                          STATE OF MICHIGAN

                            COURT OF APPEALS



KATHLEEN COREY,                                                      UNPUBLISHED
                                                                     October 11, 2018
               Plaintiff-Appellant,

v                                                                    No. 340286
                                                                     Court of Claims
DEPARTMENT OF TRANSPORTATION,                                        LC No. 16-000231-MD

               Defendant-Appellee.


Before: CAVANAGH, P.J., and MARKEY and LETICA, JJ.

PER CURIAM.

        Plaintiff appeals by right the trial court’s order granting defendant’s motion for summary
disposition under MCR 2.116(C)(7) (immunity granted by law) in plaintiff’s action under the
highway exception to governmental immunity, MCL 691.1402(1). We affirm.

                   I. PERTINENT FACTS AND PROCEDURAL HISTORY

        Shortly after 6:00 p.m. on September 27, 2014, plaintiff and one passenger, Carol
Gammon, were driving northbound on Rochester Road (“M-150”) when plaintiff’s vehicle fell
into a construction hole at the M-150/M-59 interchange. The hole existed in the right lane
adjacent to the eastbound M-59 on-ramp. There had been construction occurring at the M-
150/M-59 interchange and along M-150 northbound and southbound, with various lanes closed
for repair. The hole into which plaintiff’s vehicle fell was in the process of being patched.
Workers had removed the old concrete, but the new concrete had yet to be poured. Contractors
tasked with completing the job had applied for, and received, authority to close down this portion
of the right lane for the weekend. They had taken steps to close down this lane on the previous
night, laying out appropriate signage, barrels, and markers.

       Plaintiff commenced this lawsuit on September 18, 2016, alleging a defective highway
and nuisance per se. Gammon, the passenger, also filed suit, naming plaintiff as a defendant
along with the Michigan Department of Transportation (MDOT) and various contractors
responsible for cutting and replacing the concrete. The cases were consolidated. Defendant
sought summary disposition under MCR 2.116(C)(7), (8), and (10). The trial court granted
defendant’s motion for summary disposition under MCR 2.116(C)(7), agreeing with defendant
that governmental immunity barred plaintiff’s claim because the highway exception did not
apply. In reaching this conclusion, the trial court relied on the objective test formulated in Snead
v John Carlo, Inc, 294 Mich App 343; 813 NW2d 294 (2011). The trial court found that
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defendant presented “overwhelming evidence” for the court to conclude that “a reasonable
motorist, under the circumstances, would not have believed that the area of the roadway in which
the accident occurred was open for public travel.” The trial court also addressed plaintiff’s
deposition testimony, concluding on the basis of all the evidence that plaintiff’s “subjective,
conclusory assertion that she did not see the traffic-control devices did not create a genuine issue
of material fact with regard to whether a reasonable motorist would have considered the area into
which Plaintiff drove as being open to public travel at the time of the accident.”

                                        II. DISCUSSION

       Plaintiff contends that the trial court erred because she established a genuine issue of
material fact regarding whether the accident site was closed to public travel. We disagree.

                    A. STANDARD OF REVIEW AND RELEVANT LAW

       We review de novo both the trial court’s decision on a motion for summary disposition
and the application of governmental immunity as a question of law. Pierce v City of Lansing,
265 Mich App 174, 176; 694 NW2d 65 (2005).

       When reviewing a motion for summary disposition under MCR 2.116(C)(7), all
       well-pleaded allegations must be accepted as true and construed in favor of the
       nonmoving party, unless contradicted by any affidavits, depositions, admissions,
       or other documentary evidence submitted by the parties. If no [material] facts are
       in dispute, or if reasonable minds could not differ regarding the legal effect of the
       facts, the question whether the claim is barred by governmental immunity is an
       issue of law. [Id. at 177 (citation omitted).]

Documentary evidence may only be considered by the trial court to the extent that its content or
substance would be admissible as evidence. MCR 2.116(G)(6). Where no relevant factual
dispute exists, whether a plaintiff’s claim is barred by governmental immunity is a question of
law for the court to decide. Pierce, 265 Mich App at 177. But if there is a pertinent factual
dispute, summary disposition is inappropriate. Snead, 294 Mich App at 354.

         The Legislature has provided for broad immunity of governmental agencies from tort
liability. MCL 691.1407(1). But there are also exceptions, one of which is the “highway
exception.” MCL 691.1402(1). This exception states, in pertinent part:

       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. . . . [T]he duty of a governmental agency to repair and maintain
       highways, and the liability for that duty, extends only to the improved portion of
       the highway designed for vehicular travel and does not include sidewalks,
       trailways, crosswalks, or any other installation outside of the improved portion of
       the highway designed for vehicular travel. [MCL 691.1402(1).]
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         “Highway” is defined as “a public highway, road, or street that is open for public travel.”
MCL 691.1401(c) (emphasis added). While a governmental agency has a duty to maintain
highways under its jurisdiction “in reasonable repair and in a condition reasonably safe and fit
for travel,” MCL 691.1402(1), such a duty only applies to highways that are “open for public
travel,” MCL 691.1401(c). A road or a portion thereof that is closed to public travel does not fit
under the “highway” definition; therefore, the highway exception would not apply to that
instance. Snead, 294 Mich App at 359-361. “[A] highway is not open for public travel when the
government ‘closes’ the highway and ‘marks’ it as being closed, which would typically entail the
use of adequate traffic-control devices.” Id. at 368. While a “road is not necessarily closed for
public travel simply because construction work is being performed in the area,” traffic control
devices are a factor for a court to consider in its determination. Id. at 359-361. To determine
whether a road is closed for public travel, the key test is “whether a reasonable motorist, under
all the circumstances, would believe that the road was open for travel.” Id. at 361.

                                         B. ANALYSIS

       We conclude that no reasonable motorist could believe that the area in dispute was open
for public travel. Accordingly, the trial court properly granted summary disposition to defendant
under MCR 2.116(C)(7).

        There is no dispute in this case that defendant is a governmental agency and was engaged
in a governmental function when the accident occurred. As such, the critical issue is “whether a
reasonable motorist, under all the circumstances, would believe that” the M-150 right lane at the
M-150/M-59 interchange, where the accident occurred, was open or closed to public travel. See
Snead, 294 Mich App at 361. In other words, the issue is whether, viewing the offered evidence
in a light most favorable to plaintiff, reasonable minds could differ regarding whether the M-150
right lane at the M-150/M-59 interchange was closed to public travel. See Snead, 294 Mich App
at 361. As the trial court noted, “overwhelming evidence” was presented to show that a
reasonable motorist would not have believed that the area in dispute was open for public travel.

        Bryan Turczynski, a project engineer of one of defendant’s contractors, affirmed in an
affidavit that he inspected the accident area on the night before the accident and found that
workers had properly closed down the right lane, that the closure was in compliance with the
MDOT standards for a one-lane closure, that there were adequate markings in place to warn
motorists of the right lane closure, and that there were directions for motorists to properly enter
the M-59 on-ramp. Additionally, Raymond Czewski, superintendent for the accident site area,
was onsite until 11:00 a.m. the day of the accident. He stated at deposition that he set up cones
and barrels on the night before the accident and that there were markings to warn motorists of
construction. He indicated on a map provided to him at deposition where such warnings were.
According to Czewski, these warnings consisted of “construction lead-in signing,” such as
“[r]oad work ahead,” “right lane closed ahead,” an “arrow board indicating the lane is closed,”
and barrels to gradually taper traffic out of the right lane and into the open left lane.
Additionally, he stated that there were barrels blocking off the construction area where the hole
was to be cut, with a clear opening in the lane for traffic to still access the M-59 on-ramp.

       Furthermore, two more contractor engineers, Octavia Stewart-Carrington and Rob Stuart,
inspected the area, both on the night before and on the day of the accident. Both wrote in their

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reports that the right lane was closed and that all necessary warning signs were present, including
cones, barrels, and construction signs. Further, Stewart-Carrington stated at deposition that
despite not having independent recall of the accident day’s events,1 she knew that there must
have been adequate warning signs and construction markers present on the accident day to close
down the right lane. She completed her work on that day and, without such warnings and
markers present, she never would have been able to do this because traffic would have been
traversing the right lane. She also confirmed that she never would have written in her report that
the area was adequately marked unless she had personally observed it.

        Dale Moss, a patch foreman for another contractor, was on site during the accident,
although he did not witness it, and he took various photographs of plaintiff’s vehicle in the hole.
These photographs clearly show construction cones, barrels, and a roadside sign in and around
the area in dispute. Notably, several cones appear around the hole. Richard Welch, a paramedic
who responded to the accident, wrote in his report that when he arrived, he found that plaintiff’s
vehicle “had driven in between multiple construction barrels and then into a large hole that had
been cut out of the road during repaving.” He further stated at deposition that he observed
barrels and cones marking off the area and that these were present when the accident occurred;
plaintiff’s vehicle would had to have been driven between those barrels in order to get to where it
ultimately ended up. He further stated that he believed it was fairly obvious to motorists that
there was construction in that area. Finally, Deputy Darius Zajac, the officer responding to the
accident, drew a diagram in his traffic crash report, depicting construction barrels both tapering
off the right lane for lane closure and encompassing around the construction hole. He further
stated at deposition that as he patrolled between 5:00 and 6:00 p.m., he recalled observing
construction on northbound M-150, lane closures, and numerous barrels, cones, and signs. Upon
arriving at the accident site, he wondered how such an accident could have occurred because
there were cones and barrels all over the area. He also stated at deposition that the construction
barrels drawn in his police report diagram were present both before the accident while he
patrolled and after the accident when he arrived at the site. Moreover, he stated that the diagram
did not show all of the construction markings: In fact, there were even more cones, barrels, and
signs than had been depicted.

       Against such evidence, plaintiff offers a myriad of theories, versions of events, and
alleged contradictions and inconsistencies in the testimony of those individuals discussed above.
We find plaintiff’s arguments unpersuasive.

        First, plaintiff presents four different, allegedly plausible, versions of events attempting to
create a genuine issue of material fact. For example, plaintiff notes that there were conflicting
accounts over whether the M-59 on-ramp was open or closed to traffic and whether the entrance
to the on-ramp was located before or after the construction hole. Our review of the record
convinces us that there is no factual dispute. Patently, the on-ramp was open to traffic and only
portions of the right lane were closed.




1
    Stewart-Carrington’s deposition took place nearly three years after the accident had transpired.


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        The supposed conflict over the location of the entrance to the on-ramp is irrelevant. The
issue in this case is not whether the entrance to the on-ramp was located before or after the hole;
rather, the issue is whether a reasonable motorist, under all the circumstances, could believe that
the accident site and surrounding construction area were open to public traffic.

        Second, we disagree with plaintiff’s contention that there are too many factual disputes to
warrant summary disposition. Plaintiff notes that she, Gammon, and a witness at the scene2 all
stated at deposition that they did not recall seeing any construction markings before the accident.
Plaintiff contends that this conflicting testimony creates a genuine issue of material fact that
precludes summary disposition. Plaintiff also notes the existence of evidence that some barrels
and cones were moved after the accident occurred. Photographs taken at the scene demonstrate
that some cones were moved during the investigation. Czewski stated at deposition that once the
concrete was cut out, the cones and barrels would have been moved to mark and protect this area
from traffic. Czewski further stated that the barrels and cones he had placed the previous night
had been moved because, in examining the photographs of the accident site, it was apparent that
they were not in the same places as before.

        Viewing the evidence in a light most favorable to plaintiff, we must conclude there exists
no genuine issue of material fact as to the central issue: whether a reasonable motorist, under the
circumstances, would believe that the accident site was open to public travel. See Snead, 294
Mich App at 361. The testimony and other evidence overwhelmingly support the trial court’s
conclusion that a reasonable motorist would believe that the accident site was closed for public
travel because it was surrounded with adequate markers, barrels, and signage that provided
adequate notice to a reasonable motorist that the area was under construction and closed to
public travel.

       We affirm.

                                                            /s/ Mark J. Cavanagh
                                                            /s/ Jane E. Markey
                                                            /s/ Anica Letica




2
 This witness did not observe the accident itself, however. She merely came upon plaintiff’s
vehicle after it had driven into the hole.


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