Yono v. Dep't of Transp., Docket No. 308968.

• Decision Date: 23 September 2014
• Docket Number: Docket No. 308968.
• Citation: 858 N.W.2d 128,306 Mich.App. 671
• Parties: YONO v. DEPARTMENT OF TRANSPORTATION (ON REMAND).
• Court: Court of Appeal of Michigan — District of US

306 Mich.App. 671

858 N.W.2d 128

YONO

v.DEPARTMENT OF TRANSPORTATION (ON REMAND).

Docket No. 308968.

Court of Appeals of Michigan.

Submitted April 21, 2014, at Lansing.

Decided Sept. 23, 2014, at 9:05 a.m.

Smith & Johnson, Attorneys, PC, Traverse City (by L. Page Graves), for Helen Yono.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Matthew Schneider, Chief Legal Counsel, and Michael J. Dittenber, Assistant Attorney General, for the Department of Transportation.

Lacey & Jones LLP (by Carson J. Tucker, Farmington Hills) for the Michigan Municipal League and the Michigan Townships Association.

Before: BECKERING, P.J., and BORRELLO and M.J. KELLY, JJ.

ON REMAND

M.J. KELLY, J.

This case returns to us on remand from our Supreme Court to consider two issues: “(1) what standard a court should apply in determining as a matter of law whether a portion of highway was ‘designed for vehicular travel,’ as used in MCL 691.1402(1) ; and (2) whether the plaintiff has pled sufficient facts to create a genuine issue of material fact under this standard.” Yono v. Dep't of Transp., 495 Mich. 982, 983, 843 N.W.2d 923 (2014). In accordance with these instructions, we explain the procedure for evaluating a motion under MCR 2.116(C)(7). We also discuss the minimum requirements for pleading the highway exception to governmental immunity and the nature of the proofs that a governmental entity must establish in order to show that it is entitled to immunity as a matter of law even after a plaintiff has adequately pleaded in avoidance of governmental immunity under the highway exception. After discussing these areas of the law, we examine whether plaintiff, Helen Yono, pleaded in avoidance of governmental immunity and whether defendant, the Department of Transportation, established grounds for dismissing Yono's claim under MCR 2.116(C)(7). For the reasons more fully explained later in this opinion, we conclude the Department failed to properly support its motion under MCR 2.116(C)(7) and, therefore, the trial court did not err when it denied the Department's motion. Accordingly, we again affirm.

I. BASIC FACTS

As we discussed in more detail in our prior opinion, Yono sued the Department after she fell and was injured while walking to her car, which was parked in that portion of M–22 where parking is permitted. See Yono v. Dep't of Transp., 299 Mich.App. 102, 104, 829 N.W.2d 249 (2012). The Department responded by moving for summary disposition under MCR 2.116(C)(7). The Department supported its motion with evidence that purported to show that the area at issue was not in factdesigned for vehicular travel, contrary to Yono's pleadings. It argued that, given this undisputed evidence, it had no obligation under MCL 691.1402(1) to maintain the areas where parking was permitted. Yono, 299 Mich.App. at 104–105, 829 N.W.2d 249. Because it had no duty to maintain those areas, it argued, the trial court had to dismiss Yono's claim as a matter of law. Id. at 105, 829 N.W.2d 249. The trial court disagreed and determined that the undisputed evidence showed that the area where parking was permitted was designed for vehicular travel and, on that basis, denied the Department's motion. Id. at 105–106, 829 N.W.2d 249.

On appeal to this Court, a majority of the panel hearing this case agreed that the Department failed to establish that it was entitled to governmental immunity as a matter of law. Id. at 114, 829 N.W.2d 249. Specifically, after examining the record evidence, the majority concluded that the undisputed evidence showed the portion of M–22 where parking is permitted was designed for regular vehicular travel—even if it was not regularly used as a thoroughfare. Id. at 110–114, 829 N.W.2d 249. Consequently, the majority affirmed the trial court's order denying the Department's motion for summary disposition. Id. at 115, 829 N.W.2d 249. The Department then appealed to our Supreme Court and, in lieu of granting leave to appeal, the Supreme Court remanded the case back to this Court for additional consideration.

We now examine the proper procedure for considering a motion for summary disposition premised on governmental immunity under MCR 2.116(C)(7).

II. GOVERNMENTAL IMMUNITY

A. STANDARDS OF REVIEW

This Court reviews de novo a trial court's decision on a motion for summary disposition. Barnard Mfg. Co., Inc. v. Gates Performance Engineering, Inc.,

285 Mich.App. 362, 369, 775 N.W.2d 618 (2009). This Court also reviews de novo whether the trial court properly interpreted and applied the applicable statutes and court rules. Brecht v. Hendry, 297 Mich.App. 732, 736, 825 N.W.2d 110 (2012).

B. ORDER ON REMAND

Our Supreme Court has ordered us to consider “(1) what standard a court should apply in determining as a matter of law whether a portion of highway was ‘designed for vehicular travel,’ as used in MCL 691.1402(1) ; and (2) whether the plaintiff has pled sufficient facts to create a genuine issue of material fact under this standard.” Yono, 495 Mich. at 983, 843 N.W.2d 923. Although a trial court may consider a party's pleadings when deciding whether there is a genuine issue of material fact, see MCR 2.116(G)(5), the nonmoving party cannot rely on his or her allegations alone when responding to a properly supported motion arguing there is no genuine issue of material fact. See MCR 2.116(G)(4).¹ The nonmoving party simply cannot plead a genuine issue of material fact into existence. Instead, when a moving party presents evidence that he or she is entitled to immunity by law, the nonmoving party cannot rely on his or her allegations to establish a question of fact; the nonmoving party must respond by presenting evidence sufficient to establish, at the very least, that there is a genuine issue of fact as to the existence of immunity. Accordingly, it is unclear what our Supreme Court meant when it ordered us to consider whether Yono “has pled sufficient facts to create a genuine issue of material fact....” Yono, 495 Mich. at 983, 843 N.W.2d 923. It may have meant for this Court to consider solely what evidence is necessary to establish whether “the improved portion of the highway” at issue was “designed for vehicular travel,” MCL 691.1402(1), or it may have meant that this Court should examine the standard applicable to pleading in avoidance of governmental immunity under MCL 691.1402(1). Therefore, in order to ensure that we have considered everything that our Supreme Court has asked of us, we first consider whether Yono properly pleaded in avoidance of governmental immunity. We then examine the evidence that is sufficient to establish that the condition at issue was in the “improved portion of the highway designed for vehicular travel.” MCL 691.1402(1).

C. MOTIONS UNDER MCR 2.116(C)(7)

A trial court properly dismisses a claim under MCR 2.116(C)(7) when, in relevant part, the claim is barred by “immunity granted by law....” The party moving for summary disposition under MCR 2.116(C)(7) may show that he or she is entitled to immunity granted by law in two distinct ways. First, the moving party may show that immunity is apparent on the face of the plaintiff's pleadings. See MCR 2.116(G)(2) (stating that the moving party may, but is not required, to support a motion under MCR 2.116(C)(7) with affidavits, depositions, admissions, or other documentary evidence). In this sense, the motion is similar to one under MCR 2.116(C)(8). See Patterson v. Kleiman, 447 Mich. 429, 434, 526 N.W.2d 879 (1994) (noting that the distinction between a motion under MCR 2.116(C)(7) and one under MCR 2.116(C)(8) is that the movant under MCR 2.116(C)(7) may support his or her motion with documentary evidence that contradicts the allegations in the plaintiff's complaint). In reviewing a motion under MCR 2.116(C)(7) that challenges whether the movant is entitled to immunity on the face of the plaintiff's pleadings, the trial court must accept all well-pleaded allegations as true. Maiden v. Rozwood, 461 Mich. 109, 119, 597 N.W.2d 817 (1999). Similarly, as with a motion under MCR 2.116(C)(8), the court must construe the allegations in the light most favorable to the nonmoving party. Id. If it is evident on the face of the allegations, even when considered in the light most favorable to the nonmoving party and accepting the allegations as true, that the movant is entitled to immunity as a matter of law, the trial court should grant the motion to dismiss under MCR 2.116(C)(7).

In contrast to a motion under MCR 2.116(C)(8), a party moving for summary disposition under MCR 2.116(C)(7) is not limited to challenging the facial validity of the pleadings. See MCR 2.116(G)(5) (providing that, when considering a motion brought under MCR 2.116(C)(8), the trial court may only consider the pleadings); Patterson, 447 Mich. at 434, 526 N.W.2d 879. Rather, the movant may establish that, given the undisputed facts of the case, he or she is entitled to immunity as a matter of law, notwithstanding the plaintiff's allegations. See MCR 2.116(G)(5) ; MCR 2.116(G)(6). Such a challenge is similar to one under MCR 2.116(C)(10). See Dextrom v. Wexford Co., 287 Mich.App. 406, 430–433, 789 N.W.2d 211 (2010). And, as with a motion under MCR 2.116(C)(10), the movant bears the initial burden to show that he or she is entitled to immunity as a matter of law. See Kincaid v. Cardwell, 300 Mich.App. 513, 522, 834 N.W.2d 122 (2013). If the movant properly supports the motion by presenting facts that, if left unrebutted, would show that there is no genuine issue of material fact that the movant has immunity, the burden shifts to the nonmoving party to present evidence that establishes a question of fact as to whether the movant is entitled to immunity as a matter of law. Id. at 537 n. 6, 834 N.W.2d 122. If the trial court determines that there is a question of fact as to whether the movant has immunity, the court must deny the motion. Dextrom, 287 Mich.App. at 431, 789 N.W.2d 211.²

D. PLEADING IN AVOIDANCE OF...