Michigan Court of Appeals rules for City of Detroit after bus injury

By Lee Dryden
BridgeTower Media Newswires
 
DETROIT—A Michigan Court of Appeals panel ruled for the City of Detroit after a plaintiff reported she was injured when she was pulled up by a driver after she fell while boarding a city bus.

In Marks v. City of Detroit, the panel reversed the Wayne County Circuit Court in ruling that although plaintiff Barbara Marks is “entitled to PIP benefits for the injuries related to her fall, she is not entitled to benefits for her arm injury caused by the driver’s acts, as that injury did not arise out of the use of a motor vehicle as a motor vehicle.”

The unpublished per curiam opinion was issued by Judges Douglas B. Shapiro, Elizabeth L. Gleicher, and Brock A. Swartzle. The case was remanded for further proceedings.

The case

Marks testified that she attempted to board the bus by gripping a railing next to the single metal stair leading to the main seating area.

“As she stepped up and onto the stair, her left foot got caught on something. She did not see anything on the step, and does not know what snagged her foot. Marks fell forward, injuring her left knee and both hands,” the opinion stated. “Pressed for more details, Marks declared, ‘I cannot walk you through it. I cannot even entertain what could have possibly happened. I was holding on to the bar and I tried to lift my left leg up and it did not come up with me ... I know I was actually just falling on the bus.’”

The bus driver “grabbed” Marks by her right arm, pulled her to her feet, and “swiveled” her into a nearby seat, according to the opinion. Marks stated her left knee and left leg were injured in the fall, and the driver’s effort to pull her up injured her right arm and shoulder.

The complaint alleged that the city negligently maintained and operated the bus and it bears responsibility for payment of the plaintiff’s PIP and excess work loss benefits. The city moved for partial summary disposition, invoking the Governmental Tort Liability Act.

The plaintiff also alleged that the city was liable for injuries caused by the bus driver, and contended that the city’s bus service constituted a proprietary rather than a governmental function.

In denying the city’s motion, the trial court ruled that the bus system was proprietary because riders were charged a fare, and that injuries sustained in loading and unloading a bus are subject to the motor vehicle exception to governmental immunity.

COA analysis

The appeals court panel reversed, stating that Marks failed to establish that the city was negligent, she didn’t sue the bus driver individually and the city is not liable for his acts, and she presented no evidence in support of her claim for excess economic and noneconomic damages.

The plaintiff failed to raise a question of fact that the “step or the bus were dangerous, defective, or poorly maintained, or that the bus was operated in a negligent manner,” the opinion stated.

As the plaintiff did not sue the driver, her ability to maintain a cause of action arising from his conduct depends on whether the city may be held liable for his actions. The panel determined that the driver’s actions do not fall within the motor vehicle exception to governmental immunity, as he was not operating the bus at the time.

The city’s motion asserted that the plaintiff could not establish an excess wage loss claim as she had not been employed since 2011. The COA panel ruled that the plaintiff failed to present evidence to the contrary.

The panel added that the record does not support that the arm injury resulted from the “transportational” function of the bus. The plaintiff also was unable to identify “any specific piece of equipment that could have caused her fall.”

Attorney comments

Cheryl L. Ronk, senior assistant corporation counsel for the City of Detroit Law Department, said the appeals court decision is important for several reasons.

“First, there appears to be some belief by the plaintiffs’ bar that the City of Detroit simply pays out on claims with little resistance or litigation,” she said. “This case illustrates the resolve of the City of Detroit Law Department to fight, up through the Court of Appeals if necessary, all claims which lack merit.”

“Additionally, and most importantly as to the legal holding itself, the opinion establishes that the City of Detroit transportation system is not a proprietary function thus limiting any lawsuits regarding the transportation system to incidents involving the negligent operation of government-owned vehicles.”

Ronk added that the opinion supports established law that “a claim for negligence must be more than speculative in that there was no viable claim in this case because the plaintiff could not identify the alleged cause of her fall” and “there is no recovery in PIP for incidents that take place on a bus that could have simply taken place in any other setting.”

Plaintiff’s counsel James R. Ekleberry declined to comment on this case.