HOUSE BILL No. 6358


     September 24, 2002, Introduced by Reps. Sheltrown, Minore and Neumann and referred to the Committee on Civil Law and the
Judiciary.


        A bill to amend 1964 PA 170, entitled

   "An act to make uniform the liability of municipal corporations,
   political subdivisions, and the state, its agencies and depart-
   ments, officers, employees, and volunteers thereof, and members
   of certain boards, councils, and task forces when engaged in the
   exercise or discharge of a governmental function, for injuries to
   property and persons; to define and limit this liability; to
   define and limit the liability of the state when engaged in a
   proprietary function; to authorize the purchase of liability
   insurance to protect against loss arising out of this liability;
   to provide for defending certain claims made against public offi-
   cers, employees, and volunteers and for paying damages sought or
   awarded against them; to provide for the legal defense of public
   officers, employees, and volunteers; to provide for reimbursement
   of public officers and employees for certain legal expenses; and
   to repeal acts and parts of acts,"

   by amending sections 2 and 2a (MCL 691.1402 and 691.1402a), sec-

   tion 2 as amended and section 2a as added by 1999 PA 205.

               THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

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             Sec. 2.  (1)  Except as otherwise provided in  SUBJECT TO

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        section 2a, each governmental agency having jurisdiction over a

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        highway  shall maintain the highway in reasonable repair so that


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        it is reasonably safe and convenient for public travel.  HAS A

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        DUTY TO DO ALL OF THE FOLLOWING SO THAT THE HIGHWAY IS REASONABLY

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        SAFE, FIT, AND CONVENIENT FOR PUBLIC TRAVEL:

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             (A) IF THE GOVERNMENTAL AGENCY UNDERTAKES TO DESIGN OR CON-

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        STRUCT THE HIGHWAY, USE APPROPRIATE STANDARDS AND CARE.

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             (B) MAINTAIN THE HIGHWAY IN REASONABLE REPAIR.

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             (C) PROVIDE FOR, INSTALL, AND MAINTAIN TRAFFIC CONTROL

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        DEVICES.

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             (2) A person who sustains bodily injury or damage to his or

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        her property  by reason of  BECAUSE OF THE failure of a govern-

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        mental agency to  keep a highway under its jurisdiction in rea-

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        sonable repair and in a condition reasonably safe and fit for

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        travel  PERFORM A DUTY UNDER SUBSECTION (1) may recover the dam-

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        ages suffered by him or her from the governmental agency.  The

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        liability, procedure, and remedy as to county roads under the

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        jurisdiction of a county road commission shall be as provided in

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        section 21 of chapter IV of 1909 PA 283, MCL 224.21.   The

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        EXCEPT FOR THE DUTY TO REPAIR AND MAINTAIN TRAFFIC CONTROL

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        DEVICES, THE duty of the state and the county road commissions to

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        repair,  and maintain highways  MAINTAIN, DESIGN, AND CONSTRUCT

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        HIGHWAYS UNDER SUBSECTION (1), and the liability for that duty,

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        extends only to the improved portion of the highway designed for

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        vehicular travel, INCLUDING, BUT NOT LIMITED TO, A SHOULDER AREA

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        ADJACENT TO A TRAVEL LANE, and does not include sidewalks, trail-

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        ways, crosswalks, or any other installation outside of the

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        improved portion of the highway designed for vehicular travel.  A

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        judgment against the state based on a claim arising under this



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        section from acts or omissions of the state transportation

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        department is payable only from restricted funds appropriated to

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        the state transportation department or funds provided by its

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        insurer.

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             (3)  (2)  If the state transportation department contracts

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        with another governmental agency to perform work on a state trunk

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        line highway, an action brought under this section for tort

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        liability arising out of the performance of that work shall be

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        brought only against the state transportation department under

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        the same circumstances and to the same extent as if the work had

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        been performed by employees of the state transportation

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        department.  The state transportation department has the same

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        defenses to the action as it would have had if the work had been

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        performed by its own employees.  If an action described in this

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        subsection could have been maintained against the state transpor-

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        tation department, it shall not be maintained against the govern-

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        mental agency that performed the work for the state transporta-

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        tion department.  The governmental agency also has the same

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        defenses that could have been asserted by the state transporta-

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        tion department had the action been brought against the state

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        transportation department.

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             (4)  (3)  The contractual undertaking of a governmental

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        agency to maintain a state trunk line highway confers contractual

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        rights only on the state transportation department and does not

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        confer third party beneficiary or other contractual rights in any

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        other person to recover damages to person or property from that

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        governmental agency.  This subsection does not relieve the state



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        transportation department of liability it may have, under this

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        section, regarding that highway.

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             (5)  (4)  The duty imposed by this section on a governmental

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        agency is limited by sections 81131 and 82124 of the natural

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        resources and environmental protection act, 1994 PA 451,

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        MCL 324.81131 and 324.82124.

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             Sec. 2a.  (1) Except as otherwise provided by this section,

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        a municipal corporation has no duty to repair or maintain, and is

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        not liable for injuries arising from, a portion of a county high-

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        way outside of the improved portion of the highway designed for

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        vehicular travel AS DESCRIBED IN SECTION 2(2), including a side-

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        walk, trailway, crosswalk, or other installation.  This subsec-

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        tion does not prevent or limit a municipal corporation's liabil-

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        ity if both of the following are true:

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             (a) At least 30 days before the occurrence of the relevant

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        injury, death, or damage, the municipal corporation knew or, in

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        the exercise of reasonable diligence, should have known of the

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        existence of a defect in a sidewalk, trailway, crosswalk, or

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        other installation outside of the improved portion of the highway

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        designed for vehicular travel.

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             (b) The defect described in subdivision (a) is a proximate

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        cause of the injury, death, or damage.

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             (2) A discontinuity defect of less than 2 inches creates a

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        rebuttable inference that the municipal corporation maintained

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        the sidewalk, trailway, crosswalk, or other installation outside

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        of the improved portion of the highway designed for vehicular

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        travel in reasonable repair.



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             (3) A municipal corporation's liability under subsection (1)

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        is limited by section 81131 of the natural resources and environ-

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        mental protection act, 1994 PA 451, MCL 324.81131.


















































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