ADAMS v. DEPARTMENT OF TRANSPORTATION, 253 Mich. App. 431 (2003)

655 N.W.2d 625

COLLEEN ADAMS, for herself, and as legal guardian for RICHARD ADAMS, Plaintiffs-Appellants, v. DEPARTMENT OF TRANSPORTATION, Defendant-Appellee.

No. 230268.Michigan Court of Appeals.Submitted August 13, 2002, at Lansing.
Decided October 11, 2002, at 9:00 a.m. Updated January 3, 2003.

Appeal from Court of Claims, LC No. 98-016967-CMI.

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Warner Norcross Judd LLP (by F. William McKee and John J. Bursch) and Edward J. McNeely, III for the plaintiff.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, and Vincent J. Leone, Assistant Attorney General, for the defendant.

Before: Sawyer, P.J., and Hood, Jansen, O’Connell, Zahra, Kelly, and Murray, JJ.

ZAHRA, J.

Pursuant to MCR 7.215(I) this special panel was convened to resolve the conflict between

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this Court’s prior vacated opinion in Adams v Dep’t of Trans, 251 Mich. App. 801 (2002), and this Court’s earlier decision in Sekulov v Warren, 251 Mich. App. 333; 650 N.W.2d 397 (2002). We conclude tha Sekulov was wrongly decided, and we affirm the grant of summary disposition awarded to defendant by the trial court.

I. Facts and Procedure
The previous panel set forth the following basic facts of this case:

This case 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 US-131). As Richard Adams drove south 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. [Adams, supra at 801-802.][[1] ]

On July 28, 2000, while the present case was pending before the trial court, our Supreme Court issued Nawrocki v Macomb Co Rd Comm, 463 Mich. 143; 615 N.W.2d 702 (2000), which held that the highway

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exception to governmental immunity, MCL 691.1402(1), does not allow claims premised on areas of special danger or the installation, maintenance, or improvement of traffic control devices. Nawrocki, supra
at 176-180, 184. Defendant in the present case argued that the Nawrocki
decision bars plaintiff’s suit and moved for summary disposition. The trial court agreed and granted summary disposition for defendant.

Plaintiff appealed to this Court, arguing that Nawrocki overruled prior precedent and, therefore, should be applied only prospectively.[2] While plaintiff’s appeal was pending, another panel of this Court decided the retroactivity issue in Sekulov, supra. In Sekulov, a split panel of this Court, Judge Talbot dissenting, held that the Nawrocki decision overruled prior precedent and, therefore, Nawrocki must be applied prospectively Sekulov, supra at 338-339. In accordance with MCR 7.215(I)(1), the prio Adams panel was required to follow the precedent of Sekulov. Were it not for MCR 7.215(I)(1), the prior Adams panel would have held that Nawrocki
applies retroactively and, thus, affirmed the trial court’s grant of summary disposition for defendant.

II. Analysis
We now consider whether the Supreme Court’s decision in Nawrocki is to be limited to prospective application. Whether a judicial decision should be limited to prospective application is a question of law

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that we review de novo. Sturak v Ozomaro, 238 Mich. App. 549, 559; 606 N.W.2d 411 (1999).

Generally, judicial decisions are given full retroactive effect Pohutski v Allen Park, 465 Mich. 675, 696; 641 N.W.2d 219 (2002), citin Hyde v Univ of Michigan Bd of Regents, 426 Mich. 223, 240; 393 N.W.2d 847
(1986). In determining whether a decision is to be applied only prospectively, a reviewing court must consider whether the decision clearly established a new principle of law, which results from overruling case law that was clear and uncontradicted. Pohutski, supra at 696, citing Riley v Northland Geriatric Center (After Remand), 431 Mich. 632, 645-646; 433 N.W.2d 787 (1988) (Griffin, J.). See MEEMIC v Morris, 460 Mich. 180, 189; 596 N.W.2d 142 (1999), quoting Hyde, supra at 240 (“[C]omplete prospective application has generally been limited to decisions which overrule clear and uncontradicted case law.”). If a reviewing court concludes that the decision does not overrule clear and uncontradicted case law, the product of which is a new principle of law, the decision must be applied retroactively.[3]

Plaintiff argues that because Nawrocki expressly overruled Pick v Szymczak, 451 Mich. 607; 548 N.W.2d 603

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(1996), we must conclude that Nawrocki established a new principle of law.[4] Plaintiff’s argument is consistent with the reasoning offered by the majority in Sekulov, supra at 338, which held: “By its own express terms, Nawrocki overruled clear and uncontradicted case law, specificall Pick . . . , so . . . Nawrocki has only prospective application.” We conclude that plaintiff’s argument relies on an erroneously narrow view of what constitutes establishment of a new principle of law. Moreover, we conclude that the Sekulov majority wrongly concluded that Pick
represented clear and uncontradicted case law.

The act of the Supreme Court overruling one of its prior opinions, standing alone, is not dispositive of whether the latest Supreme Court pronouncement

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should be applied only prospectively. The dispositive question is whether the latest Supreme Court pronouncement overruled case law that was clear and uncontradicted. “Case law” is defined as “[t]he aggregate of reported cases as forming a body of jurisprudence, or the law of a particular subject as evidenced or formed by the adjudged cases, in distinction to statutes and other sources of law.” Black’s Law Dictionary (4th ed). We must focus our inquiry on the overall body of case law interpreting the highway exception to the governmental immunity act rather than limit the focus of our inquiry to Pick, as proposed by plaintiff and the majority in Sekulov. The standard for determining whether a judicial decision should be limited to prospective application set forth in Pohutski an MEEMIC would be rendered meaningless if we adopt the Sekulov reasoning because Sekulov suggests that every case in which the Supreme Court overrules one of its prior decisions, the principle of law emanating from the more recent case would be applied only prospectively. No case in Michigan jurisprudence supports such a conclusion.

As cogently observed by the prior Adams panel and by Judge Talbot in his dissent in Sekulov, Nawrocki clearly establishes that judicial interpretations of the governmental immunity statute generally, MCL 691.1407(1), and the highway exception to governmental immunity specifically, MCL 691.1402(1), were neither clear nor without contradiction. In Nawrocki, supra at 149, the Supreme Court referred to the “confusing and contradictory” state of the law resulting from inconsistent judicial interpretations of the

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governmental immunity act. The Supreme Court noted that

[t]hese decisions have created a rule of law that is virtually impenetrable, even to the most experienced judges and legal practitioners. Further, these conflicting decisions have provided precedent that both parties in highway liability cases may cite as authority for their opposing positions. This area of law cries out for clarification, which we attempt to provide today. [Nawrocki, supra at 149-150.]

The Supreme Court further stated its intent to restore “a stable rule of law in this difficult area of law” by properly interpreting the plain language of the statute consistent with the prior precedents o Scheurman, supra, and Ross, supra. Nawrocki, supra at 175. See Sebring v Berkley, 247 Mich. App. 666, 669-670; 637 N.W.2d 552 (2001).

Nawrocki is not the first case in which the Supreme Court commented on the unsettled state of judicial interpretations addressing the governmental immunity act. In Suttles v Dep’t of Trans, 457 Mich. 635, 642-643; 578 N.W.2d 295 (1998), a case that also involved the highway exception to the governmental immunity act, the Supreme Court “acknowledge[d] that the notion of governmental immunity, its interpretation, and its practical application have been difficult at times, stemming in part from the decisions of this Court and from the confusing nature of the statute itself.” Likewise, in Pick, the Supreme Court attempted to bring together the body of case law that had addressed the governmental immunity act. In so doing, Justice Cavanagh, writing for the majority, supra at 622, observed that the

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Supreme Court had issued “undeniably fractured case law precedents.”[5]

We also find significant the fact that the Supreme Court did not expressly state that the Nawrocki holding was to be limited to prospective application. Compare Pohutski, supra at 696. As observed by the prior Adams panel, the Supreme Court applied its holding in Nawrocki
in Hanson v Mecosta Co Rd Comm’rs, 465 Mich. 492, 498-499; 638 N.W.2d 396
(2002). Additionally, the Supreme Court 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 Trans (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). The Supreme Court’s failure in Nawrocki to expressly deviate from the general rule of retroactivity coupled with its subsequent action of applying Nawrocki to other cases strongly indicates the Supreme Court’s intent that Nawrocki be given retroactive application.

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We therefore conclude that, in overruling Pick, the Supreme Court did not overrule clear and uncontradicted case law, thereby establishing a new principle of law. Rather, the Supreme Court articulated the proper interpretation of the statutory highway exception to governmental immunity, a statute that was misinterpreted in Pick. See MEEMIC, supra
at 197. Nawrocki must be given full retroactive effect.[6]
To the extent plaintiff attempts to factually distinguish the present case from Nawrocki, we reject that argument for the reasons stated in the prior panel’s opinion. Adams, supra at 805, n 6. The trial court properly granted summary disposition for defendant.

Affirmed.

[1] Plaintiff also filed suit against the delivery truck driver and his employer. Plaintiff eventually settled her claims against the driver and his employer.

[2] Plaintiff also argued that, to the extent Nawrocki is applied retroactively, the trial court erred in granting defendant’s motion for summary disposition because Nawrocki is factually distinguishable from this case.

[3] If, on the other hand, a reviewing court concludes that a decision clearly established a new principle of law, the court must weigh the following three factors to determine whether the decision should be limited to prospective application: “(1) the purpose to be served by the new rule, (2) the extent of reliance on the old rule, and (3) the effect of retroactivity on the administration of justice.” Pohutski, supra at 696, citing People v Hampton, 384 Mich. 669, 674; 187 N.W.2d 404 (1971). No single factor is dispositive of whether a decision should only be applied prospectively. Rather, these factors should be considered and weighed in conjunction with each other to determine whether a deviation from the general rule of retroactivity best serves Michigan’s jurisprudence.

[4] In Evens v Shiawassee Co Rd Comm’rs, the companion case t Nawrocki, the plaintiff alleged that the county road commission breached its duty to install adequate stop signs or traffic signals at the intersection where his injury occurred. Nawrocki, supra at 154. Noting that governmental bodies are normally immune from tort liability, the Supreme Court considered whether the plaintiff’s action fit within the highway exception to governmental immunity, MCL 691.1402(1). The Supreme Court relied on Scheurman v Dep’t of Trans, 434 Mich. 619, 629-630; 456 N.W.2d 66 (1990), and Ross v Consumers Power Co (On Rehearing), 420 Mich. 567, 618; 363 N.W.2d 641 (1984), for the principle that the immunity conferred on governmental agencies is broad and the exceptions to that immunity are narrowly drawn. Nawrocki, supra at 158-159. The Supreme Court reviewed the plain language of the statute, id. at 159-161, and concluded that the highway exception limits governmental entities’ “duty with respect to the location of the alleged dangerous or defective condition; if the condition is not located in the actual roadbed designed for vehicular travel, the narrowly drawn highway exception is inapplicable and liability does not attach.” Id. at 162 (emphasis in original). The Supreme Court held that because the plaintiff’s suit was based on the installation of signage outside the portion of the roadbed designed for vehicular travel, the plaintiff’s claims did not fit within the plain language of the highway exception Id. at 183-184. In so holding, the Court expressly overruled Pick, which broadly construed MCL 691.1402(1) to mean that governmental agencies have a duty to provide traffic control devices or warning signs at “points of special hazard.” Nawrocki, supra at 180.

[5] Notwithstanding the many past attempts by this Court and the Supreme Court to provide clarification in this area of the law, the Supreme Court observed in Nawrocki that the case law addressing governmental immunity remained in a state of confusion. The Supreme Court “return[ed] to a narrow construction of the highway exception predicated upon a close examination of the statute’s plain language, rather than merely . . . add still another layer of judicial gloss to those interpretations of the statute previously issued by [the Supreme] Court and the Court of Appeals.” Id. at 150. The Supreme Court concluded that “Pick failed to simply apply the plain language of the highway exception and, instead, relied on judicially invented phrases nowhere found in the statutory clause. . . .” Id. at 175. Given the constantly evolving state of governmental immunity law, the Supreme Court’s decision in Nawrocki to give effect to the plain language of the highway exception statute and to correct prior misinterpretations was a foreseeable and welcomed clarification of this area of law. See MEEMIC, supra at 196-197.

[6] Given our conclusion that Nawrocki did not meet the threshold requirement that the decision establish a new rule of law, we need not consider the three additional factors discussed in Pohutski, supra at 696.

JANSEN, J. (dissenting).

I respectfully dissent. I would hold that this Court’s majority opinion in Sekulov v Warren, 251 Mich. App. 333; 650 N.W.2d 397 (2002), was correct and would follow its reasoning.

When Pick v Szymczak, 451 Mich. 607; 548 N.W.2d 603 (1996), was decided, the specific issue whether a governmental agency had the duty to provide traffic control devices or warning signs was, in the words of the majority opinion, “still unsettled.” In Pick, id. at 619, a four-justice majority definitively decided that governmental agencies have the duty to provide adequate warning signs or traffic control devices at known points of hazard under the highway exception

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of the governmental tort liability act, MCL 691.1402. This holding i Pick was clear and established a new principle of law because the Supreme Court had never previously decided this specific issue in a majority opinion. Indeed, the majority opinion in Pick set forth the previous cases of the Supreme Court that dealt with the question of street lights, warning signs, and traffic control devices and noted that all involved plurality decisions.[1] Therefore, it is clear that in Pick the Supreme Court held definitively, for the first time, that a governmental agency had the duty to provide adequate warning signs or traffic control devices at known points of hazard under the highway exception to governmental immunity.

The Supreme Court’s reasoning in Nawrocki v Macomb Co Rd Comm, 463 Mich. 143; 615 N.W.2d 702 (2000), for overruling Pick — tha Nawrocki represents a “return” to the “plain language” of the statute — is simply irrelevant with respect to whether Nawrocki is to be given retroactive or prospective application. The first question to be addressed 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). As previously stated, Pick clearly established a new principle of law because the Supreme Court had not decided the matter of whether governmental agencies had a duty to provide warning signs and traffic control devices. The other factors to be weighed in determining whether a decision should not be applied retroactively are (1) the purpose

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served by the new rule, (2) the extent of reliance on the old rule, and (3) the effect of retroactivity on the administration of justice Id.; Lesner v Liquid Disposal, Inc, 466 Mich. 95, 108-109; 643 N.W.2d 553 (2002).

In Nawrocki, as in Pohutski,[2] the Supreme Court purported to return to the plain language of the governmental immunity statute and correct the erroneous interpretation set forth in Pick. In Pohutski, the Court concluded that giving its decision prospective application would further the purpose of correcting an error in the interpretation of MCL 691.1407. See Pohutski, supra at 697. Similarly, giving Nawrocki prospective application would further the purpose of correcting an error in the interpretation of MCL 691.1402. Also, because Pick definitively decided that governmental agencies had a duty to provide adequate warning signs and traffic control devices at known points of hazard, all courts, as well as all governmental agencies so responsible, had to follow this interpretation of the statute. See Pohutski, supra at 697 (prospective application would acknowledge the reliance by courts and insurance companies on the longstanding interpretation of MCL 691.1407 set forth i Hadfield v Oakland Co Drain Comm’r, 430 Mich. 139; 422 N.W.2d 205
[1988]).[3] Lastly, the administration of justice would be better served by giving Nawrocki prospective application only because the Legislature did not amend § 2 of the governmental tort liability act in light of Pick. See Craig v Larson, 432 Mich. 346,

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353; 439 N.W.2d 899 (1989) (silence by the Legislature following judicial interpretation of a statute suggests consent to that interpretation).

The fact that the Supreme Court in Nawrocki did not expressly state that the holding was to be given prospective application only is completely inconsequential. This is not a factor to determine retroactive or prospective application of a decision and, moreover, the Supreme Court itself has given its own decisions prospective application in later opinions. See, e.g., People v Sexton, 458 Mich. 43; 580 N.W.2d 404 (1998), giving prospective application to People v Bender, 452 Mich. 594; 551 N.W.2d 71 (1996).

I would conclude that Sekulov was correctly decided and that Nawrocki
should be given prospective application only. I would reverse the trial court’s grant of summary disposition in favor of defendant and remand for further proceedings.

Hood, J., concurred.

[1] The decisions were Scheurman v Dep’t of Trans, 434 Mich. 619; 456 N.W.2d 66 (1990), Salvati v Dep’t of State Hwys, 415 Mich. 708; 405 N.W.2d 856 (1982), and Tuttle v Dep’t of State Hwys, 397 Mich. 44; 243 N.W.2d 244 (1976).

[2] The Court in Pohutski addressed § 7 of the governmental tort liability act, MCL 691.1407, rather than MCL 691.1402 as i Nawrocki.

[3] In Lesner, supra at 109, the Supreme Court stated that the case it was overruling had been controlling authority for over 6 1/2 years and there thus appeared to be widespread reliance on the case being overruled. Likewise, in the present situation, Pick had been controlling authority and relied on for four years.

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