Michigan Court of Appeals; Docket No. 298216; Unpublished
Judges O’Connell, Murray, and Donofrio; Unanimous; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 
On April 12, 2013, the Supreme Court VACATED the December 13, 2011 judgment of the Court of Appeals and the January 31, 2012 order of the Court of Appeals denying the motion for reconsideration, and REMANDED this case to the Wayne Circuit Court for further proceedings in lieu of granting leave to appeal; Link to Order Link to MSC Summary
STATUTORY INDEXING:
Exception for Unreasonably Parked Vehicles [§3106(1)(a)]
Exception for Permanently Mounted Equipment Use [§3106(1)(b)]
Exception for Loading / Unloading [§3106(1)(b)]
Causal Connection Requirement
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this unanimous unpublished per curiam Opinion, the court held the tailgate on plaintiff’s dump trailer constitutes “equipment” under MCL 500.3106(1)(b), and further that a question of fact existed regarding whether Plaintiff’s injury directly resulted from his physical contact with the tailgate when the injury was actually sustained after the Plaintiff subsequently fell onto a concrete surface.
The Plaintiff in this case backed his trailer up to the edge of the landfill in order to unload contaminated dirt. Doing so required him to walk to the back of the trailer and release the safety latch and then walk back to the front axle to activate the tailgate release. The tailgate did not swing open as it should have, so plaintiff again walked back to the tailgate and attempted to force it open. The tailgate then broke free, causing plaintiff to lose his balance and fall over the edge onto a dirt-covered concrete surface approximately 12 feet below. Consequently, Plaintiff injured his back and filed a claim for first party benefits, which Defendant denied.
Plaintiff then filed suit arguing that the circumstances here fit squarely within the exceptions set forth in § 3106(1)(a) and (b). The trial court agreed with the plaintiff and denied Defendant’s motion for summary disposition. This appeal followed, and the Court of Appeals ultimately affirmed the trial court’s denial after considering the applicability of the parked-vehicle exceptions set forth in 500.3106(1)(a) and (b). However, the Court of Appeals did not agree with all aspects of the trial court’s ruling and only affirmed as to § 3106(1)(b).
As for §3106(1)(a), the Court concluded that “the trial court erred by finding that questions of fact exist regarding whether the trailer was parked in such a fashion as to cause an unreasonable risk of harm and whether plaintiff was injured as a direct result of physical contact with the dirt being dumped from the vehicle.” Relying on Stewart v State of Michigan, 471 Mich 692 (2004), the court explained that “factors such as the manner, location, and fashion in which a vehicle is parked are material to determining whether the parked vehicle poses an unreasonable risk.” The court went on to further explain that generally, the exception set forth in subsection (a) applies to vehicles that impede traffic while parked on roadways. Applying these principles, the court found that this dump trailer “parked adjacent to the landfill” did not present an unreasonable risk of bodily injury, reasoning that:
“The trailer was parked in a manner consistent with the general practice of the landfill, in which trucks are parked with their tires at the edge of a lip at the top of the landfill. This manner of parking was necessary to ensure that the hazardous material being dumped would fall into the landfill and avoid spilling outside the pit. The trailer, while parked at the dump site, did not impede traffic or create any risk related to the trailer’s use as a motor vehicle. Moreover, parking next to the landfill, without more, did not cause a risk of injury. Had the tailgate opened as expected, plaintiff would not have been required to step near the pit and would have been able to dump the contaminated dirt into the pit without incident. The situation became dangerous only when the tailgate stuck, and plaintiff approached the landfill to force it open.”
As for the applicability of subsection §3106(1)(b), the court concluded that a tailgate on a trailer in this circumstance “constitutes equipment within the meaning of subsection (b).” In doing so, the court relied on the cases of Gunsell v Ryan, 236 Mich App 204 (1999) and Miller v Auto-Owners Ins Co, 411 Mich 633 (1981). Specifically, the court explained that in Miller, it was clarified that §3106(1)(b) “recognizes that some parked vehicles may still be operated as motor vehicles, creating a risk of injury from such use as a vehicle. Thus, a parked delivery truck may cause injury in the course of raising or lowering its lift or the door of a parked car, when opened into traffic, may cause an accident. Accidents of this type involve the vehicle as a motor vehicle.” The court then noted that in Gunsell, the Court of Appeals held that “the rear door of a semitrailer constituted internal ‘equipment’ under subsection (b) – unlike bumpers and tailgates which ‘do not constitute ‘equipment’ because they are integral parts of all motor vehicles, and to hold otherwise would allow the exception to swallow the rule.’”
Finding Miller and Gunsell controlling, the court explained that “[s]imilar to the rear door of the semitrailer in Gunsell, plaintiff here was injured while attempting to open the rear tailgate of his dump trailer. Moreover, the Miller Court recognized that the lift of a delivery truck constitutes equipment. Because the facts of this case fall squarely within the circumstances contemplated in Gunsell and Miller, the tailgate on the dump trailer constitutes ‘equipment permanently mounted on the vehicle,’ as stated in subsection (b).”
While Defendant attempted to argue that the tailgate is an integral part of a dump trailer and to allow a tailgate to constitute equipment would allow the exception to swallow the rule, the court noted that such an argument was “misguided.” The court explained that “[b]ecause the exception set forth in subsection (b) further requires that the equipment to be in operation were used when the injury occurred . . . The statutory requirement of ‘use’ or ‘operation’ prevents the exception from swallowing the rule.”
Defendant further argued that subsection (b) should be inapplicable here because the plaintiff’s contact with the tailgate did not directly cause his injury. Rather, it was the landing on the concrete. However, the Court found that whether Plaintiff’s injuries were directly caused by the tailgate was ultimately a question of fact. The court then explained that “to show that an injury directly resulted from physical contact with equipment, a plaintiff must show that the injury had a causal relationship to the motor vehicle that is more than incidental, fortuous, or but for.” Accordingly, the court concluded that “[b]ecause the tailgate constitutes equipment, and plaintiff presented evidence that pushing on it caused his fall, a question of fact exists regarding whether plaintiff’s injuries directly resulted from his pushing on the tailgate,” noting that:
“Here, a trier of fact may similarly find that plaintiff’s injury was a direct result of his physical contact with the tailgate, which caused an abrupt shift in plaintiff’s momentum when it suddenly broke free. Although plaintiff was injured when he landed on the concrete, he also presented evidence that pushing on the tailgate was a cause of his injury, and a question of fact remains regarding which of these factors, independently or in the aggregate, directly resulted in his accidental bodily injury."
Importantly, the Court noted that this question of fact was limited only to whether the tailgate directly caused Plaintiff’s injuries. The Court explained:
“We agree with the defendant that summary disposition was appropriate. Plaintiff failed to present any evidence that his injury was a direct result of physical contact with the dirt that he was unloading. Plaintiff argues that the force of the dirt in the trailer applied pressure to the tailgate, causing it to swing open, which in turn caused is fall. The statutory language, however, requires that plaintiff’s injury occur as a result of physical contact with the property being lifted or lowered from the vehicle, i.e., the contaminated dirt. Plaintiff’s argument therefore fails. See Winter v Auto Club of Michigan, 433 Mich 446, 458-460; 446 NW2d 132 (1989). Because this aspect of subsection (b) is in applicable, summary disposition was appropriate.”
However, after clarifying that Plaintiff need only establish one of the exceptions set forth in § 3106(1) to be eligible for no-fault benefits, the Court of Appeals affirmed the trial court’s denial of Defendant’s Motion for Summary Disposition.
