Michigan Court of Appeals; Docket #312729; Unpublished
Judges Riordan, Donofrio, and Fort Hood; Unanimous; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 
STATUTORY INDEXING:
Tort Liability for Noneconomic and Economic Loss [§3135]
TOPICAL INDEXING:
Not Applicable
CASE SUMMARY:
In this unanimous unpublished per curiam Opinion involving the alleged negligent operation of a specialty van, the Court of Appeals ruled that plaintiff, a handicapped passenger who was injured when the driver of the van braked to avoid a collision, could pursue a negligence claim against the transportation company that owned the van.
In reaching its conclusion, the Court of Appeals held: 1) plaintiff did not make a binding admission at her deposition that the van’s driver was not at fault in the accident; 2) there was sufficient evidence that the driver was operating the van in a negligent manner to preclude summary disposition; and 3) it was unnecessary to remand the case for a further evidentiary hearing on the serious impairment of body function threshold.
After the accident in which plaintiff was injured, she filed a negligence complaint against defendant, Suburban Mobility Authority for Regional Transportation (SMART), the entity that owned the specialty van in which plaintiff was riding. Defendant moved to dismiss the complaint, asserting there was insufficient evidence for plaintiff to proceed, that governmental immunity precluded the suit, and that plaintiff failed to show that she suffered a serious impairment under MCL 500.3135. The trial court denied defendant’s motion.
In affirming the denial of summary disposition for defendant, the Court of Appeals addressed defendant’s claim that plaintiff made certain admissions during her deposition. The court said:
“Plaintiff’s lay opinion about whether the driver’s conduct could be characterized as ‘wrong’ was not an admission to the legal inquiry of whether the driver breached an applicable legal duty and caused her injuries. … We find no error in the trial court’s conclusion that, when read as a whole, plaintiff’s deposition testimony did not operate as a binding and conclusive admission that eviscerates her negligence claim.”
As for defendant’s assertions that: 1) plaintiff failed to show the driver negligently operated the van, 2) plaintiff had refused to wear a seatbelt, and 3) sudden stops are a “normal” part of travelling, the Court of Appeals said:
“[T]his ignores evidence of the driver’s operation of the specialty van. … [P]laintiff testified that the driver sped up through the 14 Mile/Woodward intersection but did not see a car turning until the last second, so suddenly hit the brakes to avoid collision. She clarified that she did not actually see where the car came from, but that ‘[w]hat made him stop was he was gonna hit the people in the left lane, and he had to stop.’ The driver also admitted that SMART received a complaint from another a driver indicating that while on 14 Mile Road, the driver was attempting to merge left when the SMART bus driver sped up to prevent the driver from merging, even though the driver had nowhere to go because the lane was ending. … Because there was evidence that the driver was operating the specialty van in a negligent manner, the trial court did not err in finding this was not merely a normal incident of travel.”
Regarding the issues of serious impairment of body function and governmental immunity, defendant argued this case should be remanded for an evidentiary hearing pursuant to Hunter v Sisco, 300 Mich App 229 (2013). In Hunter, the appeals court found no genuine issue concerning the serious impairment threshold, but ruled that because defendant had brought its motion under MCR 2.116(C)(7) and (10), the proper remedy was an evidentiary hearing to determine whether plaintiff had suffered a serious impairment within the meaning of §3135.
Distinguishing Hunter from the present case, the Court of Appeals noted that defendant in this case had moved for summary disposition under MCR 2.116(C)(10) — not MCR 2.116(C)(7). The court said:
“Thus, governmental immunity — an issue generally decided before trial — is not implicated. Moreover, in light of the extensive evidence already presented in the lower court on the impairment issue, we are not persuaded that a further evidentiary hearing is warranted in this case.”
Accordingly, the Court of Appeals affirmed denial of summary disposition for defendant.
