Wrongful death suit against county dismissed
A wrongful death lawsuit against the Presque Isle County Road Commission was dismissed at a hearing last week in 53rd Circuit Court in Rogers City. Judge Scott Pavlich granted a motion for summary disposition after hearing arguments from both sides in the case, but took under advisement a similar motion to dismiss the case from a Michigan highway contractor named in the lawsuit. Pavlich said he did not have the response brief from the plaintiff and needed time to go over it. The 2002 lawsuit was filed by Robert and Noreen DePalma on behalf of the Bidleman family of Sterling Heights.
Four members of the Bidleman family were killed July 4, 2000 at the intersection of 634 Highway and County Road 451, when a driver failed to stop at a stop sign. The driver later died from injuries in the crash.
The Bidlemans were vacationing in the area and were traveling to Mackinaw City to watch a fireworks show. The suit claimed the accident was caused by the inaction of Lake City-based Clark Highway Services, which was contracted to install rumble strips on 634 Highway, but allegedly did not do so in a timely manner.
THE LAWSUIT also named the road commission as a defendant, alleging the agency failed to discharge its duty to repair and maintain County Road 634 Highway when it neglected to ensure the rumble strips, that it determined were needed for the intersection, were installed there in a timely manner. Pavlich said the road commission, based on case law and the circumstances of the case, has governmental immunity.
?…a governmental entity has immunity except in some very narrow situations,? said Pavlich. ?One is this highway exception. The highway exception to governmental immunity provides that the road commission has a duty to repair and maintain and not a duty to design or redesign.
?I think when you apply that to this situation, they are saying the road commission had a duty to maintain the road in the condition it was originally constructed, whether rumble strips would have made it safer, or better, to cure a design defect. If they did not maintain that highway in the condition it was constructed, there was no allegation that they did that.?
THE ROAD COMMISSION was represented by Southfield attorney Mike John who said they were not disputing the facts of the case, or what the rumble strips are used for, but did argue the rumble strips are not used to repair or maintain the road surface.
?You have to look at the question of duty, that?s always a starting point in a case such as this,? said John at the hearing. ?We have governmental immunity unless he (plaintiff) can show that there is a duty that applies to us. Was there a dangerous or defective condition in the road surface? Did we fail to repair or maintain the road surface? ?I think the case law is very powerful here. It calls for the result I?m requesting, Your Honor.? Detroit attorney Dean Googasian said the road commission was negligent for failing to have the rumble strips installed, knowing the intersection was dangerous, after being contacted by a neighbor at the intersection, who said people were running the stop sign at the corner. In addition, there was an accident, essentially with identical facts, in 1998, Googasian said.
?ROSE TESTIFIED at deposition that he wasn?t certain when that conversation took place with the neighbor at the corner, but that it may have been as far back as 1999,? said Googasian. The rumble strips were ordered May 30, 2000, but not installed until the day after the accident, ?when my four dead clients ended up on the neighbors? lawn.? John countered: ?There?s no evidence, no testimony from anyone, that the road commission was repairing the road surface by putting in rumble strips. There was nothing wrong with the road surface.? After Pavlich granted summary disposition for the road commission, Richard Poling Jr., representing Clark Highway Services, argued that even though they entered into a contract, the road commission was still the agency that had jurisdiction over the road and the Appellate Courts have backed that up. He also said there was no timetable agreed upon, therefore, there was no breach of contract.
?No one told us to do it by July 5 or before July 5,? said Poling. Googasian said his expert will testify that the rumble strips would have prevented the crash.
?THIS IS THE highway contractor who sells the rumble strips, precisely because they are effective,? Googasian said. ?They had a very specific job to do, they simply failed to do it.? Clark is alleged to have ordered the parts needed and had the equipment ready, but was delayed because the company was waiting for a part-time summer worker to return from Europe, Googasian said. ?Mr. Rose testified on behalf of the road commission that when he made that contract with Clark, that he expected Clark would
?THE CONTRACT did not talk about people who would be speeding down the road,? Poling argued, ?ignoring a ?stop ahead? sign, and running through a stop sign and making no attempt to stop. The contract doesn?t talk about that.?
?When you sell these things,? Pavlich said, addressing Poling, ?isn?t that why you sell them? Isn?t that why road commissions buy them and install them so people don?t blow right through a stop sign??
?It may help, yes, it may help,? Poling said. ?But that does not create liability on someone else.? If the case against Clark goes to trial, a jury will be asked by the plaintiffs to determine an amount to be awarded.