Michigan Court of Appeals; Docket #351519; Unpublished
Judges Ronayne Krause, Beckering, and Boonstra; 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In this unanimous unpublished per curiam decision, the Court of Appeals reversed the trial court’s summary disposition order dismissing Plaintiff Nadageki Chivis’s third-party action against Defendant Cass County Public Transit (“CCPT”). The Court of Appeals held that Chivis presented sufficient evidence to create a question of fact as to whether CCPT’s bus driver, Linetta Smith, was operating the subject CCPT bus negligently when she ran over Chivis in the road, and whether, therefore, CCPT could be held liable under the motor vehicle exception to governmental immunity.
Chivis, a 12-year-old, was walking home from school with several friends when he somehow came to be struck by a CCPT bus driven by Linetta Smith. There were five witnesses to the collision itself and/or each parties’ respective actions immediately beforehand—three children, a woman traveling on the CCPT bus at the moment of impact, Malyssa Tiffin, and a woman driving in the opposite lane of travel around the time of impact, Annay Razo-Castillo. Tiffin testified that, although she thought Smith was driving recklessly and taking turns too aggressively, she did not think Smith ever exceeded the speed limit or strayed out of her lane. Razo-Castillo testified that Smith was driving at or under the speed limit of 25 mph on Riverside Drive—the road on which the collision occurred—and that, although Chivis was still in the grassy area adjacent to the roadway at the moment of impact and not actually in the road, he walked directly into the side of the bus. One of the child witnesses, SB, testified that the collision occurred in the road and that the bus was traveling “about 35 mph”—or 10 miles over the speed limit. Another of the child witnesses, RP, testified that Chivis tried to run across the road when the bus “like smacked him,” that the bus maintained its lane integrity, and that the collision occurred in the roadway. The remaining child witness, JL, testified that Chivis ran into the road and back twice before impact, that the bus was driving straight prior to impact, and that Smith could not have avoided Chivis. The bus’s GPS logs were inconclusive as to whether Smith was speeding at the moment of impact, showing only that, at two separate moments while Smith was driving on Riverside Drive, she was traveling at six and 15 miles per hour, respectively. Three accident reconstructionists offered opinions on the collision: one opined that the impact occurred in the road but did not offer an opinion as to fault; one testified that the impact occurred in the roadway but that Smith was probably not speeding at the time; and one noted that the impact either occurred in the grass or in the road, but that “there [was] no physical evidence to put him in [either at the moment of impact].”
Chivis filed a third-party action against CCPT pursuant to the motor vehicle exception to governmental immunity, and CCPT moved for summary disposition, which the trial court granted. The Court of Appeals, however, reversed the trial court’s summary disposition order, holding that a question of fact existed as to whether Smith was operating the bus negligently at the moment of impact. The Court based its holding primarily on SB’s testimony—that Smith was speeding at the moment of impact and “that there were no cars in the other lane until after the accident, so Smith could have hit her brakes or swerved into the lane of opposing traffic [to avoid hitting Chivis].” The Court noted that SB’s testimony regarding vehicles in the opposite lane of traffic was contradicted by Razo-Castillo’s testimony that she was driving in the opposite lane of travel around the time of impact, but that “a conflict in the evidence [can only be set aside] where an outlier’s testimony is physically or effectively impossible.” In this case, although “SB’s age and vantage point might suggest his opinion might be entitled to little weight . . . his testimony was not impossible.”
"There was evidence in the record that Smith was aware of plaintiff and his friends at the side of the road, Smith at least should have been aware that children not-uncommonly crossed the road in that general area, and that Smith was exceeding the posted speed limit at the time of impact and had available ways to avoid the accident. At this procedural stage of the proceedings, we may not determine the credibility or weight to be given any particular evidence. The jury could choose to believe a constellation of evidence from which it could be reasonably inferred that Smith was driving negligently at the time of the accident. Therefore, CCPT was not definitively entitled to governmental immunity because there is a genuine issue of material fact regarding whether the motor-vehicle exception, MCL 691.1405, was applicable. Furthermore, summary disposition for CCPT pursuant to MCR 2.116(C)(7) was improper."
Justice Boonstra concurred, noting that, although the considerable majority of the evidence and testimony tended to prove that Smith was not negligent in her operation of the bus, and despite the fact that the only countervailing evidence was the testimony of a 12-year-old, that lone bit of countervailing evidence was enough, in and of itself, to create a question of fact as to the issue of negligence.
