By Lee Dryden
BridgeTower Media Newswires
DETROIT-A Michigan Court of Appeals panel has ruled that governmental immunity applies after an accident involving a state employee.
In Kano v. Jacobson, the panel determined that a reasonable juror could not conclude that the defendant driver's conduct amounted to gross negligence. It reversed the Macomb Circuit Court, which concluded that the defendant's summary-disposition motion was premature and discovery should move forward on the gross-negligence question.
The per curiam unpublished opinion was issued by Judges David H. Sawyer, Mark J. Cavanagh and Deborah A. Servitto.
The case
At the time of the accident, the defendant was an equipment operator for the Michigan Department of Corrections (MDOC) who was required to drive a tractor-trailer to transport items to and from correctional facilities. He was driving to a Lapeer facility when the accident occurred, according to the COA opinion.
The plaintiff and defendant were traveling eastbound on Hall Road in Macomb Township, and both turned onto a turnaround lane to travel westbound. The turnaround was two lanes, and the parties were stopped side by side at a stop sign, waiting to turn left onto Hall Road.
"Plaintiff was in the left turn lane of the two lane turnaround. When defendant accelerated to make the left turn onto westbound Hall Road, the left rear tire of defendant's truck did not clear plaintiff's vehicle and struck the front right wheel of plaintiff's vehicle," the opinion stated.
The plaintiff filed a complaint alleging negligence and gross negligence. The trial court denied the defendant's motion for summary disposition.
COA analysis
The panel agreed with the defendant's argument that the trial court erred in denying his summary-disposition motion because the plaintiff "failed to allege facts to establish gross negligence and no reasonable jury could conclude that defendant's conduct amounted to gross negligence."
The Governmental Tort Liability Act (GTLA) "affords broad immunity from tort liability to governmental agencies and their employees whenever they are engaged in the exercise or discharge of a governmental function." A condition of that immunity is that "the officer's, employee's, member's, or volunteer's conduct does not amount to gross negligence that is the proximate cause of the injury or damage."
Gross negligence is defined by statute as "conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results."
The plaintiff argued that the defendant "breached his duty to control his automobile, to attempt to stop, and to observe the highway or his surroundings when he knew or should have known that his conduct could endanger plaintiff or others."
"To support plaintiff's claim of gross negligence, plaintiff asserted that the foregoing duties were breached with an intentional, willful, or substantial disregard for the inherent risk associated with driving a tractor-trailer," the opinion stated.
The defense argued that the plaintiff failed to present evidence of gross negligence.
"Defendant was driving approximately 5 miles an hour when the collision occurred, the roads were dry, and the weather was clear," the opinion stated. "After the accident, defendant contacted the local police. Plaintiff's vehicle had minor damage, a tow truck was not called, and there were no injuries reported at the scene. Defendant was not given a citation for the accident, and there were no drugs or alcohol suspected from either plaintiff or defendant."
The plaintiff argued that if the defendant did not check his mirror when turning, he failed to abide by requirements of the Commercial Driver's License (CDL) manual. Plaintiff also argued that the defendant might have checked his mirror but "simply did not care if he hit plaintiff's vehicle."
With more discovery, it could be established that defendant's conduct amounted to gross negligence, the plaintiff argued.
The panel stated that establishing that the defendant violated a provision of the Michigan Vehicle Code does not establish gross negligence because "the violation of a statute only creates the rebuttable presumption of negligence."
"Plaintiff merely asserted a brief factual overview of the accident and concluded that the incident amounted to gross negligence," the opinion stated.
The panel added that the plaintiff's reliance on the CDL manual is unfounded as the Michigan Vehicle Code "does not state that the CDL manual contains enforceable rules, the violation of which establish negligence."
"Even if plaintiff could establish through further discovery that defendant failed to look in his mirror, the violation may amount to ordinary negligence, not gross negligence. Furthermore, plaintiff's claim that discovery could establish that defendant did look in his mirror but simply did not care if he hit plaintiff's vehicle is mere speculation," the opinion stated.
"Based on the facts alleged and the evidence presented in the lower court, a reasonable juror could not conclude that defendant's conduct amounted to gross negligence."
Published: Mon, Aug 05, 2019
