Drain Comm’r, 430 Mich. 139; 422 N.W.2d 205 (1988),] and Li [v Feldt (After Remand), 434 Mich. 584; 456 N.W.2d 55 (1990),]” and held that its decision only would have prospective application. Pohutski, supra at 697.

In the present case, we must determine whether Nawrocki survives the threshold question concerning whether a case should not have retroactive application. We conclude that it does not. Nawrocki, according to its own language, clarifies the meaning of the highway exception to governmental immunity: “This area of the law [highway liability] cries out for clarification, which we attempt to provide today.” Nawrocki, supra at 150. Recently, in Sebring v Berkley, 247 Mich. App. 666, 669-670; 637 N.W.2d 552 (2001), this Court succinctly addressed our Supreme Court’s analysis in Nawrocki:

Just last year, in Nawrocki v Macomb Co Rd Comm, 463 Mich. 143; 615 N.W.2d 702 (2000), our Supreme Court set for itself the goal of clarifying the meaning of the highway exception. Id. at 150. The resulting opinion significantly redirected the course of case law on

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the subject. The Court observed that prior case law had produced “an exhausting line of confusing and contradictory decisions” that, in turn, “have created a rule of law that is virtually impenetrable, even to the most experienced judges and legal practitioners.” Id. at 149. Instead of attempting to reconcile this body of law, the Court indicated that it was “return[ing] to a narrow construction of the highway exception predicated upon a close examination of the statute’s plain language. . . .” Id. at 150.

Further, the Nawrocki decision noted that “conflicting decisions have provided precedent that both parties in highway liability cases may cite as authority for their opposing positions.” Nawrocki, supra at 149-150 Nawrocki recognizes that “prior decisions of [the Supreme] Court have improperly broadened the scope of the highway exception and provided a variety of contradictory and conflicting interpretations of this exception’s statutory language. . . .” Id. at 151. Under these circumstances, we cannot say that the Nawrocki decision “clearly
established a new principle of law.” Pohutski, supra at 696 (emphasis supplied). Thus, we agree with Judge Talbot’s dissent in Sekulov and we would hold that the Nawrocki decision applies retroactively.

Moreover, we believe that the Supreme Court’s handling of the Nawrocki
decision compared to that of the Pohutski decision further supports our conclusion. In Pohutski, supra at 696, noting the general rule that judicial decisions are to be applied retroactively, our Supreme Court explicitly held that “our decision shall have only prospective application.” Because the Supreme Court did not make such a holding i Nawrocki, and in fact applied its holdings in that case and subsequently applied its Nawrocki holdings in another case, Hanson v Mecosta Co Rd Comm’rs, 465 Mich. 492, 498-499; 638 N.W.2d 396 (2002),[5] we conclude that retrospective application of the Nawrocki decision was not only appropriate, but was intended. In further support of our conclusions, we note that our Supreme Court has remanded other cases to this Court for reconsideration in light of Nawrocki. See, e.g., Ridley v Detroit (On Remand), 246 Mich. App. 687; 639 N.W.2d 258 (2001); McIntosh v Dep’t of Transportation (On Remand), 244 Mich. App. 705; 625 N.W.2d 123 (2001) Iovino v Michigan (On Remand), 244 Mich. App. 711; 625 N.W.2d 129
(2001). Under our

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analysis, summary disposition under the principles in Nawrocki was appropriate.[6]

However, in Sekulov, supra, another panel of this Court addressed the plaintiff’s contention that Nawrocki should be applied prospectively only and agreed with the plaintiff. The Sekulov majority explained that “[p]rospective application has generally been limited to decisions that overrule clear and uncontradicted case law.” Sekulov, supra at 338. Th Sekulov majority concluded that “[b]y its own express terms, Nawrocki
overruled clear and uncontradicted case law, specifically Pick v Szymczak, 451 Mich. 607; 548 N.W.2d 603 (1996), so the general rule [that judicial decisions are to be given complete retroactive effect] is inapplicable, and Nawrocki has only prospective application.” Sekulov, supra at 338. The Sekulov majority further concluded that “giving Nawrocki full retroactive effect is unjust and unwarranted” where “Nawrocki overruled existing law on which plaintiff relied in commencing, litigating, and settling her claims in this action.” In the present case, because we are bound by Sekulov, supra, we must reverse. MCR 7.215(I)(1). Because we disagree with the analysis set forth in Sekulov, we recommend that this case be submitted to a special conflict panel pursuant to MCR 7.215(I)(3).

Reversed. We do not retain jurisdiction.