Chandler v. Muskegon County

Michigan Supreme Court

Lansing, Michigan 48909

____________________________________________________________________________________________

Chie f Justice Justices

Maura D. Corrigan Michael F. Cavanagh

Opinion

Elizabeth A. Weaver

Marilyn Kelly

Clifford W. Taylor

Robert P. Young, Jr.

Stephen J. Markman

____________________________________________________________________________________________________________________________

FILED OCTOBER 22, 2002

THOMAS CHANDLER,

Plaintiff-Appellee,

v No. 118811

COUNTY OF MUSKEGON,

Defendant-Appellant.

________________________________

PER CURIAM

The issue raised in this appeal is whether the motor

vehicle exception to governmental immunity applies where an

injury occurred while the vehicle was parked in a maintenance

facility for the purpose of cleaning and was not being

operated as a motor vehicle. We hold that the injury did not

result from the negligent “operation” of the vehicle within

the meaning of the motor vehicle exception, codified at MCL

691.1405. Therefore, we reverse the judgment of the Court of

Appeals.

I

On May 21, 1996, plaintiff Chandler and several other

persons, who were performing community service under a

district court order, were assigned to clean Muskegon Area

Transit System (MATS) buses and trolleys at a MATS bus barn.

Frederick Smith, a Muskegon County employee, was supervising

the workers’ cleaning of the interiors of the vehicles. Smith

drove one of the buses into the barn, turned off the engine,

and started to exit through the open bus doors. As he was

doing so, however, the bus doors closed on his neck,

apparently because he had neglected to release the hydraulic

air pressure valve.

The plaintiff had been waiting to clean the bus when he

saw the incident. He attempted to pry open the doors and to

hold them until someone came to reach through the bus window

and release the air valve. Plaintiff injured his shoulder in

the process and brought this action against the county.

II

Defendant moved for summary disposition under

MCR 2.116(C)(7) and (10), asserting that there was no genuine

issue regarding any material fact and that the claim was

barred by governmental immunity under MCL 691.1407(1).1 It

1

Except as otherwise provided in this act, a

governmental agency is immune from tort liability

if the governmental agency is engaged in the

2

contended that the case was not within the motor vehicle

exception to governmental immunity of MCL 619.14052 because

the bus was not in motion and not being used to transport

passengers at the time of plaintiff’s injury. Thus, the

injury did not arise out of “operation” of the bus.

The circuit court granted defendant’s motion for summary

disposition, concluding:

[The] activity of cleaning seats in the bus

does not constitute the “operation” of the bus.

The bus was not being used or employed to clean

anything. The bus was not being used or employed

as an instrument to produce any desired work, nor

was it being used or employed to produce any

desired effect of cleanliness.

The circuit court also said that the cleaning of the bus was

a form of maintenance and that the governmental immunity

statute refers only to negligent “operation,” not to negligent

“operation or maintenance.” Plaintiff appealed.

exercise or discharge of a governmental function.

2

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,

as defined in [the Motor Vehicle Code]

sections 257.1 to 257.923 . . . .

3

III

4

The Court of Appeals reversed.3 The Court discussed a

number of cases from Michigan4 and elsewhere5 and extracted the

principle that a vehicle is in operation “as long as it is

being used or employed in some specific function or to produce

some desired work or effect.” The Court found the facts of

this case to come within this exception, explaining:

Here, bus 440 was being used in a specific

function or to produce some desired effect when

Smith operated the hydraulic doors as a means of

egress, and in anticipation of the workers entering

the bus. Surely, if a bus driver driving a regular

county route failed to release the air pressure and

an exiting passenger was caught in the doors and

injured as a result, as in Sonnenberg, supra, there

would be no question regarding the application of

the motor vehicle exception. The negligent

operation of the hydraulic doors would satisfy the

statutory condition that the plaintiff suffer

“bodily injury . . . resulting from the negligent

operation by any . . . employee of the governmental

agency, of a motor vehicle.” MCL 691.1405.

Defendant’s argument that because the bus was

purchased to transport passengers but had been

parked for cleaning at the time of the incident, it

was not in a state of being at work, or in the

active exercise of some function, or employed to

3

Unpublished opinion per curiam, issued February 23,

2001 (Docket No. 220435).

4

Orlowski v Jackson State Prison, 36 Mich App 113; 193

NW2d 206 (1971), Wells v Dep’t of Corrections, 79 Mich App

166; 261 NW2d 245 (1977), Nolan v Bronson, 185 Mich App 163;

460 NW2d 284 (1990), Kuzinski v Boretti, 182 Mich App 177; 451

NW2d 859 (1989), and North v Kolomyjec, 199 Mich App 724; 502

NW2d 765 (1993).

5

Sonnenberg v Erie Metro Transit Auth, 137 Pa Cmmw 533,

536-537; 586 A2d 1026 (1991), and Swartz v Hilltown Twp

Volunteer Fire Co, 721 A2d 817 (Pa Cmmw, 1998).

5

produce some desired work or effect, must fail.

The statute does not require that the motor vehicle

be involved in any particular activity, only that

the injury result from the negligent operation of

the motor vehicle. Thus, we fail to see why the

exception, which would otherwise be applicable to a

door-closing injury, should become inapplicable

simply because the bus was not on an established

route. Also irrelevant is the fact the ultimate

object was to clean the bus. The doors of the bus

were still being operated for the purpose of

exiting the bus (the desired work or effect), an

integral part of the use of the bus. Similarly,

had Smith backed bus 440 into plaintiff, causing

him injury, presumably all would agree that the

exception would still be applicable, although the

bus had been removed from its regular route to be

cleaned. An employee’s negligent operation would

still be involved. [Slip op at 10-11 (emphasis in

original).]

The defendant has filed an application for leave to

appeal to this Court.

IV

This appeal involves a decision on a motion for summary

disposition. The issue presented is one of statutory

construction. Both are questions that we review de novo.

Hazle v Ford Motor Co, 464 Mich 456, 461; 628 NW2d 515 (2001);

Brown v Michigan Health Care Corp, 463 Mich 368, 374; 617 NW2d

301 (2000). When interpreting statutory language, our

obligation is to ascertain the legislative intent that may

reasonably be inferred from the words expressed in the

statute. Wickens v Oakwood Healthcare System, 465 Mich 53,

60; 631 NW2d 686 (2001).

6

V

The Legislature has not defined “operation” for the

purpose of MCL 691.1405. Where a nontechnical undefined word

is used in a statute, the Legislature has directed that the

term should be “construed and understood according to the

common and approved usage of the language . . . .” MCL 8.3a,

see also Stanton v Battle Creek, 466 Mich 611; 647 NW2d 508

(2002). As might be expected, in undertaking to give meaning

to words this Court has often consulted dictionaries. Horace

v City of Pontiac, 456 Mich 744, 756; 575 NW2d 762 (1998).

The Random House Webster’s College Dictionary (1997) defines

“operation” as “an act or instance, process, or manner of

functioning or operating.” We conclude, in accordance with

this definition and in accordance with the narrow construction

given to the exceptions to governmental immunity,6 that the

language “operation of a motor vehicle” means that the motor

vehicle is being operated as a motor vehicle.7

6

Ross v Consumers Power Co (On Rehearing), 420 Mich 567,

618; 363 NW2d 641 (1984); Nawrocki v Macomb Co Rd Comm, 463

Mich 143, 158-159; 615 NW2d 702 (2000).

7

That it is appropriate to give “operation” a narrower

scope than the more expansive definition utilized by the Court

of Appeals or the dissent is reinforced by the fact that the

Legislature itself, when legislating in the transportation

area, uses the word “operation” in a fashion that mirrors the

common definition cited above. For example, in the automobile

no-fault act the Legislature effectively adhered to a more

limited definition of “operation.” In MCL 550.3105 the

Legislature made benefits payable for injuries arising out of

7

Accordingly, aware that we are considering the dictionary

the “ownership, operation, maintenance or use” of a motor

vehicle. The obvious import of this listing is that the

Legislature clearly intended that ”operation” was distinct

from ownership, maintenance, and use.

Similarly this construction of the term “operation” is

consistent with the use of this term in the automobile owners’

liability act. That act states:

The owner of a motor vehicle is liable for an

injury caused by the negligent operation of the

motor vehicle whether the negligence consists of a

violation of a statute of this state or the

ordinary care standard required by common law. The

owner is not liable unless the motor vehicle is

being driven with his or her express or implied

consent or knowledge. [MCL 257.401(1) (emphasis

added).]

This language makes apparent that the “operation of a motor

vehicle” refers to activities that are directly associated

with the driving of a motor vehicle.

Moreover, MCL 257.625, prohibiting operating a motor

vehicle while under the influence of intoxicating liquor,

applies to “operating” in the sense of driving the vehicle.

People v Wood, 450 Mich 399, 404-405; 538 NW2d 351 (1995)

(Once a person using a motor vehicle as a motor vehicle has

put the vehicle in motion, or in a position posing significant

risk of causing a collision, such a person continues to

operate it until the vehicle is returned to a position posing

no such risk.).

Further, this Court has resolved other disputes

concerning the word “operation” in a fashion harmonious with

the instant case. In the context of a dispute about insurance

coverage, in Pacific Employers Ins Co v Michigan Mut Ins Co,

452 Mich 218, 226; 549 NW2d 872 (1996), we contrasted the term

“use” with the narrower term “operation”:

“Use” is defined more broadly than the mere

carrying of persons and, while it encompasses the

“operation” of the bus, it may also include a range

of activity unrelated to actual driving.

8

definition of the word “operation,” as well as construing a

governmental immunity statute, which we must construe

narrowly, we conclude that the “operation of a motor vehicle”

encompasses activities that are directly associated with the

driving of a motor vehicle.

In light of this, we reject the Court of Appeals and the

dissent’s approach because their construction of “operation”

would construe the term so broadly that it could apply to

virtually any situation imaginable in which a motor vehicle is

involved regardless of the nature of its involvement.

Therefore, we reject this construction as inconsistent with

the principles of interpretation stated above.

VI

In the context of a motor vehicle, the common usage of

the term “operation” refers to the ordinary use of the vehicle

as a motor vehicle, namely, driving the vehicle. In this

case, the injury to plaintiff did not arise from the negligent

operation of the bus as a motor vehicle. The plaintiff was

not injured incident to the vehicle’s operation as a motor

vehicle. Rather, the vehicle was parked in a maintenance

facility for the purpose of maintenance and was not at the

time being operated as a motor vehicle.

VII

Accordingly, we reverse the judgment of the Court of

9

Appeals and reinstate the summary disposition in favor of the

defendant entered by the circuit court.

CORRIGAN , C.J., and CAVANAGH , WEAVER , TAYLOR , YOUNG , and

MARKMAN , JJ., concurred.

10

S T A T E O F M I C H I G A N

SUPREME COURT

THOMAS CHANDLER,

Plaintiff-Appellee,

v No. 118811

COUNTY OF MUSKEGON,

Defendant-Appellant.

___________________________________

KELLY, J. (dissenting).

I respectfully dissent. The majority today restricts the

motor vehicle exception to governmental immunity to instances

involving the "actual driving of a motor vehicle."8 I

disagree.

Operating a motor vehicle requires the performance of

functions some of which are distinct from the act of driving.

At a minimum, the Court should include within its reading of

the statutory exception those functions that are distinct

from, but necessary to and inherent in, driving a motor

vehicle. I would hold that the opening and closing of bus

8

Slip op at 7.

doors to permit the driver to leave the bus is one such

activity. Therefore, I would affirm the Court of Appeals

decision that the motor vehicle exception applies to the

factual occurrences alleged by plaintiff.

THE OPERATION OF THE DOORS OF THE BUS IN THIS CASE WAS

INHERENT IN AND NECESSARY TO DRIVING THE BUS

Although it is true that the motor vehicle exception to

governmental immunity must be narrowly construed,9 the

majority's reading of the term "operation" is unnecessarily

and inappropriately narrow.

The statute in question makes a governmental agency, such

as defendant, liable for its negligent operation of a motor

vehicle it owns.10 In writing it, the Legislature did not

define the term "operation." Confronted with providing a

definition, our Court of Appeals in Orlowski v Jackson State

Prison11 adopted the interpretation of "negligent operation"

accepted by most other jurisdictions. As a consequence, for

over thirty years Michigan courts have followed the rule that

"'negligent operation' may occur even though the vehicle is

standing still as long as it is being used or employed in some

9

Stanton v Battle Creek, 237 Mich App 366; 603 NW2d 285

(1999), aff’d 466 Mich 611 (2002).

10

MCL 691.1405.

11

36 Mich App 113; 193 NW2d 206 (1971).

2

specific function or to produce some desired work or effect."12

This Court did not grant leave to appeal in Orlowski or its

progeny to overturn that precedent. However, today, without

the benefit of full briefing or oral argument, the majority

announced a new rule redefining "negligent operation" to mean

"negligent driving." It does this despite the fact that the

long line of Court of Appeals cases discussed in the thorough

Court of Appeals opinion militates against peremptory action

by this Court.

Today's redefinition of "negligent operation" is

particularly inappropriate as applied to this case. Here,

plaintiff alleged that he was injured as a consequence of the

negligent operation of the hydraulic doors on defendant's bus.

His injury occurred after the driver had parked the bus and

shut off the engine. In order to get out of the bus, the

driver had to open the doors. Without contest, the doors were

an integral part of the bus. Their operation was inherent in

and necessary to the operation of the bus.

Consider the majority's definition of "operation" in a

hypothetical case involving the same bus. Assume that a

passenger was injured because of negligent operation of the

hydraulic doors while the bus was stopped. The bus was not

being "operated" as the majority defines the term, because it

12

Id. at 116, citing Diggins v Theroux, 314 Mass 735; 51

NE2d 425 (1943).

3

was not being "driven." Would the injury be barred by

governmental immunity? If so, what wording in the statute

evidences a legislative intent to define the term so narrowly?

If not, why should the fact that in this case the plaintiff

was not a passenger affect the definition of "operation?"

Recall that the statute does not require that the motor

vehicle be involved in any particular activity. Recall also

that the statute does not include words such as "upon a

highway."

Assume a second hypothetical case involving the same bus,

in which the bus was stopped on a hill, its engine off.

Through the driver's negligent setting of the brakes, it began

to roll, injuring a pedestrian. Would governmental immunity

apply? Could the Legislature have intended that someone thus

injured by the bus would not be entitled to bring suit against

defendant merely because the bus was not being driven?

DECISIONS FROM OTHER JURISDICTIONS FIND OPERATION OF MEANS

OF EGRESS FROM A BUS CONSTITUTES OPERATION OF THE BUS

Other jurisdictions interpreting statutes similar to

Michigan's have held that functions involving entry or

departure from a bus are part of the operation of a motor

vehicle. In Groves v Dayton Pub Sch,13 the Ohio Court of

Appeals held that a bus driver's negligence in helping a

13

132 Ohio App 3d 566; 725 NE2d 734 (1999).

4

handicapped student get out of a bus involved the "operation

of a motor vehicle."14

14

Id. at 569. The Groves court interpreted the Ohio

governmental immunity statute, Ohio Rev Code Ann § 2744.02,

which contains language similar to Michigan's statute:

We start by noting that R.C. § 2744.02(A)(1)

does indeed provide broad immunity to political

subdivisions. It states as follows:

For the purposes of this chapter, the

functions of political subdivisions are hereby

classified as governmental functions and

proprietary functions. Except as provided in

division (B) of this section, a political

subdivision is not liable in damages in a civil

action for injury, death, or loss to person or

property allegedly caused by any act or omission of

the political subdivision or an employee of the

political subdivision in connection with a

governmental or proprietary function.

R.C. § 2744.02(B) contains five exceptions to

the sovereign immunity given to political

subdivisions by R.C. § 2744.02(A)(1). Only one is

pertinent to the present appeal, and it provides as

follows:

. . . [A] political subdivision is liable in

damages in a civil action for injury, death, or

loss to person or property allegedly caused by an

act or omission of the political subdivision or of

any of its employees in connection with a

governmental or proprietary function, as follows:

* * *

(1) Except as otherwise provided in this

division, political subdivisions are liable for

injury, death, or loss to person or property caused

by the negligent operation of any motor vehicle by

their employees upon the public roads when the

employees are engaged within the scope of their

employment and authority.

(continued...)

5

In Groves, the plaintiff suffered a hand injury when the

bus driver failed to secure the plaintiff in her wheelchair

before helping her get off the bus. The defendant claimed

that the bus driver's actions could not constitute "negligent

operation of [a] motor vehicle" for the purpose of the Ohio

exception to governmental immunity.

The Groves Court did not agree. It concluded:

R.C. Chapter 2744 contains no definition of

the term "operation of any motor vehicle." We find

the term capable of encompassing more than the mere

act of driving the vehicle involved. Neither of

the parties to this appeal refer us to any

authority construing the term in question with

regard to a driver assisting a disabled passenger,

and our research in Ohio law has failed to reveal

any cases on point.

* * *

Here, Groves was a passenger on a school bus

equipped to transport children confined to

wheelchairs, which suggests to us that it was

equipped with a ramp with which to lift and lower

the students in their wheelchairs as they boarded

and disembarked from the bus. In addition, Dayton

Public Schools had established rules and

regulations pertaining to the safe boarding,

transportation, and disembarking of handicapped

students that required bus drivers to, inter alia,

14

(...continued)

R.C. § 2744.02(B)(1) goes on to provide three

exceptions which reinstate immunity where the motor

vehicle being operated is a patrol car, fire truck,

or emergency medical vehicle responding to an

emergency call, none of which are applicable to the

present case. Thus, our first inquiry must be

whether Dayton Public Schools' bus driver's conduct

falls within the ambit of "operating a motor

vehicle on the public roads within the scope of his

employment." [Id. at 568-569.]

6

secure passengers in their wheelchairs when

assisting them on or off the school bus. Thus, it

can reasonably be inferred that doing so was part

of the bus driver's duties and an integral part of

his operation of the school bus. Furthermore, we

do not exclude the possibility that the driver's

operation of the ramp itself would be considered

operation of the motor vehicle under the

circumstances of this case. [Id. at 569-570.]

Similarly, in Sonnenberg v Erie Metro Transit Auth,15 the

Commonwealth Court of Pennsylvania held that operating a bus'

doors was integral to operating the bus. In that case, the

doors unexpectedly closed on the plaintiff while she was

getting out of the bus, injuring her. The issue was whether

the operation of the doors could be "operation" of a motor

vehicle under the Pennsylvania statute.16

The Sonnenberg Court held:

The movement of parts of a vehicle, or an

attachment to a vehicle, is sufficient to

constitute "operation." Moreover, the bus driver's

closing of the bus doors is an act normally related

to the "operation" of a bus. . . . We must

15

137 Pa Cmmw 533; 586 A2d 1026 (1991).

16

The relevant statute, 42 Pa Consol Stat § 8542,

provided:

(b) Acts which may impose liability--The

-

following acts by a local agency or any of its

employees may result in the imposition of liability

on a local agency:

(1) Vehicle liability.--The operation of any

-

motor vehicle in the possession or control of the

local agency. As used in this paragraph, "motor

vehicle" means any vehicle which is self propelled

and any attachment thereto, including vehicles

operated by rail, through water or in the air.

7

conclude, therefore, that (the defendant)'s bus was

in "operation" when the bus door struck

Sonnenberg . . . ." [Id. at 537.]

Groves and Sonnenberg use different approaches. However,

both recognize that the functioning of an apparatus that

permits people to enter or depart from a bus should be

considered the "operation" of the vehicle itself.

CONCLUSION

For the reasons stated, I would hold that the stationary

bus was still in operation if, as alleged, the driver operated

the hydraulic doors as a means of egress, thereby injuring

plaintiff. Not only was any operation of the hydraulic doors

an operation of the vehicle, it was inherent in and necessary

to driving the vehicle. Therefore, I would affirm the

decision of the Court of Appeals.

S T A T E O F M I C H I G A N

SUPREME COURT

8

THOMAS CHANDLER,

Plaintiff-Appellee,

v No. 118811

COUNTY OF MUSKEGON,

Defendant-Appellant.

___________________________________

KELLY, J. (dissenting).

I respectfully dissent. The majority today restricts the

motor vehicle exception to governmental immunity to instances

involving the "actual driving of a motor vehicle."17 I

disagree.

Operating a motor vehicle requires the performance of

functions some of which are distinct from the act of driving.

At a minimum, the Court should include within its reading of

the statutory exception those functions that are distinct

from, but necessary to and inherent in, driving a motor

vehicle. I would hold that the opening and closing of bus

17

Slip op at 7.

9

doors to permit the driver to leave the bus is one such

activity. Therefore, I would affirm the Court of Appeals

decision that the motor vehicle exception applies to the

factual occurrences alleged by plaintiff.

THE OPERATION OF THE DOORS OF THE BUS IN THIS CASE WAS

INHERENT IN AND NECESSARY TO DRIVING THE BUS

Although it is true that the motor vehicle exception to

governmental immunity must be narrowly construed,18 the

majority's reading of the term "operation" is unnecessarily

and inappropriately narrow.

The statute in question makes a governmental agency, such

as defendant, liable for its negligent operation of a motor

vehicle it owns.19 In writing it, the Legislature did not

define the term "operation." Confronted with providing a

definition, our Court of Appeals in Orlowski v Jackson State

Prison20 adopted the interpretation of "negligent operation"

accepted by most other jurisdictions. As a consequence, for

over thirty years Michigan courts have followed the rule that

"'negligent operation' may occur even though the vehicle is

standing still as long as it is being used or employed in some

18

Stanton v Battle Creek, 237 Mich App 366; 603 NW2d 285

(1999), aff’d 466 Mich 611 (2002).

19

MCL 691.1405.

20

36 Mich App 113; 193 NW2d 206 (1971).

10

specific function or to produce some desired work or effect."21

This Court did not grant leave to appeal in Orlowski or its

progeny to overturn that precedent. However, today, without

the benefit of full briefing or oral argument, the majority

announced a new rule redefining "negligent operation" to mean

"negligent driving." It does this despite the fact that the

long line of Court of Appeals cases discussed in the thorough

Court of Appeals opinion militates against peremptory action

by this Court.

Today's redefinition of "negligent operation" is

particularly inappropriate as applied to this case. Here,

plaintiff alleged that he was injured as a consequence of the

negligent operation of the hydraulic doors on defendant's bus.

His injury occurred after the driver had parked the bus and

shut off the engine. In order to get out of the bus, the

driver had to open the doors. Without contest, the doors were

an integral part of the bus. Their operation was inherent in

and necessary to the operation of the bus.

Consider the majority's definition of "operation" in a

hypothetical case involving the same bus. Assume that a

passenger was injured because of negligent operation of the

hydraulic doors while the bus was stopped. The bus was not

being "operated" as the majority defines the term, because it

21

Id. at 116, citing Diggins v Theroux, 314 Mass 735; 51

NE2d 425 (1943).

11

was not being "driven." Would the injury be barred by

governmental immunity? If so, what wording in the statute

evidences a legislative intent to define the term so narrowly?

If not, why should the fact that in this case the plaintiff

was not a passenger affect the definition of "operation?"

Recall that the statute does not require that the motor

vehicle be involved in any particular activity. Recall also

that the statute does not include words such as "upon a

highway."

Assume a second hypothetical case involving the same bus,

in which the bus was stopped on a hill, its engine off.

Through the driver's negligent setting of the brakes, it began

to roll, injuring a pedestrian. Would governmental immunity

apply? Could the Legislature have intended that someone thus

injured by the bus would not be entitled to bring suit against

defendant merely because the bus was not being driven?

DECISIONS FROM OTHER JURISDICTIONS FIND OPERATION OF MEANS

OF EGRESS FROM A BUS CONSTITUTES OPERATION OF THE BUS

Other jurisdictions interpreting statutes similar to

Michigan's have held that functions involving entry or

departure from a bus are part of the operation of a motor

vehicle. In Groves v Dayton Pub Sch,22 the Ohio Court of

Appeals held that a bus driver's negligence in helping a

22

132 Ohio App 3d 566; 725 NE2d 734 (1999).

12

handicapped student get out of a bus involved the "operation

of a motor vehicle."23

23

Id. at 569. The Groves court interpreted the Ohio

governmental immunity statute, Ohio Rev Code Ann § 2744.02,

which contains language similar to Michigan's statute:

We start by noting that R.C. § 2744.02(A)(1)

does indeed provide broad immunity to political

subdivisions. It states as follows:

For the purposes of this chapter, the

functions of political subdivisions are hereby

classified as governmental functions and

proprietary functions. Except as provided in

division (B) of this section, a political

subdivision is not liable in damages in a civil

action for injury, death, or loss to person or

property allegedly caused by any act or omission of

the political subdivision or an employee of the

political subdivision in connection with a

governmental or proprietary function.

R.C. § 2744.02(B) contains five exceptions to

the sovereign immunity given to political

subdivisions by R.C. § 2744.02(A)(1). Only one is

pertinent to the present appeal, and it provides as

follows:

. . . [A] political subdivision is liable in

damages in a civil action for injury, death, or

loss to person or property allegedly caused by an

act or omission of the political subdivision or of

any of its employees in connection with a

governmental or proprietary function, as follows:

* * *

(1) Except as otherwise provided in this

division, political subdivisions are liable for

injury, death, or loss to person or property caused

by the negligent operation of any motor vehicle by

their employees upon the public roads when the

employees are engaged within the scope of their

employment and authority.

(continued...)

13

In Groves, the plaintiff suffered a hand injury when the

bus driver failed to secure the plaintiff in her wheelchair

before helping her get off the bus. The defendant claimed

that the bus driver's actions could not constitute "negligent

operation of [a] motor vehicle" for the purpose of the Ohio

exception to governmental immunity.

The Groves Court did not agree. It concluded:

R.C. Chapter 2744 contains no definition of

the term "operation of any motor vehicle." We find

the term capable of encompassing more than the mere

act of driving the vehicle involved. Neither of

the parties to this appeal refer us to any

authority construing the term in question with

regard to a driver assisting a disabled passenger,

and our research in Ohio law has failed to reveal

any cases on point.

* * *

Here, Groves was a passenger on a school bus

equipped to transport children confined to

wheelchairs, which suggests to us that it was

equipped with a ramp with which to lift and lower

the students in their wheelchairs as they boarded

and disembarked from the bus. In addition, Dayton

Public Schools had established rules and

regulations pertaining to the safe boarding,

transportation, and disembarking of handicapped

students that required bus drivers to, inter alia,

23

(...continued)

R.C. § 2744.02(B)(1) goes on to provide three

exceptions which reinstate immunity where the motor

vehicle being operated is a patrol car, fire truck,

or emergency medical vehicle responding to an

emergency call, none of which are applicable to the

present case. Thus, our first inquiry must be

whether Dayton Public Schools' bus driver's conduct

falls within the ambit of "operating a motor

vehicle on the public roads within the scope of his

employment." [Id. at 568-569.]

14

secure passengers in their wheelchairs when

assisting them on or off the school bus. Thus, it

can reasonably be inferred that doing so was part

of the bus driver's duties and an integral part of

his operation of the school bus. Furthermore, we

do not exclude the possibility that the driver's

operation of the ramp itself would be considered

operation of the motor vehicle under the

circumstances of this case. [Id. at 569-570.]

Similarly, in Sonnenberg v Erie Metro Transit Auth,24 the

Commonwealth Court of Pennsylvania held that operating a bus'

doors was integral to operating the bus. In that case, the

doors unexpectedly closed on the plaintiff while she was

getting out of the bus, injuring her. The issue was whether

the operation of the doors could be "operation" of a motor

vehicle under the Pennsylvania statute.25

The Sonnenberg Court held:

The movement of parts of a vehicle, or an

attachment to a vehicle, is sufficient to

constitute "operation." Moreover, the bus driver's

closing of the bus doors is an act normally related

to the "operation" of a bus. . . . We must

24

137 Pa Cmmw 533; 586 A2d 1026 (1991).

25

The relevant statute, 42 Pa Consol Stat § 8542,

provided:

(b) Acts which may impose liability--The

-

following acts by a local agency or any of its

employees may result in the imposition of liability

on a local agency:

(1) Vehicle liability.--The operation of any

-

motor vehicle in the possession or control of the

local agency. As used in this paragraph, "motor

vehicle" means any vehicle which is self propelled

and any attachment thereto, including vehicles

operated by rail, through water or in the air.

15

conclude, therefore, that (the defendant)'s bus was

in "operation" when the bus door struck

Sonnenberg . . . ." [Id. at 537.]

Groves and Sonnenberg use different approaches. However,

both recognize that the functioning of an apparatus that

permits people to enter or depart from a bus should be

considered the "operation" of the vehicle itself.

CONCLUSION

For the reasons stated, I would hold that the stationary

bus was still in operation if, as alleged, the driver operated

the hydraulic doors as a means of egress, thereby injuring

plaintiff. Not only was any operation of the hydraulic doors

an operation of the vehicle, it was inherent in and necessary

to driving the vehicle. Therefore, I would affirm the

decision of the Court of Appeals.

16