Michigan Court of Appeals; Docket #342714; Unpublished
Judges Riordan, Kelly, and Cameron; per curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion; Link to Concurrence
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In this unanimous unpublished per curiam decision, the Court of Appeals reversed the trial court’s denial of the defendants’ motion for summary disposition in this third-party negligence action. The Court of Appeals determined that the defendant, Heather Louise Gering, was not actually “operating” her dump truck, owned by the Wayne County Department of Public Services, at the time she allegedly caused the subject motor vehicle collision. Thus, the “motor vehicle exception” to the governmental tort liability act did not apply, and since the plaintiff failed to present any evidence that Gering was grossly negligent, the plaintiff’s claims were barred by governmental immunity.
John Sakofske was killed after rear ending Gering’s dump truck with his tractor trailer. Gering was performing maintenance on a wall along a ramp to the highway at the time of the collision, and was accompanied by several other vehicles and road crew workers. Robin Sakofske was appointed as the personal representative of John Sakofske’s estate, and filed the instant negligence action against Gering and Wayne County, among others. Gering and three other witnesses testified that Gerring’s truck was parked at the time of the collision, and the law enforcement officers who investigated the collision opined that the truck’s emergency brake was activated at the time of the collision. One witness, however, Darylann Spencer, who did not see the collision, testified that Gering “caused” the accident and speculated that Gering’s truck may still have been moving immediately prior to impact. Based on that witness’s speculation, the plaintiff’s accident reconstructionist opined that the only logical explanation for the collision was that Gering pulled directly into Sakofske’s lane of traffic, causing him to collide with her dump truck. The defendants ultimately moved for summary disposition, which the trial court denied, finding Spencer’s testimony and the opinion of plaintiff’s accident reconstructionist created a question of fact as to who was responsible for the collision and whether Gering’s vehicle was still moving at the time of the collision.
The Court of Appeals reversed the trial court’s denial of the defendants’ motion for summary disposition, primarily because every witness, other than Spencer, who did not see the collision and provided an unreliable timeline, testified that Gering was not operating the dump truck at the time of the collision. Thus, the motor vehicle exception to the GTLA did not apply.
In this case, it is undisputed that Gering’s dump truck was stationary in the right lane of I- 275 at the time of the collision. More specifically, both Gering and Majors testified that Gering’s dump truck had been stationary for about 10 minutes at the time of the accident. Additionally, Washington and Lowe both averred that Gering’s dump truck was parked in the right lane at the time of the accident, and they denied that Gering caused the accident by pulling out in front of Sakofske. The law enforcement officers who investigated after the accident opined that Gering’s truck was completely in the right lane of traffic at the time of the collision and that the truck’s emergency brake was activated at the time of the collision.
Although the trial court relied on the testimony of Spencer when finding that a question of fact existed, when examining Spencer’s testimony, it is clear that Spencer unequivocally testified that she did not see the collision. Rather, she only heard Sakofske’s tractor-trailer collide with the back of Gering’s dump truck and then saw the aftermath of the collision. Although Spencer attempted to describe the general sequence of events related to the accident during her deposition, she only provided speculative testimony regarding the movement—or lack thereof—of Gering’s dump truck immediately preceding or during the accident. More specifically, Spencer testified that it was “possible” that Gering’s truck was still moving into right lane at the time of the collision. The speculative nature of Spencer’s testimony was highlighted by the fact that, later in the deposition, Spencer agreed that she did not see Gering get into the dump truck after Gering inspected the “flasher sign,” she did not see Gering move the dump truck, and she did not see Gering position the dump truck in the right lane. In fact, upon questioning by plaintiff’s counsel, Spencer agreed that had taken only seconds—not 10 or 15 minutes. Consequently, Spencer was unable to give a specific timeline as to when Gering actually began to move the dump truck into the position that Majors mandated in the right lane.
The Court of Appeals also rejected the plaintiff’s argument that Gering was grossly negligent by pulling directly into Sakofske’s lane of traffic, because that assumptions was also based on Spencer’s unreliable testimony.
Plaintiff’s gross negligence claim is premised on allegations that Gering “pulled her vehicle into the right lane of traffic and into the path of Mr. Sakofske.” Plaintiff relies on the testimony of Spencer to support this argument. However, as discussed above, Spencer testified that she did not see Gering move her vehicle from the ramp into the right lane of I-275. She further testified that she did not see the collision. Because the only testimony that Spencer offered concerning the movement and positioning of Gering’s vehicle at the time of the accident was speculative, it is insufficient to support finding a question of fact. See McNeill-Marks, 316 Mich App at 16. Thus, there is no evidence to support that Gering was negligent—let alone grossly negligent. The trial court therefore erred when denying defendants’ motion for summary disposition on plaintiff’s gross negligence claim. See Snead, 294 Mich App at 354. Consequently, we need not address defendants’ argument that the trial court erred by failing to consider whether Sakofske was presumptively negligent under MCL 257.402(a) when he hit the back of Gering’s dump truck.
