Michigan Court of Appeals;Docket #363066; Unpublished
Judges Gleicher, Jansen, and Hood; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEX:
Not Applicable
TOPICAL INDEX:
Gross Negligence Exception to Governmental Immunity
Motor-Vehicle Exception to Governmental Tort Liability Act
SUMMARY:
In this 2-1, unpublished, per curiam decision (Jansen dissenting), the Court of Appeals vacated the trial court’s summary disposition order dismissing Plaintiff Nakisha Wright’s automobile negligence action against Defendants Roderick Hartley and the City of Detroit (“the City”). The Court of Appeals held, first, that there was a question of fact as to whether Hartley, a bus driver for the City of Detroit, acted with gross negligence when he “violently and aggressively” accelerated while Wright was still walking to her seat after boarding the bus. The Court of Appeals held, second, that Wright properly pled a claim against the City of Detroit pursuant to the “motor vehicle exception” to the Governmental Tort Liability Act (GTLA), MCL 691.1401 et seq.
Nakisha Wright, a passenger on a bus owned by the City of Detroit and driven by Roderick Hartley, was injured as a result of what she alleged was a “violent and aggressive” acceleration of the bus by Hartley. Specific details of the incident were set forth in an affidavit Wright executed, which read:
“The bus driver seemed like he was in a desperate rush and seemed very upset too. He then closed the door behind us, and I started walking down the bus to sit down. I took maybe 3-4 steps before the bus had violently and aggressively accelerated in an explosive manner that I had never experienced before. Usually, buses accelerate at a normal pace, this was a powerful and explosive acceleration that I had never seen before. This caused me to begin running down the back of the bus quickly, involuntarily due to the bus’s inertia, where there were two steps of sta[i]rs leading upwards to an upper seating area. I then tripped on these stairs as I couldn’t stop myself from the powerful inertia of the bus, and this caused me to trip and fall in a very forceful manner, and caused significant injuries to my ankles, knees, and shoulder.”
Wright filed suit against both Hartley and the City of Detroit following the incident; her claim against Hartley was for gross negligence and her claims against the City of Detroit were for owner liability and respondeat superior. Both Hartley and the City of Detroit subsequently moved for summary disposition, arguing that Hartley was not negligent as a matter of law because sudden accelerations have been deemed ‘usual incidents of travel’ by the Michigan Supreme Court.
The Court of Appeals vacated the trial court’s summary disposition order, holding, first, that there was a question of fact as to whether Hartley’s alleged, sudden acceleration was grossly negligent. The Court observed that while ‘sudden jerks and jolts . . . are generally accepted as among the usual incidents of travel’ under Michigan law, ‘carriers may be held liable if the jerk is unnecessarily sudden or violent.’ Wright alleged in her affidavit that Hartley’s acceleration was unnecessarily violent and aggressive, and the Court of Appeals found that Hartley’s actions, as alleged by Wright, demonstrated more than a “failure to exercise garden-variety due care,” thus creating a question of fact as to gross negligence.
“We first observe that Wright’s gross negligence claim arises from an allegedly ‘violent[] and aggressive[]’ acceleration rather than a sudden stop.2 That said, Hartley correctly invokes ‘the usual incidents of travel’ doctrine, which has a long history in Michigan law. In Selman v Detroit, 283 Mich 413, 420; 278 NW 112 (1938), the Supreme Court explained that ‘[s]udden jerks and jolts in the movement of railroad trains or street cars are generally accepted as among the usual incidents of travel which every passenger by experience has learned to expect to some extent.’ Not all ‘jerks or jolts’ are ‘usual incidents of travel,’ however. In Selman, the Supreme Court declared that ‘the carrier may be held liable if the jerk or jolt is unnecessarily sudden or violent.’ Id. (emphasis added). The Court continued, ‘And unusually sharp jerks or violent jolting, due to the negligent operation of the car or the negligent failure to properly maintain the track, has been viewed as imposing liability on the carrier for resulting injuries to the passenger.’ Id. See also Anderson v Transdev Servs, Inc, 341 Mich App 501, 511; 991 NW2d 230 (2022) (‘Liability can attach if the jerk or jolt is unnecessarily sudden or violent.’).
Wright’s affidavit describes that Hartley was ‘angry,’ ‘upset,’ ‘in a desperate rush,’ and that he ‘violently and aggressively accelerated in an explosive manner.’ Hartley’s handwritten incident report describes an entirely different scenario. He wrote that that after three passengers boarded the bus (presumably including Wright and Layton), ‘I assumed that the passengers had been seated so I slowly began to pull off. Shortly afterwards I heard noise that came from the back of the coach. It looked as if a lady had fallen . . . .’ Viewing the evidence in the light most favorable to Wright, as we must, the incident report supports a reasonable inference that there was no traffic-related reason for Hartley to have accelerated ‘violently and aggressively,’ but that he did so despite that Wright was still walking down the aisle. Further, based on Wright’s observations of Hartley’s demeanor, the evidence supports that Hartley’s rapid acceleration was willful and not associated with a need to drive in a potentially unsafe manner, such as to avoid another vehicle or some other road hazard.’ . . .
The allegations in Wright’s affidavit arguably justify a gross negligence claim; at a minimum, the evidence radically diverges regarding the nature of Hartley’s acts, and ‘questions regarding whether a governmental employee’s conduct constituted gross negligence are generally questions of fact for the jury[.]’ Wood, 323 Mich App at 424.
As described by Wright and Layton, Wright’s injuries did not arise from Hartley’s failure to exercise garden-variety due care, but rather from his deliberate decision to drive in a reckless manner by ‘violently” and “aggressively’ accelerating without regard to passenger safety, and without a rational need to do so. According to the incident report, Hartley was aware that several passengers had just boarded when he took off from the stop. Because reasonable minds can differ regarding whether Hartley willfully disregarded their safety and disregarded the risk that a passenger might be injured by a sudden and powerful acceleration, the circuit court erred by summarily dismissing Wright’s gross negligence claim.”
The Court of Appeals held, second, that Wright properly pled a viable claim against the City of Detroit pursuant to the “motor vehicle exception” to the GTLA. Although Wright failed to specifically cite to the “motor vehicle exception” to the GTLA in her complaint—her claims against the City were for owner liability and respondeat superior—those claims were still “suffic[ient] to survive scrutiny under MCR 2.116(C)(8)”.
“Count III of the amended complaint asserts a claim for owner liability against the city by stating that Hartley was operating a city bus, and that the city was liable for Wright’s injuries resulting from Hartley’s ‘negligent, careless, and/or reckless operation’ of the vehicle. In Count IV, Wright alleged that the city was liable under a theory of respondeat superior for Hartley’s ‘negligence’ that proximately caused Wright’s injuries. This method of pleading in avoidance of immunity and in accord with MCL 691.1405 is neither artful nor descriptive, but it suffices to survive scrutiny under MCR 2.116(C)(8). We repeat: ‘A motion under MCR 2.116(C)(8) may only be granted when a claim is so clearly unenforceable that no factual development could possibly justify recovery.’ El-Khalil, 504 Mich at 160.”
Judge Jansen dissented, arguing that Wright and her husband’s affidavit should not have been deemed sufficient to create a question of fact as to whether Hartley’s acceleration was unnecessarily sudden or violent.
