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Mickels v. Suburban Mobility for Regional Transp, et al. (COA – UNP 2/4/2020; RB #4029)


Michigan Court of Appeals; Docket # 344977; Unpublished
Judges Fort Hood, Servitto, and Boonstra; Per curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion

Not Applicable

Court of Claims Litigations

In this majority unpublished per curiam decision (Boonstra, dissenting), the Court of Appeals affirmed the trial court’s denial of the defendant’s motion for summary disposition seeking dismissal of the plaintiff’s third-party automobile negligence action.  The defendant, the Suburban Mobility for Regional Transportation (“SMART”), argued that the plaintiff’s injuries were caused by a “usual incident of travel”—hitting a bump in a construction zone—and that SMART was therefore entitled to summary disposition on the basis of governmental immunity.  The Court of Appeals disagreed, finding that a question of fact existed as to whether SMART’s bus driver negligently drove through the construction zone at an excessive speed, thereby causing the plaintiff’s injuries and satisfying the motor vehicle exception to governmental immunity.

Susan Mickels was a passenger on a SMART bus when the bus hit a bump in a construction zone and ejected Mickels from her seat, causing her to become injured.  Mickels brought suit against SMART, alleging that the bus driver negligently drove through the construction zone at an excessive speed, and SMART moved for summary disposition, arguing that Mickels’s injuries were the result of a “usual incident of travel” and that, as a result, SMART was entiteled to summary disposition on governmental immunity grounds.  The trial court denied SMART’s motion, and SMART appealed, arguing that the trial court misunderstood the “usual incidents of travel doctrine.”

The Court of Appeals affirmed the trial court’s denial of SMART’s motion for summary disposition, however, noting that additional passengers provided affidavits that supported Mickels’s allegation.  Moreover, SMART conceded that the bus driver was traveling at 33 miles per hour, which, although two miles per hour below the posted speed limit, still may have exceeded what would have been careful and prudent under the circumstances pursuant to MCL 257.627.

Unlike the cases relied upon by SMART, the plaintiff in this case alleged that the bus driver was driving at an unreasonable speed through a construction zone, and that plaintiff was thrown from her seat and injured as a result. Two additional passengers provided affidavits in support of that assertion. Additionally, plaintiff’s husband visited the area after the incident, and later provided an affidavit in which he noted that he believed it was necessary to reduce a vehicle’s speed to 15 to 20 miles per hour in order to safely traverse the construction area at issue. Coincidently, the bus driver initially indicated that she was driving at that speed, however, SMART admits that the bus driver was actually driving substantially faster than that, noting that a videorecording of the incident shows that the bus was traveling at 33 miles per hour.

* * *

Our Supreme Court has specifically held that, “one operating an automobile may be guilty of negligence even though keeping within the statutory limit, and . . . a driver must have regard for the situation and operate his car accordingly.” Dempsey v Miles, 342 Mich 185, 192-193; 69 NW2d 135 (1955) (citations omitted). Thus, that the ordinary speed limit of 35 miles per hour posted in the area was not reduced by the Michigan Department of Transportation (MDOT) inside the construction zone did not relieve the bus driver of her duty to operate the vehicle at a careful and prudent speed given the surface of the road and other external circumstances. See MCL 257.627(1).

Justice Boonstra dissented, arguing that the bus driver was entitled to rely upon the posted speed limit and that MCL 257.627(6), not subsection (1), applies in situations where the “condition existing at that time” is road construction.  Furthermore:

But because MCL257.627(6) applies here, and because MCL257.627(6) (unlike MCL 257.627(2)) does not include the prefatory language, “Except as provided in subsection (1) . . . ,” MCL 257.627(1) does not apply in this context.  Therefore, in this context, in which the incident occurred in a “work zone” as defined in MCL 257.629d(a), the driver of defendant’s bus was entitled to rely upon the posted speed limit as determined by the applicable governing authority, and did not have the further obligation of MCL 257.627(1) to ascertain what was a “reasonable and proper speed” for the road construction conditions.

The majority addressed Justice Boonstra’s argument, stating the following:

With respect to the the argument provided by the dissent that MCL 257.627(1) does not apply in this case because the Legislature clearly intended for MCL 257.627(6) to apply in construction zones, and to hold that both subsections could apply to construction zones would be to render the language in subsection (2)—“except as provided in subsection (1)”—nugatory, we disagree. First, we believe that the language of subsection (1) is plain and that the subsection was clearly intended to apply to all persons operating vehicles on highways, and thus, the canon against surplusage does not apply. See People v Pinkney, 501 Mich 259, 283-284; 912 NW2d 535 (2018) (we do not employ the canon against surplusage where doing so might controvert otherwise plain statutory language). Second, we believe that a holding that subsection (6) alone governs this case could lead to absurd results in the future. See McAuley v Gen Motors Corp, 457 Mich 513, 518; 578 NW2d 282 (1998) (“Statutes should be construed so as to prevent absurd results . . . .”). This would be to say that, irrespective of the conditions of the road— whether it be inclement weather, road blockages, or any other number of circumstances that are not accounted for in determining the speed limit—persons operating vehicles in construction zones are—as a matter of law—always operating their vehicles at a safe speed so long as they are driving below the posted limit. Such a reading would defeat the purpose of subsection (1), which is intended to ensure that every driver is paying adequate attention to conditions outside their vehicle that might require them to reduce their speed in order to operate their vehicle safely. And, while we agree that the Legislature may have intended to place a burden on MDOT and other local regulatory agencies to determine and post safe speed limits in construction zones, we do not believe the creation of that burden extinguished or lessened the burden on drivers to operate vehicles carefully and prudently given the conditions of the road.

Michigan auto accident attorney 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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