Susan Mickels v. Smart

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

SUSAN MICKELS, UNPUBLISHED

February 4, 2020

Plaintiff-Appellee,

v No. 344977

Wayne Circuit Court

SUBURBAN MOBILITY FOR REGIONAL LC No. 16-013725-NI

TRANSPORTATION, also known as SMART,

Defendant-Appellant,

and

D. MACRO CONTRACTORS, INC.,

Defendant/Cross-Defendant,

and

CB ASPHALT MAINTENANCE, LLC,

Defendant,

and

POCO, INC.,

Defendant/Cross-Plaintiff.

Before: FORT HOOD, P.J., and SERVITTO and BOONSTRA, JJ.

PER CURIAM.

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In this third-party no-fault action, defendant-appellant, Suburban Mobility Authority for

Regional Transportation (SMART),1 appeals as of right the trial court’s order denying its motion

for summary disposition. We affirm.

On September 16, 2016, plaintiff was traveling home from work on a SMART bus when

the bus hit a bump in a construction zone, causing plaintiff to fly out of her seat and sustain

injuries. Plaintiff brought suit contending that the bus driver negligently drove through the

construction zone at an excessive speed. SMART contended in its motion for summary

disposition that plaintiff’s injury was the result of a “usual incident of travel,” and accordingly,

SMART was entitled to dismissal of the claim pursuant to MCR 2.116(C)(7) (governmental

immunity) and MCR 2.116(C)(10) (no genuine issues of material fact). The trial court denied

SMART’s motion, and SMART now appeals that denial. SMART primarily argues that the trial

court misunderstood and misapplied the “usual incidents of travel” doctrine. We disagree.

“The trial court’s ruling on a motion for summary disposition is reviewed de novo on

appeal.” ZCD Transp, Inc v State Farm Mut Auto Ins Co, 299 Mich App 336, 339; 830 NW2d

428 (2012), citing Moser v Detroit, 284 Mich App 536, 538; 772 NW2d 823 (2009). “The

applicability of governmental immunity is a question of law that is also reviewed de novo.”

Seldon v Suburban Mobility Auth for Regional Transp, 296 Mich App 427, 433; 824 NW2d 318

(2012), citing Herman v Detroit, 261 Mich App 141, 143; 680 NW2d 71 (2004). Statutory

exceptions to governmental immunity are to be narrowly construed. Maskery v Bd of Regents of

Univ of Mich, 468 Mich 609, 614; 664 NW2d 165 (2003).

As a preliminary matter, the parties do not dispute that, as a transportation authority that

engages in the exercise and discharge of governmental functions, SMART is subject to the

governmental liability for negligence act, MCL 691.1401 et seq. MCL 691.1407 provides, in

pertinent part: “Except as otherwise provided in this act, a governmental agency is immune from

tort liability if the governmental agency is engaged in the exercise or discharge of a

governmental function . . . .” MCL 691.1407(1). The issue in this case is whether a statutory

exception to governmental immunity applies. See Mack, 467 Mich at 204-205 (explaining that,

where governmental immunity applies, a plaintiff’s claim is barred unless it falls within one of

the statutory exceptions to immunity). One such exception can be found in MCL 691.1405,

which provides governmental liability for the negligent operation of motor vehicles:

“Governmental agencies shall be 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.

In Chandler v Muskegon Co, 467 Mich 315, 321; 652 NW2d 224 (2002), our Supreme

Court held that “operation” within the context of MCL 691.1405 encompasses “activities that are

directly associated with the driving of a motor vehicle.” Our Supreme Court has further held

that, while engaged in the act of transporting passengers, a carrier has a “duty to exercise such

1

D. Macro Contractors, Inc., CB Asphalt Maintenance, LLC, and Poco, Inc., were also named as

defendants in this case, but were dismissed from the case and are not parties to this appeal.

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diligence as would be exercised in the circumstances by a reasonably prudent carrier.” Frederick

v Detroit, 370 Mich 425, 437; 121 NW2d 918 (1963). “It then becomes the function of the jury

to determine from the evidence what action, if any, should have been taken or omitted in order to

measure up to the standard of a reasonably prudent carrier in the same circumstances.” Id.

However, “[w]hile a carrier may be held liable if a passenger is injured because a jerk or jolt of

its vehicle was unnecessarily sudden or violent, ordinarily sudden jerks or jolts in stopping to let

off and take on passengers are among the usual incidents of travel which the passenger must

reasonably anticipate.” Getz v Detroit, 372 Mich 98, 101-102; 125 NW2d 275 (1963) (quotation

marks and citation omitted). In keeping with the concept of “usual incidents of travel,” we more

recently noted that, “absent evidence of other negligence pertaining to the operation of a bus, a

plaintiff bus passenger may not recover for injuries sustained when the bus suddenly stopped

because such stops are normal incidents of travel.” Seldon, 297 Mich App at 437.

On appeal, SMART relies upon a number of cases that purport to apply the usual

incidents of travel doctrine, none of which are similar to the case at hand. In Getz, as noted

above, our Supreme Court held that “ordinarily sudden jerks or jolts in stopping to let off and

take on passengers are among the usual incidents of travel which [bus] passenger[s] must

reasonably anticipate.” Getz, 372 Mich at 101-102. In that case, the plaintiff boarded a bus, and

as the bus driver stepped on the gas, the plaintiff fell and was injured. Id. at 99. In Bogart v

Detroit, 252 Mich 534, 535; 233 NW 406 (1930), the plaintiff was thrown to the floor of an

electric streetcar when it came to a stop as he was moving toward an exit. Similarly, in Zawicky

v Flint Trolley Coach Co, Inc, 288 Mich 655, 657; 286 NW 115 (1939), the plaintiff was thrown

down after she signaled for a bus to stop so she could exit and it came to a “sudden stop.” In

Sherman v Flint Trolley Coach, 304 Mich 404, 406; 8 NW2d 115 (1943), the plaintiff was

injured when a bus stopped to pick up another passenger. In Russ v Detroit, 333 Mich 505, 506;

53 NW2d 353 (1952), the plaintiff was injured while moving toward the back of a bus when the

bus “came to a sudden stop.” In all of these cases, our Supreme Court applied the same logic

that was articulated in Getz: absent additional evidence of negligence, the mere sudden stopping

or starting of a bus is not sufficient to establish negligence because such sudden stops and starts

are “among the usual incidents of travel which [bus] passenger[s] must reasonably anticipate.”

Getz, 372 Mich at 101-102 (quotation marks and citation omitted). In this case, plaintiff has not

alleged that the SMART bus suddenly stopped or started; plaintiff alleges that the bus driver was

negligent for driving too quickly through a construction zone.

Plaintiff heavily relies upon Seldon, wherein this Court gave reference to the usual

incidents of travel doctrine after the plaintiff, who was bound to a wheelchair, was injured on a

SMART bus as the bus came to a sudden stop at a yellow light. Id. at 431-432, 437. We noted

that, “[i]t is well settled that, absent evidence of other negligence pertaining to the operation of a

bus, a plaintiff bus passenger may not recover for injuries sustained when the bus suddenly

stopped because such stops are normal incidents of travel.” Id. at 437. We continued:

Here, the record contains no evidence that [the bus driver] operated the bus

negligently. The only evidence of the bus’s speed near the time that plaintiff was

ejected from her wheelchair shows that [the driver] was driving within the 25-

mile-per-hour speed limit. Plaintiff contends that [the driver] operated the bus

negligently because [the driver] failed to anticipate that the green traffic signal

light would change to yellow. This argument is untenable, however, because [the

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driver] did not act negligently by traveling within the speed limit while the traffic

signal light was green. [Id. at 437.]

We held—and SMART strongly relies upon the idea—that “the mere fact that an injury occurred

does not itself indicate that [a driver has] operated a bus negligently.” Id., citing Zawicky, 288

Mich at 659. Again, however, Seldon involves a sudden stop that was a normal incident of

travel; this case does not. Moreover, we disagree with SMART’s assertion that plaintiff relies on

her injury as the only evidence of the bus driver’s negligence.

Unlike the cases relied upon by SMART, the plaintiff in this case alleged that the bus

driver was driving at an unreasonable speed through a construction zone, and that plaintiff was

thrown from her seat and injured as a result. Two additional passengers provided affidavits in

support of that assertion. Additionally, plaintiff’s husband visited the area after the incident, and

later provided an affidavit in which he noted that he believed it was necessary to reduce a

vehicle’s speed to 15 to 20 miles per hour in order to safely traverse the construction area at

issue. Coincidently, the bus driver initially indicated that she was driving at that speed, however,

SMART admits that the bus driver was actually driving substantially faster than that, noting that

a videorecording of the incident shows that the bus was traveling at 33 miles per hour.

Still, SMART contends that the bus driver could not have been driving at an excessive

speed because the posted speed limit was 35 miles per hour. And, we note the statement in

Seldon, wherein we stated that the driver in that case was not negligent for driving under the

posted speed limit, would appear to suggest the same. Seldon, 297 Mich App at 437. However,

as noted above, Seldon did not involve a construction zone or any other unusual circumstance,

and importantly, MCL 257.627, which outlines the obligations of operators of motor vehicles,

makes no reference to posted speed limits. The statute provides:

(1) A person operating a vehicle on a highway[2] shall operate that vehicle at a

careful and prudent speed not greater than nor less than is reasonable and proper,

having due regard to the traffic, surface, and width of the highway and of any

condition existing at the time. A person shall not operate a vehicle upon a

highway at a speed greater than that which will permit a stop within the assured,

clear distance ahead. [MCL 257.627(1).]

Our Supreme Court has specifically held that, “one operating an automobile may be guilty of

negligence even though keeping within the statutory limit, and . . . a driver must have regard for

the situation and operate his car accordingly.” Dempsey v Miles, 342 Mich 185, 192-193; 69

NW2d 135 (1955) (citations omitted). Thus, that the ordinary speed limit of 35 miles per hour

posted in the area was not reduced by the Michigan Department of Transportation (MDOT)

inside the construction zone did not relieve the bus driver of her duty to operate the vehicle at a

2

“ ‘Highway or street’ means the entire width between the boundary lines of every way publicly

maintained when any part thereof is open to the use of the public for purposes of vehicular

travel.” MCL 257.20.

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careful and prudent speed given the surface of the road and other external circumstances. See

MCL 257.627(1).

Video and photographic evidence presented in this case clearly shows that the SMART

bus was traveling on an unpaved portion of the road in the construction zone when plaintiff was

injured, and plaintiff—as well as three affiants—indicates in her testimony that a reasonable

driver would have slowed down while driving through that area. The bus driver herself even

testified at her deposition that she was trained and aware that bus drivers should drive slower

when entering construction zones, and that she was aware of the construction zone at issue.

However, the videorecording of the incident shows that the driver made no such effort to slow

down while entering and exiting the construction zone, even where it is clear from the video that

a noticeable bump in the road was present.

With all of that in mind, and viewing the evidence in a light most favorable to plaintiff,

we agree with the trial court’s conclusion that genuine issues of material fact existed with respect

to whether the bus driver negligently operated the SMART bus in the construction zone.

Specifically, questions of material fact exist as to whether the driver drove at an excessive speed

over the lip in the road, and thus caused something other than an ordinary jerk or jolt associated

with driving a motor vehicle.

SMART briefly argues that the affidavits provided by plaintiff in support of her

allegation that the bus driver was driving unreasonably fast should not have been relied on

because they were based on pure conjecture and speculation, and because they contradicted other

evidence of record. Relatedly, SMART contends that the trial court did not give adequate weight

to the testimony of MDOT employee Keith Williams, Sr., who suggested that 35 miles per hour

was a safe rate of speed in the area. Both arguments are without merit.

First, SMART has misstated the law by asserting that, as a general rule, affidavits are

inadmissible when they contradict other evidence of record. As pointed out in the cases cited by

SMART, a party may not contradict by affidavit their own assertions “after having given

damaging testimony in a deposition.” Dykes v William Beaumont Hosp, 246 Mich App 471,

444-445; 633 NW2d 440 (2001) (quotation marks and citations omitted); Kaufman & Payton PC

v Nikkila, 200 Mich App 250, 254; 503 NW2d 728 (1993). Affidavits that contradict other

evidence are not inadmissible as a bright-line rule. Second, we disagree with SMART’s

assertion that the opinion of plaintiff’s affiants was based on pure conjecture and speculation.

Two of the affiants were on the bus at the time of the incident, and the other spent time driving

through the area after the accident to determine what, to him, constituted a reasonable rate of

speed inside the construction zone. Particularly with respect to the first two affiants, we fail to

understand how, as a general rule, two individuals who were present inside a vehicle at the time

of an incident cannot attest to whether that vehicle was being reasonably operated.

Lastly, we disagree with SMART’s interpretation of Williams’s testimony, and with

SMART’s characterization of the trial court’s factual findings. Williams suggested that a vehicle

traveling under the posted speed limit should have had no problems traveling through the

construction area, but Williams did not categorically testify that it would be safe for any vehicle

to travel through the area at that speed. Even assuming that Williams had testified as SMART

indicates in its brief on appeal—that the bus driver could not have acted negligently because she

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was driving under the speed limit—SMART fails to explain how such testimony would

somehow be less speculative than the assertions of plaintiff’s affiants, who were actually present

for the incident. Moreover, we note that Williams’s deposition testimony could be read to

suggest that a vehicle as heavy as a bus could not have caused passengers to fly out of their

seats—as clearly evidenced by the videorecording—unless the bus was traveling at a high rate of

speed. In any event, SMART has not adequately explained why Williams’s testimony should be

favored over the assertions made by plaintiff or her affiants. Again, at the very least, genuine

issues of material fact exist.

With respect to the the argument provided by the dissent that MCL 257.627(1) does not

apply in this case because the Legislature clearly intended for MCL 257.627(6) to apply in

construction zones,3 and to hold that both subsections could apply to construction zones would

be to render the language in subsection (2)—“except as provided in subsection (1)”—nugatory,

we disagree. First, we believe that the language of subsection (1) is plain and that the subsection

was clearly intended to apply to all persons operating vehicles on highways, and thus, the canon

against surplusage does not apply. See People v Pinkney, 501 Mich 259, 283-284; 912 NW2d

535 (2018) (we do not employ the canon against surplusage where doing so might controvert

otherwise plain statutory language). Second, we believe that a holding that subsection (6) alone

governs this case could lead to absurd results in the future. See McAuley v Gen Motors Corp,

457 Mich 513, 518; 578 NW2d 282 (1998) (“Statutes should be construed so as to prevent

absurd results . . . .”). This would be to say that, irrespective of the conditions of the road—

whether it be inclement weather, road blockages, or any other number of circumstances that are

not accounted for in determining the speed limit—persons operating vehicles in construction

zones are—as a matter of law—always operating their vehicles at a safe speed so long as they

are driving below the posted limit.4 Such a reading would defeat the purpose of subsection (1),

3

MCL 257.627(6) provides, in pertinent part:

A person operating a vehicle on a highway, when entering and passing through a

work zone described in section 79d(a) where a normal lane or part of the lane of

traffic has been closed due to highway construction, maintenance, or surveying

activities, shall not exceed a speed of 45 miles per hour unless a different speed

limit is determined for that work zone by the state transportation department, a

county road commission, or a local authority, based on accepted engineering

practice. The state transportation department, a county road commission, or a

local authority shall post speed limit signs in each work zone described in section

79d(a) that indicate the speed limit in that work zone and shall identify that work

zone with any other traffic control devices necessary to conform to the Michigan

manual of uniform traffic control devices. A person shall not exceed a speed limit

established under this section or a speed limit established under section 628.

4

We also note the dissent’s argument that the Legislature only intended for MCL 257.627(6) to

apply to construction zones because, unlike with inclement weather, governing authorities may

realistically determine “reasonable and proper speeds” in construction zones. This ignores the

fact that, construction zones, by their very nature, are frequently changing. What is a safe and

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which is intended to ensure that every driver is paying adequate attention to conditions outside

their vehicle that might require them to reduce their speed in order to operate their vehicle safely.

And, while we agree that the Legislature may have intended to place a burden on MDOT and

other local regulatory agencies to determine and post safe speed limits in construction zones, we

do not believe the creation of that burden extinguished or lessened the burden on drivers to

operate vehicles carefully and prudently given the conditions of the road.

Affirmed.

/s/ Karen M. Fort Hood

/s/ Deborah A. Servitto

proper speed during one phase of construction may be unsafe during another, which is exactly

why, in our opinion, the Legislature intended for all drivers to be subject to the requirements of

subsection (1).

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