Johnson v. Suburban Mobility Auth. for Reg'l Transp., 359478

• Court: Court of Appeal of Michigan (US)
• Writing for the Court: PER CURIAM
• Parties: SAMONE JOHNSON, Plaintiff-Appellee, v. SUBURBAN MOBILITY AUTHORITY FOR REGIONAL TRANSPORTATION, also known as SMART, Defendant-Appellant, And RONALD PRESSLEY and SHANE WEBSTER, Defendants.
• Docket Number: 359478
• Decision Date: 16 February 2023

SAMONE JOHNSON, Plaintiff-Appellee,
v.
SUBURBAN MOBILITY AUTHORITY FOR REGIONAL TRANSPORTATION, also known as SMART, Defendant-Appellant,

And RONALD PRESSLEY and SHANE WEBSTER, Defendants.

No. 359478

Court of Appeals of Michigan

February 16, 2023

UNPUBLISHED

Wayne Circuit Court LC No. 19-017397-NI

Before: CAVANAGH, P.J., and K. F. KELLY and GARRETT, JJ.

PER CURIAM

In this negligence action implicating the governmental tort liability act (GTLA), defendant Suburban Mobility Authority For Regional Transportation, (SMART), appeals by right the trial court's order denying SMART's motion for summary disposition under MCR 2.116(C)(7) and (C)(10). Finding no errors warranting reversal, we affirm.

I. BASIC FACTS AND PROCEDURAL HISTORY

Plaintiff was a passenger on a SMART bus driven by defendant, Ronald Pressley, during rushhour traffic in Summer 2018. Defendant, Shane Webster, exited a parking garage on Larned Street in Detroit, Michigan while driving a Chevy Cruze. Webster passed Pressley's bus in the left lane and activated his turn signal. Webster believed Pressley saw the turn signal, slowed down, and impliedly offered Webster the chance to change lanes. A video from the bus showed Pressley appeared to notice the turn signal and used his horn. Webster changed lanes in front of the bus, traffic in front of Webster suddenly stopped, Webster slammed on his brakes, and Pressley did the same in a failed attempt to avoid

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hitting the Cruze. Inside the bus, plaintiff flew forward, struck her head, and then was thrown back into her seat. She was taken to the hospital by an ambulance to treat her injuries.

Plaintiff sued SMART, claiming Pressley negligently operated the SMART bus, which caused her injuries. SMART moved for summary disposition under MCR 2.116(C)(7) (governmental immunity) and (C)(10) (no genuine issue of material fact). SMART argued it was entitled to summary disposition because there was no question of fact regarding Pressley's negligence. Plaintiff disagreed, arguing there was a presumption of negligence because Pressley's bus rear ended Webster's Cruze. Plaintiff also asserted SMART's various arguments hoping to escape the presumption and be awarded summary disposition lacked merit. After considering the briefs and oral arguments, the trial court agreed with plaintiff and denied SMART's motion. This appeal followed.

II. STANDARDS OF REVIEW

"This Court reviews de novo questions of law regarding governmental immunity," and "also reviews de novo motions for summary disposition under MCR 2.116(C)(7)." Tellin v Forsyth Twp, 291 Mich.App. 692, 698; 806 N.W.2d 359 (2011). "Under MCR 2.116(C)(7), all well-pleaded allegations must be accepted as true and construed in favor of the nonmoving party, unless contradicted by any affidavits, depositions, admissions, or other documentary evidence submitted by the parties." Cannon Twp v Rockford Pub Sch, 311 Mich.App. 403, 414; 875 N.W.2d 242 (2015) (quotation marks and citation omitted). "If no facts are in dispute, and if reasonable minds could not differ regarding the legal effect of those facts, the question whether the claim is barred is an issue of law for the court." Dextrom v Wexford Co, 287 Mich.App. 406, 429; 789 N.W.2d 211 (2010). "However, if a question of fact exists to the extent that factual development could provide a basis for recovery, dismissal is inappropriate." Id.

"This Court [] reviews de novo decisions on motions for summary disposition brought under MCR 2.116(C)(10)." Pace v Edel-Harrelson, 499 Mich. 1, 5; 878 N.W.2d 784 (2016). A motion for summary disposition under MCR 2.116(C)(10) "tests the factual sufficiency of the complaint . . . ." Joseph v Auto Club Ins Ass'n, 491 Mich. 200, 206; 815 N.W.2d 412 (2012). "In evaluating a motion for summary disposition brought under this subsection, a trial court considers affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion." Maiden v Rozwood, 461 Mich. 109, 120; 597 N.W.2d 817 (1999). Summary disposition is proper where there is no "genuine issue regarding any material fact." Id. "A genuine issue of material fact exists when reasonable minds could differ on an issue after viewing the record in the light most favorable to the nonmoving party." Auto-Owners Ins Co v Campbell-Durocher Group Painting &Gen Contracting, LLC, 322 Mich.App. 218, 224; 911 N.W.2d 493 (2017) (quotation marks and citation omitted). "This Court also reviews de novo issues of statutory interpretation." Smith v Town &Country Props II, Inc, 338 Mich.App. 462, 473; 980 N.W.2d 131 (2021).

III. DISCUSSION

SMART argues it was entitled to immunity from suit under the GTLA because Pressley did not negligently operate the SMART bus. "Under the GTLA, governmental agencies are broadly shielded from tort liability absent an exception." Tyrrell v Univ of Mich, 335 Mich.App. 254, 263; 966 N.W.2d 219 (2020), citing MCL 691.1407(1). "It is well established that governmental immunity is not an affirmative defense, but is instead a characteristic of government." West v Dep't of Nat'l Resources, 333 Mich.App. 186, 191; 963 N.W.2d 602 (2020) (quotation marks and citation omitted). "In order to assert a viable claim

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against a governmental agency, a plaintiff must plead facts establishing that an exception to governmental immunity applies to his or her claim." Wood v City of Detroit, 323 Mich.App. 416, 420; 917 N.W.2d 709 (2018). "One such statutory exception is the so-called motor-vehicle exception, which provides that governmental agencies remain 'liable for bodily injury and property damage resulting from the negligent operation by any officer, agent, or employee of the governmental agency, of a motor vehicle of which the governmental agency is owner ....'" West, 333 Mich.App. at 191, quoting MCL 691.1405.^[1]

The parties agree SMART is a governmental agency, Pressley was its employee, and SMART owned the bus Pressley was driving for purposes of MCL 691.1405. Thus, the only remaining issue is whether there was "negligent operation" of the bus by Pressley. MCL 691.1405. "To establish a prima facie case of negligence, a plaintiff must prove the following elements: (1) the defendant owed the plaintiff a legal duty, (2) the defendant breached the legal duty, (3) the plaintiff suffered damages, and (4) the defendant's breach was a proximate cause of the plaintiff's damages." Nyman v Thomson Reuters Holdings, Inc, 329 Mich.App. 539, 552; 942 N.W.2d 696 (2019) (quotation marks and citation omitted).

SMART first contends it was entitled to summary disposition because the duty sought to be imposed by plaintiff was too great. In a recent decision, we restated the duty existing between common carriers and their passengers:

With respect to common carriers, our Supreme Court in Frederick v Detroit, 370 Mich. 425, 437-438; 121 N.W.2d 918 (1963), clarified some confusion in the law that had existed regarding the duty of care owed by such carriers

Accordingly, when a duty arises as a matter of law between a carrier and its passengers, it is the common law duty of due care and it may be defined simply as the duty to exercise such diligence as would be exercised in the circumstances by a reasonably prudent carrier. It then becomes the function of the jury to determine from the evidence what action, if any, should have been taken or omitted in order to measure up to the standard of a reasonably prudent carrier in the same circumstances. [Anderson v Transdev Servs, Inc, __ Mich.App. __, __; __N.W.2d __ (2022) (Docket No. 356541); slip op at 4.]

Despite the contention from SMART to the contrary, there appears to be no legitimate dispute about the duty owed by SMART and Pressley to plaintiff. Plaintiff, for her part, never claims there is some increased duty she was owed in this case. She believes she was owed the duty of a reasonably prudent common carrier under the circumstances, which is correct. Id. SMART appears to confuse the question of "duty" with that of whether the duty was breached. For example, SMART insists plaintiff alleges that SMART and Pressley had a duty to foresee and preemptively react to Webster's decision to unexpectedly change lanes. Plaintiff makes no such argument. Instead, plaintiff argues a reasonably

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prudent common carrier, presented with the same circumstances as Pressley, would have recognized Webster's approach, observed his turn signal, began braking right away, and avoided the accident. SMART, on the other hand, believes Pressley's actions were reasonable. This is an argument about breach, not duty. Consequently, SMART's argument regarding the duty owed to plaintiff lacks merit. Both parties agree the proper duty is stated in Anderson, Mich.App. at; slip op at 4, as quoted above.

SMART next argues there was no genuine issue of material fact that Pressley did not breach his duty as a reasonably prudent common carrier. SMART focuses on Pressley's alleged compliance with statutes regarding safe driving habits. "When construing a statute, this Court's primary goal is to give effect to the intent of the Legislature. We begin by construing the language of the statute itself. When the language is unambiguous, we give the words their plain meaning and apply the statute as written." Rowland v Washtenaw County Rd Comm'n, 477 Mich. 197, 202; 731 N.W.2d 41 (2007). "We must examine the statute as a whole, reading individual words and phrases in the context of the entire legislative scheme." Ally Fin Inc v State Treasurer, 502 Mich. 484, 493; 918 N.W.2d 662 (2018) (quotation marks and citation omitted). "If the language is clear and unambiguous, the plain meaning of the statute reflects the legislative intent and judicial construction is not permitted." Deruiter v Byron Twp, 325 Mich.App. 275, 283; 926 N.W.2d 268 (2018), rev'd on other grounds 505...