Missing/Obstructed Street Signs/Lights:
Nawrocki v Macomb County Road Commission
Since approximately 1964, the State of Michigan has mandated that all governmental agencies (cities, counties and the State) are immune from tort liability, regardless of the degree of ineptitude, carelessness or negligence of the governmental agency. However, the Michigan Legislature has articulated five extremely limited exceptions to this rule. The exception that directly impacts cyclists is the "highway exception" that states that a governmental agency having jurisdiction over any highway "shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel." MCL 691.1402(1).
The Legislature's purpose for the highway exception is to enhance the safety of public travel upon state roadways. Chaney v Michigan Department of Transportation. As we all know, whenever there is an impact between a rapidly moving 2500+ lb. object and a slower-moving 200 lb. bike and rider, bicyclists are the most vulnerable. The safety of the bicyclist often depends on properly maintained signs, street lights and road markings.
In 2000, the Michigan Supreme Court in Nawrocki, in our view, interpreted the already limited "highway exception" too narrowly by holding that the "installation, maintenance, repair, or improvement of traffic control devices" is not part of a governmental agency's duty to ensure safe and convenient travel on a road.
This decision's impact is that governmental agencies no longer have any legal incentive or accountability to maintain traffic signals/street lights in a working or functioning fashion. This includes clearing and cutting trees and foliage that obscure traffic signals and street signs. It also includes repairing and maintaining lighting and street poles. Townships, cities, counties and even the state have no liability for the injuries solely caused due to mislabeled, mistimed or missing signs or lights.
The impact of the Nawrocki decision is finally starting to hit home. Lawsuits against governmental agencies for disabled/defective traffic lights and misplaced signs that cause collisions between cars, trucks and bicyclists are being dismissed, leaving an injured party with no recourse. Lawsuits for missing, obscured and defective traffic signs that cause personal injury and even death are not allowed to be presented to a jury of our peers.
Examples of personal injury lawsuits being dismissed include: the failure to have warning signs that alert motor vehicle operators to limited sight distance caused by the curvature of a hill, (Hanson v Mecosta County Road Commissioners); the failure to have signs alerting motorists of potential flooding over the roadway (Sonsynath v Michigan Department of Transportation); and the failure to have signs warning motorists about the "actual physical structure of the roadbed surface" (like narrowing road/shoulders, potholes or rough road) (Nawrocki).
It won't be long before a lawsuit for missing, defective or misplaced "do not pass" signs that cause a bike death is tossed out of court. Governmental liability for injuries or death caused by mismarked, defective or even absent road markings (like double yellow or shoulder marks) will not be allowed.
Serious Impairment of Bodily Function:
Kreiner v Fisher
The Michigan No-Fault law enacted in 1972 abolished tort liability arising from the use of a motor vehicle, but permits lawsuits for non-economic damages (pain & suffering) if the injured party "suffers death, serious impairment of body function, or permanent serious disfigurement." MCL 500.3135 (1). The justification for the elimination of personal rights (being able to sue careless/negligent and even drunk drivers) was the promise of unlimited expense coverage for patient-controlled medical care from their own insurers. Keeping court dockets from being clogged with simple "whiplash" injuries was another factor.
Of the three categories, death is the easiest to prove. However, whether it was an immediate death or whether the person suffered for some time (and knew he or she was suffering) can impact the amount recovered by the decedent's heirs. In the second category, if there is no factual dispute concerning the nature and extent of the person's injuries, whether a person has suffered a "serious impairment of body function" is a question of law for the trial court (rather than a jury of peers) to decide.
The Michigan Supreme Court recently further narrowed what qualifies as a "serious impairment of body function." In Kreiner, the plaintiff (a manual laborer) was unable to work for two months due to injuries sustained because of another person's negligent operation of a motor vehicle. Mr. Kreiner was required to rely upon his mother for transportation, food preparation, making his bed and helping him to the bathroom door.
Mr. Kreiner no longer could work his usual eight hours per day, but was limited to six. He could only work on a ladder for 20 minutes at a time, could not lift more than 80 pounds and could no longer walk for more than a half mile. Yet, the Supreme Court found that Mr. Kreiner's general ability to lead a normal life was not affected. The opinion never said whether or not Mr. Kreiner's ability to ride a bicycle was affected, but the implication is clearly there. The fallout from this case, now the controlling precedent in Michigan, is being felt in every Michigan courtroom.
Another extremely dubious result regarding what qualifies as a "serious impairment of body function" was found in Spies v Parker. Mr. Spies, injured because of another's negligent operation of a motor vehicle, underwent two surgeries to repair his broken ulna and wore casts on his arm for several weeks. His doctor prohibited him from working immediately after the accident and he missed several weeks of school while taking narcotic pain medications.
Additionally, his arm's range of motion is now permanently limited (the loss of seven to fifteen degrees of pronation) and he suffers occasional pain and sensitivity to the touch of his arm. The court found that Mr. Spies suffers "little residual impairment" and his injuries "did not affect his general ability to live his normal life."
The chances of recovery under the third category, "permanent serious disfigurement," have also been greatly reduced by the courts. Whether an injury qualifies depends on its physical characteristics, rather than its effect on the plaintiff's ability to live a normal life. The unfortunate Mr. Spies now has a seven-inch scar on his non-dominant arm (that can be covered by long sleeves). The court found that it does not constitute a serious disfigurement and Mr. Spies is prohibited from recovering from the negligent motorist who caused the injury.
We can safely say that all bicyclists we have represented that sustained injuries because of the negligent operation of a motor vehicle have, at a minimum, sustained permanent scars somewhere on their bodies. Does it make much (common) sense that, because the scars can be covered, they aren't "permanent serious disfigurement?"
The disturbing legal pattern has been established by the courts, starting with the Michigan Supreme Court. However, it can only be corrected through legislation. Safe and convenient travel on the road requires accountability by all - including governmental agencies.
We encourage anyone who is interested in learning more about these increasing restrictions on personal rights or anyone wishing to seek a change visit www.protect-no-fault.com.