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Court rejects MDOT claim that it is not responsible for concrete falling off bridge

Robert Moser was hurt when a chunk of concrete fell off a highway overpass and through his windshield.  The overpass was owned by the City of Detroit, but maintained under a contract by the Michigan Department of Transportation.  Needless to say, MDOT was sued for failing to "maintian the highway in reasonable repair so that it is reasonably safe for public travel," under the statutory exception to governmental immunity.  MDOT argued that the bridge structure, and specifically the concrete facia where the fracture occurred, were not a part of the roadway, and therefore it was immune from suit.

The Court of Appeals rejected MDOT's argument, noting that the roadbed includes the structure it rests upon, and that liability was not limited to simply the road surface which makes contact with a vehicle's tires.  The only surprising thing about the decision was Judge Kurtis Wilder's dissent.  He would argue that the duty to maintain a reasonably safe roadway literally extends only to the top surface of the road, giving maximum breadth to the Engler Majority's restrictive ruling in the Nawrocki and Grimes decisions. 

In the latter decisions, the activist tort reformers  who then made up the majority of Michigan's Supreme Court had overturned several decades of law to hold that the road authority was immune from any claim of negligent design or for negligence in maintaining traffic signals, lighting, or guidance.  It interpreted the statutory exception from immunity restrictively to hold that even negligence in repairing or maintaining traffic signs and signals did not implicate the 'traveled portion of the roadway' and therefore the governmental entity responsible was immune from the consequences of its negligence.  Judge Wilder argued for an even more extreme position, suggesting that the chunk of concrete which fell on Moser's car was not "the material of which a road is composed" and therefore MDOT is not respsonsible for maintaining it.  Seeing that a judge was willing to go that far to insulate the State from exposure was a disappointment, intellectually.

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