Seldon v. Suburban Mobility Auth. for Reg'l Transp.

• Decision Date: 31 July 2012
• Docket Number: Docket No. 295748.
• Citation: 297 Mich.App. 427,824 N.W.2d 318
• Parties: SELDON v. SUBURBAN MOBILITY AUTHORITY FOR REGIONAL TRANSPORTATION.
• Court: Court of Appeal of Michigan — District of US

297 Mich.App. 427

824 N.W.2d 318

SELDON

v.SUBURBAN MOBILITY AUTHORITY FOR REGIONAL TRANSPORTATION.

Docket No. 295748.

Court of Appeals of Michigan.

Submitted Jan. 4, 2012, at Detroit.

Decided June 26, 2012.

Approved for publication July 31, 2012, at 9:10 a.m.

Moss & Colella, P.C. (by A. Vince Colella, Southfield, and Laura R. Dierwa), for plaintiff.

Vandeveer Garzia, P.C., Troy (by Christian E. Hildebrandt and John J. Lynch), for defendant.

Before: DONOFRIO, P.J., and STEPHENS and RONAYNE KRAUSE, JJ.

DONOFRIO, P.J.

Defendant Suburban Mobility Authority for Regional Transportation (SMART) appeals as of right the trial court's order denying in part its motion for summary disposition with respect to its claims of governmental immunity. Plaintiff cross-appeals the same order to the extent that the court granted summary disposition for defendant Queen Perry and partially granted summary disposition for SMART. We hold that because SMART had no duty to secure plaintiff in her wheelchair or inform her of the availability of a shoulder restraint, the failure to inform plaintiff did not constitute the operation of a motor vehicle under MCL 691.1405, which states the motor vehicle exception to governmental immunity. Because plaintiff failed to establisha justiciable question of fact regarding whether Perry operated the bus negligently or acted with gross negligence, we affirm the grant of summary disposition in favor of Perry and the partial summary disposition in favor of SMART and reverse the partial denial of SMART's motion for summary disposition.

Plaintiff instituted this action because of injuries that she sustained in January 2008 while riding on a SMART bus driven by defendant Perry. Plaintiff was ejected from her wheelchair and sustained bilateral ankle fractures when Perry applied the brakes to stop at a yellow traffic signal light. Plaintiff alleged claims of negligence and gross negligence against SMART and Perry. The trial court denied summary disposition for SMART with regard to its claims of governmental immunity and granted summary disposition for Perry on plaintiff's gross negligence claim. SMART now appeals and plaintiff cross-appeals the trial court's decisions.

I. DUTY TO ADVISE

SMART first argues that the trial court erred by denying its motion for summary disposition on the basis that it owed plaintiff a duty to advise her of the availability of a shoulder restraint. We review de novo a trial court's decision on a motion for summary disposition. Robertson v. Blue Water Oil Co., 268 Mich.App. 588, 592, 708 N.W.2d 749 (2005). Summary disposition under MCR 2.116(C)(7) is appropriate when a claim is barred by immunity granted by law. Fane v. Detroit Library Comm., 465 Mich. 68, 74, 631 N.W.2d 678 (2001). In reviewing a ruling pursuant to subrule (C)(7), “[w]e consider all documentary evidence submitted by the parties, accepting as true the contents of the complaint unless affidavits or other appropriate documents specificallycontradict them.” Fane, 465 Mich. at 74, 631 N.W.2d 678. The applicability of governmental immunity is a question of law that is also reviewed de novo. Herman v. Detroit, 261 Mich.App. 141, 143, 680 N.W.2d 71 (2004).

In order to establish a prima facie negligence claim, a plaintiff must prove four elements: (1) duty, (2) breach of the duty, (3) causation, and (4) damages. Fultz v. Union–Commerce Assoc., 470 Mich. 460, 463, 683 N.W.2d 587 (2004). “The threshold question in a negligence action is whether the defendant owed a duty to the plaintiff.” Id. Whether a duty exists is a question of law for the court to decide. Anderson v. Wiegand, 223 Mich.App. 549, 554, 567 N.W.2d 452 (1997).

SMART had no legal duty to advise plaintiff of the availability of a shoulder restraint. Regulations promulgated by the United States Department of Transportation (DOT) to effectuate the purpose of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., prohibit a transit operator from requiring passengers in wheelchairs to use seat belts or shoulder restraints unless the operator requires the same of all passengers. 49 C.F.R. § 37.1; 49 C.F.R. § 37.5. Because SMART buses are not equipped with such devices for all passengers, SMART could not have legally required plaintiff to use a shoulder restraint. Requiring operators to inform passengers in wheelchairs of the availability of seat belts or shoulder restraints, in light of the unavailability of such devices for passengers not using wheelchairs, would impose a different duty on operators depending on whether a passenger is able-bodied or wheelchair-bound and runs contrary to the tenet that disabled passengers are to be treated the same as able-bodied passengers.

Further, while appendix D, subpart G, § 37.165 to 49 C.F.R., part 37 states that an “entity's personnel have an obligation to ensure that a passenger with a disability is able to take advantage of the accessibility and safety features” on a vehicle, this obligation requires only that drivers or other personnel provide assistance with lifts, ramps, and devices to secure a wheelchair. No regulation requires a transit operator to advise a passenger in a wheelchair of the availability of a seat belt or shoulder restraint. Likewise, SMART's internal policy did not require defendant Perry, the bus driver, to advise plaintiff that a shoulder restraint was available. Accordingly, SMART owed no duty to advise plaintiff of the availability of a shoulder restraint, and the trial court erred by concluding otherwise.¹

II. OPERATION OF A MOTOR VEHICLE

SMART next argues that even if it owed plaintiff a duty to inform her that a shoulder restraint was available, the failure to do so did not constitute the “operation” of a motor vehicle within the meaning of MCL 691.1405, which states the motor vehicle exception to governmental immunity. MCL 691.1405 provides that “[g]overnmental agencies shall be liable for bodily injury ... resulting from the negligent operation ... of a motor vehicle[.]” In Chandler v. Muskegon Co., 467 Mich. 315, 321, 652 N.W.2d 224 (2002), our Supreme Court interpreted the phrase “operation of a motor vehicle” to “encompass[ ] activities that are directly associated with the driving of a motor vehicle.” In Martin v. Rapid Inter–Urban Partnership, 480 Mich. 936, 740 N.W.2d 657 (2007), the Court held, in an order, that “[t]he loading and unloading of passengers is an action within the ‘operation’ of a shuttle bus.” In that case, the plaintiff was injured when she slipped and fell on the bus steps as she was attempting to get out of the vehicle. Id.

Here, even if SMART owed plaintiff a duty to inform her of the availability of a shoulder restraint, the failure to so advise her did not implicate MCL 691.1405. Although the loading and unloading of passengers is an activity within the operation of a motor vehicle, the failure to inform plaintiff that a shoulder restraint was available, without more, did not constitute the “operation” of the motor vehicle. Notably, plaintiff's wheelchair was loaded onto the bus and secured without incident, and plaintiff was not injured during the loading or unloading process. Thus, the motor vehicle exception to governmental immunity was inapplicable, and the trial court erred by denying SMART's motion for summary disposition based on governmental immunity.

III. SUDDEN STOPPING

SMART next argues that even if the motor vehicle exception to governmental immunity was applicable, the trial court erred by determining that plaintiff established a question of fact regarding whether Perry's sudden stopping of the bus was negligence or was part of the normal incidents of travel. Before addressing the merits of this argument, we first address plaintiff's claim that this Court lacks jurisdiction to decide this issue.

Plaintiff argues that this issue, pertaining to whether plaintiff has presented sufficient evidence to establish a jury question regarding negligence, is not appealable as of right pursuant to MCR 7.203(A) and MCR 7.202(6)(a)(v). Those provisions state that this Court has jurisdiction to decide an appeal of right from an order denying governmental immunity under MCR 2.116(C)(7) or “denying a motion for summary disposition under MCR 2.116(C)(10) based on a claim of governmental immunity,” but the appeal is limited to “the portion of the order with respect to which there is an appeal of right.” MCR 7.203(A)(1). In Walsh v. Taylor, 263 Mich.App. 618, 625, 689 N.W.2d 506 (2004), this Court interpreted the provisions and opined that “regardless of the specific basis of the trial court's ruling on a motion for summary disposition, whenever the effect is to deny a defendant's claim of immunity, the trial court's decision is, in fact, ‘an order denying governmental immunity,’ ” and is reviewable under MCR 7.203(A) and MCR 7.202(6)(a)(v). Here, the trial court determined that plaintiff established a question of fact regarding whether the sudden stopping of the bus was negligence or was within the normal incidents of travel. Pursuant to MCL 691.1405, SMART was liable only if plaintiff's injuries resulted from “the negligent operation” of a motor vehicle. Otherwise, SMART was immune from liability. Because the effect of the trial court's ruling was to deny SMART's claim of immunity, we have jurisdiction to address this issue pursuant to MCR 7.203(A) and MCR 7.202(6)(a)(v).

A motion pursuant to MCR 2.116(C)(10) “tests the factual support of a plaintiff's claim.” Spiek v. Dep't of Transp., 456 Mich. 331, 337, 572 N.W.2d 201 (1998). In reviewing a motion under subrule (C)(10), we consider “the pleadings, admissions, affidavits, and other relevant documentary evidence of record in the light most favorable to the nonmoving party to determine whether any genuine issue of material fact exists to warrant a trial.” Walsh, 263 Mich.App. at 621, 689 N.W.2d 506.

The trial court erroneously determined that plaintiff presented evidence establishing a...