Michigan Court of Appeals; Docket #358189; Unpublished
Judges Patel, Borrello, and Shapiro; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
Not Applicable
TOPICAL INDEXING:
Evidentiary Issues
Gross Negligence Exception to Governmental Immunity
Motor Vehicle Exception to Governmental Tort Liability Act
Negligence-Duty
SUMMARY:
In this unanimous, unpublished, per curiam decision, the Court of Appeals affirmed (1) the trial court’s denial of Defendant Mason County Road Commission’s (“MCRC”) motion for summary disposition, in which it sought dismissal of Plaintiff Dustin Hannah’s automobile negligence action on governmental immunity grounds, (2) the trial court’s dismissal of Hannah’s gross negligence count against Stanley Raspotnik, and (3) the trial court’s denial of Hannah’s motion for sanctions, filed in response to what he argued was a frivolous motion filed by the defendants’ regarding “serious impairment of body function.” The Court of Appeals held, preliminarily, that it had jurisdiction over MCRC’s appeal—brought under MCR 7.202(6)(a)(v)—because the trial court effectively denied MCRC’s claim of governmental immunity by finding that a question of fact existed as to whether Raspotnik was negligent in causing the subject accident. The Court of Appeals held, second, that a question of fact existed as to whether Hannah’s oncoming vehicle presented an “immediate hazard” to Raspotnik, such that Raspotnik should have remained stopped at his flashing red light before proceeding into the intersection where the accident occurred. The Court held, third, that even if Raspotnik failed to check his blind spot before entering the intersection, such a failure does not rise to the level of gross negligence. And the Court held, fourth, that it was not clearly erroneous for the trial court to have found that the defendants’ motion for summary disposition—regarding Hannah’s injuries and the “serious impairment of body function standard” in MCL 500.3135—was not frivolous. The defendants filed their motion despite having spoken to Hannah’s neurosurgeon four months prior—the same neurosurgeon who later executed an affidavit averring that Hannah’s lumbar spine injuries were accident-related. Hannah argued that the neurosurgeon ‘must’ have shared his opinion regarding causation with the defendants during this earlier conversation, but the Court of Appeals held that that was purely speculative.
Stanley Raspotnik, an MCRC employee, was clearing snow in a road grader when he approached an intersection with a flashing red light. He stopped at the intersection, claimed to have looked both ways and not seen any approaching vehicles, and then entered the intersection at the grader’s low rate of speed. At the same time, Dustin Hannah was approaching on the intersecting road, which had a flashing yellow light, and he testified that the grader accelerated and entered the intersection when he was approximately 50 yards away. He testified that he could not avoid the collision, but there was evidence that it took the grader approximately 13 seconds to travel from the point where it had initially stopped to the point in the intersection where the collision occurred. After Hannah filed an automobile negligence action against MCRC and Raspotnik, the MCRC and Raspotnik moved for summary disposition, arguing (1) that Hannah’s negligence caused the accident, and (2) that Hannah had not sustained a “serious impairment of body function” for purposes of MCL 500.3135. Hannah opposed the motion, arguing that a question of fact existed as to whether Raspotnik was negligent and/or grossly negligent, while also filing a motion for sanction against MCRC and Raspotnik. Hannah argued that it was frivolous for the defendants to file a motion regarding “serious impairment of body function” when, four months prior, they spoken with his neurosurgeon, Dr. Rick Edgar, who later executed an affidavit averring that Hannah’s lumbar spine injuries were accident-related. Ultimately, the trial court denied MCRC’s motion, finding a question of fact regarding negligence; granted summary disposition in Raspotnik’s favor, finding that there was no question of fact that Raspotnik was not grossly negligent; and denied Hannah’s motion for sanctions, finding that the defendants’ motion regarding “serious impairment of body function” was not frivolous.
The Court of Appeals affirmed the trial court in all respects, but first rejected Hannah’s argument that the Court did not have jurisdiction over MCRC’s appeal because “MCRC’s argument . . . is actually an argument that [Hannah] cannot establish negligence, and an appeal under MCR 7.202(6)(a)(v) is limited to the issue of governmental immunity.” The Court observed that in Seldon v Suburban Mobility Auth for Regional Transp, 297 Mich App 427 (2012), it held that “when the motor vehicle exception is at issue and a trial court determines that a question of fact exists regarding [negligence], the effect is to deny the claim of governmental immunity and the order is therefore reviewable on appeal under MCR 7.203(A)(1) and MCR 7.202(6)(a)(v).”
The Court then turned to the trial court’s denial of MCRC’s motion regarding negligence, and held that a question of fact existed as to whether Raspotnik negligently proceeded into the intersection. Under MCLs 257.614 and MCL 257.649, a driver who stops at a flashing red light can only proceed into the intersection if there is no other vehicle ‘approaching so closely on the highway as to constitute an immediate hazard during the time when the driver would be moving across or within the intersection.’ In this case, Hannah crashed into Raspotnik from the intersecting road while Raspotnik was ‘moving across or within the intersection,’ and thus, at the very least, a question of fact existed as to whether Raspotnik violated his statutory duty (was negligent).
“Here, as the trial court recognized, the issue is whether Raspotnik decided to enter the intersection even though plaintiff’s vehicle was ‘approaching so closely on the highway as to constitute an immediate hazard during the time when the driver would be moving across or within the intersection.’ MCL 257.649(8). It is undisputed that Raspotnik stopped at the flashing red light before deciding to proceed, and Raspotnik claimed that he looked both ways and did not see any vehicles approaching on the intersecting highway. Yet, plaintiff’s vehicle undisputedly reached the intersection before Raspotnik’s grader fully cleared the intersection.
However, when viewing the evidence in a light most favorable to plaintiff as the nonmoving party, Dextrom, 287 Mich App 406, 428-429, a reasonable jury could conclude that plaintiff’s vehicle was visible to a driver in Raspotnik’s position and was close enough to the intersection that it presented an immediate hazard during the time the grader would be within the intersection, such that Raspotnik breached his duty by nonetheless proceeding into the intersection or by failing to see plaintiff’s vehicle, MCL 257.649(8).”
The Court also rejected MCRC’s argument that, ‘because the grader is a slow-moving vehicle that took 11 to 13 second to reach the point in the intersection where the collision occurred, the grader had obtained the favored right-of-way as a matter of law and it thus became plaintiff’s duty to avoid the collision.” This was a question of fact for the jury, especially considering Raspotnik had been driving graders for 21 years and “would have been generally aware of a grader’s speed and acceleration capabilities such that he would be able to take those factors into account when judging whether an approaching vehicle would present an immediate hazard during the time the grader was in the intersection.”
“The MCRC further contends that because the grader is a slow-moving vehicle that took 11 to 13 seconds to reach the point in the intersection where the collision occurred, the grader had obtained the favored right-of-way as a matter of law and it thus became plaintiff’s duty to avoid the collision. The arguments presented by the MCRC are best understood as arguments that Raspotnik’s driving was reasonable under the circumstances. However, ‘[o]nce a defendant’s legal duty is established, the reasonableness of the defendant’s conduct under that standard is generally a question for the jury. The jury must decide whether the defendant breached the legal duty owed to the plaintiff, that the defendant’s breach was the proximate cause of the plaintiff’s injuries, and thus, that the defendant is negligent.’ Riddle v McLouth Steel Products Corp, 440 Mich 85, 96; 485 NW2d 676 (1992) (citation omitted). We further note that given Raspotnik’s 21 years of experience driving graders, he would have been generally aware of a grader’s speed and acceleration capabilities such that he would be able to take those factors into account when judging whether an approaching vehicle would present an immediate hazard during the time the grader was in the intersection.”
Despite holding that a question of fact existed as to whether Raspotnik was negligent, the Court of Appeals next held that there was no evidence that Raspotnik was grossly negligent. Even if he had entered the intersection without checking his blindspot, there was no evidence that he acted with reckless intent or with a willful disregard for the safety of others—the standard for gross negligence.
“While the evidence could support a finding of ordinary negligence, there is no evidence that Raspotnik acted recklessly, demonstrated a substantial lack of concern for substantial risk of injury, or willfully disregarded safety measures. Evidence of ordinary negligence is insufficient to establish a material question of fact regarding gross negligence. Seldon, 297 Mich App at 440. Here, without more, no reasonable juror could find from this evidence that Raspotnik’s conduct amounted to gross negligence. Seldon, 297 Mich App at 440-441. Plaintiff thus has failed to demonstrate that the trial court erred by granting summary disposition in favor of Raspotnik individually. Id. ‘Though the issue whether a governmental employee’s conduct constituted gross negligence under MCL 691.1407 is generally a question of fact, a court may grant summary disposition under MCR 2.116(C)(7) if, on the basis of the evidence presented, reasonable minds could not differ . . . .’ Tarlea v Crabtree, 263 Mich App 80, 88; 687 NW2d 333 (2004) (quotation marks and citation omitted).”
Lastly, the Court of Appeals held that it was not clearly erroneous for the trial court to have denied Hannah’s motion for sanctions against the defendants, with respect to their “serious impairment of body function” motion. Although Hannah argued that Dr. Edgar ‘must’ have shared his opinion regarding causation with the defendants in their phone conversation four months prior, there was no actual evidence that he actually did so. Moreover, there was some evidence to suggest that Dr. Edgar’s opinion regarding causation was perhaps informed, at least in part, on his observations of Plaintiff’s lumbar spine after the conversation he had with the defendants.
“Plaintiff’s appellate argument is substantially similar to the argument raised in the trial court. Here, as in the trial court, the foundation of plaintiff’s argument is speculative regarding what ‘must’ have transpired during the conversation between defense counsel and Edgar. Plaintiff ignores that according to Edgar’s affidavit, one of the two surgeries was performed in March 2021, after the January 2021 conversation with defense counsel and before defendants filed the motion for summary disposition in May 2021. Edgar’s opinions were based in part on his personal observations during this surgery. Defense counsel stated at the motion hearing that Edgar’s affidavit differed from counsel’s notes from the earlier conversation with Edgar. Plaintiff on appeal seemingly ignores the possibility that Edgar’s opinions could have changed or evolved and further ignores that defendants did not wholly abandon their summary disposition motion as a result of Edgar’s affidavit. Thus, plaintiff has not convinced us that it was clearly erroneous for the trial court to find that the motion was not frivolous. Kitchen, 465 Mich at 661-662. The mere fact that defendants did not prevail, or that they changed course in response to evidence, does not render the motion frivolous. See id. at 662.”
