Kuzinski v. Boretti

182 Mich. App. 177 (1989) 451 N.W.2d 859

KUZINSKI
v.
BORETTI

Docket No. 110035.

Michigan Court of Appeals.

Decided October 31, 1989.

Cooper, Shifman, Gabe, Quinn & Seymour (by Charles Y. Cooper), for plaintiffs.

Cummings, McClorey, Davis & Acho, P.C. (by Marcia L. Howe and Timothy Young), for City of Southfield.

Before: SULLIVAN, P.J., and BRENNAN and N.J. KAUFMAN,^[*] JJ.

PER CURIAM.

Plaintiffs appeal as of right the trial court's June 14, 1988, order granting summary disposition in favor of defendant City of Southfield, pursuant to MCR 2.116(C)(10), on the ground that plaintiffs' claim against the city was barred by governmental immunity. We affirm.

On December 30, 1985, an ambulance owned by defendant was sitting outside of the Southfield fire station at Nine Mile and Telegraph Roads. The motor had been left running to keep it from freezing, and the vehicle had been left unattended and unlocked. Codefendant, David Boretti, who was not employed by defendant, happened to be walking by and entered the vehicle and drove off. A police chase involving Livonia and Plymouth police officers later ensued. Eventually, the ambulance colided with a vehicle carrying Janice and Robyn Kuzinski, and plaintiffs' minor, Robyn Kuzinski, sustained serious injuries.

On March 26, 1987, plaintiffs filed the instant case, alleging, among other things, that defendant was negligent in leaving the ambulance unattended with the motor running. On May 3, 1988, defendant moved for summary disposition pursuant to MCR 2.116(C)(7), (8) and (10). The motion was granted pursuant to MCR 2.116(C)(10) on the ground that plaintiffs' claim against defendant was barred by governmental immunity.

Governmental agencies are immune from tort liability for injuries arising out of the agency's exercise or discharge of a nonproprietary, governmental function. Ross v Consumers Power Co (On Rehearing), 420 Mich. 567, 591; 363 NW2d 641 (1984); MCL 691.1407(1); MSA 3.996(107)(1). However, plaintiffs assert that their action is not barred because it falls within the motor vehicle exception to governmental immunity. MCL 691.1405; MSA 3.996(105) 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 government agency, of a motor vehicle of which the governmental agency is owner, as defined in Act No. 300 of the Public Acts of 1949, as amended, being sections 257.1 to 257.923 of the Compiled Laws of 1948. [Emphasis added.]

Plaintiffs ask us to apply a very broad definition to the term "operation," contending that defendant's employees' actions in leaving the ambulance running, unattended and unlocked constitute sufficient control over the vehicle to be considered "operation."

The term "operation" is not defined within the governmental immunity statutes. Therefore, we will look to the Michigan Vehicle Code, MCL 257.1 et seq.; MSA 9.1801 et seq., in defining the term. See Roy v Dep't of Transportation, 428 Mich. 330, 338-340; 408 NW2d 783 (1987). MCL 257.36; MSA 9.1836 defines the term "operator" to mean "every person, other than a chauffeur, who is in actual physical control of a motor vehicle upon a highway." The terms "operate" or "operating" mean "being in actual physical control of a vehicle...." MCL 257.35a; MSA 9.1835(1).

While the term "negligent operation" is not limited to the actual driving of a vehicle upon a highway, see Wells v Dep't of Corrections, 79 Mich. App. 166, 169; 261 NW2d 245 (1977), we do not believe it can be extended so far as to encompass the acts of defendant's employees in this case. Clearly, defendant's employees were not in "actual physical control" of the ambulance when the accident occurred. Rather, codefendant David Boretti was operating the vehicle. Therefore, the motor vehicle exception to governmental immunity is inapplicable to this case, and the lower court properly granted defendant's motion for summary disposition.

Plaintiffs also contend that there was not a factual basis presented to determine whether defendant's operation of the ambulance service was a proprietary function. However, plaintiffs have not, in answer to the motion for summary disposition, brought forth specific facts or evidence to establish the existence of a material factual dispute, as required. Grochowalski v DAIIE, 171 Mich. App. 771, 774; 430 NW2d 822 (1988); MCR 2.116(G)(4). Further, plaintiffs have failed to cite any authority in support of their position. A statement of position without supporting citation is insufficient to bring an issue before this Court. Settles v Detroit City Clerk, 169 Mich. App. 797, 807; 427 NW2d 188 (1988).

Affirmed.

NOTES

[*] Former Court of Appeals judge, sitting on the Court of Appeals by assignment.