                         STATE OF MICHIGAN

                          COURT OF APPEALS



ESTATE OF RONALD TWIGG, by its Personal                          UNPUBLISHED
Representative PEGGY TWIGG,                                      December 28, 2017

              Plaintiff-Appellee,
V                                                                No. 334406
                                                                 Court of Claims
DEPARTMENT OF TRANSPORTATION,                                    LC No. 13-000083-MD

              Defendant-Appellant.


DEPARTMENT OF TRANSPORTATION and
BARRET PAVING, INC.,

              Plaintiffs-Appellees,

V                                                                No. 334809
                                                                 Washtenaw Circuit
DJ MCQUESTION AND SONS, INC.,                                    LC No. 14-000816-CK

              Defendant-Appellant.


Before: MURPHY, P.J., and M. J. KELLY and SWARTZLE, JJ.

PER CURIAM.

        In Docket No. 334406, Michigan Department of Transportation (MDOT) appeals as of
right an order issued by the Court of Claims denying its motion for summary disposition and
rejecting MDOT’s assertion that it was protected by governmental immunity. In Docket No.
334809, defendant DJ McQuestion and Sons, Inc., appeals by delayed leave granted the circuit
court’s order denying its motion for summary disposition. These cases were consolidated below
and on appeal. We reverse and remand for entry of judgment in favor of MDOT in Docket No.
334406, and we reverse and remand for entry of judgment in favor of DJ McQuestion in Docket
No. 334809.

      These cases arise out of a fatal motorcycle accident that occurred on June 15, 2011.
Ronald Twigg lost control of his motorcycle, crashed, and died while attempting to exit I-94 at
Zeeb Road near Ann Arbor. The area was undergoing repairs, for which MDOT had contracted
with Barret Paving, Inc., who in turn had subcontracted part of the project to DJ McQuestion.
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The decedent’s personal representative, plaintiff Peggy Twigg, brought suit against MDOT, who,
along with Barret Paving, filed an action for indemnification against DJ McQuestion.

        Prior to Twigg’s lawsuit, she served MDOT with a notice of injury and highway defect,
MCL 691.1404, indicating that “[t]here were holes and/or ruts within the traveled portion of the
westbound lanes of I-94 at the Zeeb Road exit” and that decedent’s “motorcycle tire likely hit the
holes/ruts in the pavement causing him to lose control of his motorcycle.” Twigg asserted that
the “holes/ruts rendered the State highway defective and dangerous.” In her complaint, Twigg
alleged that there “was a rut or groove large enough for a motorcycle tire to become caught or to
be steered by the rut/groove itself in an unwanted direction” and that the “rut/groove . . . caused
[decedent’s] death because it made him lose control of his motorcycle.”

        During discovery, Twigg’s accident reconstruction expert, Gerald Jackson, testified in a
deposition. He indicated that highway construction debris was involved in the accident, and
while he also believed that the rut or groove possibly caused or was a factor in causing the
accident, he could not state within a reasonable degree of certainty that it played any role
whatsoever in the crash. Jackson explained that he was speaking in terms of “possibilities” when
discussing his view that something initially “misdirected” the motorcycle, alluding to highway
debris and “any kind of open area that your tire can get caught in.” However, following his
deposition, Jackson executed an affidavit in which he averred, “I believe that a rut or groove or
gap in the traveled portion of the highway likely got [decedent’s] motorcycle initially into
trouble.” (Emphasis added.) He also claimed that after encountering the rut/groove/gap,
decedent “was likely still in trouble as he tried to regain full control and as he headed towards the
Zeeb Road exit ramp.” Jackson additionally averred that decedent “then got into further trouble
when encountering construction-caused debris . . ., following which he lost complete control of
his motorcycle, went off the exit ramp, and was killed.”
        MDOT filed a motion for summary disposition under MCR 2.116(C)(7), arguing that
Twigg’s action was barred by governmental immunity. DJ McQuestion sought summary
disposition under MCR 2.116(C)(10) on the basis that it could not be liable for indemnification
because of MDOT’s immunity and, alternatively, on the ground that there was no evidence
indicating that its work contributed to the accident. Both motions were denied.
        We review de novo a trial court’s ruling on a motion for summary disposition. Spiek v
Dep’t of Transp, 456 Mich 331, 337; 572 NW2d 201 (1998). The applicability of governmental
immunity and the statutory exceptions to immunity are likewise reviewed de novo on appeal.
Snead v John Carlo, Inc, 294 Mich App 343, 354; 813 NW2d 294 (2011). MCR 2.116(C)(7)
provides for summary disposition when a claim is barred because of “immunity granted by law.”
The movant may submit affidavits, depositions, admissions, or other documentary evidence in
support of the motion if substantively admissible. Odom v Wayne Co, 482 Mich 459, 466; 760
NW2d 217 (2008). The complaint’s contents must be accepted as true unless contradicted by the
documentary evidence. Id. This Court must consider the documentary evidence in a light most
favorable to the nonmoving party for purposes of MCR 2.116(C)(7). RDM Holdings, Ltd v
Continental Plastics Co, 281 Mich App 678, 687; 762 NW2d 529 (2008). “If there is no factual
dispute, whether a plaintiff’s claim is barred under a principle set forth in MCR 2.116(C)(7) is a
question of law for the court to decide.” Id. When, however, a relevant factual dispute does
exist, summary disposition is not appropriate. Id.


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       In Moraccini v City of Sterling Hts, 296 Mich App 387, 391-392; 822 NW2d 799 (2012),
this Court set forth some basic governing principles regarding governmental immunity:

                Except as otherwise provided, the governmental tort liability act (GTLA),
       MCL 691.1401 et seq., broadly shields and grants to governmental agencies
       immunity from tort liability when an agency is engaged in the exercise or
       discharge of a governmental function. MCL 691.1407(1); Duffy v Dep’t of
       Natural Resources, 490 Mich 198, 204; 805 NW2d 399 (2011); Grimes v Dep’t of
       Transp, 475 Mich 72, 76-77; 715 NW2d 275 (2006). “The existence and scope of
       governmental immunity was solely a creation of the courts until the Legislature
       enacted the GTLA in 1964, which codified several exceptions to governmental
       immunity that permit a plaintiff to pursue a claim against a governmental
       agency.” Duffy, 490 Mich at 204. A governmental agency can be held liable under
       the GTLA only if a case falls into one of the enumerated statutory exceptions.
       Grimes, 475 Mich at 77; Stanton v Battle Creek, 466 Mich 611, 614-615; 647
       NW2d 508 (2002). An activity that is expressly or impliedly authorized or
       mandated by constitution, statute, local charter, ordinance, or other law constitutes
       a governmental function. Maskery v Univ of Mich Bd of Regents, 468 Mich 609,
       613-614; 664 NW2d 165 (2003). This Court gives the term “governmental
       function” a broad interpretation, but the statutory exceptions must be narrowly
       construed. Id. at 614. “A plaintiff filing suit against a governmental agency must
       initially plead his claims in avoidance of governmental immunity.” Odom, 482
       Mich at 478-479.

      With respect to the highway exception to governmental immunity at issue here, MCL
691.1402(1) provides in pertinent part:

               Each governmental agency having jurisdiction over a highway shall
       maintain the highway in reasonable repair so that it is reasonably safe and
       convenient for public travel. A person who sustains bodily injury or damage to his
       or her property by reason of failure of a governmental agency to keep a highway
       under its jurisdiction in reasonable repair and in a condition reasonably safe and
       fit for travel may recover the damages suffered by him or her from the
       governmental agency.

       “The state[’s] . . . duty, under the highway exception, is only implicated upon [its] failure
to repair or maintain the actual physical structure of the roadbed surface, paved or unpaved,
designed for vehicular travel, which in turn proximately causes injury or damage.” Nawrocki v
Macomb Co Rd Comm, 463 Mich 143, 183; 615 NW2d 702 (2000). It is clear that if the rut or
groove in the highway was a cause of the accident and decedent’s death, it would implicate the
highway exception to governmental immunity. On the other hand, it is also clear that highway
debris would not implicate the highway exception, despite Twigg’s argument to the contrary.
See Paletta v Oakland Co Rd Comm, 491 Mich 897; 810 NW2d 383 (2012) (“The accumulation
of gravel on the paved roadway was not actionable under the highway exception to the
governmental tort liability act . . . because an accumulation of gravel, whether natural or
otherwise, does not implicate the defendant’s duty to maintain the highway in ‘reasonable


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repair.’ ”). Highway construction debris does not constitute a defect in the physical structure of
the roadbed surface.

        On appeal, MDOT argues that the notice of injury was defective because it did not allege
the presence of highway debris as a cause of the accident. MDOT also contends that Twigg
failed to establish a question of fact with respect to the existence of a defective condition coming
within the highway exception that proximately caused the accident, given that the debris did not
implicate the highway exception and Twigg’s expert Jackson offered only speculative testimony
regarding whether the rut or groove caused the crash. MDOT maintains that Twigg could not
create a factual issue through Jackson’s affidavit, as it was contrary to Jackson’s damaging
deposition testimony.

        We find it unnecessary to address MDOT’s argument concerning the adequacy of the
notice of injury, because we agree with MDOT’s causation argument. Establishing causation
entails proving “two separate elements: (1) cause in fact, and (2) legal cause, also known as
‘proximate cause.’ ” Skinner v Square D Co, 445 Mich 153, 162-163; 516 NW2d 475 (1994)
(citation omitted). “A plaintiff must adequately establish cause in fact in order for legal cause or
‘proximate cause’ to become a relevant issue.” Id. at 163. Circumstantial evidence and
reasonable inferences arising from the evidence can be utilized to establish causation, but the
evidence and inferences must amount to more than mere speculation and conjecture. Id. at 163-
164. It is not sufficient to proffer “a causation theory that, while factually supported, is, at best,
just as possible as another theory.” Id. at 164. A “plaintiff must present substantial evidence
from which a jury may conclude that more likely than not, but for the defendant's conduct, the
plaintiff's injuries would not have occurred.” Id. at 164-165. “[L]itigants do not have any right
to submit an evidentiary record to the jury that would allow the jury to do nothing more than
guess.” Id. at 174.

        Jackson’s deposition testimony merely indicated that the rut or groove was possibly a
cause of the motorcycle crash or possibly played a role in the crash; he could not state within a
reasonable degree of certainty that the rut or groove was a factor in the accident. Jackson made
these observations repeatedly throughout his deposition. He certainly did not testify that it was
likely that the rut or groove was a cause of or led to the motorcycle spill. Jackson’s testimony
essentially boiled down to an opinion that, as to causes of the crash, it was possibly the highway
debris, it was possibly the rut or groove, or it was possibly a combination of the debris and the
rut or groove. A jury hearing this testimony would be forced to speculate and guess whether the
rut or groove – the only defect that could implicate the highway exception in this case – was a
cause of the accident. It is true that in Jackson’s later affidavit he averred “that a rut or groove or
gap in the traveled portion of the highway likely got [decedent’s] motorcycle initially into
trouble.” (Emphasis added.) But at no point in his deposition had Jackson opined that it was
“likely” that the rut or groove was a cause of the crash. A party is not permitted to create factual
issues by submitting an affidavit that is contrary to the affiant’s earlier damaging testimony given
in a deposition. Mitan v Neiman Marcus, 240 Mich App 679, 682-683; 613 NW2d 415 (2000).
Jackson’s affidavit cannot save Twigg’s lawsuit, as it was contrary to and inconsistent with his
deposition testimony.

       Twigg points to an affidavit from Julie Swanson as establishing evidentiary support for
causation. Swanson averred:

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       1.    At the time of [decedent’s] June 15, 2011 motorcycle crash, I lived in
             Pinckney, Michigan, and still live here.

       2.    I am (and was at the time of the June 2011 crash) a motorcycle rider, too.

       3.    I am familiar with westbound I-94, including near and at the Zeeb Road exit.

       4.    Shortly before that crash, I also drove over that same stretch of westbound I-
             94 as it approached the Zeeb Road exist [sic], on my Honda 750 motorcycle.

       5.    I observed a gap or groove in the traveled portion of the highway east of the
             Zeeb Road exit and that ran the entire width of the exit ramp.

       6.    I remember that gap or groove in particular because it seemed to me that it
             was certainly deep and wide enough to catch a motorcycle’s front steering
             wheel and direct it away from the rider’s intended path of travel. [Emphasis
             added.]

        This affidavit simply established the existence of the rut or groove and that it could have
misdirected decedent’s path of travel; it did not constitute evidence that the rut or groove more
likely than not caused the accident. Indeed, the affidavit effectively states no more than Jackson
did in his deposition, which was that the rut or groove possibly caused or played a role in causing
the accident. Ultimately, Swanson, who did not observe the accident, nor aver that she was
familiar with the particular motorcycle operated by decedent, was purely speculating regarding
whether the rut or groove misdirected decedent’s motorcycle. In sum, Twigg failed to establish a
factual dispute on causation for purposes of invoking the highway exception to governmental
immunity, and the court erred in denying MDOT’s motion for summary disposition.

        Finally, given our ruling in Docket No. 334406, DJ McQuestion is entitled to summary
disposition on MDOT and Barret Paving’s indemnification complaint in Docket No. 334809, as
there is no longer a basis or need for indemnification.

        Reversed and remanded for entry of judgment in favor of MDOT in Docket No. 334406,
and reversed and remanded for entry of judgment in favor of DJ McQuestion in Docket No.
334809. We do not retain jurisdiction. Taxable costs are awarded to MDOT as the prevailing
party in Docket No. 334406 under MCR 7.219, and we decline to award taxable costs to DJ
McQuestion in Docket No. 334809.


                                                            /s/ William B. Murphy
                                                            /s/ Michael J. Kelly
                                                            /s/ Brock A. Swartzle




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