            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



ESTATE OF DEBORAH A. PATTERSON, by                                 UNPUBLISHED
ERIC T. PATTERSON, Personal Representative,                        February 28, 2019
and ESTATE OF MARY K. MASSENGILL, by
CLAUDE MASSENGILL, JR., Personal
Representative,

               Plaintiffs-Appellants,

v                                                                  No. 342514
                                                                   Court of Claims
DEPARTMENT OF TRANSPORTATION,                                      LC No. 17-000252-MD

               Defendant-Appellee.


Before: SWARTZLE, P.J., and MARKEY and RONAYNE KRAUSE, JJ.

PER CURIAM.

        Plaintiffs appeal by right the trial court’s order granting defendant’s motion for summary
disposition under MCR 2.116(C)(7) and (C)(8). We affirm.

                                        I. BACKGROUND

        On October 7, 2016, plaintiffs’ decedents were struck and killed by a vehicle while riding
their bicycles within the designated bike lane on M-124 in Jackson County. The vehicle was
traveling in the same direction as the decedents and struck them when it crossed the fog line.
The driver of the vehicle was charged with, and pleaded no contest to, two counts of committing
a moving violation causing death. In September 2017, plaintiffs filed a complaint alleging that
defendant, the Michigan Department of Transportation (MDOT), had failed to maintain the
roadway in reasonable repair, causing plaintiffs’ decedents’ deaths. Plaintiffs sought damages
under the wrongful death act.

        Plaintiffs argued generally that defendant had improperly added a bike lane to the edge of
the highway without expanding the road itself to compensate. Defendant thereby effectively
narrowed the vehicular path, which in turn created an unreasonably hazardous condition.
Plaintiffs more specifically argued that defendant breached its duty by creating a dual purpose
area of travel by placing a bike lane in a portion of the highway designed for vehicular traffic,
again, without widening the roadway. Plaintiffs argued that defendant was not entitled to
governmental immunity because the facts of this matter constitute a “defective highway and
nuisance per se, created and maintained by [d]efendant.”

         Defendant moved for summary disposition under MCR 2.116(C)(7) and (8), premised on
governmental immunity and failure to state a claim. The Court of Claims granted the motion,
reasoning that plaintiffs’ claim implicated a design defect. The Court of Claims observed that
plaintiffs’ nuisance per se claim was subject to dismissal because the bike lane is categorically a
traffic-control measure, and traffic- control measures generally do not give rise to a nuisance
claim.

                                 II. STANDARD OF REVIEW

       Whether MDOT is entitled to summary disposition under MCR 2.116(C)(7) on the basis
of governmental immunity is reviewed de novo. Yono v Dep’t of Transp, 499 Mich 636, 645;
885 NW2d 445 (2016). The trial court must accept as true the contents of the complaint, unless
they are contradicted by documentary evidence submitted by the moving party. Maiden v
Rozwood, 461 Mich 109, 119; 597 NW2d 817 (1999). A motion under MCR 2.116(C)(8) tests
the legal sufficiency of the complaint and is also reviewed de novo. Id. “All well-pleaded
factual allegations are accepted as true and construed in a light most favorable to the
nonmovant,” and only the pleadings may be considered. Id. at 119-120. Summary disposition
under MCR 2.116(C)(8) is properly granted “when the claims are so clearly unenforceable as a
matter of law that no factual development could possibly justify recovery.” Long v Liquor
Control Comm’n, 322 Mich App. 60, 67; 910 NW2d 674 (2017).

               III. HIGHWAY EXCEPTION TO GOVERNMENT IMMUNITY

        Generally, “a governmental agency is immune from tort liability if the governmental
agency is engaged in the exercise or discharge of a governmental function.” MCL 691.1407(1).
However, the Legislature has provided six narrowly-construed exceptions, one of which is “for
failing to maintain in reasonable repair the highways within [the agency’s] jurisdiction. Yono,
499 Mich at 646. A plaintiff that brings suit against a government entity bears the burden of
pleading in avoidance of governmental immunity. Mack v Detroit, 467 Mich 186, 203; 649
NW2d 47 (2002). Under the “highway exception,” “only the travel lanes of a highway are
subject to the duty of repair and maintenance specified in MCL 691.1402(1).” Grimes v Dep’t of
Transp, 475 Mich 72, 91; 715 NW2d 275 (2006). The duty of repair and maintenance “does not
include a duty to correct design defects.” Hanson v Bd of County Rd Comm’rs, 465 Mich 492,
500; 638 NW2d 396 (2002).

       Plaintiffs contend that their negligence claim did not involve a design defect. Rather,
they argue that they pleaded a claim in avoidance of governmental immunity by alleging that
defendant failed to maintain the roadway in a reasonably safe condition when it narrowed the
roadway by designating a bike lane within the outside edge of the travel lane. We disagree.
Courts are required to consider the substance of a pleading, not the formalities. Hurtford v
Holmes, 3 Mich 460, 463 (1855); Norris v Lincoln Park Police Officers, 292 Mich App 574,
582; 808 NW2d 578 (2011). Plaintiffs’ argument that defendant should have widened the road


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or refrained from adding a bike lane is, fundamentally, an argument that defendant made an
inappropriate design decision, not that defendant failed to maintain or repair the road itself.

        The government’s duty is limited to reasonable maintenance or repair and does not
include a duty to correct design defects or to correct defects arising from construction of the
highways. Hanson, 465 Mich at 502. Instead, the duty to “maintain” includes keeping the
roadway “in a state of repair, efficiency, or validity: preserve[d] from failure or decline,” while “
‘repair’ means to restore to a good or sound condition after decay or damage; mend.” Id. Thus,
governmental agencies have no duty to improve or enhance highways, for example by widening
lanes, so the only cognizable claims are those arising from defects in the roadbed itself. Id. at
503-504. The designation of a bike lane that incidentally narrows the vehicular portion of the
travel lane cannot be reasonably described as failing to preserve the roadbed from decline or
decay. Consequently, we are not persuaded by plaintiffs’ claim that the defendant failed to
maintain the highway in its original condition.1

        Moreover, plaintiffs have also failed to allege that any defect in the roadbed caused the
decedents’ deaths. Nowhere in plaintiffs’ complaint do they explain, through specific factual
allegations, how the addition of the bike lane caused the decedents’ deaths. On appeal, plaintiffs
assert that cracks in the roadbed resulted in a functional narrowing of the bike lane, forcing the
decedents to ride their bikes closer to the vehicle lane. This may be true, but it is undisputed that
decedents were killed because the vehicle crossed the fog line, not because the decedents were
forced to ride into the vehicle lane. We are constrained to conclude that the Court of Claims
properly granted summary disposition as to plaintiffs’ negligence claim.

                                     IV. NUISANCE PER SE

        Plaintiffs next assert that the Court of Claims erred by dismissing their nuisance per se
claim under MCR 2.116(C)(8). “A nuisance at law or a nuisance per se is an act, occupation, or
structure which is a nuisance at all times and under any circumstances, regardless of location or
surroundings.” Bluemer v Saginaw Central Oil & Gas Serv, Inc, 356 Mich 399, 411; 97 NW2d
90 (1959). “[I]t remains unclear whether a nuisance per se exception to governmental immunity
exists in Michigan.” Haaksma v Grand Rapids, 247 Mich App 44, 56; 634 NW2d 390 (2001).
For purposes of addressing this appeal, we will presume, although we do not decide, that such an
exception exists.

       Plaintiffs only make a conclusory assertion that the bike lane was a nuisance per se,
which, without allegations of fact in support, is insufficient to state a cause of action. Lawsuit
Financial, LLC v Curry, 261 Mich App 579, 592; 683 NW2d 233 (2004). Plaintiffs argue that a
bike lane is intrinsically dangerous because it creates a false sense of security. The same logic


1
  On appeal, plaintiffs continue to characterize their claim as a failure to maintain or repair by
suggesting that an alteration of the original travel lane (by adding the bike lane) falls within the
meaning of “maintain.” Plaintiffs, however, cite no supporting law and make no attempt to
explain how the meaning of “maintain” or “repair” includes an alteration. To adopt plaintiff’s
argument would directly conflict with Hanson.


                                                -3-
would suggest that a sidewalk is intrinsically dangerous because it is possible for vehicles to
drive off the road, or that an undivided highway is intrinsically dangerous because it is possible
for vehicles to cross the center line. A certain amount of risk is inherent in any activity involving
or close to vehicular traffic. However, a nuisance per se must be unreasonable and dangerous
irrespective of the care with which it is conducted. Li v Feldt (After Second Remand), 439 Mich
457, 466-467 (CAVANAGH, C.J.), 482-483 (BOYLE, J.), 485-486, 507-508 (LEVIN, J.); 487 NW2d
127 (1992). The delineation of a specific lane for separating vehicular from bike travel increases
the safety of motorists and bicyclists alike, notwithstanding the fact that accidents can occur.

       Plaintiffs have not established that a bike lane is unreasonable and dangerous under all
circumstances. Therefore, the Court of Claims did not err by concluding that a bike lane is not a
nuisance per se as a matter of law and dismissing plaintiffs’ nuisance per se claim under MCR
2.116(C)(8).

                           V. AMENDMENT TO THE PLEADINGS

        Finally, plaintiffs assert that they should have been permitted to amend the pleadings to
address any shortcomings in their nuisance per se claim. Pursuant to MCR 2.116(I)(5), the trial
court should afford parties “an opportunity to amend their pleadings as provided by MCR 2.118,
unless the evidence then before the court shows that amendment would not be justified.”
Pursuant to MCR 2.118(A)(2), leave to amend “shall be freely given when justice so requires.”
However, the trial court is not required to sua sponte issue an order allowing the amendment of
the pleadings. Plaintiffs made no effort in the trial court to amend their pleadings. Therefore, we
find no plain error in the trial court failing to issue an order permitting such an amendment.

                                       VI. CONCLUSION

        The trial court properly granted summary disposition in favor of defendant pursuant to
MCR 2.116(C)(7) and (8). Plaintiffs have not pleaded a negligence claim in avoidance of
government immunity, and plaintiffs have not stated a claim for nuisance per se. The trial court
did not err in failing to issue an order allowing amendment. Affirmed. Defendant, being the
prevailing party, may tax costs. MCR 7.219(A).

                                                              /s/ Brock A. Swartzle
                                                              /s/ Jane E. Markey
                                                              /s/ Amy Ronayne Krause




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