In its final opinion of a topsy-turvy term, Duffy v. Dep’t of Natural Resources, the Michigan Supreme Court has ruled that a trail maintained by the Department of Natural Resources is not a “highway” under the Governmental Tort Immunity Act.
The trail in question is the Little Manistee Trail, which, according to the opinion, is a “trailway” no where near a highway. That distinction made a difference in the decision.
The Trail is properly classified as a “trailway” within the distinct meaning of that word in Michigan’s statutory law, and this “trailway”– which is miles away from any highway — is not within the scope of the highway exception because it is not a “trailway . . . on the highway.” Id. Furthermore, because the Legislature determined that only trailways on the highway are deemed highways, and because this Trail therefore is clearly not a highway, we refuse plaintiff’s invitation to avoid the statute and make the Trail into a highway by calling it a road. In summary, all roads, forest roads, trails, trailways, and highways in this case lead to the conclusion that plaintiff’s claim is barred by governmental immunity.
Justice Stephen J. Markman wrote the majority opinion, joined by the usual suspects. The decision seems somewhat narrow to this situation, leaving the door open for a “trailway” alongside a highway.
[I]n drafting the statutory definition of “highway” in MCL 691.1401(e), the Legislature created two classes of terms that are considered “highways”– (1) those terms that are “highways” per se, i.e., a “public highway, road, or street that is open for public travel,” and (2) those terms “included” as highways, such as
“bridges, sidewalks, crosswalks, and culverts,” but only if they are “on the highway.” Notably, when the Legislature amended the definition of “highway” in 1999 to add “trailways,” it added this term to the second category of covered structures, each of which is modified by “on the highway.” If the Legislature had intended that all trailways—no matter where they are located and irrespective of their relationship to the highway– should be considered highways, it would have added “trailways” to the first category of
covered structures. But it did not.
By including “on the highway” in MCL 691.1401(e), the Legislature limited the universe of “bridges, sidewalks, trailways, crosswalks, and culverts” that are considered “highways” for purposes of the highway exception. This limitation is perfectly reasonable because it would be odd if a sidewalk in the middle of a meadow or a trailway in the middle of a forest, neither of which is anywhere near a bona fide highway, were considered a “highway” for purposes of governmental immunity. Therefore, it is
important to give effect to this essential limiting clause, no matter how inartfully worded.
In a dissent, Justice Marilyn Kelly argued the Trail should be considered a road because it is used by the public as one.
As poet James Whitcomb Riley is said to have remarked, “When I see a bird that walks like a duck and swims like a duck and quacks like a duck, I call that bird a duck.” Riley’s quip is apropos to this case: when I see a thoroughfare that looks like a road and has signage like a road and is used by the public as a road, I call that thoroughfare a road.
And that, according to MSC public information officer Marcia McBrien, is it for the weekend.
The Michigan Lawyer 