Michigan Court of Appeals; Docket #361061; Unpublished
Judges Patel, Cavanagh, and Redford; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
Gross negligence Exception to Governmental Immunity
Motor Vehicle Exception to Governmental Tort Liability Act
In this 2-1, unpublished, per curiam decision (Patel, concurring in part, dissenting in part), the Court of Appeals reversed the trial court’s denial of Defendant Suburban Mobility Authority for Regional Transportation’s (“SMART”) motion for summary disposition, in which it sought dismissal of Plaintiff Kevin Ong’s automobile negligence action, brought under the motor vehicle exception to governmental immunity. The Court of Appeals held, first, that Ong’s actions were the proximate cause of a crash that occurred when a SMART bus, driven by Cheryl Lewis, crashed into a bucket Ong was standing in and operating, which extended out from a municipal bucket truck and, at the time of the crash, was situated above the SMART bus’s lane of traffic. The Court of Appeals held, second, that Lewis did not have a heightened duty to notice the bucket when there was no evidence to establish that it was perceivable under the circumstances. The Court of Appeals held, third, that Lewis did not commit negligence prior to the crash as a matter of law. And the Court of Appeals held, fourth, that Ong was more than 50% at fault for the crash as a matter of law.
Kevin Ong was taking down Christmas lights for the City of Birmingham on a dark and rainy morning. He and a coworker drove a municipal bucket truck to the area where the lights were to be taken down, and when they arrived, they parked in the southbound lane of traffic. They placed cones behind the truck in the southbound lane of traffic but did not place any cones, signals, or other control devices in or around the northbound lane. Ong then got in the bucket and operated it to the point where it was situated 108 inches above the ground in the northbound lane. Cheryl Lewis happened to be driving a SMART bus down the roadway at the time, but she did not notice the bucket suspended above the roadway, and then crashed into it. Ong proceeded to file a negligence action against SMART pursuant to the motor vehicle exception to governmental immunity, after which SMART moved for summary disposition, arguing that Lewis had no way of seeing the unlit bucket and, in fact, did not see the unlit bucket, and that she could not be deemed negligent as a result. The trial court denied SMART’s motion, finding a question of fact as to whether Lewis was negligent more than 50% at fault for the crash.
The Court of Appeals reversed the trial court’s denial of SMART’s motion, holding, first, that Lewis was not the proximate cause of the crash, and that Lewis did not have heightened duty to look out for the bucket when there was no evidence to suggest that it was perceivable to her. The Court noted that the crash occurred on a rainy and dark morning and that Ong had not set up any sort of traffic signals or lights in the immediate vicinity of where he was working to indicate that he was going to be suspended above the northbound lane. The Court also noted that the dash cam footage from the bus did not show the bucket as Lewis approached.
As for Ong’s argument that Lewis had a heightened duty to look out for the bucket based on various things identified by Ong’s expert witness-—an orange traffic sign “a considerable distance before [Ong’s] work zone;” the shadow of the bucket cast across the curb; and Ong’s reflective clothing—the Court was not persuaded, finding Ong’s expert’s testimony to be the product of speculation.
“We conclude that a driver of a bus or commercial vehicle under the circumstances presented in this case should not be held to have had a duty to recognize and respond to such an unexpected hazard. Further, Lewis’s conduct cannot be held to be the proximate cause of the accident. Plaintiff did not address these essential elements of his prima facie case when challenged by defendants in their motion for summary disposition. Instead, plaintiff relied upon his expert’s speculation. The record indicates that the trial court also did not address and decide the critical legal questions of duty and proximate cause. The trial court did not articulate any legal analysis and it is unclear from the record what issues of fact existed that it considered genuine and material that necessitated denial of defendants’ motion.”
Lewis obviously had the duty to operate the bus as a reasonable bus driver would in like circumstances. The circumstances in this case, however, presented an extraordinary situation. The record reflects that, during the early morning while yet dark and raining, Lewis drove the bus in an ordinary manner, below the posted speed limit, northbound on Old Woodward Avenue. She approached an area that had no warning cones, other traffic devices, or a worker in her lane providing warning or otherwise indicating workers present, nor any warning of an intrusion by a worker or equipment into her traffic lane. The record indicates that, sometime before Lewis’s arrival, plaintiff and Dix had parked the bucket truck on the other side of the median island in the southbound lane. The bus video indicates that the bucket truck did not have its main headlights on but did have on smaller yellow lights mounted above the main headlights and some flashing lights activated that were mounted higher on a steel frame. Those lights indicated the bucket truck’s presence in the southbound lane. Plaintiff and Dix had placed cones beside and behind the truck in the southbound lane to warn and direct southbound traffic around the parked bucket truck. The bus video also indicates that Lewis maintained eye contact and attention to the northbound lane and proceeded to the area of the incident to the point of impact focused on the roadway ahead. The video reveals that at impact, Lewis realized that something hit the bus but she did not know what. No evidence in the record indicates that Lewis saw the bucket before impact. No evidence suggests that she acted recklessly or demonstrated a willful disregard of precautions or safety measures or acted with a singular disregard for substantial risks before, during, or after the accident.
The Court of Appeals held, second, that Lewis did not commit negligence as a matter of law. The Court reiterated that Lewis did not have a heightened duty to look out for a bucket that was not reasonably foreseeable and that nothing else about Lewis’s driving at the time could have been considered negligent.
“Because Lewis did not have a duty under the circumstances, she cannot be held liable for negligence, and correspondingly, SMART is entitled to governmental immunity. The trial court’s denial of summary disposition for SMART, therefore, must be reversed because (1) plaintiff failed and cannot demonstrate that Lewis had a duty to see, perceive, and react to the presence of the overhead aerial bucket protruding into her lane, and (2) plaintiff failed and cannot prove that Lewis’s conduct constituted the proximate cause of plaintiff’s injuries. Plaintiff, therefore, failed and could not establish a prima facie case of negligence against Lewis. Accordingly, SMART is entitled to governmental immunity and the dismissal of plaintiff’s claims against it.”
Lastly, based on the evidence, the Court of Appeals held that there was no question of fact that Ong was more than 50% at fault for the crash. The Court attributed to Ong an “extraordinary willful disregard for his own safety” and wrote that Lewis’s “degree of fault paled in comparison”—if, in fact, she had any degree of fault.
“In this case, even if Lewis had a duty to not only look out for pedestrians and other motor vehicles but also to look up from the roadway into the trees or airspace to ascertain whether a bucket truck operator failed to yield the right-of-way and positioned a bucket into the path of oncoming traffic, and she acted negligently by not doing so, the undisputed facts establish that her degree of fault paled in comparison to plaintiff’s extraordinary willful disregard for his own safety. Plaintiff did nothing to warn oncoming traffic, had sole control of the aerial bucket, positioned it above and protruding into the northbound traffic lane, failed to pay attention to oncoming traffic, failed to maintain adequate clearance, and failed to take any action to avoid the accident. Plaintiff indisputably breached the applicable standard of care and his conduct constituted the proximate cause of his injuries. No reasonable jury could find Lewis more at fault than plaintiff. Plaintiff clearly was more than 50% at fault for the accident. The trial court, therefore, erred by not granting defendants summary disposition under MCL 500.3135(2)(b).”
Judge Patel concurred with the majority’s cursory holding that Lewis was not grossly negligence as a matter of law, but dissented from the majority’s holding that there was no question of fact regarding Lewis’s comparative negligence. Judge Patel argued (1) that the majority “overstepped our reviewing authority by rejecting the testimony of [Ong’s] unchallenged expert in favor of defendants’ experts,” (2) that the majority erred by requiring Ong to establish that Lewis’s conduct was ‘the’ proximate cause of his injuries, and (3) that there was sufficient evidence to create a question of fact as to whether Lewis was more than 50% at-fault for the crash.