Opinion
Nos. 103841, 103874.
October 18, 1996.
Leave to Appeal Denied October 18, 1996:
reported below: ( After Remand) 210 Mich. App. 496.
I would grant leave to appeal.
Reconsideration denied December 20, 1996.
I would grant reconsideration and, on reconsideration, would grant leave to appeal for the reasons previously stated ante at 907-908.
I would grant leave to appeal.
An automobile slid on a patch of ice, crossed the opposite lane of a two-lane highway, slid down a ditch, and became airborne after striking a culvert running underneath a dirt road intersecting the highway.
In its second opinion in this case, the Court of Appeals concluded that Chaney v Dep't of Transportation, 447 Mich. 145 (1994), implicitly overruled Hutchinson v Allegan Co Bd of Rd Comm'rs (On Remand), 192 Mich. App. 472 (1992). The trial court had previously cited Hutchinson as a predicate for its conclusion that a properly constructed guardrail on the shoulder was required.
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).