Newton v. Michigan State Police

• Decision Date: 13 October 2004
• Docket Number: Docket No. 247482.
• Citation: 688 N.W.2d 94,263 Mich. App. 251
• Parties: Donna NEWTON, Personal Representative of the Estate of John Newton, Deceased, Plaintiff-Appellee, v. MICHIGAN STATE POLICE, Defendant-Appellant, and John Anthony Janicki, Defendant.
• Court: Court of Appeal of Michigan — District of US

688 N.W.2d 94

263 Mich. App. 251

Donna NEWTON, Personal Representative of the Estate of John Newton, Deceased, Plaintiff-Appellee, v. MICHIGAN STATE POLICE, Defendant-Appellant, and John Anthony Janicki, Defendant.

Docket No. 247482.

Court of Appeals of Michigan.

Submitted May 11, 2004, at Detroit.

Decided August 10, 2004, at 9:05 a.m.

Released for Publication October 13, 2004.

Garrett & Stevenson, P.C. (by Jon R. Garrett), Detroit, for the plaintiff.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and James T. Farrell, Assistant Attorney General, for the Department of State Police.

Before: OWENS, P.J., and KELLY and R.S. GRIBBS¹, JJ.

OWENS, P.J.

Defendant Michigan Department of State Police appeals as of right from an order denying its motion for summary disposition.² We affirm.

I. Factual and procedural background

On September 16, 2000, Michigan State Police Trooper John Janicki was responding to a reported breaking and entering in progress when he collided with a vehicle driven by the decedent, John Newton. According to the factual allegations contained in the complaint, and the facts revealed during deposition testimony, Trooper Janicki was driving north on US-31 at a high rate of speed when the decedent pulled out in front of him from a side road. Janicki was unable to avoid the decedent's vehicle and the vehicles collided with resultant severe injuries to the decedent.

In a complaint filed in the Emmett Circuit Court, plaintiff³ alleged that Janicki was grossly negligent in the operation of his patrol car and that, as a proximate result, the decedent suffered severe injuries. Plaintiff also alleged that the vehicle driven by Janicki was owned by the Michigan State Police and that MCL 691.1405 specifically exempted Janicki from governmental immunity. On October 15, 2001, plaintiff filed a complaint against defendant in the Court of Claims; this complaint was virtually identical to the initial complaint filed in Emmet Circuit Court.⁴ Janicki moved for summary disposition, claiming that because he was performing a governmental function, under MCL 691.1407(2)(c), he could only be held personally liable for gross negligence in the operation of his state-owned vehicle, but plaintiff had alleged both that Janicki was grossly negligent and that he was merely negligent in the operation of his vehicle.⁵ Janicki also claimed that plaintiff had failed to allege that Janicki's negligence was "the" proximate cause of the accident. Plaintiff responded that the complaint alleged, and the evidence demonstrated, that Janicki operated his state-owned vehicle in a grossly negligent manner; plaintiff further requested leave to amend the complaint to allege that Janicki's conduct was "the" proximate cause of the accident. The trial court entered an order on February 19, 2002, granting Janicki's motion for summary disposition in part with regard to plaintiff's claim against Janicki for simple negligence. The trial court ruled that plaintiff could file an amended complaint within thirty days to substitute "an appropriate person" for the decedent and also directed plaintiff that any theory of recovery asserted against Janicki must comply with the holding of Robinson v. Detroit, 462 Mich. 439, 613 N.W.2d 307 (2000).

Plaintiff then filed an amended complaint that essentially repeated the allegations of the initial complaint, but that specified that Janicki was "grossly" negligent, that Janicki's grossly negligent conduct was "the" proximate cause of the decedent's injuries and subsequent death, and that, under MCL 691.1405, defendant was exempted from the protection afforded by governmental immunity because of Janicki's gross negligence. Plaintiff subsequently sought, and was granted, permission to file a second amended complaint. The second amended complaint reiterated the allegations that applied to Janicki that were already set out in plaintiff's first amended complaint, but deleted the allegations concerning MCL 691.1405 that applied to defendant because those were covered by the lawsuit plaintiff had filed in the Court of Claims.

On January 30, 2003, defendant and Janicki moved for summary disposition in the consolidated cases. Essentially they argued that plaintiff had not established that Janicki operated his vehicle with either gross or ordinary negligence and therefore he was not individually liable and neither was defendant.

The trial court ruled that, even considering the facts in the light most favorable to plaintiff, it could not find that plaintiff had made a sufficient showing of gross negligence. Therefore, the trial court granted the motions for summary disposition insofar as they claimed that Janicki had been grossly negligent. That essentially ended the case with regard to Janicki because he could only be individually liable if plaintiff could demonstrate that he was grossly negligent.

However, with regard to defendant, the trial court ruled:

Again, I have to take things in the light most favorable to the non-moving party, which is the plaintiff. There is [sic] issues of speed. There is [sic] issues of visibility, issues of timing, where people were looking when, for how long, what was the traffic like. Many factors would come into this and make that determination and on this record I can't say that plaintiff could not prevail. And that's about what I have to find to grant this motion on that issue and I can find that and make that ruling as to gross negligence, but I can't as to simple negligence, so [I] grant it in part and deny it in part.

An order granting summary disposition in part (with regard to Janicki) and denying summary disposition in part (regarding defendant) was entered on March 19, 2003. Defendant filed a claim of appeal from this order and moved for a stay of the trial; this Court issued an order on April 1, 2003, granting the stay. That same day, the trial court issued an opinion and order (it was not entered with the county clerk's office until the next day, April 2, 2003) that denied defendant's motion to stay the trial. This opinion and order reasoned that defendant was not entitled to an automatic stay of proceedings because, in the trial court's view, defendant's motion for summary disposition was not denied on the basis of the governmental immunity claim. Rather, the court stated that it denied summary disposition because

[t]he Defendant, Michigan State Police's request for summary disposition was not based on a legal question of whether the law of governmental immunity bars the suit but instead was an argument that the facts in the case at bar were not sufficient to sustain the claim of negligence thereby entitling it to a grant of summary judgment.

Following this Court's acceptance of defendant's claim of appeal, the trial court entered its own order staying the trial.

II. The jurisdictional issue

In her brief on appeal, plaintiff contests this Court's jurisdiction to hear this appeal as an appeal of right. Plaintiff asserts that the order granting summary disposition in part and denying it in part, from which defendant has claimed an appeal, is not a final order within the meaning of MCR 7.203(A) and MCR 7.202(7)(a)(v). Because the right to an appeal pursuant to these court rules has not been the subject of a previous published decision, we will first discuss the procedural jurisdictional issue and then deal with the substantive issue regarding the denial of the motion for summary disposition with respect to defendant. This issue concerns the interpretation of statutes and court rules, legal issues that are reviewed de novo. McAuley v. Gen. Motors Corp., 457 Mich. 513, 518, 578 N.W.2d 282 (1998).

The Michigan Court Rules indicate the conditions according to which an appeal of right may be taken. MCR 7.203(A) provides in part:

Appeal of Right. The court has jurisdiction of an appeal of right filed by an aggrieved party from the following:

(1) A final judgment or final order of the circuit court or the court of claims, as defined in MCR 7.202(7), except a judgment or order of the circuit court

(a) on appeal from any other court or tribunal;

(b) in a criminal case in which the conviction is based on a plea of guilty or nolo contendere;

An appeal from an order described in MCR 7.202(7)(a)(iii) — (v) is limited to the portion of the order with respect to which there is an appeal of right.

The last sentence of MCR 7.203(A)(1) refers to the June 4, 2002, amendments to MCR 7.202(7)(a), which added to the definition of the terms "final judgment" or "final order." Defendant claims that the order granting and denying summary disposition is a final order pursuant to the following definition in MCR 7.202(7):

"final judgment" or "final order" means"

(a) In a civil case,

* * *

(v) An order denying governmental immunity to a governmental party, including a governmental agency, official, or employee[.]

The plain language of these court rules, interpreted in a common-sense fashion, lead us to conclude that this exception applies only to situations in which the denial of summary disposition is directly based on a finding that the moving party is not entitled to government immunity and not to a situation where, although a claim of governmental immunity has been asserted, the trial court denies a summary disposition motion because the party opposing summary disposition has stated a sufficient factual case to avoid summary disposition — in other words, as in this case, in which the motion is actually disposed of as a MCR 2.116(C)(10) motion rather than a(C)(7) motion.

For example, in this case the trial court's decision was based on its conclusion that there were disputes with respect to several dispositive material facts concerning whether Janicki had driven negligently and that these factual disputes precluded summary disposition; the court's decision did not involve a determination whether defendant was entitled to summary disposition because of...