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Hester v. Brabbs (COA – UNP 8/15/2019; RB #3958)

Michigan Court of Appeals; Docket # 343927; Published
Judges Cavanagh, Stephens, and O’Brien; Per curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion

Not Applicable

Court of Claims Litigation


In this unanimous unpublished per curiam decision, the Court of Appeals affirmed the trial court’s summary disposition order dismissing the plaintiff’s negligence action against the defendant.  The defendant was an employee of the University of Michigan, driving a vehicle owned by the University and acting in the scope of his employment when he caused a minor collision with the plaintiff’s vehicle.  The Court of Appeals agreed with the trial court that the plaintiff did not present sufficient evidence to create a question of fact as to whether the defendant was grossly negligent in causing the collision, and that the plaintiff’s action was therefore barred by governmental immunity.

The plaintiff in this case, Shannon Hester, was a passenger in a vehicle that was rear-ended at a traffic light by the defendant, Jeremia Walter Brabbs.  Brabbs was an employee of the University of Michigan, driving a University-owned vehicle and acting in the scope of his employment, at the time of the collision.  Hester filed the present case against Brabbs, alleging that he drove his vehicle in a grossly negligent manner, causing her injuries.  Shortly thereafter, both sides stipulated to a case management order which stated that there were no deadlines for discovery or motion practice, but that all discovery and motion filing was to be conducted in a timely manner.

There was competing evidence regarding several facts of the collision.  For instance, an incident report from the owner of Hester’s vehicle stated that Brabbs’ brakes did not work properly and that Brabbs admitted his brakes froze.  Brabbs denied making this statement, and later averred that there were no problems with his brakes.  Brabbs further claimed that he was driving below the speed limit when the vehicle Hester was riding in suddenly, and without warning, stopped.  Brabbs moved for summary disposition, arguing that no reasonable juror could find that he was grossly negligent; Hester opposed the motion, arguing that there were disputed facts regarding whether Brabbs’ brakes were defective and whether Brabbs knew of any such defect.  Moreover, Hester argued that the motion was premature because Brabbs had not yet been deposed. 

The trial court granted Brabbs’ motion for summary disposition, reasoning that Hester had sufficient time to conduct discovery, “but waited until the day before case evaluation briefs were due and trial preparation was about to begin to claim that further discovery was needed.”  Moreover, Hester failed to show that Brabbs was grossly negligent, “i.e., engaged in conduct so reckless as to demonstrate a substantial lack of concern for whether injury results—by being unable to stop his vehicle in the assured clear distance resulting in a minor collision.” 

On appeal, Hester first argued that Brabbs was not entitled to summary disposition because there were factual disputes as to whether Brabbs knowingly drove a vehicle without properly functioning brakes at high speeds and in bad weather.  The Court of Appeals disagreed because Hester failed to present any evidence that Brabbs knew that the brakes were defective, or that Brabbs failed to check the brakes before driving the vehicle, as is required by University policy.  Moreover, Hester actually conceded in her interrogatories that she did not know the speed at which Brabbs was driving, and considering the minimal damage to each of the vehicles, there was nothing to suggest that Brabbs was operating his vehicle at such a speed so as to have a reckless disregard for any injuries that might have been caused by his negligence.

Here, plaintiff alleges that factual disputes existed on the issues whether defendant knowingly drove a vehicle without properly functioning brakes in poor weather and at high speeds. In support of her claim that the defendant’s vehicle’s brakes were defective, plaintiff relies on the incident report drafted by a LogistiCare Michigan employee which stated that “[defendant’s] brakes did not work properly and hit [vehicle’s] rear bumper.” The statement went on to claim that “[defendant] stated his brakes froze.” Plaintiff alleges that this statement shows the brakes of defendant’s vehicle were defective and the source of the accident. Even if we accept plaintiff’s evidence as true, there is no evidence that defendant knew that the brakes were defective before the collision occurred. Plaintiff relies on the University of Michigan’s policy requiring that vehicle users inspect the vehicles before use, but there is no record evidence that defendant did not check the brakes before driving the vehicle or, if he did check the brakes, he would have discovered a defect. And, in fact, defendant attested in his affidavits that the brakes were functioning without any problems both before and after the collision.

Plaintiff also claims that defendant was driving at a high rate of speed, but she admitted in her interrogatories that she did not actually know what speed he was driving. Even if defendant was negligent by driving at a speed that would not permit him to stop in time under the circumstances, ordinary negligence is insufficient to create a material question of fact concerning gross negligence. See Maiden, 461 Mich at 122-123. According to the record evidence, the damage to the vehicles was minimal and there were no obvious injuries, indicating that defendant’s speed did not show a reckless disregard for injuries. Considering these facts and the evidence, we must agree with the trial court that reasonable minds could not differ in concluding that defendant’s conduct did not amount to gross negligence. That is, there is no evidence that suggests defendant engaged in “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.” MCL 691.1407(8)(a). Accordingly, governmental immunity barred this action against defendant.

Hester next argued that the trial court’s grant of summary disposition was premature because Brabbs failed to cooperate with her discovery request and deliberately delayed his deposition until the hearing for his motion for summary disposition was conducted.  The Court of Appeals again disagreed, finding that the only evidence in support of these contentions were the statements of Hester’s counsel at the motion hearing.  Hester’s counsel did not follow-up with Brabbs’ counsel after initially approaching him about scheduling a deposition, and Hester’s counsel, although claiming to have knowledge of evidence that Brabbs knew the brakes were defective, “never indicated what this evidence is or where it would come from.”

In this case, plaintiff claims that defendant was served with a discovery request on March 16, 2018, but the only evidence supporting this claim is her counsel’s statement made during the motion hearing. Furthermore, plaintiff argues that defendant did not cooperate with her discovery requests and deliberately delayed the proceeding until the motion hearing was conducted. Again, plaintiff only cites to her counsel’s statements at the motion hearing to support these claims. While defense counsel admits that plaintiff’s counsel approached him regarding scheduling a deposition, plaintiff’s counsel failed to follow up after their discussion regarding the deposition. And, defendant argues, plaintiff submitted no discovery requests and did not seek relief under MCR 2.313(A).

In light of the trial court’s scheduling and case management order, it is clear that summary disposition was not premature in this case. Although discovery was not technically complete, the trial court’s case management order indicates that discovery was unlimited and would not be complete until the day of trial. The mere fact that discovery was ongoing does not preclude summary disposition in this case. See Marilyn Froling Revocable Living Trust, 283 Mich App at 292. “[A] party opposing summary disposition cannot simply state that summary disposition is premature without identifying a disputed issue and supporting that issue with independent evidence.” Id. Although plaintiff’s counsel claimed to have knowledge of evidence that defendant knew the brakes were defective, he has never indicated what this evidence is or where it would come from. Absent a clear indication of what this claimed evidence is, the trial court did not err in finding that there was not a reasonable chance that further discovery would result in factual support for plaintiff’s claim of gross negligence.

Further, plaintiff waited several months before actively pursuing discovery. Although plaintiff correctly notes that the trial court’s case management order imposed no time limit on discovery, this same order stated that the parties were to conduct discovery in a timely manner. The trial court’s scheduling of a case evaluation gave plaintiff’s counsel plenty of notice as to the necessity of conducting discovery in a timely manner. Plaintiff was given a reasonable amount of time to conduct discovery because the motion for summary disposition was only granted a month before the scheduled trial—and after a several-month discovery period. The trial court’s grant of summary disposition was not premature in light of plaintiff’s lack of discovery over the course of several months and the fact that trial was only a month away. In addition, plaintiff failed to show that there was a reasonable chance of discovering factual support for her claim. See Oliver, 269 Mich App at 567.

Lansing car accident lawyer Stephen Sinas is the lead editor of the appellate case summaries published on this site regarding the Michigan auto insurance law. To learn more about how Stephen Sinas and how the Sinas Dramis Law Firm can help you if you have been injured in a Michigan auto accident, visit

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