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Legally Speaking - with Bob Mionske: Rough roads ahead
I often receive emails from readers with a comments or follow-up questions regarding this column. Although I can’t always respond, the input is helpful and valuable. In fact, some of the important questions can come from the most unexpected places, let me offer a message from B.R. in Michigan as an example:
Bob,
I read your most recent “Legally Speaking” column on VeloNews.com, and I had a quick follow-up question. From the article and my own understanding, there is no right to travel. Is there a right to have adequately maintained roadways, however?
I ask because here in Michigan, there is a fund for citizens whose cars are damaged by poorly maintained roadways. The roads here are truly awful, and my bike has sustained quite a bit of road-induced damage. Over the years, I have asked about a similar bike fund and I have been laughed off the phone. I was just curious about the duty of the state and local governments for maintaining the roadways.
B.R.
Dear B.R.,
The reason they laughed is probably because they were so scared they were about to drop the phone. I’m not a Michigan lawyer, but I’m quite confident that in Michigan you don’t need a separate fund—if you filed a qualifying application for damage to your bike and were turned down only because you were riding a bicycle, I believe the state DOT could be in hot water! Let me explain.
Because state and local governments must do the dangerous and onerous jobs that no one else will do, they and their employees are typically immune from lawsuits for negligence, and Michigan statutes, like most states, give the state and its municipalities blanket immunity. However, Section 691.1402 creates what is known as the “highway exception:”
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 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.
The preceding section, 691.1401(e), defines a “highway” as:
(e) “Highway” means a public highway, road or street that is open for public travel and includes bridges, sidewalks, trailways, crosswalks and culverts on highways.
However, going back to Section 691.1402 for a moment, the highway exception states that:
The duty of the state and the county road commissions to repair and maintain highways, and the liability for that duty extends only to the improved portion of the highway designated for vehicular travel and does not include sidewalks, trailways, crosswalks, or other installation outside of the improved portion of the highway designated for vehicular travel.
Yes, this is a contradiction; we’ll come back to this is a little while. In Fortunate v. Michigan DOT (1994), a state court summarized the statute in this way:
The highway exception to the Michigan Government Immunity Act extends liability only to the traveled portion of the roadbed actually designated for public vehicular travel. We believe that the exception is intended to promote safe highways but not necessarily safety on the highways.
In this case, the unfortunate Ms. Fortunate was hurt when a vandal threw a brick off an overpass. The court meant that the highway exception was not a guarantee that the DOT will make the highways absolutely safe for everyone or even will make them as smooth as glass, as the judge explained in Helmus v. Michigan DOT (1999):
The Department is not required to maintain a highway so as to make it as safe as humanly possible for public travel; rather their legal duty is limited to maintaining the highway so that it is reasonably safe and convenient for public travel . . . thus, liability cannot be established merely by demonstrating that it could be made safer.
Given this statutory duty of care, the Michigan Department of Transportation knows that it is far cheaper to settle than litigate valid small claims, so they have created a procedure where someone who believes he has a valid claim can go to the MDOT website, download a form called a Form 3600, “Michigan Highway Claim Fund” and mail it in. The maximum claim is $1000, and only damage occurring on state highways qualifies. The claim must not be payable from the claimant’s insurance or any other source. It is not a separate fund, as the highway exception statute says that all liabilities must be paid out of the state’s regular transportation fund.
I am not familiar with Michigan’s administrative procedure, but in most states, if an administrative claimant is denied she can file in court--but there are exceptions, so be careful. If the claim is approved, and the claimant takes the check, she typically loses her right to sue the government for any aspect of the accident. As always, read the Form 3600 and instructions carefully to be sure that either filing or accepting a payment does not force you waive any of your rights. Consulting a lawyer for larger or more complex claims is always a good idea.
Let me make myself clear. Just because the state does not accept a Form 3600 does not mean it does not have to pay. All your Form 3600 amounts to is a request to the state for a quick admission that “Yup, we’re liable for the damage, here’s a check.” You can ignore the Form and sue. You can be denied and sue. Your claim can be one that does not fit into any of MDOT’s neat little bureaucratic pidgeonholes, and they won’t know what to do with it. So what do you do? File a claim in court!
What if it’s a bicycle that gets mangled by a pothole? The oldest bicycle case under the highway exception I found was Roy v. State Highway Dept. (1986), where a cyclist riding on a bicycle path in a nature area was denied coverage under the highway exception. Two years later, in Roux v. Michigan DOT, a cyclist sued when he was thrown by a pothole in the roadway. The DOT argued that Roy meant that bicycles weren’t covered at all under the highway exception, but the state appeals court sent them packing:
The Department argues that the duty to maintain the improved portion of the highway reasonably safe and fit for vehicular travel under this statute does not extend to bicycle travel. Roux argues DOT’s duty under this statute is dependent upon the location at which the traveler is injured, not his mode of transport. We agree with Roux.In Roy v. Michigan DOT, our Supreme Court found that the Department did not have a duty to maintain the bicycle path upon which Roy was injured. In reaching its holding, the court appeared concerned only that plaintiff was injured on a bicycle path, and not that he was a bicyclist. In fact, our Supreme Court stated that the criterion utilized by the legislature in imposing this duty on defendant ‘was not based on the class of travelers but on the road they travel.’ The statute itself says that any person sustaining bodily injury or damage to his property may recover . . . The Department’s attempt to restrict recovery to motorists is untenable.
This didn’t stop the Michigan DOT, however. Two years later, in Gregg v. State Highway Department, they argued that that the definition of “vehicle” in the state motor vehicle code prohibited them from including cyclists within the highway exception:
The Department argues that non-motorists are not protected parties and that such protection is afforded only to vehicular travel. The defendant notes that the Motor Vehicle Code defines ‘vehicles’ as ‘motor vehicles,’ hence, a bicyclist must be excluded from protection. We think a straightforward reading of the [highway exception] statute clearly and adequately refutes the DOT’s assertions. The statute extends the immunity the immunity exception to any person, and Gregg certainly qualifies as one to whom the duty to maintain safe highways extends and the waiver of immunity applies.
Gregg, the cyclist, was riding on a striped bike lane on the shoulder of a state highway when he hit a pothole. The DOT argued that their liability under the highway exception didn’t extend to road shoulders (ignore the bike lane for a moment):
The Department contends that immunity does not extend because the path was not designed for vehicular travel because a road shoulder exists solely for emergency accommodation. The contention that the legislature did not intend to include highway shoulders under the exception has an obvious flaw: it flies in the face of common experience. Any motorist who has ever experienced a highway emergency understands that shoulders are essential to a safe, modern highway. To get on or off a roadway to stop, park or leave standing a vehicle, motorists must travel on the shoulder. Indeed, it seems quite extraordinary, if not fictional to assume that vehicles do not travel on shoulders or that shoulders are not designed for vehicular travel, although temporary.
Now let’s turn to the bike lane. The DOT also argued that because the Michigan Supreme Court refused to cover bicycle facilities in the 1986 Roy case, a pothole in any bicycle facility did not fall under the highway exception. The court dismissed this argument as well, for two reasons. First, Roy concerned a nature path “on which a motor vehicle would have no occasion to travel,” where in Gregg, the bike lane was in the roadway and was placed there for the very purpose of providing a recommended place in the roadway to travel. Second, the roadway exception’s statutory language used “roadway,” defined as any place between the right-of-way lines.
To sum up, a bicycle in the road is covered by the highway exception, as is a bike on a paved road shoulder. It would appear from Gregg that a cyclist in any on-road bicycle lane is covered as well. All the recent problems have occurred on bicycle paths and multi-use trails. Remember the conflicting language in the statute, where the definition of “highway” included sidewalks and trailways, but the highway exception language, which excludes sidewalks and trailways “outside of the improved portion of the highway” has given the Michigan Supreme Court fits.
The most recent case concerning a bikepath was Hatch v. Grand Haven Township (2000), where the Supreme Court said that sidewalks adjacent to highways fell within the statute and bikepaths didn’t:
We tend to agree that there does not seem much logical difference to making an immunity exception for defective, but not bike paths that are on a highway, as both are intended for non-vehicular travel. Yet, the legislature recognized that a distinction exists between sidewalks and bicycle paths . . . and had the opportunity to amend the definition of highways to include bicycle paths ‘on a highway’ but chose not to . . . While a paved way’s proximity to a highway is a necessary condition for determining that it is a sidewalk, under the highway exception, it is not a sufficient condition . . . Regardless of its proximity to a highway, a bicycle path is simply not a sidewalk. Nor does the fact that pedestrians sometimes walk on the path change its character. While Hatch argues that a single path can be both a bicycle path and a sidewalk, our conclusion is that these are distinct and mutually exclusive categories . . . the question whether a path is a sidewalk for purposes of the highway exception is determined by the facts, not a municipality’s label.
If this sounds like a muddle to you, it does to me, too. It looks like for now, it’s going to take a Michigan lawyer to figure out if you can claim damages for the negligent condition of a sidewalk or trail within a roadway right-of-way. But when it comes to riding in the roadway itself, I don’t see any reason you shouldn’t file a Form 3600 if you have a legitimate claim. If the Michigan DOT has a policy of not accepting any Form 3600 from cyclists for no other reason than they are cyclists, I would think it could raise possible due process and equal process concerns under the Michigan constitution- again consulting with Michigan counsel is required to nail that down definitely. I would be interested in hearing from any cyclists who have filed a Form 3600 and what the reaction of MDOT was.
Good Luck
Bob
(Research and drafting assistance provided Bruce Epperson J.D.)
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