ZWOLINSKI v. TRANS DEP'T (AFT REM), 210 Mich. App. 496 (1995)

534 N.W.2d 163

ZWOLINSKI v DEPARTMENT OF TRANSPORTATION (AFTER REMAND)

Docket No. 138333.Michigan Court of Appeals.Submitted August 4, 1994, at Lansing.
Decided May 12, 1995, at 9:10 A.M. Leave to appeal sought.

Flanigan, Traver, Nelson Emerson (by Daniel

Page 497

A. Traver and Patrick K. Emerson), for Joan Zwolinski.

Luce, Henderson, Heyboer Lane (by David R. Heyboer), for James Zwolinski.

Frank J. Kelley, Attorney General, Thomas L. Casey,
Solicitor General, and Brenda E. Turner, Assistant Attorney General, for the Department of Transportation.

AFTER REMAND

Before: MICHAEL J. KELLY, P.J., and HOLBROOK, JR., and MURPHY, JJ.

PER CURIAM.

This case is again before this Court following our remand to the trial court. This case involves the public roadways exception to governmental immunity, MCL 691.1402; MSA 3.996(102). The relevant facts are contained in our prior opinion, Zwolinski v Dep’t of Transportation, 205 Mich. App. 532; 517 N.W.2d 852 (1994). Previously, we found it necessary to remand this matter, as follows:

Accordingly, it is necessary to remand this matter to the trial court to make detailed findings of fact and conclusions of law concerning the design and construction of the roadway. In particular, the trial court is instructed to expand upon and clarify the language in its written opinion that “according to expert testimony, the design and construction of the intersection was unsafe as compared with similar intersections, and that safer and more reasonable construction and installations were available.” [Id., at 538.]

On remand, the trial court expanded upon its findings. The court found that defendant’s failure

Page 498

to install a guardrail at the intersection “was the proximate cause of plaintiffs’ injuries.” The trial court found that a guardrail was necessary because of the steep slope of the embankment adjoining the roadway and the presence of a nonflared culvert that ran underneath the intersecting side road, parallel to the main road. The trial court relied on Hutchinson v Allegan Co Bd of Rd Comm’rs (On Remand), 192 Mich. App. 472, 479; 481 N.W.2d 807 (1992), in support of its conclusion that defendant may be held liable for the failure to install a guardrail.

We also had relied upon Hutchinson in our earlier opinion for the proposition that “while liability may not be premised solely upon features located outside that portion of the roadway designed for public vehicular travel (such as the culvert and embankment in this case), the factfinder may consider those features when determining whether there is a duty to install a guardrail so as to make the road reasonably safe for travel.”Zwolinski, supra at 537. Previously, we distinguished the case of Chaney v Dep’t of Transportation, 198 Mich. App. 728; 499 N.W.2d 29 (1993), and found that Hutchinson was prior controlling authority under Administrative Order No. 1994-4.

Since the release of this Court’s earlier opinion i Zwolinski, as well as the trial court’s opinion on remand from this Court, our Supreme Court decided the appeal brought from this Court’s opinion in Chaney. In Chaney v Dep’t of Transportation, 447 Mich. 145; 523 N.W.2d 762 (1994), a majority of the justices agreed that the defendant Department of Transportation could not be held liable for an alleged defect in a guardrail.[1] A majority of the

Page 499

Supreme Court is of the opinion that there can be no liability for an alleged failure to install a guardrail.[2] Although the Supreme Court in Chaney did not specifically reverse, modify, or mention this Court’s opinion in Hutchinson, we are constrained to conclude that Chaney has implicitly overruled this Court’s opinion in Hutchinson. Accordingly, we reverse the two judgments of the Court of Claims awarding damages to James Zwolinski and the estate of Dennis Zwolinski, deceased, for injuries arising out of the automobile accident.

Reversed.

[1] In Chaney, Justice BRICKLEY concluded that because the railing was not located physically within the improved portion of the highway designed for vehicular travel, and because it did not integrally and directly affect safe vehicular travel on the improved portion of the highway, the highway exception to governmental immunity was inapplicable. Justice RILEY, joined by Justice GRIFFIN, concurring in part and dissenting in part, concluded that there could be no liability because the railing was not part of the improved portion of the highway designed for vehicular travel. Justice BOYLE, concurring, concluded that the claim was barred because the plaintiff did not allege a failure to repair and maintain the paved surface of the roadway or a traffic sign or signal. Chief Justice CAVANAGH, concurring, found that Justice BRICKLEY’S and Justice BOYLE’S interpretations were preferable from a policy standpoint, but that Justice RILEY’S interpretation was in accord with the plain language of the statute. Justice LEVIN, joined by Justice MALLETT, dissented.

[2] Chaney, supra at 161, 162. The facts in this case more closely parallel the situation in Hutchinson than in Chaney,
as discussed in our prior opinion. However, the legal reasoning of the majority of the justices in Chaney apply in this case to invoke immunity.

Page 500

ZWOLINSKI v. TRANS DEP’T (AFT REM), 210 Mich. App. 496 (1995)