Opinion
No. 348452
08-06-2020
Audrey WEST and Randy West, Plaintiffs-Appellees, v. DEPARTMENT OF NATURAL RESOURCES, Andrea Albert, and Steve Butzin, Defendants-Appellants.
Marko Law, PLLC (by Jonathan R. Marko ) for plaintiffs. Ann M. Sherman, Deputy Solicitor General, and Andrew J. Jurgensen, Assistant Attorney General, for defendants.
Marko Law, PLLC (by Jonathan R. Marko ) for plaintiffs.
Ann M. Sherman, Deputy Solicitor General, and Andrew J. Jurgensen, Assistant Attorney General, for defendants.
Before: Riordan, P.J., and Shapiro and Ronayne Krause, JJ.
Ronayne Krause, J. In this personal-injury action, defendants, the Department of Natural Resources (the DNR) and two of its conservation officers, appeal as of right the order of the Court of Claims denying the DNR's motion for summary disposition premised on governmental immunity. The only issue in this appeal is whether the DNR-owned snowmobiles involved in the accident underlying this case met the definition of "motor vehicle" for purposes of the exception to governmental immunity set forth in MCL 691.1405 of the governmental tort liability act, MCL 691.1401 et seq . The trial court ruled that they did and thus denied the motion. For the reasons discussed in this opinion, we affirm.
I. FACTS
Plaintiffs, a father and daughter, were driving a snowmobile on Pinney Bridge Road in Chestonia Township when they allegedly encountered the defendant conservation officers, acting in the course of their employment with the DNR, driving DNR-owned snowmobiles on the same road in the wrong direction. Although defendants primarily attempt to characterize Pinney Bridge Road as a mere snowmobile trail, as opposed to a roadway proper, they also describe it as "an unpaved, country road." Plaintiffs assert that they were forced to swerve off the road. As a result, plaintiffs’ snowmobile crashed, the daughter was thrown into a nearby river, and the father was pinned underneath the snowmobile.
Plaintiffs commenced this action in the Court of Claims, arguing, in relevant part, that under MCL 691.1405, the DNR was liable for plaintiffs’ alleged injuries on the ground that the injuries were caused by motor vehicles owned by the DNR and operated by its employees in the course of their employment. Defendants moved for summary disposition pursuant to MCR 2.116(C)(7), arguing, in relevant part, that snowmobiles are not motor vehicles, so MCL 691.1405 did not defeat the DNR's immunity. The Court of Claims considered the motion without oral argument, and it issued a written opinion and order denying the DNR's motion for summary disposition. The court analyzed several cases that held that vehicles other than cars or trucks, such as tractors and mowers, constituted "motor vehicles" for purposes of MCL 691.1405. Reasoning that snowmobiles were similar to such conveyances, and noting that the ones in question were being driven on a public roadway by the DNR's employees "to assist them in their duties," the Court of Claims ruled that the snowmobiles in this case were motor vehicles triggering the exception to governmental immunity under MCL 691.1405. This appeal followed.
II. ANALYSIS
A trial court's decisions on motions for summary disposition and on questions of statutory interpretation are reviewed de novo. See McCahan v. Brennan , 492 Mich. 730, 735-736, 822 N.W.2d 747 (2012). So long as issues are brought to the trial court's attention, they are preserved for our review irrespective of whether the trial court rules on—or even recognizes—them. Peterman v. Dep't of Natural Resources , 446 Mich. 177, 183, 521 N.W.2d 499 (1994). We may address questions of law when "the facts necessary for [their] resolution have been presented." See Steward v. Panek , 251 Mich. App. 546, 554, 652 N.W.2d 232 (2002). We note that defendants chose to file a motion for summary disposition in lieu of an answer and before discovery occurred, and thus any insufficiency in the record would make summary disposition at least premature. See Hoffman v. Warden , 184 Mich. App. 328, 337, 457 N.W.2d 367 (1990). Under MCL 691.1407(1) of the governmental tort liability act, governmental agencies in this state are generally immune from tort liability for actions taken in furtherance of governmental functions. "It is well established that governmental immunity is not an affirmative defense, but is instead a characteristic of government." Fairley v. Dep't of Corrections , 497 Mich. 290, 298, 871 N.W.2d 129 (2015), citing Mack v. Detroit , 467 Mich. 186, 198, 649 N.W.2d 47 (2002). It is a plaintiff's burden to plead and prove facts establishing an exception to governmental immunity. Fairley , 497 Mich. at 298, 300, 871 N.W.2d 129 ; Mack , 467 Mich. at 198, 649 N.W.2d 47. "The Legislature has provided six exceptions to this broad grant of immunity, which courts must narrowly construe." Yono v. Dep't of Transp. , 499 Mich. 636, 646, 885 N.W.2d 445 (2016) (quotation marks and citation omitted).
One such statutory exception is the so-called motor-vehicle exception, which provides that governmental agencies remain "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.
MCL 691.1405 does not define "motor vehicle." The Michigan Vehicle Code, MCL 257.1 et seq. , provides a definition of both "owner," MCL 257.37, and "motor vehicle," MCL 257.33. However, our Supreme Court has explained that MCL 691.1405 only refers to the Vehicle Code's definition of "owner," and it does not rely on the Vehicle Code's definition of "motor vehicle." Stanton v. Battle Creek , 466 Mich. 611, 616, 647 N.W.2d 508 (2002). Reasoning that the rule requiring narrow construction of statutory exceptions to immunity called for "a narrow definition to the undefined term ‘motor vehicle,’ " the Court held that "motor vehicle" for purposes of the motor-vehicle exception is " ‘an automobile, truck, bus, or similar motor-driven conveyance.’ " Id. at 618, 647 N.W.2d 508 quoting Random House Webster's College Dictionary (2001). The Court concluded that forklifts do not meet the definition of "motor vehicle" because a forklift is a piece of industrial equipment not similar to a car, truck, or bus. Id. As our dissenting colleague aptly notes, it has proved difficult to apply the concept of a "similar motor-driven conveyance," but courts may not rely on the easily applied definition in MCL 257.33, so courts have generally considered a proposed motor vehicle's physical characteristics, design and intended use, and actual use.
The Court expanded that analysis in its order in Overall v. Howard , 480 Mich. 896, 738 N.W.2d 760 (2007), in which it reversed this Court's unpublished decision holding that a golf cart met the definition of "motor vehicle" and expressly adopted the contrary reasoning of the partial dissent. Supreme Court orders are binding precedent "to the extent they can theoretically be understood, even if doing so requires one to seek out other opinions ...." Woodring v. Phoenix Ins. Co. , 325 Mich. App. 108, 115, 923 N.W.2d 607 (2018). Accordingly, the reasoning in the unpublished partial dissent from this Court is now binding precedent, expanding on Stanton ’s "similar motor-driven conveyance" analysis to include consideration of whether the conveyances at issue were designed for operation on or along the roadway:
[T]he vehicles at issue in [other cases applying MCL 691.1405 ] were motor-vehicle-like conveyances that were designed for operation on or alongside the roadway, and each of these conveyances generally resembled an automobile or truck. In contrast, the forklift at issue in Stanton was not similar to an automobile, bus, or truck, and was not designed for operation on or alongside the
roadway. [ Overall v. Howard , unpublished per curiam opinion of the Court of Appeals, issued April 26, 2007 (Docket No. 274588), 2007 WL 1229447 ( JANSEN , J., concurring in part and dissenting in part), p. 1.]
The dissent, and thus our Supreme Court, held that a golf cart, like a forklift, is not intended to be operated on or alongside a roadway. Id. at 2.
This Court has held that such conveyances as a Gradall hydraulic excavator, Wesche v. Mecosta Co. Rd. Comm. , 267 Mich. App. 274, 278, 705 N.W.2d 136 (2005), aff'd 480 Mich. 75, 746 N.W.2d 847 (2008), a "broom tractor" and a "tractor mower" performing roadside maintenance, Regan v. Washtenaw Co. Bd. of Co. Rd. Comm'rs (On Remand) , 257 Mich. App. 39, 47-48, 667 N.W.2d 57 (2003), and a tractor pulling a wagon with passengers for hayrides, Yoches v. Dearborn , 320 Mich. App. 461, 474, 904 N.W.2d 887 (2017), are "motor vehicles" for purposes of MCL 691.1405. In the latter case, this Court rejected the municipal defendant's argument that tractors and hay wagons were most typically found on farms and not roadways, emphasizing that "binding caselaw is quite clear that the ‘primary function’ of a vehicle does not control the analysis...." Yoches , 320 Mich. App. at 474, 904 N.W.2d 887. We note that it is a matter of common, everyday experience in farming and rural communities that tractors are commonly, if perhaps seasonally and not necessarily daily, found on roadways. There is no dispute that snowmobiles are motor-driven. There is also no contention that snowmobiles are automobiles, trucks, or buses. The question is whether snowmobiles are "similar motor-driven conveyances." Applying the principles outlined earlier, we must consider whether a snowmobile is more like a tractor or an excavator, which would make it a motor vehicle triggering the immunity exception, or more like a golf cart or forklift, which would not. There is no doubt that snowmobiles are physically capable of operating on roads; moreover, they are capable of traveling extended distances like tractors, the excavator at issue in Wesche , and conventional automobiles—and in contrast to much more limited machinery like golf carts and forklifts. Thus, snowmobiles are physically more analogous to automobiles than not.
We agree with our dissenting colleague's observation that snowmobiles generally lack many of the safety features now legally mandated in automobiles, but given the facts (1) that tractors also generally lack many of those safety features and (2) that most modern "complex safety systems" like airbags and seatbelts were not mandatory or not even available when MCL 691.1405 was enacted in 1964, we find complex safety features an irrelevant distinction. In contrast, our dissenting colleague also observes that snowmobiles typically use skis and treads instead of tires. We agree that this is a noteworthy distinction, but we think it less important than the transportational similarities between snowmobiles and automobiles.
Defendants argue that snowmobiles neither typically, nor usually legally, travel on public roadways as part of normal operations. However, as noted, a conveyance's primary intended purpose does not determine whether it is a motor vehicle for purposes of the motor-vehicle exception to governmental immunity. Similarly, defendants argue that snowmobiles are not meant to operate on public roadways. We are doubtful that this is accurate. In any event, whether snowmobiles are intended to operate on roadways ignores a critical part of the requisite analysis. As discussed in the now precedential partial dissent from this Court's opinion in Overall , the question is whether the conveyance is intended to operate on or alongside the roadway.
We also note that there is considerable state-by-state variation as to whether or when snowmobiles may be driven on roads. See American Council of Snowmobile Associations, Snowmobiling State Laws and Rules < http://www.snowmobilers.org/snowmobiling-laws-and-rules.aspx> (accessed August 6, 2020) [https://perma.cc/J9XR-ASBN]. This implies that, as with tractors, snowmobiles might be more or less commonly found on roadways depending on region and season. Defendants rely on McDaniel v. Allstate Ins. Co. , 145 Mich. App. 603, 608, 378 N.W.2d 488 (1985), which observed that under a now-repealed part of the Motor Vehicle Code, snowmobiles were, by definition, "not designed for primary use on public highways." (Citing former MCL 257.1501(e).) This holding in McDaniel is clearly no longer applicable, and in any event, given the practical realities, we seriously doubt snowmobile manufacturers do not design snowmobiles for use on public highways. As discussed, a conveyance's primary use is not controlling.
Defendants cite MCL 324.82119(1), which prohibits the use of snowmobiles on public highways, but which also sets forth exceptions. Some of those exceptions only permit snowmobiles to cross roads. However, under MCL 324.82119(1)(a) and (b), snowmobiles are explicitly permitted to travel within highway rights-of-way unless explicitly and specifically prohibited by the DNR or the Michigan Department of Transportation. Thus, snowmobiles are clearly expected to operate alongside roadways. Under Subsection (1)(c), snowmobiles may operate on the roadway itself in order to cross bridges or culverts; and under Subsection (1)(h), they may be operated on roadways for special events. Finally, Subsection (1)(f) specifically permits snowmobiles to be operated on the shoulders of roads under some circumstances, with the obvious expectation that such use will actually occur. Clearly, therefore, snowmobiles are capable of more than incidental operation on roadways. Conversely, the golf cart operating near a concession stand at a football game in Overall might be physically capable of driving on a road, but golf carts are either specifically designed not to be used on roads or are designed as merely a convenient alternative to walking. Defendants finally argue that Pinney Bridge Road is not, in fact, a road, because it is listed as a "Designated Snowmobile Trail" by the Department of Natural Resources. We do not think that this designation is dispositive. We are unaware of any evidence, nor have defendants cited any evidence, that Pinney Bridge Road is never accessible to automobiles. The low-quality scanned images attached to defendants’ motion are of no value to this question. Insofar as we can determine, defendants rely solely on Pinney Bridge Road having been designated as a snowmobile trail. Notably, MCL 324.82119(1)(f) provides that "a highway in a county road system" may, under some circumstances, be "designated and marked for snowmobile use...." This includes roads that are actually snowplowed and, therefore, implicitly accessible to conventional automobile traffic. Even presuming that Pinney Bridge Road was, in fact, either de facto or de jure not traversable by any vehicles other than snowmobiles, the record does not establish that a "designated snowmobile trail" is necessarily not a roadway.
See Wikipedia, Golf Cart < https://en.wikipedia.org/wiki/Golf_cart > (accessed August 6, 2020) [https://perma.cc/H9RU-KXTK].
Furthermore, we note that under the Vehicle Code, a " ‘[r]oadway’ means that portion of a highway improved, designed, or ordinarily used for vehicular travel." MCL 257.55. A "vehicle" includes "every device in, upon, or by which any person or property is or may be transported or drawn upon a highway...." MCL 257.79. Although the Vehicle Code may not be binding, we do not think it irrelevant that a snowmobile would certainly constitute a "vehicle" and thus a snowmobile trail would constitute a "roadway" under the Vehicle Code's definitions. Furthermore, automobiles are not uncommonly used off-road, and many of them are capable of some degree of off-road usage with no aftermarket modifications. In any event, MCL 691.1405 requires a motor vehicle to be operated, but not necessarily on a roadway. Thus, how a proposed motor vehicle is being used at the time of the injury is one of several relevant considerations when determining whether it is a "motor vehicle." Even if Pinney Bridge Road is not a "roadway," that fact would be relevant but not dispositive. We think it far more relevant that, at the time of the injury, the snowmobiles were being used for a combination of transportational and recreational purposes more akin to automobiles—albeit, perhaps, off-road automobiles—than limited equipment like a golf cart or forklift. Irrespective of whether Pinney Bridge Road was a public roadway, we would find that the physical, design, and expected-use characteristics of snowmobiles reveal them to be "similar motor-driven conveyances."
Further suggesting that the Vehicle Code is not irrelevant, our Supreme Court has explained that "because snowmobiles, albeit under limited circumstances, may be operated on highways," it is proper to charge a person under the provision of the Vehicle Code that penalizes a person for operating a snowmobile on a highway while intoxicated. People v. Rogers , 438 Mich. 602, 607-608, 475 N.W.2d 717 (1991). Our Supreme Court thus explicitly recognized that snowmobiles do operate on roadways, which indirectly supports the conclusion that they are motor vehicles.
We agree with our dissenting colleague that the trial court erred by considering only the actual use of the snowmobiles at the time of the injury.
Because the snowmobiles owned by the DNR and operated by its conservation officers in the course of their governmental duties were motor-driven conveyances that could be expected to be operated, under certain circumstances, on or alongside a roadway, we agree with plaintiffs and the Court of Claims that the snowmobiles qualified as motor vehicles for purposes of the motor-vehicle exception to governmental immunity under MCL 691.1405. We respectfully disagree with our dissenting colleague that our analysis ignores any of the requisite factors or considerations, and we find nothing in the record to suggest that further fact-finding in the trial court would alter our conclusion.
Affirmed.
Shapiro, J., concurred with Ronayne Krause, J.
Riordan, P.J. (dissenting).
I respectfully dissent. The trial court erred when it considered only the actual use of the snowmobiles at issue when determining whether MCL 691.1405, the motor-vehicle exception to the governmental tort liability act (the GTLA), MCL 691.1401 et seq. , bars plaintiffs’ lawsuit. I would reverse and remand for the trial court to consider the additional relevant factors that were omitted from its analysis.
The GTLA does not define "motor vehicle," but our Supreme Court has interpreted the common, ordinary meaning to be "an automobile, truck, bus, or similar motor-driven conveyance." Stanton v. Battle Creek , 466 Mich. 611, 617-618, 647 N.W.2d 508 (2002) (holding that a forklift is not a motor vehicle because it is a piece of industrial construction equipment) (quotation marks and citation omitted). Subsequently, this Court has struggled to make heads or tails of what the term "similar motor-driven conveyance" includes and has focused generally on some combination of the following three factors: physical attributes, intended use or purpose, and actual use of the conveyance at the time of injury. In this case, the trial court considered only the actual use of the snowmobiles at the time of injury. Although the "primary function" of a vehicle is not the controlling factor, the intended use or purpose and physical characteristics are relevant factors that the trial court failed to consider in this case.
The Supreme Court has not elaborated on the definition but has found in one case that the exception did not apply when a plaintiff was injured by a bus parked in a maintenance facility because the vehicle was not being "operated" when the injury occurred. Chandler v. Muskegon Co. , 467 Mich. 315, 322, 652 N.W.2d 224 (2002). See also Overall v. Howard , 480 Mich. 896, 738 N.W.2d 760 (2007) (an order reversing for the reasons stated in the dissent) (Overall II ); Overall v. Howard , unpublished per curiam opinion of the Court of Appeals, issued April 26, 2007 (Docket No. 274588), 2007 WL 1229447 (Overall I ) ( Jansen , J., concurring in part and dissenting in part) (concluding that a golf cart driven near a concession stand at a high school football game was not a motor vehicle because, in terms of its design and physical attributes, it more closely resembled a forklift than the conveyances in other cases).
Wesche v. Mecosta Co. Rd. Comm. , 267 Mich. App. 274, 278, 705 N.W.2d 136 (2005), aff'd 480 Mich. 75, 746 N.W.2d 847 (2008) (holding that a Gradall, a wheeled, hydraulic excavator, generally resembles a truck, moves like a truck, and qualifies as a motor vehicle and additionally noting that the Gradall was being driven like a truck on a public roadway when the injury occurred); Overall I ( Jansen , J., concurring in part and dissenting in part), unpub. op. at 1 (focusing on whether a golf cart was designed for operation on or alongside a roadway).
Regan v. Washtenaw Co. Bd. of Co. Rd. Comm'rs (On Remand) , 257 Mich. App. 39, 47-51, 667 N.W.2d 57 (2003) (holding that a broom tractor and a tractor mower were motor vehicles because both are "invariably connected to the roadways").
See Wesche , 267 Mich. App. at 278, 705 N.W.2d 136 (noting that the Gradall was being driven like a truck on a public roadway when the injury occurred); Yoches v. Dearborn , 320 Mich. App. 461, 474-475, 904 N.W.2d 887 (2017) (holding that a tractor pulling a hay wagon used for hayrides was a motor vehicle because it was carrying passengers on a roadway when the injury occurred).
Wesche , 267 Mich. App. at 277-278, 705 N.W.2d 136 ; Regan , 257 Mich. App. at 47-48, 667 N.W.2d 57.
See Overall I ( Jansen , J., concurring in part and dissenting in part), unpub. op. at 1 (considering a golf cart's physical attributes and intended use).
The majority considers those relevant factors but reaches a questionable conclusion. As defendant argues on appeal, there are numerous characteristics that make the snowmobiles in this instance dissimilar from a car, truck, or bus. For example, from the record we know that snowmobiles have skis and a treaded track for propulsion instead of wheels like cars, trucks, and buses. Further, snowmobiles lack the airbags, restraints, and complex safety mechanisms that are required by law in cars, trucks, and buses to prevent and reduce injuries in the event of a collision. Unlike cars, buses, and trucks, snowmobiles also generally cannot traverse ground that is not covered by snow or ice. Additionally, the majority takes judicial notice of defendants’ map indicating that the area where the collision occurred is a designated snowmobile trail. The majority further takes judicial notice that the county considers the trail to be a "scenic drive" and then concludes that the trail was a public roadway at the time of the accident because there is no evidence that the trail was limited only to use by snowmobiles. However, the majority ignores the record evidence demonstrating that at the time of the accident, the collision occurred on a groomed snowmobile trail that was not open to cars, trucks, or buses or even capable of being traversed by those vehicles. In doing so, the majority expands the record on appeal to create a factual dispute and then weighs the evidence to resolve that dispute. Although we review de novo whether plaintiffs’ claim is barred under MCR 2.116(C)(7), summary disposition is only appropriate when there is no factual dispute. Moraccini v. Sterling Hts. , 296 Mich. App. 387, 391, 822 N.W.2d 799 (2012).
The majority notes that certain complex safety systems were not mandatory or available in 1964 when MCL 691.1405 was enacted. However, our Supreme Court in Stanton , 466 Mich. at 617-618, 647 N.W.2d 508, interpreted the relevant term "motor vehicle" by consulting Random House Webster's College Dictionary (2001), which it preferred over The American Heritage Dictionary (2d college ed.) (published in 1982). Thus, the Supreme Court in Stanton did not interpret the term according to its 1964 definition, nor has any subsequent binding decision expressly or impliedly held that a "similar motor-driven conveyance" must be similar to the cars, trucks, and buses of 1964. Therefore, I disagree with the majority opinion's implication that any comparison should be limited in such a fashion—particularly when it is questionable how closely the cars, trucks, and buses of today, or of the near future, resemble their 1964 ancestors. Moreover, even if the majority opinion is correct on this point, I cannot conclude that the snowmobiles in this case are sufficiently similar to the cars, buses, and trucks of 1964 to meet that standard.
The majority also relies on People v. Rogers , 438 Mich. 602, 475 N.W.2d 717 (1991), for the proposition that our Supreme Court has implicitly deemed snowmobiles to be motor vehicles. That case required the Court to consider whether the defendant could be prosecuted under two different sections of the Michigan Vehicle Code, MCL 257.1 et seq ., for operating a snowmobile on a public highway while intoxicated. Notably, the Vehicle Code defines "vehicle" as "every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, excepting devices exclusively moved by human power or used exclusively upon stationary rails or tracks and excepting a mobile home...." Id. at 605, 475 N.W.2d 717 quoting MCL 257.79, as amended by 1978 PA 568. That definition is much broader than the definition of "motor vehicle" set forth in Stanton. Moreover, there is no indication from the Supreme Court in Stanton or Rogers that the definition of "vehicle" in the Vehicle Code is properly applied in cases involving the GTLA.
Therefore, I would remand this matter to the trial court to consider the factors listed in this dissent and, by extension, the relevant facts it omitted from its analysis.