Opinion
No. 104653.
October 18, 1996.
Leave to Appeal Denied October 18, 1996:
Court of Appeals No. 183683.
I would grant leave to appeal.
In this case, plaintiff was rendered a paraplegic as a result of a one-vehicle accident when the automobile in which he was a passenger missed a curve, entered a ditch, and struck a culvert. Plaintiff alleges that a guardrail would have prevented his injury. Defendant's motion for summary disposition based on governmental immunity was granted, and the Court of Appeals granted defendant's motion to affirm.
Plaintiff argues that expert witness testimony was presented that at least raised a question of fact whether a guardrail was required on the curve. Plaintiff then argues that Chaney v Dep't of Transportation, 447 Mich. 145 (1994), created "extreme confusion." Since this Court did not offer a majority opinion in Chaney, it is not binding on the lower courts. Since there was no majority decision, the Court of Appeals in this case was bound to follow Hutchinson v Allegan Co Bd of Rd Comm'rs (On Remand), 192 Mich. App. 472 (1992), which would require a guardrail on the shoulder.
In Chaney, this Court held that the defendant was immune from liability for injury sustained when a motorcycle left the roadway of a highway entrance ramp and overpass, crossed a shoulder, and struck a bridge railing immediately adjacent to but beyond the shoulder. The majority reached that conclusion in four opinions, only one of which was signed by more than one justice, that opinion being signed by two justices. I dissented in an opinion joined by another justice. One justice observed in conclusion:
I find it inconceivable that liability under the highway exception should be so severely limited, nevertheless for the reasons stated above, I am compelled to strictly construe the statute. The badly fractured opinions seen in this case and Mason v Wayne Co Bd of Comm'rs, 447 Mich. 130; 523 N.W.2d 791 (1994), scream for legislative action. I urge the Legislature to provide a more exhaustive list of exclusions or revise the statute, illustrating the extent of the highway exception.
Chaney, supra, p 178 (CAVANAGH, C.J., concurring).
The only rule that we are "compelled" to observe is the fundamental doctrine that in the construction of a statute our duty is to construe the statute to implement the legislative purpose and intent. All other rules of construction are subordinate to that obligation. The Legislature does not intend that which is "inconceivable"; the applicable rule of statutory construction is that a statute is construed to avoid "absurd results" — I would think that the "inconceivable" would be within, and be the very definition of, an "absurd result." The "badly fractured opinions" in Chaney and Mason, "scream" for thoughtful reconsideration by this Court.
The plurality opinion in Scheurman v Transportation Dep't, 434 Mich. 619 (1990), and the "badly fractured opinions seen in" Chaney and Mason are not precedentially binding. The per curiam opinion in Ross v Consumers Power Co ( On Rehearing), 420 Mich. 567 (1984), did not involve the questions presented in Scheurman, Chaney, Mason, or the instant case. The "badly fractured opinions" do not "provide a standard with which to guide both the bench and bar."
Justices who signed the per curiam opinion reached results in pre-and post- Ross cases that differ with the results in Chaney and Mason.
Chaney, supra, p 178 (CAVANAGH, C.J., concurring).
I would grant leave to appeal.