Nakisha Wright v. City of Detroit ( 2023 )

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
NAKISHA WRIGHT, UNPUBLISHED
August 10, 2023
Plaintiff-Appellant,
v No. 363066
Wayne Circuit Court
CITY OF DETROIT and RODERICK HARTLEY, LC No. 19-015264-NI
Defendants-Appellees,
and
THOMAS CARSONHALL,
Defendant.
Before: GLEICHER, C.J., and JANSEN and HOOD, JJ.
PER CURIAM.
Plaintiff Nakisha Wright was injured when a Detroit city bus allegedly accelerated
“violently and aggressively” moments after she boarded, propelling her into some steps leading to
an upper-level seating area. Wright sued the driver, Roderick Hartley, and the city of Detroit.
Defendants moved for summary disposition under MCR 2.116(C)(7) and (C)(8), contending that
Wright failed to plead and to offer proofs in avoidance of governmental immunity. The circuit
court granted summary disposition to both defendants. We vacate and remand for further
proceedings.
I. FACTUAL BACKGROUND
Wright and a companion, William Layton, Jr., boarded a Detroit city bus driven by Hartley.
Wright’s initial complaint misidentified the driver of the bus, and she filed a first amended
complaint naming Hartley as a defendant after being provided with his name. The first amended
complaint alleges “[t]hat on or about February 10, 2019, [Wright] was involved in a motor vehicle
accident with Defendant Rodrick [sic] Hartley,” that the city “insured the bus” in which the
accident occurred, and that Hartley “operated his vehicle in a careless, negligent, willful and
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wanton, grossly negligent and/or reckless manner,” causing Wright to be “thrown about with great
force and violence” and to “suffer[] severe personal injuries.”
The first amended complaint states four causes of action: a claim for first-party personal
injury protection (PIP) benefits against the city; “negligence” against Hartley; “owner liability”
against the city; and respondeat superior against the city. Both defendants moved for summary
disposition of all counts, other than the first-party no-fault claim, under MCR 2.116(C)(7) and
(C)(8).
In response, Wright’s counsel submitted affidavits signed by Wright and Layton fleshing
out the circumstances of the accident. Wright’s affidavit states in relevant part that after she and
Layton “climbed onto the bus,” they attempted to pay with cash but the bus driver
“[i]mmediately . . . waved us away,” telling them, “[D]on’t worry about it.” Wright’s affidavit
continues:
The bus driver seemed like he was in a desperate rush and seemed very upset too.
He then closed the door behind us, and I started walking down the bus to sit down.
I took maybe 3-4 steps before the bus had violently and aggressively accelerated in
an explosive manner that I had never experienced before. Usually, buses accelerate
at a normal pace, this was a powerful and explosive acceleration that I had never
seen before. This caused me to begin running down the back of the bus quickly,
involuntarily due to the bus’s inertia, where there were two steps of sta[i]rs leading
upwards to an upper seating area. I then tripped on these stairs as I couldn’t stop
myself from the powerful inertia of the bus, and this caused me to trip and fall in a
very forceful manner, and caused significant injuries to my ankles, knees, and
shoulder.
The affidavit further avers that the bus driver was “in a heightened angry and emotional state,” and
“very agitated, upset, emotional, and in a desperate rush as I boarded the bus.” Layton’s affidavit
essentially echoes Wright’s.
Hartley testified at his deposition that he had no “personal recollection” of Wright’s
accident and that the incident report he authored did not refresh his recollection. The bus had a
video recording system but according to the city no video footage could be located.
The circuit court granted summary disposition to defendants “on the basis of governmental
immunity and on the basis that [Wright] has failed to state a cause of action” regarding all counts
of the amended complaint other than the first-party no-fault claim. According to the circuit court,
“sudden jerks and jolts in the movement of railroad trains or street cars and busses are expected
and accepted as among the usual incidents of travel, which every passenger, by experience, has
learned to expect to some extent,” and do not establish negligence. Further, the court ruled, Wright
failed to plead in avoidance of immunity, and “[n]o facts in support of [Hartley’s] gross negligence
are alleged in the complaint or filed in response to the motion.”
Wright now appeals.
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II. ANALYSIS
A. GUIDING LEGAL PRINCPLES
The city sought summary disposition motion under MCR 2.116(C)(7), asserting that
governmental immunity barred Wright’s negligence claim, and MCR 2.116(C)(8), contending that
the factual allegations contained in Wright’s first amended complaint are legally insufficient to
state a claim. We review all challenges to a circuit court’s summary disposition decision de novo.
Wood v Detroit, 323 Mich App 416, 419; 917 NW2d 709 (2018). Evaluating a (C)(7) motion
requires us to accept the pleaded allegations as true and to construe them in the plaintiff’s favor,
while additionally considering other admissible evidence including affidavits. Granting summary
disposition based on MCR 2.116(C)(8) is only appropriate “when a claim is so clearly
unenforceable that no factual development could possibly justify recovery.” El-Khalil v Oakwood
Healthcare, Inc, 504 Mich 152, 160; 934 NW2d 665 (2019).
The parties agree that both defendants are immune from liability in this tort case under the
governmental tort liability act (GTLA), MCL 691.1401 et seq., unless an exception to immunity
applies. The parties also concur that the motor vehicle exception to immunity potentially applies
to the city. That exception provides: “Governmental agencies shall be liable for bodily injury and
property damage resulting from the negligent operation by any officer, agent, or employee of the
governmental agency, of a motor vehicle of which the governmental agency is owner, as defined
in [MCL 257.1 to MCL 257.923].” MCL 691.1405. The parties do not dispute that the city is a
governmental agency, that the motor vehicle was owned by the city, and that Hartley was the city’s
employee. Accordingly, to avoid the city’s immunity, Wright must create a jury question
regarding whether Hartley negligently operated the bus.
The GTLA provides a separate exception to immunity applicable to Hartley: governmental
employees acting within the scope of their authority are generally immune from tort liability except
when their actions constitute gross negligence. MCL 691.1407(2)(c); Tarlea v Crabtree, 263 Mich
App 80, 89; 687 NW2d 333 (2004). Hartley’s liability therefore hinges on whether his conduct
amounted to gross negligence.
Thus, the issues presented here are whether the city bears liability due to Hartley’s
negligent operation of the bus, and whether Hartley is independently subject to liability under the
gross negligence exception.
B. HARTLEY’S LIABILITY
Wright argues that Hartley’s gross negligence is demonstrated by the facts that he drove in
an angry and agitated state, and accelerated explosively immediately after she boarded and started
walking in the direction of the steps.1 Wright’s first amended complaint specifically alleges that
1
Wright also contends that events before and after the incident give rise to Hartley’s liability,
including Hartley’s suspension in 2021 for failing a random drug screen. Hartley’s conduct before
and after Wright’s accident is irrelevant to whether he was grossly negligent at the time the
accident occurred.
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Hartley “operated his vehicle in a . . . grossly negligent and/or reckless manner.” Hartley’s brief
on appeal does not challenge the adequacy of Wright’s pleading under MCR 2.116(C)(8). Rather,
Hartley insists that Wright premised her gross negligence claim on a “sudden stop,” and because
such stops are “normal incidents of travel on a bus,” Wright cannot demonstrate either negligence
or gross negligence on Hartley’s part.
We first observe that Wright’s gross negligence claim arises from an allegedly “violent[]
and aggressive[]” acceleration rather than a sudden stop.2 That said, Hartley correctly invokes
“the usual incidents of travel” doctrine, which has a long history in Michigan law. In Selman v
Detroit, 283 Mich 413, 420; 278 NW 112 (1938), the Supreme Court explained that “[s]udden
jerks and jolts in the movement of railroad trains or street cars are generally accepted as among
the usual incidents of travel which every passenger by experience has learned to expect to some
extent.” Not all “jerks or jolts” are “usual incidents of travel,” however. In Selman, the Supreme
Court declared that “the carrier may be held liable if the jerk or jolt is unnecessarily sudden or
violent.” Id. (emphasis added). The Court continued, “And unusually sharp jerks or violent
jolting, due to the negligent operation of the car or the negligent failure to properly maintain the
track, has been viewed as imposing liability on the carrier for resulting injuries to the passenger.”
Id. See also Anderson v Transdev Servs, Inc, 341 Mich App 501, 511; 991 NW2d 230 (2022)
(“Liability can attach if the jerk or jolt is unnecessarily sudden or violent.”).
Wright’s affidavit describes that Hartley was “angry,” “upset,” “in a desperate rush,” and
that he “violently and aggressively accelerated in an explosive manner.” Hartley’s handwritten
incident report describes an entirely different scenario. He wrote that that after three passengers
boarded the bus (presumably including Wright and Layton), “I assumed that the passengers had
been seated so I slowly began to pull off. Shortly afterwards I heard noise that came from the back
of the coach. It looked as if a lady had fallen . . . .” Viewing the evidence in the light most
favorable to Wright, as we must, the incident report supports a reasonable inference that there was
no traffic-related reason for Hartley to have accelerated “violently and aggressively,” but that he
did so despite that Wright was still walking down the aisle. Further, based on Wright’s
observations of Hartley’s demeanor, the evidence supports that Hartley’s rapid acceleration was
willful and not associated with a need to drive in a potentially unsafe manner, such as to avoid
another vehicle or some other road hazard.
Grossly negligent conduct is “substantially more than negligent.” Maiden v Rozwood, 461
Mich 109, 121; 597 NW2d 817 (1999). The GTLA defines gross negligence as “conduct so
2
The city’s error is understandable. Wright’s first amended complaint is light on facts. “A
complaint must provide reasonable notice to opposing parties,” and it is insufficient to allege mere
conclusions without also alleging a factual basis for those conclusions. Dacon v Transue, 441
Mich 315, 329-330; 490 NW2d 369 (1992); see also State ex rel Gurganus v CVS Caremark Corp,
496 Mich 45, 63; 852 NW2d 103 (2014). It may be difficult to identify the boundary between a
proper allegation of fact and an improper conclusory statement, but if there is doubt, the courts
should err on the side of generosity. Flynn v Brownell, 371 Mich 19, 26-27; 123 NW2d 153(1963). An argument under MCR 2.116(C)(8) would be unavailing here anyway, since factual
development of the claim can justify recovery.
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reckless as to demonstrate a substantial lack of concern for whether an injury results.” MCL
691.1407(8)(a). “Gross negligence suggests almost a willful disregard of precautions or measures
to attend to safety and a singular disregard for substantial risks.” Dougherty v Detroit, 340 Mich
App 339, 350; 986 NW2d 467 (2021) (quotation marks and citation omitted). Allegations that a
defendant should have taken additional precautions to avoid injury are usually insufficient. See
Tarlea, 263 Mich App at 84-86.
The allegations in Wright’s affidavit arguably justify a gross negligence claim; at a
minimum, the evidence radically diverges regarding the nature of Hartley’s acts, and “questions
regarding whether a governmental employee’s conduct constituted gross negligence are generally
questions of fact for the jury[.]” Wood, 323 Mich App at 424.
As described by Wright and Layton, Wright’s injuries did not arise from Hartley’s failure
to exercise garden-variety due care, but rather from his deliberate decision to drive in a reckless
manner by “violently” and “aggressively” accelerating without regard to passenger safety, and
without a rational need to do so. According to the incident report, Hartley was aware that several
passengers had just boarded when he took off from the stop. Because reasonable minds can differ
regarding whether Hartley willfully disregarded their safety and disregarded the risk that a
passenger might be injured by a sudden and powerful acceleration, the circuit court erred by
summarily dismissing Wright’s gross negligence claim.
C. THE CITY’S LIABILITY
Although the GTLA grants the city broad immunity from suit, it may be held liable “for
bodily injury . . . resulting from the negligent operation by any officer, agent, or employee of the
government agency, of a motor vehicle of which the government agency is owner . . . .” MCL
691.1405.
Count III of the amended complaint asserts a claim for owner liability against the city by
stating that Hartley was operating a city bus, and that the city was liable for Wright’s injuries
resulting from Hartley’s “negligent, careless, and/or reckless operation” of the vehicle. In Count
IV, Wright alleged that the city was liable under a theory of respondeat superior for Hartley’s
“negligence” that proximately caused Wright’s injuries. This method of pleading in avoidance of
immunity and in accord with MCL 691.1405 is neither artful nor descriptive, but it suffices to
survive scrutiny under MCR 2.116(C)(8). We repeat: “A motion under MCR 2.116(C)(8) may
only be granted when a claim is so clearly unenforceable that no factual development could
possibly justify recovery.” El-Khalil, 504 Mich at 160.3
“A plaintiff pleads in avoidance of governmental immunity by stating a claim that fits
within a statutory exception or by pleading facts that demonstrate that the alleged tort occurred
during the exercise or discharge of a nongovernmental or proprietary function.” Yono v Dep’t of
Transp (On Remand), 306 Mich App 671, 682; 858 NW2d 128 (2014), rev’d on other grounds 499
3
That said, we strongly urge counsel to take more care in drafting complaints seeking to avoid
governmental immunity. Doing so may help avoid costly and time-consuming trips to the Court
of Appeals.
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Mich 636 (2016) (quotation marks and citations omitted). Wright’s first amended complaint
satisfies that requirement by stating that Hartley’s negligent operation of a city-owned bus caused
her injuries, and that at the time of the accident Hartley was employed by the city of Detroit.
When evaluated under MCR 2.116(C)(7), Wright’s claims also survive. As discussed
above, the affidavits of Wright and Layton create a question of fact as to whether Hartley’s
acceleration from the stop was unnecessarily sudden or violent (or both). The evidence also
generates a question regarding where on the continuum from negligence through gross negligence
Hartley’s actions fall. The evidence conflicts regarding the nature of the acceleration, but our task
requires us to evaluate the evidence in the light most favorable to Wright. Assuming as we must
that the bus accelerated abruptly and forcefully, the record includes no explanation for a sudden
acceleration that would locate this case within the “usual incidents of travel” framework. As
Justice John VOELKER pithily observed in Mitcham v Detroit, 355 Mich 182, 187; 94 NW2d 388(1959), “our law possesses no special grudge against possible recovery by passengers against
public carriers in cases of this nature . . . .” Accordingly, a jury must determine whether the bus
accelerated in the manner Wright describes, and if so whether Hartley’s conduct was negligent,
grossly negligent, or neither.
We vacate and remand for further proceedings. We do not retain jurisdiction.
/s/ Elizabeth L. Gleicher
/s/ Noah P. Hood
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