Michigan Court of Appeals; Docket # 351790; Unpublished
Judges Swartzle, Borrello, and Servitto; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
Not Applicable
TOPICAL INDEXING:
Motor-Vehicle Exception to Governmental Tort Liability Act
SUMMARY:
In this unanimous unpublished per curiam decision, the Court of Appeals reversed the trial court’s denial of defendant Suburban Mobility Authority for Regional Transportation’s (SMART) motion for summary disposition. The Court of Appeals held that the plaintiff, Mark Kellapoures, failed to present sufficient evidence to create a question of fact as to whether the driver of the SMART bus Kellapoures was traveling on when he fell and suffered an injury operated the bus negligently.
Shortly after Kellapoures boarded the SMART bus, but before he had time to reach his seat, the driver of the bus, William Lewis, abruptly accelerated, causing Kellapoures to slip on a liquid substance on the floor of the bus. Kellapoures alleged that the substance on the bus’s floor was oil, but the SMART accident report indicated that the substance was water. Furthermore, Kellapoures alleged that, while Lewis perhaps did not know that the substance was on the floor prior to his fall, Lewis did say that the oil “was something maintenance missed or something.” After the fall, Kellapoures filed the instant third-party automobile negligence action against SMART and Lewis, pursuant to the motor vehicle exception of governmental immunity. Kellapoures alleged that Lewis operated the bus negligently, considering his abrupt acceleration, coupled with the fact that there was a slippery liquid substance on the floor of the bus. SMART moved for summary disposition, arguing that the act of accelerating shortly after Kellapoures boarded the bus was a normal incident of travel, and that the existence of the wet floor that contributed to Kellapoures’ fall was not part of the “operation” of the bus. The trial court denied SMART’s motion, ruling that there were questions of fact as to whether Lewis and SMART were negligent, and, specifically, “whether the oil on the floor constituted a special and apparent reason for Lewis to have waited for plaintiff to sit down before starting the bus.”
The Court of Appeals reversed the trial court’s denial of SMART’s motion for summary disposition, because bus drivers are generally not required to wait for a passenger to reach his or her seat before accelerating—unless a special circumstance exists requiring that they do so—and in this case, there was no evidence that Lewis or SMART knew about the liquid substance on the floor before Kellapoures slipped on it. Therefore, Kellapoures failed to demonstrate that Lewis and SMART were negligent.
In this case, there similarly is no evidence that Lewis or SMART knew about the wet and slippery area of floor on the bus before plaintiff fell and there is no evidence that the floor had been wet and slippery for such a length of time that Lewis or SMART should have had notice or knowledge of its existence. Although the record evidence reflects that the incident occurred at approximately 9:00 a.m. and on the first run of that bus for the day, there was no evidence introduced about when or how the floor became wet with oil or any other substance. Plaintiff failed to introduce any evidence in response to SMART’s motion for summary disposition to create a genuine issue of material fact regarding defendants’ knowledge of the condition or the length of time the condition had been present.
Because there was no evidence that Lewis knew about the wet condition or that the condition had existed for such a length of time that Lewis should have known about it, plaintiff could not as a matter of law establish that the combination of the sudden start and wet floor that allegedly caused his injuries constituted negligent operation of the bus. Selman, 283 Mich at 422- 424. The trial court therefore erred by presuming a question of fact regarding SMART’s negligence solely from the existence of the wet condition and plaintiff’s fall. Selman, 283 Mich at 423.
Kellapoures argued on appeal, among other things, that Lewis had a duty to know about the wet condition, however. The Court of Appeals disagreed, noting that the Supreme Court has held that negligence is not to be presumed under similar circumstances.
Plaintiff asks this Court to infer that Lewis should have known about the condition based on the presence of the wet condition without any further evidence related to Lewis’s actual knowledge, the source of the wetness, the length of time the condition was present, or the existence of any prior warning signals of the condition of the type that were present in Trent and Wood. Plaintiff’s contention amounts to an argument that negligence should be presumed from the existence of the condition and the fact that injury occurred. Such an approach has been rejected by our Supreme Court. Selman, 283 Mich at 423.
