Michigan Court of Appeals; Docket # 353745; Unpublished
Judges Markey, Kelly, and Swartzle; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link To Opinion
Motor-Vehicle Exception to Governmental Tort Liability Act
In this unanimous unpublished per curiam decision, the Court of Appeals affirmed the trial court’s denial of Defendant Suburban Mobility Authority for Regional Transportation’s (“SMART”) motion for summary disposition in which it sought dismissal of Plaintiff Edward Jones’s third-party lawsuit against it on governmental immunity grounds. The Court of Appeals, while noting the general rule that bus drivers are not required to wait until patrons reach their seats before accelerating, held that a question of fact existed as to whether Jones’s status as an elderly, physically compromised individual constituted a “special and apparent reason” why SMART’s bus driver should have waited until Jones reached his seat before accelerating, and whether, therefore, the bus driver’s failure to do so was negligence as a matter of law. Additionally, the Court of Appeals held that a question of fact existed as to whether the bus driver acted negligently by taking her eyes off the road and attending to the operation of the fare machine at the front of the bus while actively driving down the roadway.
Jones was injured while traveling as a passenger on a SMART bus, and all relevant events were captured on video. Jones, a 61-year-old man on the date in question, boarded the bus holding a walking cane. While he was standing at the front of the bus looking for bus fare, the driver accelerated and began driving down the roadway. The bus driver took her eyes off the road on two separate occasions as Jones attempted to put money in the fare machine and at one point reached out her hand to touch a control panel near the machine. While she reached out her hand to touch the control panel, a vehicle in front of the bus in the bus’s lane of traffic decelerated, at which point the bus driver cried out and braked suddenly. As a result, Jones fell and the other seated passengers were jolted forward in their seats. In Jones’s resultant third-party lawsuit against SMART and the bus driver, SMART moved for summary disposition, arguing that Jones’s action was barred by governmental immunity. The trial court denied SMART’s motion, however, finding a genuine issue of material fact as to whether the driver’s acted negligently and whether Jones’s action therefore fell within the motor vehicle exception to governmental immunity.
The Court of Appeals affirmed the trial court’s denial of SMART’s motion for summary disposition, but acknowledged preliminarily that, as a general rule, bus drivers are not required to wait until all passengers are seated to begin driving, “unless there is some special and apparent reason to the contrary.” Ottinger v Detroit United R, 166 Mich 106 (1911); Getz v Detroit, 372 Mich 98 (1963). Notably, the Court in this case stated that it is “not prepared to rule out negligence as a matter of law where a bus driver begins driving while a 61-year-old patron using a walking cane is yet to be seated.” In other words, the Court held that perhaps Jones’s age and physical limitations constituted a “special and apparent reason” why the driver should not have accelerated until he reached his seat.
In this case, Jones was 61 years old, and he boarded the bus with a walking cane. Although we conclude that there exists a genuine issue of material fact regarding the negligence of the bus driver for other reasons discussed below, we additionally find that it is for the trier of fact to resolve whether the circumstances constituted a special and apparent reason such that the bus driver was negligent for driving the bus before Jones was seated. We are not prepared to rule out negligence as a matter of law where a bus driver begins driving while a 61-year-old patron using a walking cane is yet to be seated. See Wells, 352 Mich at 40. Reasonable minds could differ on the matter.
The issue of the driver’s acceleration aside, the Court of Appeals affirmed the trial court’s summary disposition order for the alternative reason that a question of fact existed as to whether the bus driver acted negligently by taking her eyes off the road and attending to the fare machine while actively driving down the roadway. The Court held that a reasonable juror could conclude that the “driver’s inattention caused the need to brake suddenly, which in turn caused Jones to fall.”
We conclude that there is a genuine issue of material fact regarding whether the bus driver failed to exercise ordinary care while driving given the evidence that she twice looked away from the road and may have been paying attention to something unrelated to driving safely in the seconds leading up to her sudden application of the brakes. See Sargeson, 24 Mich App at 580. Viewing the video footage in a light most favorable to Jones, we agree it could reasonably be inferred that the bus driver was distracted for four to five crucial seconds from the time Jones first put something in the fare machine to the time that the driver braked. It was during that same period of time that the bus began to rapidly approach the white car that was directly in front of the bus.
A juror could also reasonably infer from the evidence that the bus driver’s inattention caused the need to brake suddenly, which in turn caused Jones to fall.
. . .
In sharp contrast, here there is video evidence allowing a jury to assess when the bus driver should have become aware of the need to stop, the distance to the car in front of the bus, the driver’s actions leading up to her sudden braking, and to ultimately assess whether there was negligence that caused Jones to fall. We hold that a reasonable juror could conclude on the basis of the video “that more likely than not” the bus driver’s inattention or negligence caused Jones to fall. See Skinner v Square D Co, 445 Mich 153, 165; 516 NW2d 475 (1994).