Jami E. Leach

There are six statutory exceptions to the broad grant of governmental immunity in Michigan. This is the first in a series of articles that will provide a summary of each exception. We start with the highway exception – one of the most used and most litigated exceptions. Remember that the exceptions to immunity are very narrowly construed – therefore attention to each word in the statute is imperative. As always, if you have any questions or need some assistance on this or any governmental issue, please feel free to contact one of our nine offices.

(1) The Highway Exception – Statutory Provisions

MCLA 691.1402 provides in part:

(1) Except as otherwise provided in section 2a, each governmental agency having jurisdiction over a highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. A person who sustains bodily injury or damage to his or her property by reason of failure of a governmental agency to keep a highway under its jurisdiction in reasonable repair and in a condition reasonably safe and fit for travel may recover the damages suffered by him or her from the governmental agency.

MCLA 691.1402a governs the municipalities’ duty to repair or maintain county highways and provides, in part:

Sec. 2a. (1) Except as otherwise provided by this section, a municipal corporation has no duty to repair or maintain, and is not liable for injuries arising from, a portion of a county highway outside of the improved portion of the highway designed for vehicular travel, including a sidewalk, trailway, crosswalk, or other installation. This subsection does not prevent or limit a municipal corporation’s liability if both of the following are true:

(a) At least 30 days before the occurrence of the relevant injury, death, or damage, the municipal corporation knew or, in the exercise of reasonable diligence, should have known of the existence of a defect in a sidewalk, trailway, crosswalk, or other installation outside of the improved portion of the highway designed for vehicular travel.

(b) The defect described in subdivision (a) is a proximate cause of the injury, death, or damage.

(2) A discontinuity defect of less than 2 inches creates a rebuttable inference that the municipal corporation maintained the sidewalk, trailway, crosswalk, or other installation outside of the improved portion of the highway designed for vehicular travel in reasonable repair.

MCLA 691.1403 discusses presumptions of notice of alleged defects and provides in part:

No governmental agency is liable for injuries or damages caused by defective highways unless the governmental agency knew, or in the exercise of reasonable diligence should have known, of the existence of the defect and had a reasonable time to repair the defect before the injury took place.

Knowledge of the defect and time to repair the sameshall be conclusively presumed when the defect existed so as to be readily apparent to an ordinarily observant person for a period of 30 days or longer before the injury took place.

MCLA 691.1404 mandates that a claimant give notice of the incident and provides in part:

(1) As a condition to any recovery for injuries sustained by reason of any defective highway, the injured person, within 120 days from the time the injury occurred, except as otherwise provided in subsection (3) shall serve a notice on the governmental agency of the occurrence of the injury and the defect. The notice shall specify the exact location and nature of the defect, the injury sustained and the names of the witnesses known at the time by the claimant.

(2) Overview & Significant Case Law

• “Highway” is defined as a public highway, road, or street that is open for public travel. It includes bridges, sidewalks, crosswalks, and culverts on any highway. It excludes trees, utility poles and alleys.
• There is no liability unless the agency knew or should have known of the alleged defective or dangerous condition.
• An agency is presumed to have known of a defective or dangerous condition if it can be shown that it existed for longer than 30 days before the accident.
• An injured person must give notice to the agency of the injury and defect within 120 days of the accident. This notice requirement is mandatory and failure to comply is fatal to the case – regardless of prejudice to the municipality. Rowland v Washtenaw County Road Comm, 477 Mich 197 (2007)
• The highway exception does not impose a duty on municipalities to install, maintain, repair, or improve traffic signals. Nawrocki v Macomb County Road Comm, 463 Mich 143 (2000); Marchyok v City of Ann Arbor, 260 Mich App 684 (2004).
• Shoulders are excluded from the scope of the highway exception.
• Public parking lots are not part of the highway and do not fall within the highway exception.
• Sidewalks and crosswalks that are outside the improved portion of the highway designed for vehicular travel are not the responsibility of the state and county. However, they are included in the responsibility of all other governmental agencies.
• The “2-inch rule” creates a rebuttable presumption that the sidewalk was in reasonable repair.
• Recreation or bike paths are not sidewalks.
• The natural accumulation doctrine precludes liability for injuries on a snow or ice covered surface unless there was an existing defect in the surface that made it unsafe for public travel at all times. There is no duty to remove natural accumulations. However, if action is taken, it cannot be negligent or increase the hazard.
• No liability where a depression between two slabs of sidewalk allowed water to pool and ice to form because the depression in the sidewalk was not a “persistent defect in the [sidewalk] rendering it unsafe for public travel at all times. Rather, the only cause of the fall was the ice that had accumulated in the depression. Haliw v City of Sterling Heights, 464 Mich 297 (2001).
• In an unpublished decision, the Michigan Court of Appeals recently ruled that the alleged existence of a pothole on a county road for less than a week did not rise to the level of actual or constructive notice necessary to make a valid claim of the highway exception to governmental immunity. The Court held that the plaintiff’s “acknowledgment that she did not see this pothole when she traveled that area earlier is incompatible with her argument that defendant had notice of the claimed defect.” Minhas v Oakland County Road Comm, Unpublished COA No. 278477, 7/15/08.
• While the open and obvious doctrine is a defense to a common-law negligence claim based on a failure to warn theory, the open and obvious doctrine is not a defense to a claim based on a governmental agency’s duty under the highway exception to governmental immunity to maintain its highways in reasonable repair. Anderson v Jackson County, unpublished opinion per curiam of the Court of Appeals, issued October 9, 1998 (Docket No. 203225), 1998 WL 1989715.

Michigan Veterans Preference Act

Employment contracts for an indefinite duration are presumptively terminable at the will of either party for any reason or no reason at all. Under certain circumstances, “At-Will” Employment may be converted to “For Cause” Employment. One such circumstance is where the employee is a Veteran. The following is a brief summary of the requirements before a Veteran can be terminated. If you find yourself in a situation where you must terminate a Veteran, please refer to the Act and consult with your local counsel. For more information, or if you need any assistance, please feel free to contact any of our nine offices.

Michigan Veterans Preference Act, MCLA § 35.402

1. Mandates certain grounds for termination and mandates a predetermination hearing
   No veteran holding an office or employment in any public department or public works of the state or any county, city or township or village of the state shall be removed or suspended or shall, without his consent, be transferred from such office or employment except for official misconduct, habitual, serious, or willful neglect in the performance of duty, extortion, conviction of intoxication, conviction of felony, or incompetency.
2. Fifteen (15) Day Notice Provision
   As a condition precedent to removal, transfer, or suspension of such veteran, he shall be entitled to a notice in writing stating the cause or causes of removal, transfer, or suspension at least fifteen days prior to the hearing above provided for.
3. Very specific as to who conducts the hearing
   Before the prosecuting attorney if a county employee, or before the mayor of any city or the president of any village, or before the commission of any such city or village operating under a commission form of government, if an employee of a city or village, or before the township board if a township employee.
4. Veteran Has Thirty (30) Days to File Protest
   Where such veteran has been removed, transferred, or suspended other than in accordance with the provisions of this act, he shall file a written protest with the officer whose duty under the provisions of this Act it is to make the removal, transfer, or suspension, within thirty days from the day such veteran is removed, transferred, or suspended; otherwise, the veteran shall be deemed to have waived the benefits and privileges of this act. A hearing shall be held within thirty days of filing such notice.
5. Exceptions
   1. Only active service during a period of war
      Veteran means a person, who served in the active military forces, during a period of war or who received the armed forces expeditionary or other campaign service medal during an emergency condition and who was discharged or released therefrom under honorable conditions. MCLA § 35.61(a)
   2. Does not apply to department heads
      Does not apply to heads of departments, members of commissions, and boards and heads of institutions appointed by the governor and officers appointed directly by the mayor of a city under the provisions of a charter, and first deputies of such heads of departments, heads of institutions, and officers.