Michigan Court of Appeals; Docket #354502; Unpublished
Judges Gleicher, Kelly, and Ronayne Krause; 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In this unanimous unpublished per curiam decision, the Court of Appeals reversed the trial court’s denial of Defendant Diondre Marcus Doaks’s motion for summary disposition, in which Doaks sought dismissal of Plaintiff George Razouky’s third-party action against him. The Court of Appeals held that Razouky failed to allege facts sufficient to create a question of fact as to whether Doaks, a police officer acting in the course and scope of his employment at the time of the subject collision, was grossly negligent in causing the subject collision. Notably, the Court of Appeals made it clear that its decision was limited to the gross negligence count of Razouky's complaint and that the other counts contained therein were not at issue on appeal.
Doaks, a police officer, was transporting another officer and a witness to the Detroit Metropolitan Airport in his police cruiser. Traffic on I-94 had slowed to approximately 10 miles per hour, and at some point while Doaks slowly made his way down the freeway, he looked down to pick up his radio microphone and accidentally rear-ended Razouky’s vehicle, which had come to a complete stop in traffic. At the moment of impact, Doaks’s vehicle was traveling approximately 5 miles per hour, and the collision left only minimal damage to both vehicles and no injuries to any occupants of either vehicle. After the collision, Razouky filed the instant action, alleging that Doaks was grossly negligent in taking his eyes off the road while traveling on the freeway. Doaks moved for summary disposition in lieu of filing a response to Razouky’s complaint, arguing that Razouky failed to allege facts which created a question of fact as to whether he was grossly negligent. Razouky argued in response (1) that the parties needed time to conduct discovery into whether Doaks was, in fact, in the course and scope of his employment at the time of the crash—and whether, therefore, the governmental tort liability act even applied—and (2) that a question of fact existed as to whether Doaks had acted with gross negligence. The trial court agreed with Razouky and denied Doaks’s motion.
The Court of Appeals reversed the trial court’s denial of Doaks’s motion for summary disposition. The Court first rejected Razouky’s argument that the “ ‘suspicious and unusual’ ” circumstances of the crash created a question of fact as to whether Doaks was, in fact, on-duty at the time of the crash, and that discovery was needed to resolve that issue. The Court of Appeals held that all the available evidence indicated that Doaks was on-duty at the time of the crash: the State of Michigan Traffic Crash Report identified the vehicle as a police vehicle, the same report listed the State of Michigan as the self-insurer of the vehicle, and a vehicle accident report provided that the vehicle was a police vehicle and even identified the vehicle’s fleet number.
“ ‘Despite a lack of discovery, the documentation filed by defendant may be considered when the motion is premised on MCR 2.116(C)(7). MCR 2.116(G)(5). Although plaintiff attempted to raise suspicion about the vehicle driven by defendant, the traffic crash report identified the year, make, and model as well as the plate number and vehicle identification number. This report also characterized the vehicle as a police vehicle with the insurance company identified as the state of Michigan and the insurance as self-insured. Additionally, the vehicle accident report identified the vehicle as a police department vehicle included in the fleet and identified the vehicle’s fleet number. Additionally, the other occupants of defendant’s vehicle, a fellow police officer and a witness were each identified by name, birthdate, position in vehicle, and their use of safety restraints. Similarly, defendant and the occupants of his vehicle were identified by name, address, birthdate, position in vehicle, and use of safety restraints. There is nothing in the documentation to support plaintiff’s assertion that the facts are “suspicious and unusual.’ ”
The Court of Appeals further held that Razouky simply failed to allege facts sufficient to create a question of fact as to whether Doaks acted with gross negligence. The crash occurred at very slow rate of speed, nobody was injured, the vehicles were minimally damaged, and Doaks’s lone negligent act was looking down for his radio such that he failed to stop in the clear assured distance. At most, the Court concluded, Doaks’s conduct constituted ordinary negligence.
“ . . . plaintiff’s complaint relies on the conclusory allegation that defendant’s conduct was so reckless that it demonstrated a substantial lack of concern for whether plaintiff would be injured. However, defendant submitted documentary evidence to support his position that his conduct did not rise to the level of gross negligence. Defendant proffered that traffic was moving at 10 miles per hour prior to the collision. He looked down at his radio when plaintiff’s car came to a complete stop in front of him. The other officer in the car alerted defendant to the stopped traffic, and defendant managed to slow the vehicle down to 5 miles per hour at the moment of impact. No injuries were reported at the accident scene. Defendant’s vehicle had minor damage to the front bumper with an estimated repair cost of $1,500, while plaintiff’s vehicle had minor damage to the rear bumper with an estimated repair cost of $500. The airbags in neither vehicle deployed. Both vehicles were driven away from the accident scene. This evidence failed to show that defendant operated his vehicle with a disregard for whether injury resulted. His mistake was looking down at his radio while traffic moved at 10 miles per hour. The resulting collision was minor. Accepting plaintiff’s allegations as true and considering the evidence in the light most favorable to plaintiff, defendant’s conduct, at most, constituted ordinary negligence.
Plaintiff submits that defendant should have allowed the other officer to operate the radio, but this is merely an allegation that more precautions could have been taken. To assert a defendant could have taken more precautions is insufficient to find ordinary negligence, let alone gross negligence. Tarlea, 263 Mich App at 90. ‘Simply alleging that an actor could have done more is insufficient under Michigan law, because, with the benefit of hindsight, a claim can always be made that extra precautions could have influenced the result.’ Id. Aside from using the radio while stopped, it is hard to imagine a more innocuous situation than for a trooper to look down at his radio than when traveling at 10 miles per hour. Defendant’s conduct was, at most, negligent, and his actions certainly do not suggest that he had a disregard for whether injury would result.”
