Estate of Nancy Riegel v. Smart ( 2020 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
ESTATE OF NANCY RIEGEL, by VONNA UNPUBLISHED
SCHNEIDER and HAROLD BROWNING, Co- March 24, 2020
Personal Representatives,
Plaintiff-Appellant,
v No. 345618
Macomb Circuit Court
SUBURBAN MOBILITY AUTHORITY FOR LC No. 2017-004282-NI
REGIONAL TRANSPORTATION and VALERIE
HINES,
Defendants-Appellees.
Before: BECKERING, P.J., and SAWYER and GADOLA, JJ.
PER CURIAM.
Plaintiff1 appeals from an order of the circuit court granting summary disposition in favor
of defendants.2 We affirm.
Plaintiff, who was in a wheelchair, was injured while riding a bus operated by the Suburban
Mobility Authority for Regional Transportation (SMART) and driven by defendant Hines. The
1
Nancy Riegel died while this appeal was pending. So far as we are aware, her death was not the
result of injuries suffered in this accident.
2
It is not entirely clear on which basis the trial court granted summary disposition. Defendants
moved under MCR 2.116(C)(7) (immunity granted by law), (C)(8) (failure to state a claim), and
(C)(10) (no genuine issue of material fact). The trial court’s order merely states that the motion is
granted. Similarly, at the motion hearing, the trial court did not specifically reference which
subrule under which it was granting summary disposition. But we agree with plaintiff’s statement
in its brief that, given the trial court’s comments at the hearing, it was most likely granting
summary disposition under MCR 2.116(C)(10).
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trial court concisely summarized the events leading up to plaintiff’s injuries at the September 4,
2018 motion hearing as follows:
THE COURT: I read your pleadings and we have Miss Riegel in her
wheelchair, picked up, appropriately secured in the bus. She refused the
seatbelt, and we have a stop at a yellow light, although that is hastily, but
nonetheless a stop at the yellow light, and she slid off her chair on [onto--?] the
floor and sustained injuries. Does that pretty much sum it up?
Both parties agreed that it did. The trial court offered the following opinion at the end of the
hearing:
THE COURT: I read your argument. It’s all in your pleadings, Counsel.
She approached the yellow light, determined that she couldn’t make the
appropriate stop at the yellow light which appropriately is required if it can be
done, done safely. It was done. It was done safely. The only issue is maybe a
little too quick for somebody in a wheelchair who decided on her own volition
not to strap in, and she could have.
The Court considering it in the light most favorable to the non-moving
party, I grant your motion for summary disposition.
Plaintiff does not contest that her wheelchair was properly secured in the bus nor does she contest
that she declined the offer of a seatbelt for herself. Rather, plaintiff argues that the driver, instead
of stopping for the yellow light, should have proceeded through the light.
We review the trial court’s decision de novo. Seldon v Suburban Mobility Authority for
Regional Transp, 297 Mich App 427, 432; 824 NW2d 318 (2012). In reviewing a motion brought
under MCR 2.116(C)(10), we consider the evidence in the light most favorable to the nonmoving
party and determine whether there is a genuine issue of material fact that warrants a trial. Id. at
437.
The facts of this case are very similar to those in Seldon, and we conclude that Seldon
controls the outcome of this case. Like in this case, the plaintiff in Seldon was injured when she
was ejected from her wheelchair when the driver of the SMART bus applied the brakes to stop at
a yellow traffic light. This Court, 297 Mich App at 437-438, concluded that the plaintiff failed to
establish a question of fact regarding negligence:
The trial court erroneously determined that plaintiff presented evidence
establishing a justiciable question of fact regarding whether Perry operated the bus
negligently. It is well settled that, absent evidence of other negligence pertaining
to the operation of a bus, a plaintiff bus passenger may not recover for injuries
sustained when the bus suddenly stopped because such stops are normal incidents
of travel. Russ v Detroit, 333 Mich 505, 508; 53 NW2d 353 (1952); Sherman v
Flint Trolley Coach, Inc, 304 Mich 404, 416; 8 NW2d 115 (1943); Zawicky v Flint
Trolley Coach Co, Inc, 288 Mich 655, 658–659; 286 NW 115 (1939). Here, the
record contains no evidence that Perry operated the bus negligently. The only
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evidence of the bus’s speed near the time that plaintiff was ejected from her
wheelchair shows that Perry was driving within the 35–mile–per–hour speed limit.
Plaintiff contends that Perry operated the bus negligently because Perry failed to
anticipate that the green traffic signal light would change to yellow. This argument
is untenable, however, because Perry did not act negligently by traveling within the
speed limit while the traffic signal light was green. Further, the mere fact that an
injury occurred does not itself indicate that Perry operated the bus negligently. See
id. at 659. Accordingly, plaintiff failed to present evidence establishing a
justiciable question of fact regarding whether Perry operated the bus negligently.
Thus, summary disposition was appropriate on this basis, and the trial court’s
decision to the contrary was erroneous.
Similarly, this Court rejected the argument that the driver was grossly negligent inasmuch as the
plaintiff could not even establish ordinary negligence. Seldon, 297 Mich App at 442.
Plaintiff makes no argument that Hines was operating the bus in any other manner that
would be considered negligent. That is, there is no argument that she was speeding, that the bus
left its lane or failed to stop before entering the intersection, nor that it struck another vehicle or
object. There is no indication that the driver herself was injured in the stop, nor was plaintiff’s
caregiver.3 Plaintiff points to no fact that would establish that this is anything other than the
ordinary sudden stops to be expected of a bus. For that matter, as with the plaintiff in Seldon, there
is no reason to believe that plaintiff would have been ejected from her wheelchair and suffered
injury had she chosen to use the available seatbelt.4
Plaintiff suggests that we should decline to follow Seldon because Seldon improperly
“abandoned” prior Supreme Court precedent in Sherman v Flint Trolley Coach, Inc, 304 Mich
404; 8 NW2d 115 (1943), and Zawicky v Flint Trolley Coach Co, Inc, 288 Mich 655; 286 NW 115(1939). In fact, Seldon relies on both of those cases in its holding that it is well settled that a bus
passenger may not recover for injuries sustained due to a sudden stop. 297 Mich App at 437. It
is unclear where plaintiff is finding support in those two cases. The Sherman Court, after
reviewing an earlier case, explicitly stated that the sudden stopping of a trolley car was not
actionable negligence. 304 Mich at 416. And there is only slight support in Zawicky, where the
Court reaffirmed the rule that sudden stops do not ordinarily give rise to a claim of negligence and
liability would only be established “if the jerk or jolt was unnecessarily sudden or violent . . . .”
288 Mich at 658-659.
Moreover, it must be remembered that the Michigan Vehicle Code requires that a motor
vehicle upon encountering a yellow must come to a stop. MCL 257.612(1)(b) provides as follows:
3
The most that plaintiff argues with respect to the caregiver is that she had to steady herself during
the stop.
4
Indeed, in this case, Hines went further than the driver in Seldon in that she asked plaintiff if she
wished to use the seatbelt whereas one of the claims in Seldon, which this Court rejected, was that
the driver failed to advise the plaintiff of the availability of a seatbelt. 297 Mich App at 432-434.
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(b) If the signal exhibits a steady yellow indication, vehicular traffic facing
the signal shall stop before entering the nearest crosswalk at the intersection or at a
limit line when marked, but if the stop cannot be made in safety, a vehicle may be
driven cautiously through the intersection.
Plaintiff argues that the fact that she was ejected from her wheelchair establishes that the stop
could not be made safely and that Hines should have driven through the intersection. But this
argument merely brings us full circle to our original discussion: the bus was able to stop safely
before entering the intersection, as required by the statute. Plaintiff’s injuries were the product of
her choice not to wear a seatbelt. While plaintiff certainly had a right to make that choice, making
that choice comes with the consequences of doing so. Indeed, as the Court observed in Zawicky,
there is an obligation upon a passenger in a bus that makes stops to “look after her own protection
and hold on to bars, straps, handles or whatever is furnished in order to protect herself from
falling.” 288 Mich at 659. In this case, the “whatever is furnished” was a seatbelt, which most
likely was not even available on a trolley bus in the 1930s.
Affirmed. Defendants may tax costs.
/s/ Jane M. Beckering
/s/ David H. Sawyer
/s/ Michael F. Gadola
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