Emma Deloise Elliott v. Donald J Gaby

STATE OF MICHIGAN
COURT OF APPEALS
EMMA DELOISE ELLIOTT and HYDRIAN UNPUBLISHED
ELLIOTT, November 12, 2015
Plaintiffs-Appellees,
v No. 323217
Genesee Circuit Court
DONALD J. GABY and MASS LC No. 12-099314-NI
TRANSPORTATION AUTHORITY,
Defendants-Appellants.
Before: JANSEN, P.J., and MURPHY and RIORDAN, JJ.
PER CURIAM.
Plaintiff Emma Elliott (“plaintiff”) was involved in a motor vehicle collision with a bus
driven by defendant Donald J. Gaby (“Gaby”), who was employed by defendant Mass
Transportation Authority (“MTA”). Plaintiff sued defendants, alleging that Gaby negligently
turned the bus directly in front of plaintiff’s vehicle, causing plaintiff serious injuries, and that
MTA was liable as Gaby’s employer.1 The parties filed cross-motions for summary disposition.
Defendants’ motion alleged that plaintiff’s claim against Gaby was barred by governmental
immunity because plaintiff could not establish that Gaby was grossly negligent or that Gaby’s
conduct was the proximate cause of plaintiff’s injuries. The trial court denied defendants’
motion, ruling that there were genuine issues of material fact that precluded summary
disposition. Defendants appeal as of right. We affirm.
We review a trial court’s decision on a motion for summary disposition de novo. Stone v
Auto-Owners Ins Co, 307 Mich. App. 169, 173; 858 NW2d 765 (2014). Plaintiff originally
moved for summary disposition under MCR 2.116(C)(10). Defendants’ cross-motion sought
summary disposition under MCR 2.116(I)(2), which provides that “[i]f it appears to the court
that the opposing party, rather than the moving party, is entitled to judgment, the court may
render judgment in favor of the opposing party.” Relevant to this appeal, defendants argued that
1
Plaintiff’s husband, Hydrian Elliott, filed a claim for loss of consortium. However, that claim
was later dismissed, and Hydrain is no longer a party to this action. Therefore, the singular term
“plaintiff” is used in this opinion to refer to plaintiff Emma Elliott.
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there was no genuine issue of material fact with regard to whether Gaby was grossly negligent.
A motion under MCR 2.116(C)(10) tests the factual support for a claim. Stone, 307 Mich. App. at
173. A reviewing court must consider the pleadings, affidavits, depositions, admissions, and
other documentary evidence submitted by the parties. MCR 2.116(G)(5). Summary disposition
should be granted if there is no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. City of Holland v Consumers Energy Co, 308 Mich. App. 675, 681;
866 NW2d 871 (2015). But if there is an issue of fact regarding the right to immunity, the court
must deny the motion and submit the issue to the trier of fact. Kincaid v Cardwell, 300 Mich
App 513, 522-523; 834 NW2d 122 (2013).
Defendants argue that the trial court erred in failing to dismiss plaintiff’s gross
negligence claim against Gaby. Defendants contend that Gaby is entitled to immunity under
MCL 691.1407(2), which provides that a government employee is entitled to immunity for
injuries caused in the course of his employment if (a) the employee was acting or reasonably
believed he was acting within the scope of his authority, (b) the governmental agency is engaged
in the exercise or discharge of a governmental function; and (c) the employee’s conduct “does
not amount to gross negligence that is the proximate cause of the injury or damage.” The parties
do not dispute that defendants can satisfy the requirements of subparts (a) and (b). The dispute
instead concerns the requirements of subpart (c), specifically, whether Gaby’s actions amounted
to gross negligence, and whether his conduct was the proximate cause of plaintiff’s injuries.
MCL 691.1407(8)(a) defines gross negligence as “conduct so reckless as to demonstrate
a substantial lack of concern for whether an injury results.” Through this language, the
Legislature intended to limit employee liability to only “situations where the contested conduct
was substantially more than negligent.” Maiden v Rozwood, 461 Mich. 109, 122; 597 NW2d 817
(1999). This Court has stated that gross negligence involves
almost a willful disregard of precautions or measures to attend to safety and a
singular disregard for substantial risks. It is as though, if an objective observer
watched the actor, he could conclude, reasonably, that the actor simply did not
care about the safety or welfare of those in his charge. [Tarlea v Crabtree, 263
Mich. App. 80, 90; 687 NW2d 333 (2004).]
Whether a government employee’s conduct constitutes gross negligence under MCL 691.1407 is
generally a question of fact. Id. at 88. But a court may grant summary disposition under MCR
2.116(C)(7) if “no reasonable person could find that a governmental employee’s conduct was
grossly negligent.” Id.
Defendants are correct that a mere showing that Gaby violated provisions of the
Michigan Vehicle Code is insufficient to establish gross negligence. Violation of an ordinance is
evidence of negligence and violation of a statute creates a rebuttable presumption of negligence.
Candelaria v BC Gen Contractors, Inc, 236 Mich. App. 67, 82 n 5; 600 NW2d 348 (1999).
Evidence of ordinary negligence is insufficient to establish a question of fact on gross
negligence. Love v Detroit, 270 Mich. App. 563, 565; 716 NW2d 604 (2006). Similarly, we are
not persuaded that plaintiff’s evidence of Gaby’s personnel records, including evidence that
Gaby was eventually fired because the collision was found to be both avoidable and serious,
supports a finding of gross negligence. Evidence of employment disciplinary action because of
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violations of administrative rules and regulations is not relevant to whether an employee’s
conduct amounted to gross negligence because such violations are only evidence of negligence.
See Zalut v Andersen & Assoc, Inc, 186 Mich. App. 229, 235; 463 NW2d 236 (1990).
However, plaintiff submitted additional evidence regarding the circumstances of the
accident, which was sufficient to establish a question of fact regarding gross negligence.
Plaintiff submitted a videotape recording and photographs that were taken from the bus, which
showed that Gaby turned the bus directly in front of plaintiff’s approaching vehicle as plaintiff
was driving through the intersection. Further, plaintiff submitted the statement of an eyewitness
who indicated that Gaby did not stop the bus before he began making his left turn through the
intersection. The eyewitness stated that the bus turned “right into” plaintiff’s car. Plaintiff also
presented evidence that Gaby gave a statement, in which he admitted that he could not see
plaintiff’s vehicle because his vision was affected by the sun shining through the windshield of
the bus.2
Gaby was driving a large commercial bus, a vehicle substantially larger than most other
vehicles on the road. Further, he was making a left turn, a maneuver that required him to cross
the pathway of any vehicles approaching from the opposite direction. The videotape recording,
the eyewitness’s statement, the photographs, and Gaby’s admission support the theory that Gaby
blindly proceeded through the intersection to make a left turn, without stopping, without being
able to ascertain whether there were any oncoming vehicles, and while driving a vehicle
substantially larger than most other vehicles on the road. Under these circumstances, a jury
could conclude that Gaby’s conduct of making a left turn that would bring him into the pathway
of any oncoming traffic, without stopping and without being able to see if the pathway was clear,
showed a substantial lack of concern for whether an injury would result. Accordingly, the trial
court did not err in finding that there was a genuine issue of material fact regarding the issue of
gross negligence, which precluded summary disposition. See Stone, 307 Mich. App. at 713;
Tarlea, 263 Mich. App. at 90.
Defendants also argue that the gross negligence claim should be dismissed because any
gross negligence was not “the proximate cause” of plaintiff’s injury. See MCL 691.1407(2)(c).
It is not enough that a defendant’s actions be “a” proximate cause. Tarlea, 263 Mich. App. at 92.
“The phrase ‘the proximate cause’ is best understood as meaning the one most immediate,
efficient, and direct cause preceding an injury.” Robinson v Detroit, 462 Mich. 439, 459; 613
NW2d 307 (2000).
Defendants rely on the affidavit from their expert witness, Gary McDonald, who averred
that he viewed the bus’s on-board video and was able to determine plaintiff’s location at the time
the bus initiated its left-hand turn. McDonald calculated that plaintiff had three seconds to react
to the bus turning directly in front of her and, allowing a reaction time of 1 ½ seconds, he opined
2
There is no merit to defendants’ argument that plaintiff did not offer evidence to support her
claim that Gaby was grossly negligent. Plaintiff’s submission of the foregoing evidence was
sufficient to satisfy her burden of producing documentary evidence in support of her claim. See
MCR 2.116(G)(4).
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that she had enough time to apply her brakes and avoid the collision. McDonald stated that
plaintiff “made no effort to stop her vehicle prior to impact.”
McDonald’s affidavit does not entitle defendants to summary disposition on the issue of
proximate case. The evidence regarding the circumstances surrounding the accident, viewed in a
light most favorable to plaintiff, supports a finding that Gaby’s conduct of making a left-hand
turn into the pathway of plaintiff’s vehicle was “the one most immediate, efficient, and direct
cause preceding an injury.” McDonald’s affidavit and opinion that the accident was avoidable
merely establishes a question of fact regarding proximate cause. Moreover, the credibility of
McDonald’s opinion testimony, including whether it was based on a proper interpretation of the
facts, is for the trier of fact to resolve. See Surman v Surman, 277 Mich. App. 287, 309; 745
NW2d 802 (2007). Accordingly, the trial court did not err in denying defendants’ motion for
summary disposition on the issue of proximate cause.3
Affirmed.
/s/ Kathleen Jansen
/s/ William B. Murphy
/s/ Michael J. Riordan
3
Acknowledging our Supreme Court’s recent decision in Hannay v Dep’t of Transp, 497 Mich.
45, 51; 860 NW2d 67 (2014), defendants have withdrawn their additional argument that plaintiff
cannot recover damages for pain and suffering, and emotional distress.
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