Injured? Contact Sinas Dramis for a free consultation.


Mickens v Meemic Ins Co, et al (COA – UNP 12/28/2021; RB #4373)   


Michigan Court of Appeals; Docket #354694; Unpublished 
Judges Borrello, Jansen, and Boonstra; Per Curiam 
Official Michigan Reporter Citation: Not Applicable; Link to Opinion; Link to Dissent

Not Applicable

Motor-Vehicle Exception to Governmental Tort Liability Act

In this 2-1 unpublished per curiam decision (Borrello, dissenting), the Court of Appeals affirmed the trial court’s summary disposition order dismissing Plaintiff Julia Mickens’s third-party action against Defendant Suburban Mobility Authority for Regional Transportation (“SMART”) on governmental immunity grounds.  The majority held that Mickens failed to present any evidence that might create a question of fact as to whether SMART’s employee, April Nickerson, was negligent in her operation of the SMART bus that was involved in the subject motor vehicle collision.

April Nickerson was driving a SMART bus, approaching a red light at an intersection, when she observed traffic barricades increasingly closing off her lane of travel just beyond the intersection.  Upon observing the barricades, Nickerson began to switch into the right lane before stopping at the light.  This left her bus positioned partially in both lanes as it came to a stop at the red light.  Once the light turned green, she proceeded ahead, straightening out the bus in the process so that it was fully in the left lane.  Julia Mickens approached the intersection in her personal vehicle just behind the bus being operated by Nickerson, while the bus was stopped at the red light.  Mickens swerved around the part of the bus’s rear which was partially protruding into the left lane still, and sped ahead once the light turned green in an attempt to overtake the SMART bus before the barricades blocked off the left lane entirely.  The two vehicles proceeded ahead, but Nickerson neither slowed the bus to let Mickens overtake it, nor sped up to prevent Mickens from overtaking it.  As Mickens approached the end of the remaining left lane of travel not blocked by barricades, she pressed her brakes twice, and started drifting into the right lane, which the SMART bus was traveling in.  As a result, the SMART bus sideswiped Mickens’ vehicle.  According to the majority, this entire sequence of events was born out on the SMART bus’s cameras.

After the collision, Mickens filed a third-party action against SMART, alleging that Nickerson was negligent in her operation of the bus, and that SMART was liable pursuant to the motor vehicle exception to governmental immunity.  In her deposition, Mickens testified to an entirely different sequence of events than that which was recorded by the SMART bus’s cameras.  She testified that she was stopped at the red light when the SMART bus came from behind her vehicle, ran the red light, and side-swiped her vehicle in the process.  SMART moved for summary disposition, arguing that no reasonable juror could find that Nickerson acted negligently based on the clear video footage of the collision, which flatly contradicted Mickens’ account.  The trial court agreed with SMART, dismissing Mickens’ third-party action.

The Court of Appeals affirmed the trial court’s summary disposition order, holding that, although conflicting witness testimony generally creates a question of fact for a jury to resolve, this case “d[id] not involve two witnesses telling a different story.  It instead involved one witness telling a story that is patently contradicted by video evidence.”  As a result, the Court held that no reasonable juror could believe Mickens’ account.

The Court of Appeals next rejected Mickens’ argument that the evidence demonstrated that Nickerson had violated MCL 257.636(1) and MCL 257.643, which provide, respectively:

“(1)The following rules govern the overtaking and passing of vehicles proceeding in the same direction, subject to sections 637 to 643a: 

(a) The driver of a vehicle overtaking another vehicle proceeding in the same direction shall pass at a safe distance to the left of that vehicle, and when safely clear of the overtaken vehicle shall take up a position as near the right-hand edge of the main traveled portion of the highway as is practicable. 

(b) Except when overtaking and passing on the right is permitted, the driver of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle and shall not increase the speed of his or her vehicle until completely passed by the overtaking vehicle. [MCL 257.636(1) (emphasis added)].” 

. . . 

“ ‘The operator of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of the vehicles and the traffic upon and the condition of the highway.’ [MCL 257.643(1)].” 

In this case, the Court of Appeals noted that Mickens did not “increase the speed” of the SMART bus prior to Mickens’ attempt to overtake it, and that MCL 257.636(1), therefore, did not apply.  As for MCL 257.643(1), the Court noted that there was no evidence that Nickerson was following the vehicles in front of the SMART bus too closely and that, in doing so, she prevented Mickens from overtaking her.  

“The video footage establishes that Nickerson violated neither of these rules. Three seconds after the light turned green, Nickerson moved the bus so that it was completely in the right-hand lane. Thus, Nickerson ‘[gave] way to the right in favor of the overtaking vehicle . . . .’ See MCL 257.636(1)(b). Second, when plaintiff was driving in the left-hand lane alongside Nickerson, Nickerson maintained her speed. Nothing in the video suggests that Nickerson accelerated to prevent plaintiff from overtaking her. The only reason plaintiff fell behind Nickerson was because plaintiff braked—twice. Nickerson did not ‘increase the speed of . . . her vehicle’ in violation of MCL 257.636(1)(b). Third, there is nothing in the video that supports plaintiff’s speculation that Nickerson was following the vehicle in front of her ‘more closely than [was] reasonable and prudent, having due regard for the speed of the vehicles and the traffic upon and the condition of the highway.’ Plaintiff introduced no evidence from which a reasonable juror could conclude that Nickerson violated either MCL 257.636(1) or MCL 257.643(1).”

The Court of Appeals next rejected Mickens’ argument that Nickerson was negligent by not slowing down to let Mickens into her lane.  The Court held that Nickerson was under no such duty, considering doing so would have meant stopping at a green light and obstructing the flow of traffic, all to accommodate another driver who failed to observe traffic barricades in her own lane of travel up ahead.

“Under the specific circumstances of this case, requiring a driver in Nickerson’s position to stop and allow another vehicle to merge would essentially require Nickerson (and other similarly situated drivers) to take extravagant precautions to aid or protect drivers like plaintiff. In effect, it would require a driver like Nickerson to stop at a green light and obstruct the flow of traffic, simply because plaintiff failed to see an upcoming construction barricade or wished to merge into the bus’s lane ahead of it rather than behind it. Plaintiff has not provided any support for the proposition that such a duty should be imposed on Nickerson.” 

The Court of Appeals next rejected Mickens’ arguments that Nickerson was negligent by being partially in both the right and left lane while stopped at the red light.  The collision occurred after the light turned green and Nickerson accelerated, straightening the bus out.  Thus, her action of stopping the bus partially in both lanes while at the red light had no bearing on whether she was negligent at the actual moment of collision.

“But it is clear from the video that when plaintiff’s vehicle collided with the SMART bus, the bus was completely within the right lane. Whether or not the bus had occupied two lanes previously while stopped at a red light has no bearing on whether Nickerson was operating the bus negligently when the accident occurred. The trial court therefore incorrectly concluded that there was evidence from which a reasonable juror could conclude that Nickerson had operated the bus negligently.” 

Lastly, the Court of Appeals held that, even if Mickens had been negligent in stopping her bus in both lanes of traffic, that action did not proximately cause the collision. 

“In this case, there is no genuine issue of material fact as to whether Nickerson’s stopping of the bus in both the right-hand and left-hand lanes caused the collision. From the video footage and Nickerson’s testimony, it is clear that Nickerson’s conduct bore no causal connection to the accident. Even though the back half of the bus protruded into the left-hand lane while Nickerson was stopped at the traffic light, the video footage shows that plaintiff was still able to drive her vehicle around the bus in the left-hand lane. More importantly, as soon as Nickerson started the bus moving, she pulled the bus into the right-hand lane so that the bus was fully within that lane. When the collision occurred ten seconds later, Nickerson was no longer blocking the left-hand lane. Simply put, plaintiff has offered nothing to suggest that the manner in which Nickerson was stopped before the light turned green had anything to do with the accident.” 

Judge Borrello dissented, contending that the video evidence was not as conclusive as the majority held it to be—specifically, Judge Borrello contended that the video was unclear as to whether Nickerson’s bus veered from its lane and sideswiped Mickens, who was stopped in her lane, waiting for the bus to pass, before merging into the left lane behind the bus—and that the majority failed to consider whether Nickerson had a duty under Michigan case law to take reasonable care to avoid a collision with Mickens’ vehicle once she observed Mickens attempting to overtake her.

“Here, a reasonable jury could decide that Nickerson, after having observed plaintiff attempting to go around her, should have slowed down and let plaintiff merge in front of her so plaintiff could avoid the impending construction barricade. A jury could further conclude that Nickerson’s failure to follow such a course of action constituted a breach of her duty of reasonable care that proximately caused the accident.6 However, a jury could also reasonably conclude that such action by Nickerson would have created further problems for her and other drivers in light of the surrounding traffic and weather conditions7 and that Nickerson properly continued with her turn because plaintiff had time to stop and wait for a chance to merge safely after the bus had passed. Based on such a finding, a jury could conclude that Nickerson was not negligent and that plaintiff’s negligence proximately caused the accident. It is also unclear from the record evidence whether plaintiff drove into Nickerson’s lane and hit the bus or whether the bus drifted into plaintiff’s lane after plaintiff stopped. These are further factual questions bearing on causation and breach that the jury must resolve in order to determine whether Nickerson acted with reasonable care after observing the danger presented by plaintiff’s vehicle. Moreover, in reviewing this motion for summary disposition, we must view the evidence in the light most favorable to plaintiff as the non-moving party. Moraccini, 296 Mich App at 391; Zaher, 300 Mich App at 139-140. The majority’s opinion demonstrates a failure to view the evidence in the light most favorable to the non-moving party. 

. . . 

My discussion in Part III.A. of this opinion explaining the questions of fact regarding Nickerson’s negligence also makes evident that there are similar questions of fact with respect to plaintiff’s negligence. Rodriguez, 191 Mich App at 488. For example, it is unclear from the video whether plaintiff stopped and remained in her lane to let the bus pass, only to be hit by the bus as it turned and veered from its own lane. If a jury were to so conclude, which it reasonably could do, plaintiff’s degree of fault would be substantially less than if she had caused the collision by straying from her lane and turning into the bus as defendant claims. Viewing the evidence in a light most favorable to plaintiff as the nonmoving party, there are questions of material fact regarding the negligence of both parties such that it cannot be concluded as a matter of law that plaintiff was more than 50% negligent. Therefore, defendant has not shown that the trial court erred by concluding that there was a question of fact regarding comparative negligence and denying defendant’s motion for summary disposition based on MCL 500.3135(2)(b). Rodriguez, 191 Mich App at 488; Zaher, 300 Mich App at 139-140.” 

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

Copyright © 2022 Sinas Dramis Law Firm, George Sinas, Stephen Sinas.
All Rights Reserved.
Login (Publishers Only)