Michigan Court of Appeals; Docket #354503; Unpublished
Judges Cavanagh, Servitto, and Kelly; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
Motor Vehicle Exception to Governmental Tort Liability Act
In this unanimous unpublished per curiam decision, the Court of Appeals reversed the trial court’s denial of Defendant City of Detroit’s motion for summary disposition, in which the City of Detroit sought dismissal of Plaintiff Nicole Binns’s third-party action against it under the motor vehicle exception to governmental immunity. The Court of Appeals held that the facts did not support application of the doctrine of res ipsa loquitor, and since Binns’s allegation that the City of Detroit’s bus driver was negligent in causing her injuries was based entirely on the doctrine of res ipsa loquitor, summary disposition should have been granted in the City of Detroit’s favor.
Binns was injured when a City of Detroit bus she was traveling on unexpectedly struck something that caused it to lurch upward. The incident caused considerable damage to the bus, but video footage from both inside and outside the bus did not reveal what, specifically, was struck that caused the bus to lurch upward. The bus driver, Howard Pickens, surmised that the cause of the incident was either an uncovered manhole or the dislodged manhole cover in his lane of travel. Binns filed a third-party action against the City of Detroit pursuant to the motor vehicle exception of governmental immunity, and the City of Detroit moved for summary disposition, arguing that Binns failed to present any evidence that Pickens was negligent in his operation of the bus, especially considering the surveillance footage showing him driving at a normal rate of speed at the moment of impact. In response, Binns “argued that negligence could be presumed in light of the inexplicable nature of the occurrence.” The trial court agreed with Binns and denied the City of Detroit’s motion for summary disposition.
The Court of Appeals reversed the trial court’s summary disposition order, observing preliminarily the standard set forth by the Supreme Court in Woodard v Custer, 473 Mich 1 (2005) for determining the applicability of the doctrine of res ipsa loquitor.
“(1) the event must be of a kind which ordinarily does not occur in the absence of someone's negligence;
(2) it must be caused by an agency or instrumentality within the exclusive control of the defendant;
(3) it must not have been due to any voluntary action or contribution on the part of the plaintiff; and
(4) evidence of the true explanation of the event must be more readily accessible to the defendant than to the plaintiff. [Id. (quotation marks and citation omitted).]”
The Court held that the first element was not satisfied because “motor-vehicle crashes—even severe ones—occur with some regularity even in the absence of negligence.” The Court held that the second element was not satisfied because Binns presented no evidence that the event was caused by an object that was in exclusive control of the city. In so holding, the Court noted that the manhole cover could have been dislodged by other vehicles, weather, or individuals not associated with the city.
“The doctrine res ipsa loquitor cannot save plaintiffs’ lawsuit. The event at issue here is a bus hitting something that caused an impact strong enough to crack the bus’s windshields and throw multiple passengers from their seats. Plaintiffs contend that, based on the severity of the damage to the bus and the impact to the passengers, this is the kind of event which ordinarily does not occur in the absence of someone’s negligence. Yet, motor-vehicle crashes—even severe ones—occur with some regularity even in the absence of negligence.
Next, there is no evidence that the event was caused by an object that was in the exclusive control of the City. Plaintiffs assert that the bus was in the exclusive control of the City; however, the event was not caused by the bus. Instead, the event was caused by the bus’s impact with something outside of the bus. As a result, the proper inquiry turns on whether the City had exclusive control over whatever the bus struck. Based on the record, it is unclear what the bus actually hit. The City surmises that the bus hit an open manhole or a manhole cover near the center of the right-hand lane. Plaintiffs claim that the manhole and its cover were in the exclusive control of the City. Although the City possibly had exclusive control of the manhole’s maintenance, it does not follow that the City was the only one to exert control over it. Vehicles traveling on the road may have caused the manhole cover to shift or loosen before the incident at issue in this case. Weather conditions may have done the same. Additionally, as noted by the City, the manhole cover may have been deliberately loosened by individuals not associated with the City in a bid to steal the cover to sell for scrap. Therefore, even if plaintiffs could establish that the bus struck the manhole or the manhole cover, they cannot meet their burden of showing that the manhole and its cover was within the City’s exclusive control.”
The Court held that the third element was satisfied, but that the fourth element was not, because there was “no indication that ‘evidence of the true explanation of the event’ was ‘more readily accessible’ to the City than to [Binns],” considering both parties had access to the surveillance footage and the street where the incident occurred, and considering Binns’ counsel could have sought access to any records related to manhole maintenance from the City during discovery.
“And, although plaintiffs’ can establish the third requirement, there is no indication that ‘evidence of the true explanation of the event’ was ‘more readily accessible’ to the City than to plaintiffs. The surveillance footage from the interior and exterior of the bus was made available to all parties, and both the City and plaintiffs were able to view the street where the incident occurred. Furthermore, to the extent that the City had records relating to the street, the manhole, or the curb, plaintiffs’ lawyer could have sought access to those records during discovery.”
Lastly, the Court of Appeals held that an additional requirement—that there be “some evidence of wrongdoing beyond the mere happening of the event”—also was not satisfied in this case. Pickens was driving at a normal rate of speed and there were no obvious obstructions in the roadway that he negligently failed to properly navigate. He also did not suddenly brake or swerve unnecessarily.
“Finally, plaintiffs have not produced ‘some evidence of wrongdoing beyond the mere happening of the event.’ Pugno, 326 Mich App at 19-20. The surveillance footage shows that before the impact Pickens was driving at a normal rate of speed and that there were no obvious obstructions in the roadway. He did not brake suddenly or swerve. Plaintiffs produced no evidence to counter the evidence that Pickens was not driving negligently and that he was unaware of anything that would have required him to take action to avoid impact with an object, nor have they established wrongdoing beyond the mere happening of the event. Accordingly, plaintiffs have failed to meet their burden to avail themselves of the doctrine of res ipsa loquitor.”