West v. Dep't of Natural Res.

• Decision Date: 06 August 2020
• Docket Number: No. 348452,348452
• Citation: 963 N.W.2d 602,333 Mich.App. 186
• Parties: Audrey WEST and Randy West, Plaintiffs-Appellees, v. DEPARTMENT OF NATURAL RESOURCES, Andrea Albert, and Steve Butzin, Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

333 Mich.App. 186

963 N.W.2d 602

Audrey WEST and Randy West, Plaintiffs-Appellees,

v.DEPARTMENT OF NATURAL RESOURCES, Andrea Albert, and Steve Butzin, Defendants-Appellants.

No. 348452

Court of Appeals of Michigan.

Submitted July 7, 2020, at Detroit.

Decided August 6, 2020, at 9:00 a.m.

Marko Law, PLLC(by Jonathan R. Marko ) for plaintiffs.

Ann M. Sherman, Deputy Solicitor General, and Andrew J. Jurgensen, Assistant Attorney General, for defendants.

Before: Riordan, P.J., and Shapiro and Ronayne Krause, JJ.

Ronayne Krause, J.

In this personal-injury action, defendants, the Department of Natural Resources(the DNR) and two of its conservation officers, appeal as of right the order of the Court of Claims denying the DNR's motion for summary disposition premised on governmental immunity.The only issue in this appeal is whether the DNR-owned snowmobiles involved in the accident underlying this case met the definition of "motor vehicle" for purposes of the exception to governmental immunity set forth in MCL 691.1405 of the governmental tort liability act, MCL 691.1401 et seq .The trial court ruled that they did and thus denied the motion.For the reasons discussed in this opinion, we affirm.

I.FACTS

Plaintiffs, a father and daughter, were driving a snowmobile on Pinney Bridge Road in Chestonia Township when they allegedly encountered the defendant conservation officers, acting in the course of their employment with the DNR, driving DNR-owned snowmobiles on the same road in the wrong direction.Although defendants primarily attempt to characterize Pinney Bridge Road as a mere snowmobile trail, as opposed to a roadway proper, they also describe it as "an unpaved, country road."Plaintiffs assert that they were forced to swerve off the road.As a result, plaintiffs’ snowmobile crashed, the daughter was thrown into a nearby river, and the father was pinned underneath the snowmobile.

Plaintiffs commenced this action in the Court of Claims, arguing, in relevant part, that under MCL 691.1405, the DNR was liable for plaintiffs’ alleged injuries on the ground that the injuries were caused by motor vehicles owned by the DNR and operated by its employees in the course of their employment.Defendants moved for summary disposition pursuant to MCR 2.116(C)(7), arguing, in relevant part, that snowmobiles are not motor vehicles, so MCL 691.1405 did not defeat the DNR's immunity.

The Court of Claims considered the motion without oral argument, and it issued a written opinion and order denying the DNR's motion for summary disposition.The court analyzed several cases that held that vehicles other than cars or trucks, such as tractors and mowers, constituted "motor vehicles" for purposes of MCL 691.1405.Reasoning that snowmobiles were similar to such conveyances, and noting that the ones in question were being driven on a public roadway by the DNR's employees "to assist them in their duties,"the Court of Claims ruled that the snowmobiles in this case were motor vehicles triggering the exception to governmental immunity under MCL 691.1405.This appeal followed.

II.ANALYSIS

A trial court's decisions on motions for summary disposition and on questions of statutory interpretation are reviewed de novo.SeeMcCahan v. Brennan , 492 Mich. 730, 735-736, 822 N.W.2d 747(2012).So long as issues are brought to the trial court's attention, they are preserved for our review irrespective of whether the trial court rules on—or even recognizes—them.Peterman v. Dep't of Natural Resources , 446 Mich. 177, 183, 521 N.W.2d 499(1994).We may address questions of law when "the facts necessary for [their] resolution have been presented."SeeSteward v. Panek , 251 Mich. App. 546, 554, 652 N.W.2d 232(2002).We note that defendants chose to file a motion for summary disposition in lieu of an answer and before discovery occurred, and thus any insufficiency in the record would make summary disposition at least premature.SeeHoffman v. Warden , 184 Mich. App. 328, 337, 457 N.W.2d 367(1990).

Under MCL 691.1407(1) of the governmental tort liability act, governmental agencies in this state are generally immune from tort liability for actions taken in furtherance of governmental functions."It is well established that governmental immunity is not an affirmative defense, but is instead a characteristic of government."Fairley v. Dep't of Corrections , 497 Mich. 290, 298, 871 N.W.2d 129(2015), citingMack v. Detroit , 467 Mich. 186, 198, 649 N.W.2d 47(2002).It is a plaintiff's burden to plead and prove facts establishing an exception to governmental immunity.Fairley , 497 Mich. at 298, 300, 871 N.W.2d 129;Mack , 467 Mich. at 198, 649 N.W.2d 47."The Legislature has provided six exceptions to this broad grant of immunity, which courts must narrowly construe."Yono v. Dep't of Transp. , 499 Mich. 636, 646, 885 N.W.2d 445(2016)(quotation marks and citation omitted).

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 ...."MCL 691.1405.

MCL 691.1405 does not define "motor vehicle."The Michigan Vehicle Code,MCL 257.1 et seq. , provides a definition of both "owner,"MCL 257.37, and "motor vehicle,"MCL 257.33.However, our Supreme Court has explained that MCL 691.1405 only refers to the Vehicle Code's definition of "owner," and it does not rely on the Vehicle Code's definition of "motor vehicle."Stanton v. Battle Creek , 466 Mich. 611, 616, 647 N.W.2d 508(2002).Reasoning that the rule requiring narrow construction of statutory exceptions to immunity called for "a narrow definition to the undefined term ‘motor vehicle,’ "the Court held that "motor vehicle" for purposes of the motor-vehicle exception is " ‘an automobile, truck, bus, or similar motor-driven conveyance.’ "Id. at 618, 647 N.W.2d 508 quoting Random House Webster's College Dictionary(2001).The Court concluded that forklifts do not meet the definition of "motor vehicle" because a forklift is a piece of industrial equipment not similar to a car, truck, or bus.Id.As our dissenting colleague aptly notes, it has proved difficult to apply the concept of a "similar motor-driven conveyance," but courts may not rely on the easily applied definition in MCL 257.33, so courts have generally considered a proposed motor vehicle's physical characteristics, design and intended use, and actual use.

The Court expanded that analysis in its order in Overall v. Howard , 480 Mich. 896, 738 N.W.2d 760(2007), in which it reversed this Court's unpublished decision holding that a golf cart met the definition of "motor vehicle" and expressly adopted the contrary reasoning of the partial dissent.Supreme Court orders are binding precedent "to the extent they can theoretically be understood, even if doing so requires one to seek out other opinions ...."Woodring v. Phoenix Ins. Co. , 325 Mich. App. 108, 115, 923 N.W.2d 607(2018).Accordingly, the reasoning in the unpublished partial dissent from this Court is now binding precedent, expanding on Stanton ’s "similar motor-driven conveyance" analysis to include consideration of whether the conveyances at issue were designed for operation on or along the roadway:

[T]he vehicles at issue in [other cases applying MCL 691.1405 ] were motor-vehicle-like conveyances that were designed for operation on or alongside the roadway, and each of these conveyances generally resembled an automobile or truck.In contrast, the forklift at issue in Stanton was not similar to an automobile, bus, or truck, and was not designed for operation on or alongside the roadway.[ Overall v. Howard , unpublished per curiam opinion of the Court of Appeals, issued April 26, 2007(Docket No. 274588), 2007 WL 1229447( JANSEN , J., concurring in part and dissenting in part), p. 1.]

The dissent, and thus our Supreme Court, held that a golf cart, like a forklift, is not intended to be operated on or alongside a roadway.Id. at 2.

This Court has held that such conveyances as a Gradall hydraulic excavator, Wesche v. Mecosta Co. Rd. Comm. , 267 Mich. App. 274, 278, 705 N.W.2d 136(2005), aff'd480 Mich. 75, 746 N.W.2d 847(2008), a "broom tractor" and a "tractor mower" performing roadside maintenance, Regan v. Washtenaw Co. Bd. of Co. Rd. Comm'rs (On Remand) , 257 Mich. App. 39, 47-48, 667 N.W.2d 57(2003), and a tractor pulling a wagon with passengers for hayrides, Yoches v. Dearborn , 320 Mich. App. 461, 474, 904 N.W.2d 887(2017), are "motor vehicles" for purposes of MCL 691.1405.In the latter case, this Court rejected the municipal defendant's argument that tractors and hay wagons were most typically found on farms and not roadways, emphasizing that "binding caselaw is quite clear that the ‘primary function’ of a vehicle does not control the analysis...."Yoches , 320 Mich. App. at 474, 904 N.W.2d 887.We note that it is a matter of common, everyday experience in farming and rural communities that tractors are commonly, if perhaps seasonally and not necessarily daily, found on roadways.

There is no dispute that snowmobiles are motor-driven.There is also no contention that snowmobiles are automobiles, trucks, or buses.The question is whether snowmobiles are "similar motor-driven conveyances."Applying the principles outlined earlier, we must consider whether a snowmobile is more like a tractor or an excavator, which would make it a motor vehicle triggering the immunity exception, or more like a golf cart or forklift, which would not.There is no doubt that snowmobiles are physically capable of operating on roads; moreover, they are capable of traveling extended distances like tractors, the excavator at issue in Wesche , and conventional automobiles—and in contrast to much more limited machinery like golf carts and forklifts....