Michigan Court of Appeals; Docket #353611, 353653; Unpublished
Judges Letica, Servitto, and Kelly; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
In this unanimous unpublished per curiam decision, the Court of Appeals affirmed the trial court’s denial of the defendants’—the City of Detroit and seventeen mechanics employed by it— motion for summary disposition, in which they sought dismissal of Plaintiff Bruce T. Wood’s third-party action against them. This case was before the Court of Appeals for the second time; the first time, the Court held that a question of fact existed as to whether the motor vehicle exception to governmental immunity applied, basing its holding, at least in part, on an affidavit from an accident reconstructionist who opined that the City of Detroit’s bus driver’s negligence caused Wood’s injuries. This time around, the Court of Appeals held that the law-of-the-case doctrine applied and affirmed the Wood I Court’s ruling regarding the accident reconstructionist’s affidavit. The Court of Appeals next held that Wood’s count in his complaint—in which he alleged that the City of Detroit was vicariously liable for its bus driver’s negligence pursuant to the doctrine of respondeat superior—was sufficient for purposes of the statutory motor vehicle exception to governmental immunity. Lastly, the Court of Appeals held that the trial court correctly ruled that a sanction for spoliation was appropriate given the defendants’ failure to maintain the maintenance logs for the bus on the date in question, but that the trial court should have determined whether that evidence was ever within the control of the defendants and could have been preserved by the defendants.
Bruce Wood was crossing the street when a tire flew off of a bus owned by the City of Detroit and struck him, causing him significant injuries. In Wood’s subsequent third-party action against the City of Detroit, the City of Detroit moved for summary disposition, arguing that the motor vehicle exception to governmental immunity did not apply because only negligent maintenance of the bus occurred, not negligent operation of the bus. The trial court denied the City of Detroit’s motion, which denial was affirmed in part and reversed in part by the Court of Appeals. The Court of Appeals held that a question of fact existed as to whether the bus’s driver, James Derrick Pennington, had negligently operated the bus, basing its holding on an affidavit from a traffic crash reconstructionist, Timothy Robbins, who asserted that Pennington would have noticed significant wobbling before the tire came ajar and should not have stopped trying to drive the bus when he did.
After the case was remanded to the trial court, Wood filed a separate complaint alleging gross negligence against 17 additional defendants, all of whom were mechanics who worked for the City of Detroit and serviced the bus in question on various dates. Discovery ensued but was ultimately not productive in identifying which mechanic, specifically, serviced the bus on the date of the subject collision. The trial court then consolidated the two cases and the defendants jointly moved for summary disposition. The City of Detroit again argued that Wood failed to produce any admissible evidence that the van was negligently operated, and the defendant mechanics argued that Wood had failed to provide any evidence that any of the defendant mechanics were grossly negligent. Before the trial court could rule on the motion, Wood filed a motion regarding spoliation of evidence because the servicing log for the subject bus on the date in question could not be located. The trial court ultimately denied the defendants motions.
On appeal, the City of Detroit first argued that the trial court erred by relying on Robbins’s affidavit in ruling that a question of fact existed as to whether Pennington negligently operated the bus, because absent Robbins’s affidavit, there was no other evidence that Pennington had done so. The Court of Appeals noted preliminarily that the law-of-the-case doctrine applied to the City’s appeal because, implicit in the Wood 1 decision was the conclusion that Robbins’s affidavit was admissible and created a question of fact as to Pennington’s negligence. The City of Detroit argued that the law-of-the-case doctrine did not apply, however, because the facts with regard to this issue were materially different on remand. In support of its argument that the facts were materially different on remand, the City of Detroit pointed to an affidavit of its own accident reconstructionist which was produced after remand, which contradicted Robbins’s. The Court of Appeals held that the City of Detroit’s expert’s affidavit did not render Robbins’s affidavit no longer admissible, however, and merely was a “competing view of the materially, unchanged evidence related to the accident.” Summary disposition was therefore improper as the competing evidence was for a jury to weigh.
On appeal, the City urges us to reconsider the admissibility of Robbins’s affidavit, arguing that an exception to the law-of-the-case doctrine applies, i.e., that the facts are materially different on remand. In this regard, the City points to the affidavit of its own accident reconstructionist produced after remand. Although the City has proffered additional evidence, it has not established a material change in the facts such that Robbins’s affidavit is no longer admissible. Indeed, the City fails to explain how its expert’s opinion constitutes a material change in the facts that would render Robbins’s affidavit unreliable; rather, its expert’s opinion merely presents a competing view of the materially, unchanged evidence related to the accident. The City also argues that it is allowed to refile a motion for summary disposition based on governmental immunity at any time. The City, however, cites no supporting authority that this rule defeats the law-of-the-case doctrine in the absence of materially different facts. Therefore, the Wood I Court’s implicit conclusion that Robbins’s affidavit is admissible is the law of the case binds us on this subsequent appeal, and we cannot make a contrary determination. See Lopatin, 462 Mich at 259. Accordingly, we reject defendant City’s claim.
The City of Detroit next argued that the trial court erred by denying its motion for summary disposition because, rather than explicitly alleging that Pennington’s actions fell under the motor vehicle exception to governmental immunity, Wood, in his complaint, alleged that the City of Detroit was liable under the doctrine of respondeat superior. Thus, the City of Detroit argued, summary disposition should have been granted in its favor because there is no exception to governmental immunity based on respondeat superior. The Court of Appeals rejected this argument, however, noting that, if the City of Detroit in this case is liable under the doctrine of respondeat superior, it is also necessarily liable under the statutory motor vehicle exception to governmental immunity.
As the Michigan Supreme Court has recognized, “[a] governmental agency can be held vicariously liable only when its officer, employee, or agent, acting during the course of employment and within the scope of authority, commits a tort while engaged in an activity which is nongovernmental or proprietary, or which falls within a statutory exception.” Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 625; 363 NW2d 641 (1984) (emphasis added), superseded by statute on other grounds as stated in Jones v Bitner, 300 Mich App 65, 74-75; 832 NW2d 426 (2013). As pleaded in his complaint, plaintiff asserted a claim of vicarious liability based on Pennington’s negligent operation of a motor vehicle. Plainly, Pennington’s allegedly negligent operation of a motor vehicle falls within a statutory exception to an agency’s governmental immunity, i.e., the motor vehicle exception, and the City may be held vicariously liable for Pennington’s negligence. See id. Stated differently, the City is not entitled to dismissal because plaintiff has adduced facts, that if believed, would allow a trier of fact to conclude that the motor vehicle exception applies, i.e., it can be held vicariously liable for Pennington’s negligence under the motor vehicle exception. Accordingly, we conclude that the circuit court did not err by denying dismissal of plaintiff’s respondeat superior claim based on Pennington’s negligence.
The defendant mechanics, on appeal, argued that the trial court erred by ordering an adverse inference instruction based on their failure to maintain evidence—i.e. maintenance logs—relevant to Wood’s claims against them. The Court of Appeals held that the circumstances supported a sanction for spoliation, but that the trial court failed to determine whether the relevant records were ever actually within the control of, and could have been preserved by, the named mechanics. As the Court noted, an adverse inference instruction based on spoliation is only allowable if the evidence was under the control of the named defendants. Thus, this issue was remanded back to the trial court.
These circumstances plainly support a sanction as evidence relevant to plaintiff’s gross negligence claims was not preserved. The circuit court’s chosen sanction, however, allowed an adverse inference jury instruction for the missing evidence for gross negligence claims against all defendant mechanics. Missing from the circuit court’s analysis, despite the fact that defendant mechanics exclusively maintained the vehicle, is whether the missing maintenance records were actually within the control of each of the named mechanics or could have been produced by them, i.e., whether each of the defendant mechanics were culpable parties in failing to maintain the relevant data. An adverse inference jury instruction is only supported if the evidence was under the control of the named defendants. See M Civ JI 6.01(a). Without making this determination, the circuit court failed to “carefully fashion a sanction that denies [each of the 17 mechanics] the fruits of [their] misconduct.” Brenner, 226 Mich App at 161. Accordingly, we remand for the trial court to allow the adverse inference instruction against only those defendant mechanics who exercised control with respect to the maintenance logs.