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Road case against City of Flint is considered

In Lafner v. City of Flint, the Court of Appeals declined to distinguish road shoulder cases involving a municipality from the Engler Supreme Court majority's prior ruling involving state and county roads.  In the latter context, the Engler majority had held that the state and county owe no duty to reasonably maintain a road shoulder, based on the argument that a road shoulder "is not designed for vehicular travel, even if the shoulder is sometimes used for such purpose." The Taylor-led majority of the Court had held that even though the road authorities' duty to maintain roads in a condition that is "safe and convenient",  didn't extend to flaws in the shoulder of the road.  As a result, the governmental entities are held to be immune from mistakes or negligence in maintaining road shoulders (and drop-offs). 

Lafner's driver believed that he first lost control of his vehicle in a large pothole--a claim supported by a reconstruction expert--before striking a shoulder drop-off and then crossing the centerline and striking another vehicle head-on.  The City claimed that Lafner's case against the City arising out of her injuries should be dismissed because the driver wasn't "certain" he had struck a pothole; because it had no notice of the pothole's existence prior to the collision; and because the City owed no duty to maintain shoulders and shoulder drop-offs. 

The Court concluded that the City would have to defend the pothole claim, particularly since there was expert testimony that the 4" deep by 12" diameter pothole had existed for almost two months and contributed to the driver's loss of control. The latter evidence, taken in total, created a question of fact about the City's statutory duty to maintain the road surface and its contribution to the collision.  With regard to the shoulder drop-off, however, the Court held that the Engler majority's decision about road shoulders should apply to municipalities as well as other road authorities, and dismissed Lafner's claim to the extent it claimed the shoulder was defective. 

This is the proper decision under the law as elucidated by the Engler majority, however, the latter Justices' claim that a road shoulder "is not designed for vehicular travel...even though sometimes used for that purpose" is simply a convenient falsehood.  Any road engineer would be appalled at the suggestion that a road shoulder is not designed and maintained specifically as a recovery space for motor vehicle travel.   A shoulder doesn't have railroad ties or runway lights:  money is spent on road shoulders specifically to accommodate and safely manage occasional travel by motor vehicles in order to assure a safe travel and recovery space.  We hope that with a different composition, the Michigan Supreme Court will return the highway exception to governmental immunity to its actual language and intent, in the process, discarding some of the result-oriented nonsense adopted by the Engler majority in the process of convincing itself that the emperor was, in fact, wearing clothes.

Thompson O’Neil, P.C.
309 East Front Street
Traverse City, Michigan 49684
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