In Flinckinger v Van Buren County Road Commision et al, unpublished opinion per curiam opinion of the Court of Appeals, issued February 2, 2010 (Docket No. 289701), the Court of Appeals held the Kal-Haven snowmobile trail did not qualify as a "highway" under the statutory definition for purposes of Government Tort Liability Act.

In Flinckinger, the Plaintiff was injured when his snowmobile hit a fallen tree lying across the Kal-Haven Trail.  The Plaintiff filed suit alleging the Defendants were grossly negligent and/or negligent for failing to inspect, maintain, and discover the fallen tree.  In their answer, the County Road Commission asserted the Plaintiff's failure to plead the avoidance of the Governmental Tort Liability Act and moved for summary disposition.  In response to the Road Commission's motion, the Plaintiff informed the court they were not basing their tort claim on the highway exception to governmental immunity but on the recreational use act. 

The trial court found the recreational use act was inapplicable, did not create an additional exception to the governmental immunity act, and only limited the liability of landowners.  Shortly after the court's opinion on the Road Commission's motion for summary disposition, Van Buren County filed its motion for summary disposition arguing that the recreational use act did not create an exception to governmental immunity and cited Ballard v Ypsilanti Twp, 57 Mich 564, 576; 577 NW2d 890 (1998).  The trial court agreed with the defendants and found there was no liability on behalf of the defendants. 

On appeal, the Court of Appeals limited its analysis to whether the Lake-Haven Trail qualifies as a "highway" under the statutory definition.  Analyzing the language of the statute, the Court of Appeals held ". . . both our court and the Supreme Court have held that a sidewalk, trailway, crosswalk, etc., must be "on the highway" to come within the definition of "highway," and thus fall within the highway exception."  To determine whether the trailway was on the highway, the Court of Appeals said they must look at the proximity of the trail to the actual highway.  In this case, the path was approximately 800 feet from the closest road and therefore was not on the highway.