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Marks v. City of Detroit (COA – UNP 8/20/2019; RB #3959)

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Michigan Court of Appeals; Docket # 343966; Unpublished
Judges Shapiro, Gleicher, and Swartzle; per curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion


STATUTORY INDEXING:
Not Applicable

TOPICAL INDEXING:
Court of Claims Litigation
Evidentiary Issues


SUMMARY:
In this unanimous unpublished per curiam decision involving both a first and third party claim, the Court of Appeals reversed the trial court’s denial of the defendant’s motion for summary disposition and remanded the case back to the trial court for further proceedings.  The plaintiff, Barbara Marks, fell and was injured while allegedly entering onto a bus owned by the defendant, the City of Detroit.  She was allegedly further injured when the bus driver attempted to pick her up and lead her to a seat.  She claimed PIP benefits for both her initial injuries while entering onto the bus and the injuries allegedly caused by the driver, as well as excess economic and noneconomic damages resulting from the negligence of both the city and the driver.  While the City of Detroit conceded that it was liable for some of Marks’ no-fault benefits related to her initial fall while entering onto the bus, it moved for partial summary disposition as to the tort claim, on governmental immunity grounds.  The trial court denied the City’s motion, but the Court of Appeals reversed, because: (1) Marks failed to establish that the city was negligent, (2) Marks did not sue the bus driver, individually, and the city is not liable for his acts, and (3) Marks failed to present any evidence in support of her claim for excess economic and noneconomic damages.

Barbara Marks was injured while entering onto a City of Detroit bus, although she had no recollection afterward of how she fell or what, if anything, caused her fall.  After she fell, the bus driver grabbed her by the arm, picked her up, and led her to a seat, which allegedly caused her further injuries.  She eventually filed a complaint against the City for negligently maintaining and operating the bus, and seeking payment of her PIP benefits and excess work loss benefits.  The City moved for partial summary disposition on governmental immunity grounds, and Marks responded that her injuries fell under the motor vehicle exception to governmental immunity, and that the city was liable for the injuries allegedly caused by the driver.  Moreover, she argued that the City’s bus service was proprietary service and did not serve a governmental function.  The trial court denied the City’s motion, “ruling that the bus system was proprietary because riders were charged a fare, and that injuries sustained in loading and unloading a bus are subject to the motor vehicle exception to governmental immunity.”

On appeal, the Court of Appeals first determined that the City was entitled to summary disposition as to all of Marks’ negligence claims.  Marks failed to present any evidence that the City negligently maintained the bus or failed to exercise reasonable care in any way.  Marks, after, all, could not recall how or why she fell, nor she could identify the part of the bus that may have been responsible for her fall. 

Marks’s claims against the city sound in negligence. Evidence that a defendant breached a standard of care is central to every negligence claim. “Negligence . . . consists in a want of that reasonable care which would be exercised by a person of ordinary prudence under all the existing circumstances, in view of the probable danger of injury.” Detroit & Milwaukee R Co v Van Steinburg, 17 Mich 99, 118-119 (1868). Marks does not know why she fell. Although she asserts that her foot caught on something, she is unable to identify any part of the bus or the step that may have been responsible for her fall. No facts of record even hint that the city neglected to maintain the bus or the step, or otherwise failed to exercise reasonable care. Because Marks failed to raise a question of fact supporting that the step or the bus were dangerous, defective, or poorly maintained, or that the bus was operated in a negligent manner, the city was entitled to summary disposition of all Marks’s negligence claims.

Secondly, the Court of Appeals determined that the City was entitled to summary disposition as to all of Marks’ claims related to the negligence or gross negligence of the bus’s driver.  The Court pointed out that, because Marks did not sue the driver, individually, “her ability to maintain a cause of action arising from his conduct depends on whether the city may be held liable for his action of forcibly raising her to her feet and moving her to her seat.”  The Court determined that it could not, because the driver was not operating the bus at the time of her injury.  Therefore, the motor vehicle exception to governmental immunity in MCL 691.1405 did not apply. 

We next address Marks’s claims related to the negligence or gross negligence of the driver, whose identity is not revealed in the record. Marks did not sue the driver. Therefore, her ability to maintain a cause of action arising from his conduct depends on whether the city may be held liable for his action of forcibly raising her to her feet and moving her to her seat. “The ‘motor vehicle’ exception in [MCL 691.1405] is the only instance where a governmental agency is explicitly held vicariously liable for the negligent actions of its officers, employees, and agents.” Ross v Consumers Power Co, 420 Mich 567, 622; 363 NW2d 641 (1984). The driver’s acts in this case do not fall within the motor vehicle exception to governmental immunity, MCL 691.1405, as the driver was not operating the bus at the time.

Marks’s claim that the city may be held liable under MCL 691.1407(2) is equally unavailing. Section 2 establishes the circumstances under which a governmental employee may bear individual liability for his or her tortious acts. But Marks has not sued the individual governmental employee she accuses of negligence. And although a municipality is not immune for tortious actions that arise from the performance of a proprietary function, MCL 691.1413, this section does not create vicarious liability, either. Rather, the statute speaks only to the direct entity liability of the governmental agency itself:

The immunity of the governmental agency shall not apply to actions to recover for bodily injury or property damage arising out of the performance of a proprietary function as defined in this section. Proprietary function shall mean any activity which is conducted primarily for the purpose of producing a pecuniary profit for the governmental agency, excluding, however, any activity normally supported by taxes or fees.

Our Supreme Court has explained that this language reflects a legislative determination “that a municipality should not be allowed to escape liability for its negligence when participating in a proprietary function.” Coleman v Kootsillas, 456 Mich 615, 623; 575 NW2d 527 (1998).

Therefore, the city was entitled to summary disposition of all claims related to the driver’s negligence or gross negligence.

Thirdly, the Court of Appeals determined that the City was entitled to partial summary disposition as to Marks’ claim for excess wage loss, because she had not been employed since 2011.

Fourthly, the Court of Appeals determined that, although the City was liable for PIP benefits resulting from Marks’ initial fall, it was not liable for PIP benefits for any separate injuries resulting from the conduct of the bus driver.  Those, separate injuries were not related to the transportational function of the bus.

The city concedes that it may be liable for PIP benefits arising from Marks’s fall, but contests PIP liability related to the driver’s actions. The parties agree that the city is responsible for paying PIP benefits “arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle,” MCL 500.3105(1), because she suffered an injury while “entering into” the bus. See MCL 500.3106(2)(b). But Marks is not eligible for PIP benefits for the injuries sustained as a result of the bus driver’s conduct, as her injury did not arise from the operation, maintenance or use of a motor vehicle as a motor vehicle. “[W]hether an injury arises out of the use of a motor vehicle ‘as a motor vehicle’ . . . turns on whether the injury is closely related to the transportational function of motor vehicles.” Morosini v Citizens Ins Co of America, 461 Mich 303, 309; 602 NW2d 828 (1999) (quotation marks and citations omitted). Marks claims to have sustained an arm injury when the bus driver pulled her to her feet. Nothing in the record supports the notion that this injury resulted from the “transportational” function of the bus. The bus “was at best the situs of the injury, which is not a sufficient condition to establish the requisite causal connection between the injury and the vehicle.” Bourne v Farmers Ins Exch, 449 Mich 193, 201; 534 NW2d 491 (1995). Accordingly, Marks is not eligible to receive PIP benefits for injuries resulting from the bus driver’s actions.

Marks alternatively argues that she is entitled to PIP benefits under MCL 500.3106(1)(b), which provides that PIP benefits may be obtained for accidental injuries sustained as a result of “physical contact with equipment permanently mounted on [a] vehicle.” To prevail under MCL 500.3106(1)(b), Marks must show that she fell after making contact with a piece of equipment permanently mounted on the bus. Equipment mounted on the vehicle may include “the articles, implements, etc., used or needed for a specific purpose or activity . . . .” Frazier v Allstate Ins Co, 490 Mich 381, 385; 808 NW2d 450 (2011) (quotation marks and citation omitted). Marks was not able to identify any specific piece of equipment that could have caused her fall. Accordingly, MCL 500.3106(1)(b) does not provide an independent ground for an award of PIP benefits. Although Marks is entitled to PIP benefits for the injuries related to her fall, she is not entitled to benefits for her arm injury caused by the driver’s acts, as that injury did not arise out of the use of a motor vehicle as a motor vehicle.


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 SinasDramis.com.

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