Opinion
363066
08-10-2023
NAKISHA WRIGHT, Plaintiff-Appellant, v. CITY OF DETROIT and RODERICK HARTLEY, Defendants-Appellees, and THOMAS CARSONHALL, Defendant.
UNPUBLISHED
Wayne Circuit Court LC No. 19-015264-NI
Before: GLEICHER, C.J., and JANSEN and HOOD, JJ.
PER CURIAM.
Plaintiff Nakisha Wright was injured when a Detroit city bus allegedly accelerated "violently and aggressively" moments after she boarded, propelling her into some steps leading to an upper-level seating area. Wright sued the driver, Roderick Hartley, and the city of Detroit. Defendants moved for summary disposition under MCR 2.116(C)(7) and (C)(8), contending that Wright failed to plead and to offer proofs in avoidance of governmental immunity. The circuit court granted summary disposition to both defendants. We vacate and remand for further proceedings.
I. FACTUAL BACKGROUND
Wright and a companion, William Layton, Jr., boarded a Detroit city bus driven by Hartley. Wright's initial complaint misidentified the driver of the bus, and she filed a first amended complaint naming Hartley as a defendant after being provided with his name. The first amended complaint alleges "[t]hat on or about February 10, 2019, [Wright] was involved in a motor vehicle accident with Defendant Rodrick [sic] Hartley," that the city "insured the bus" in which the accident occurred, and that Hartley "operated his vehicle in a careless, negligent, willful and wanton, grossly negligent and/or reckless manner," causing Wright to be "thrown about with great force and violence" and to "suffer[] severe personal injuries."
The first amended complaint states four causes of action: a claim for first-party personal injury protection (PIP) benefits against the city; "negligence" against Hartley; "owner liability" against the city; and respondeat superior against the city. Both defendants moved for summary disposition of all counts, other than the first-party no-fault claim, under MCR 2.116(C)(7) and (C)(8).
In response, Wright's counsel submitted affidavits signed by Wright and Layton fleshing out the circumstances of the accident. Wright's affidavit states in relevant part that after she and Layton "climbed onto the bus," they attempted to pay with cash but the bus driver "[i]mmediately . . . waved us away," telling them, "[D]on't worry about it." Wright's affidavit continues:
The bus driver seemed like he was in a desperate rush and seemed very upset too. He then closed the door behind us, and I started walking down the bus to sit down. I took maybe 3-4 steps before the bus had violently and aggressively accelerated in an explosive manner that I had never experienced before. Usually, buses accelerate at a normal pace, this was a powerful and explosive acceleration that I had never seen before. This caused me to begin running down the back of the bus quickly, involuntarily due to the bus's inertia, where there were two steps of sta[i]rs leading upwards to an upper seating area. I then tripped on these stairs as I couldn't stop myself from the powerful inertia of the bus, and this caused me to trip and fall in a very forceful manner, and caused significant injuries to my ankles, knees, and shoulder.
The affidavit further avers that the bus driver was "in a heightened angry and emotional state," and "very agitated, upset, emotional, and in a desperate rush as I boarded the bus." Layton's affidavit essentially echoes Wright's.
Hartley testified at his deposition that he had no "personal recollection" of Wright's accident and that the incident report he authored did not refresh his recollection. The bus had a video recording system but according to the city no video footage could be located.
The circuit court granted summary disposition to defendants "on the basis of governmental immunity and on the basis that [Wright] has failed to state a cause of action" regarding all counts of the amended complaint other than the first-party no-fault claim. According to the circuit court, "sudden jerks and jolts in the movement of railroad trains or street cars and busses are expected and accepted as among the usual incidents of travel, which every passenger, by experience, has learned to expect to some extent," and do not establish negligence. Further, the court ruled, Wright failed to plead in avoidance of immunity, and "[n]o facts in support of [Hartley's] gross negligence are alleged in the complaint or filed in response to the motion."
Wright now appeals.
II. ANALYSIS
A. GUIDING LEGAL PRINCPLES
The city sought summary disposition motion under MCR 2.116(C)(7), asserting that governmental immunity barred Wright's negligence claim, and MCR 2.116(C)(8), contending that the factual allegations contained in Wright's first amended complaint are legally insufficient to state a claim. We review all challenges to a circuit court's summary disposition decision de novo. Wood v Detroit, 323 Mich.App. 416, 419; 917 N.W.2d 709 (2018). Evaluating a (C)(7) motion requires us to accept the pleaded allegations as true and to construe them in the plaintiff's favor, while additionally considering other admissible evidence including affidavits. Granting summary disposition based on MCR 2.116(C)(8) is only appropriate "when a claim is so clearly unenforceable that no factual development could possibly justify recovery." El-Khalil v Oakwood Healthcare, Inc, 504 Mich. 152, 160; 934 N.W.2d 665 (2019).
The parties agree that both defendants are immune from liability in this tort case under the governmental tort liability act (GTLA), MCL 691.1401 et seq., unless an exception to immunity applies. The parties also concur that the motor vehicle exception to immunity potentially applies to the city. That exception provides: "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 [MCL 257.1 to MCL 257.923]." MCL 691.1405. The parties do not dispute that the city is a governmental agency, that the motor vehicle was owned by the city, and that Hartley was the city's employee. Accordingly, to avoid the city's immunity, Wright must create a jury question regarding whether Hartley negligently operated the bus.
The GTLA provides a separate exception to immunity applicable to Hartley: governmental employees acting within the scope of their authority are generally immune from tort liability except when their actions constitute gross negligence. MCL 691.1407(2)(c); Tarlea v Crabtree, 263 Mich.App. 80, 89; 687 N.W.2d 333 (2004). Hartley's liability therefore hinges on whether his conduct amounted to gross negligence.
Thus, the issues presented here are whether the city bears liability due to Hartley's negligent operation of the bus, and whether Hartley is independently subject to liability under the gross negligence exception.
B. HARTLEY'S LIABILITY
Wright argues that Hartley's gross negligence is demonstrated by the facts that he drove in an angry and agitated state, and accelerated explosively immediately after she boarded and started walking in the direction of the steps. Wright's first amended complaint specifically alleges that Hartley "operated his vehicle in a . . . grossly negligent and/or reckless manner." Hartley's brief on appeal does not challenge the adequacy of Wright's pleading under MCR 2.116(C)(8). Rather, Hartley insists that Wright premised her gross negligence claim on a "sudden stop," and because such stops are "normal incidents of travel on a bus," Wright cannot demonstrate either negligence or gross negligence on Hartley's part.
Wright also contends that events before and after the incident give rise to Hartley's liability, including Hartley's suspension in 2021 for failing a random drug screen. Hartley's conduct before and after Wright's accident is irrelevant to whether he was grossly negligent at the time the accident occurred.
We first observe that Wright's gross negligence claim arises from an allegedly "violent[] and aggressive[]" acceleration rather than a sudden stop. That said, Hartley correctly invokes "the usual incidents of travel" doctrine, which has a long history in Michigan law. In Selman v Detroit, 283 Mich. 413, 420; 278 N.W. 112 (1938), the Supreme Court explained that "[s]udden jerks and jolts in the movement of railroad trains or street cars are generally accepted as among the usual incidents of travel which every passenger by experience has learned to expect to some extent." Not all "jerks or jolts" are "usual incidents of travel," however. In Selman, the Supreme Court declared that "the carrier may be held liable if the jerk or jolt is unnecessarily sudden or violent." Id. (emphasis added). The Court continued, "And unusually sharp jerks or violent jolting, due to the negligent operation of the car or the negligent failure to properly maintain the track, has been viewed as imposing liability on the carrier for resulting injuries to the passenger." Id. See also Anderson v Transdev Servs, Inc, 341 Mich.App. 501, 511; 991 N.W.2d 230 (2022) ("Liability can attach if the jerk or jolt is unnecessarily sudden or violent.").
The city's error is understandable. Wright's first amended complaint is light on facts. "A complaint must provide reasonable notice to opposing parties," and it is insufficient to allege mere conclusions without also alleging a factual basis for those conclusions. Dacon v Transue, 441 Mich. 315, 329-330; 490 N.W.2d 369 (1992); see also State ex rel Gurganus v CVS Caremark Corp, 496 Mich. 45, 63; 852 N.W.2d 103 (2014). It may be difficult to identify the boundary between a proper allegation of fact and an improper conclusory statement, but if there is doubt, the courts should err on the side of generosity. Flynn v Brownell, 371 Mich. 19, 26-27; 123 N.W.2d 153 (1963). An argument under MCR 2.116(C)(8) would be unavailing here anyway, since factual development of the claim can justify recovery.
Wright's affidavit describes that Hartley was "angry," "upset," "in a desperate rush," and that he "violently and aggressively accelerated in an explosive manner." Hartley's handwritten incident report describes an entirely different scenario. He wrote that that after three passengers boarded the bus (presumably including Wright and Layton), "I assumed that the passengers had been seated so I slowly began to pull off. Shortly afterwards I heard noise that came from the back of the coach. It looked as if a lady had fallen ...." Viewing the evidence in the light most favorable to Wright, as we must, the incident report supports a reasonable inference that there was no traffic-related reason for Hartley to have accelerated "violently and aggressively," but that he did so despite that Wright was still walking down the aisle. Further, based on Wright's observations of Hartley's demeanor, the evidence supports that Hartley's rapid acceleration was willful and not associated with a need to drive in a potentially unsafe manner, such as to avoid another vehicle or some other road hazard.
Grossly negligent conduct is "substantially more than negligent." Maiden v Rozwood, 461 Mich. 109, 121; 597 N.W.2d 817 (1999). The GTLA defines gross negligence as "conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results." MCL 691.1407(8)(a). "Gross negligence suggests almost a willful disregard of precautions or measures to attend to safety and a singular disregard for substantial risks." Dougherty v Detroit, 340 Mich.App. 339, 350; 986 N.W.2d 467 (2021) (quotation marks and citation omitted). Allegations that a defendant should have taken additional precautions to avoid injury are usually insufficient. See Tarlea, 263 Mich.App. at 84-86.
The allegations in Wright's affidavit arguably justify a gross negligence claim; at a minimum, the evidence radically diverges regarding the nature of Hartley's acts, and "questions regarding whether a governmental employee's conduct constituted gross negligence are generally questions of fact for the jury[.]" Wood, 323 Mich.App. at 424.
As described by Wright and Layton, Wright's injuries did not arise from Hartley's failure to exercise garden-variety due care, but rather from his deliberate decision to drive in a reckless manner by "violently" and "aggressively" accelerating without regard to passenger safety, and without a rational need to do so. According to the incident report, Hartley was aware that several passengers had just boarded when he took off from the stop. Because reasonable minds can differ regarding whether Hartley willfully disregarded their safety and disregarded the risk that a passenger might be injured by a sudden and powerful acceleration, the circuit court erred by summarily dismissing Wright's gross negligence claim.
C. THE CITY'S LIABILITY
Although the GTLA grants the city broad immunity from suit, it may be held liable "for bodily injury . . . resulting from the negligent operation by any officer, agent, or employee of the government agency, of a motor vehicle of which the government agency is owner ...." MCL 691.1405.
Count III of the amended complaint asserts a claim for owner liability against the city by stating that Hartley was operating a city bus, and that the city was liable for Wright's injuries resulting from Hartley's "negligent, careless, and/or reckless operation" of the vehicle. In Count IV, Wright alleged that the city was liable under a theory of respondeat superior for Hartley's "negligence" that proximately caused Wright's injuries. This method of pleading in avoidance of immunity and in accord with MCL 691.1405 is neither artful nor descriptive, but it suffices to survive scrutiny under MCR 2.116(C)(8). We repeat: "A motion under MCR 2.116(C)(8) may only be granted when a claim is so clearly unenforceable that no factual development could possibly justify recovery." El-Khalil, 504 Mich. at 160.
That said, we strongly urge counsel to take more care in drafting complaints seeking to avoid governmental immunity. Doing so may help avoid costly and time-consuming trips to the Court of Appeals.
"A plaintiff pleads in avoidance of governmental immunity by stating a claim that fits within a statutory exception or by pleading facts that demonstrate that the alleged tort occurred during the exercise or discharge of a nongovernmental or proprietary function." Yono v Dep't of Transp (On Remand), 306 Mich.App. 671, 682; 858 N.W.2d 128 (2014), rev'd on other grounds 499 Mich. 636 (2016) (quotation marks and citations omitted). Wright's first amended complaint satisfies that requirement by stating that Hartley's negligent operation of a city-owned bus caused her injuries, and that at the time of the accident Hartley was employed by the city of Detroit.
When evaluated under MCR 2.116(C)(7), Wright's claims also survive. As discussed above, the affidavits of Wright and Layton create a question of fact as to whether Hartley's acceleration from the stop was unnecessarily sudden or violent (or both). The evidence also generates a question regarding where on the continuum from negligence through gross negligence Hartley's actions fall. The evidence conflicts regarding the nature of the acceleration, but our task requires us to evaluate the evidence in the light most favorable to Wright. Assuming as we must that the bus accelerated abruptly and forcefully, the record includes no explanation for a sudden acceleration that would locate this case within the "usual incidents of travel" framework. As Justice John VOELKER pithily observed in Mitcham v Detroit, 355 Mich. 182, 187; 94 N.W.2d 388 (1959), "our law possesses no special grudge against possible recovery by passengers against public carriers in cases of this nature ...." Accordingly, a jury must determine whether the bus accelerated in the manner Wright describes, and if so whether Hartley's conduct was negligent, grossly negligent, or neither.
We vacate and remand for further proceedings. We do not retain jurisdiction.
JANSEN, J. (dissenting)
For the reasons that follow, I respectfully dissent. I would affirm summary disposition in favor of defendants, the City of Detroit and Rodrick Hartley, on the basis of governmental immunity.
The governmental tort liability act (GTLA), MCL 691.1401 et seq., immunizes a state agency from tort liability when the agency is "engaged in the exercise or discharge of a governmental function," subject to certain exceptions. MCL 691.1407(1). The burden is on the plaintiff filing suit against a governmental agency to plead his or her claim in avoidance of governmental immunity. Hannay v Dep't of Transp, 497 Mich. 45, 58; 860 N.W.2d 67 (2014).
Governmental immunity inheres in governmental agencies as a characteristic of government and, accordingly, there is a presumption that a governmental agency is immune from suit unless an exception to governmental immunity applies to the facts of the case. In order to rebut the presumption of immunity, a party suing a unit of government must plead in avoidance of governmental immunity. The party suing the governmental agency must plead facts that-if true-demonstrate that an exception to governmental immunity
applies: A plaintiff pleads in avoidance of governmental immunity by stating a claim that fits within a statutory exception or by pleading facts that demonstrate that the alleged tort occurred during the exercise or discharge of a nongovernmental or proprietary function. [Yono v Dep't of Transp (On Remand), 306 Mich.App. 671, 682; 858 N.W.2d 128 (2014), rev'd on other grounds 499 Mich. 636 (2016) (quotation marks and citations omitted).]
There is no dispute that the operation of the City's transportation department is a government function, and Hartley was acting within the scope of his employment. The grant of governmental immunity is broad, and the statutory exceptions are to be narrowly construed. Robinson v Detroit, 462 Mich. 439, 455; 613 N.W.2d 307 (2000). The motor vehicle exception in MCL 691.1405 provides: "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 the owner."
In Count III of the amended complaint, plaintiff alleged owner liability against the City under MCL 257.401, stating that Hartley was operating a city bus and the City was liable for plaintiff's injuries resulting from the "negligent, careless, and/or reckless operation" of the vehicle by Hartley. In Count IV, plaintiff alleged that the City was liable under a theory of respondeat superior for Hartley's "negligence" that was the proximate cause of plaintiff's injuries. Plaintiff failed to state or identify how these claims or the facts in support of these claims fall under the motor vehicle exception to the City's presumed governmental immunity.
Plaintiff's evidence merely alleges that Hartley made a sudden, "explosive" acceleration when he pulled the bus away from the stop, causing her to "run" down the aisle and fall on the stairs. However, absent evidence of other negligence pertaining to the operation of a bus, a plaintiff bus passenger cannot recover for injuries sustained from the normal incidents of travel. Anderson v Transdev Servs, Inc,__ Mich. App__,__;__ N.W.2d__ (2022) (Docket No. 356541); slip op at 5; Seldon v Suburban Mobility Authority for Regional Transp, 297 Mich.App. 427, 437; 824 N.W.2d 318 (2012). See also Selman v Detroit, 283 Mich. 413, 420; 278 N.W. 112 (1938) ("Sudden jerks or jolts in stopping to let off and take on passengers, and in starting, are among the usual incidents of travel on street cars which every passenger must expect."). The mere fact that an injury occurred does not indicate that the bus was operated negligently. Seldon, 297 Mich.App. at 437; Selman, 283 Mich. at 420. Although liability may attach if the sudden jerk or jolt is "unnecessarily sudden or violent," Anderson,__ Mich.App. at__; slip op at 5, the only evidence plaintiff submits in support of this allegation is her own affidavit and that of her fiance's, submitting their own opinions that Hartley's acceleration was violent. I would conclude that this evidence is not sufficient to establish a genuine issue of material fact whether Hartley's actions were negligent.
Additionally, operators of public transportation do not have to wait until all passengers are seated before taking off unless there is a special and apparent reason not to. See Anderson,__ Mich.App. at__; slip op at 4 (applied to a QLine street car), citing Ottinger v Detroit United R, 166 Mich. 106, 107; 131 N.W. 528 (1911) (applied to street car) and Getz v Detroit, 372 Mich. 98, 99-100; 125 N.W.2d 275 (1963) (applied to Detroit city bus). Plaintiff alleges that the two stairs at the rear of the bus constitute a special, dangerous circumstance that required Hartley to wait until all passengers were seated before starting the bus. Such stairs to an upper level seating area in city buses are "certainly commonplace," Anderson,__ Mich.App. at__; slip op at 5, and do not necessitate applying an exception to the rule.
Thus, I would conclude that plaintiff failed to plead her claims in avoidance of governmental immunity and her evidence failed to present a question of fact whether Hartley negligently operated the bus. Therefore, in my opinion, summary disposition of Counts III (owner liability) and IV (respondeat superior) in favor of the City was appropriate under MCR 2.116(C)(7) and (8).
Count II of plaintiff's amended complaint alleged "negligence" against Hartley, asserting that he operated the bus in a "careless, negligent, willful and wanton, grossly negligent and/or reckless manner." However, the exception to governmental immunity for individual employees applies only when the employee is grossly negligent. MCL 691.1407(2). This statute provides:
[E]ach . . . employee of a governmental agency . . . is immune from tort liability for an injury to a person or damage to property caused by the . . . employee . . . while in the course of employment . . . if all of the following are met:
(a) The . . . employee . . . is acting or reasonably believes he or she is acting within the scope of his or her authority.
(b) The governmental agency is engaged in the exercise or discharge of a governmental function.
(c) The . . . employee's . . . conduct does not amount to gross negligence that is the proximate cause of the injury or damage. [MCL 691.1407(2).]
Neither party disputes that subsections (a) and (b) of MCL 691.1407(2) are met. The issue is whether Hartley's conduct was grossly negligent and the proximate cause of plaintiff's injuries under subsection (c). The GTLA defines gross negligence as "conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results." MCL 691.1407(8)(a). "Gross negligence suggests almost a willful disregard of precautions or measures to attend to safety and a singular disregard for substantial risks." Dougherty v Detroit, 340 Mich.App. 339, 350; 986 N.W.2d 467 (2021) (quotation marks and citation omitted). Evidence of ordinary negligence is insufficient to meet this standard. Id.
Although Hartley testified that he had no recollection of this event, the incident report he authored indicated that, believing the passengers were seated, he "slowly" pulled away from the bus stop. Plaintiff and her fiance testified that Hartley appeared angry and rushed, and "explosively accelerated" the bus unlike anything they had ever experienced. This evidence does not suggest that Hartley acted recklessly or willfully disregarded the safety of the passengers on the bus. Therefore, I would conclude that the trial court properly granted summary disposition of Count II in favor of Hartley under MCR 2.116(C)(7).