            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


 FRANCES EMMA-JEAN COLE,                                              UNPUBLISHED
                                                                      March 17, 2020
                Plaintiff-Appellant,

 v                                                                    No. 347034
                                                                      Jackson Circuit Court
 DARRYL L. BLAND and JACKSON AREA                                     LC No. 17-001974-NI
 TRANSPORTATION AUTHORITY,

                Defendants-Appellees.


Before: CAMERON, P.J., and SHAPIRO and LETICA, JJ.

PER CURIAM.

        Plaintiff, Frances Emma-Jean Cole, appeals the trial court’s order granting summary
disposition in favor of defendants Darryl L. Bland and Jackson Area Transportation Authority
(JATA). We affirm in part, reverse in part, and remand to the trial court for further proceedings.

                     I. FACTUAL AND PROCEDURAL BACKGROUND

        In February 2017, plaintiff boarded a bus that was owned by JATA and operated by Bland.
Plaintiff used her walker to board the bus, but she could not walk through the aisle to an available
seat because two other passengers’ wheelchairs narrowed the aisle such that she could not pass by
with her walker. Plaintiff stated, “I’ll just have to stand. I’ve done it before.” Bland responded,
“It won’t be long,” and asked plaintiff if she was all right. Plaintiff stated, “I’m OK,” and Bland
replied, “OK.” Plaintiff remained standing near the front of the bus and held onto the handrail
with one hand and held her walker with her other hand. Bland drove for two minutes through a
parking lot and onto a roadway before entering a Meijer parking lot. Bland made several turns
and stops along the route. Eventually, plaintiff stopped holding the handrail as Bland slowed to a
stop at a stop sign. As Bland came to a complete stop, plaintiff fell to the floor of the bus and
allegedly sustained injuries.

        Plaintiff filed a complaint against defendants, alleging negligence and gross negligence.
Plaintiff acknowledged that JATA is a governmental entity and that Bland was its employee, but
asserted that they were not entitled to immunity in light of the alleged negligent operation of the
bus by Bland and gross negligence, citing MCL 691.1405 and MCL 691.1407. Defendants


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answered the complaint and discovery commenced. Defendants later moved for summary
disposition pursuant to MCR 2.116(C)(7), (8), and (10). Plaintiff opposed the motion.

        The trial court determined that JATA is a governmental entity but that plaintiff pleaded a
statutory exception to governmental immunity, i.e., negligent operation of a government-owned
vehicle. After reviewing the video recording of Bland’s driving and plaintiff’s fall, the trial court
found that Bland braked gradually and safely when he approached the stop sign. The trial court
determined that reasonable minds could not conclude that Bland’s driving and gradual stop before
plaintiff’s fall was negligent or grossly negligent. The trial court also determined that plaintiff’s
failure to hold the handrail on the bus was the proximate cause of her fall, and therefore, that no
reasonable mind could conclude that Bland’s driving and braking caused plaintiff’s injuries. The
trial court granted defendants’ motion for summary disposition regarding plaintiff’s negligence
claims. This appeal followed.

                                  II. STANDARD OF REVIEW

        Defendants moved for summary disposition pursuant to MCR 2.116(C)(7), (8), and (10).
If a party moves for summary disposition on multiple grounds and the trial court ruled on the
motion without specifying the particular subrule under which it decided the issue, but considered
material outside the pleadings, this Court will treat the decision as one not based on MCR
2.116(C)(8). Cuddington v United Health Servs, Inc, 298 Mich App 264, 270; 826 NW2d 519
(2012). “This Court reviews de novo a trial court’s grant of summary disposition under MCR
2.116(C)(7) and (C)(10).” McLean v Dearborn, 302 Mich App 68, 72; 836 NW2d 916 (2013). A
motion for summary disposition is proper under MCR 2.116(C)(7) when a claim is barred by
immunity granted by law. Seldon v Suburban Mobility Auth for Regional Transp, 297 Mich App
427, 432; 824 NW2d 318 (2012).

               A summary disposition motion brought under subrule (C)(7) “does not test
       the merits of a claim but rather certain defenses” that may eliminate the need for a
       trial. When reviewing a grant of summary disposition under subrule (C)(7), this
       Court accepts as true the plaintiff’s well-pleaded allegations and construes them in
       the light most favorable to the plaintiff. “If no facts are in dispute, and if reasonable
       minds could not differ regarding the legal effect of those facts,” whether immunity
       bars the claim is a question of law for the court. Under this subrule, summary
       disposition may be granted when a claim is barred because of immunity granted by
       law. [Nash v Duncan Park Com’n, 304 Mich App 599, 630; 848 NW2d 435 (2014)
       (internal citations omitted).]

        In reviewing a grant of summary disposition under MCR 2.116(C)(10), this Court
considers the pleadings, admissions, and other evidence submitted by the parties in the light most
favorable to the nonmoving party. Sallie v Fifth Third Bank, 297 Mich App 115, 117-118; 824
NW2d 238 (2012) (quotation marks and citation omitted). This Court is “limited to considering
the evidence submitted to the trial court before its decision on the motions.” Calhoun Co v Blue
Cross Blue Shield of Mich, 297 Mich App 1, 12; 824 NW2d 202 (2012). Summary disposition is
appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment
as a matter of law. MCR 2.116(C)(10); Latham v Barton Malow Co, 480 Mich 105, 111; 746
NW2d 868 (2008). When the truth of a material factual assertion made by a party is contingent

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upon credibility, summary disposition should not be granted. Foreman v Foreman, 266 Mich App
132, 136; 701 NW2d 167 (2005). A court may not make factual findings or weigh credibility
when deciding a motion for summary disposition. In re Handelsman, 266 Mich App 433, 437;
702 NW2d 641 (2005).

       Furthermore, the applicability of governmental immunity is reviewed de novo as a question
of law. McLean v McElhaney, 289 Mich App 592, 596; 798 NW2d 29 (2010).

                                           III. ANALYSIS

       Pursuant to the government tort liability act (GTLA), MCL 691.1401 et seq., governmental
agencies and their employees are entitled to immunity from tort liability when engaged in the
exercise or discharge of a governmental function. Ray v Swager, 501 Mich 52, 62; 903 NW2d 366
(2017). Plaintiff asserts two theories of liability: negligence and gross negligence pursuant to
MCL 691.1405 and MCL 691.1407.

                    A. NEGLIGENT OPERATION OF A MOTOR VEHICLE

        Under MCL 691.1405, “[g]overnmental 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 [the] owner . . . .”
For the exception to apply, the injury must result from the negligent operation of a motor vehicle.
Robinson v Detroit, 462 Mich 439, 456; 613 NW2d 307 (2000). The mere involvement of a motor
vehicle is not sufficient to abrogate immunity. See Peterson v Muskegon County Bd of Road
Comm'rs, 137 Mich App 210, 214; 358 NW2d 28 (1984). Rather, the negligent operation of a
vehicle requires that the motor vehicle was being operated as a motor vehicle, and the exception
encompasses only activities that are directly associated with the driving of a motor vehicle.
Chandler v Muskegon County, 467 Mich 315, 320-321; 652 NW2d 224 (2002); Strozier v Flint
Community Sch, 295 Mich App 82, 89; 811 NW2d 59 (2011).

        In this case, the parties dispute whether Bland negligently operated the bus and whether
Bland’s negligence caused plaintiff’s injuries. The elements of a prima facie negligence claim are:
(1) a duty owed by a defendant to a plaintiff, (2) a breach of that duty, (3) causation, and
(4) damages. Finazzo v Fire Equip Co, 323 Mich App 620, 635; 918 NW2d 200 (2018). Whether
a defendant owes a plaintiff a duty is a question of law for the trial court. Seldon, 297 Mich App
at 433. The jury determines whether a defendant’s conduct was below the standard of care. Dawe
v Dr Reuven Bar-Levav & Assoc, PC (On Remand), 289 Mich App 380, 392-393; 808 NW2d 240
(2010).

        Plaintiff first argues that summary disposition was improper because “the trial court
ignored the fact that” Bland breached his duty to plaintiff by refusing to assist her to a seat. In so
arguing, however, plaintiff disregards the fact that Bland’s statement that he did not know where
she would sit was not a refusal to aid plaintiff or an instruction for her to remain standing.
Furthermore, to support that Bland had a duty to assist plaintiff to a seat, plaintiff only cites JATA’s
internal policies. Internal company policies may not be used to establish a legal duty in a
negligence action. Zdrojewski v Murphy, 254 Mich App 50, 62; 657 NW2d 721 (2002). No duty
attaches related to a violation of an internal policy unless compliance with that policy relates to an

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underlying law or regulation. See Buczkowski v McKay, 441 Mich 96, 106; 490 NW2d 330 (1992).
Because plaintiff only alleges a violation of JATA’s internal policies and does not explain or
rationalize how they relate to an underlying law or regulation, we conclude that plaintiff failed to
establish that Bland owed her a duty to assist her to a seat.1

         However, plaintiff has established that Bland owed her a duty to operate the bus with
reasonable care and caution. See Zarzecki v Hatch, 347 Mich 138, 141; 79 NW2d 605 (1956). In
the operation of his or her vehicle, a driver must make reasonable allowances for traffic, weather,
and road conditions. DePriest v Kooiman, 379 Mich 44, 46; 149 NW2d 449 (1967). However, a
driver is not required to “guard against every conceivable result, to take extravagant precautions,
[or] to exercise undue care[.]” Hale v Cooper, 271 Mich 348, 354; 261 NW 54 (1935). It is well-
settled that sudden jerks and stops are considered normal incidents of travel which, alone, do not
give rise to liability. See, e.g., Seldon, 297 Mich App at 437 (sudden stops are normal incidents
of travel); Russ v Detroit, 333 Mich 505, 508; 53 NW2d 353 (1952) (a mere sudden stop does not
create liability); Sherman v Flint Trolley Coach, Inc, 304 Mich 404; 416; 8 NW2d 115 (1943) (a
mere sudden stop to retrieve a passenger is not actionable negligence); Zawicky v Flint Trolley
Coach Co, 288 Mich 655, 658-659; 286 NW 115 (1939) (ordinary sudden jerks and jolts are
normal incidents of travel). Specifically, sudden jerks or jolts that occur when a bus stops or starts
are considered normal incidents of travel. Getz v Detroit, 372 Mich 98, 101-102; 125 NW2d 275
(1963).

         In the context of negligence claims involving the operation of passenger vehicles, a carrier
is not liable for the injuries that a plaintiff sustains as a result of normal incidents of travel. Seldon,
297 Mich App at 437. Because passengers should reasonably expect such occurrences, the fact
that a passenger is injured by a jerking or jolting motion is, by itself, insufficient proof of
negligence. Getz, 372 Mich at 101-102. However, if the jerk or jolt is “unnecessarily sudden or
violent,” it can constitute sufficient proof of negligence to impose carrier liability. Id.

        In this case, Bland traveled at approximately 15 miles per hour and made small turns to
avoid the snow piles and a shopping cart in the Meijer parking lot. After Bland straightened the
bus to drive in the through-traffic area of the parking lot, plaintiff released her grip of the bus
handrail. At this time, the parties assert that the bus was traveling between 15 to 19 miles per hour.
The bus proceeded straight toward a stop sign, and Bland applied the bus’s brakes as he approached
a vehicle that was waiting at the stop sign. The bus decelerated somewhat forcefully before coming
to a complete stop behind the vehicle in front of the bus. During the deceleration, plaintiff fell
forward. We conclude that reasonable minds could differ regarding whether Bland breached his
duties to plaintiff due to Bland’s speed and his arguably sudden and forceful braking. In other
words, a reasonable jury could conclude that Bland did not make reasonable allowances for traffic
and that Bland’s application of the brakes created a sudden and unnecessary jolt, particularly in
light of plaintiff’s limited mobility and lack of seating. However, a reasonable jury could also



1
  Even if JATA’s internal policy could be used to establish a legal duty, we would conclude that
the policy did not establish a legal duty for Bland to assist plaintiff to a seat. Specifically, although
the JATA bus operation policy generally required bus operators to wait until passengers are seated
to drive the bus, the policy provides that passengers may stand if there are no seats available.

                                                   -4-
conclude that Bland’s driving, turning, and stopping were normal incidents of travel that did not
constitute negligence. Consequently, when considering the evidence in a light most favorable to
plaintiff as the nonmoving party, we conclude that there was a genuine issue of material fact
regarding whether Bland operated the bus in a negligent manner.

        Irrespective of the duty owed by Bland and whether or not he breached the duty, plaintiff
must still show the alleged injury would not have occurred but for Bland’s negligence. To establish
cause in fact, a plaintiff must present substantial evidence from which the jury may conclude that
more likely than not, but for the defendant’s action, the injuries would not have occurred. Patrick
v Turkelson, 322 Mich App 595, 617; 913 NW2d 369 (2018). A plaintiff presents sufficient
evidence of causation to create a question of fact for the jury in response to a motion for summary
disposition if he or she establishes a logical sequence of cause and effect irrespective of the
existence of other plausible theories that may have evidentiary support. Id. However, causation
cannot be established by mere speculation. Id. Causation is generally a matter for the trier of fact.
Holton v A+ Ins Assocs, Inc, 255 Mich App 318, 326; 661 NW2d 248 (2003).

        We conclude that reasonable minds could differ regarding whether plaintiff’s fall and
alleged injuries resulted from Bland’s conduct. From the video recording, it appears that plaintiff
held the handrail as Bland traveled at approximately 15 miles per hour and made small turns in the
parking lot to avoid several small snow piles and a shopping cart. Plaintiff subsequently removed
her hand from the handrail and placed both hands on her walker when Bland returned to the
through-traffic area of the parking lot. Bland was traveling between 15 to 19 miles per hour before
braking, and plaintiff’s movement in the bus could reasonably suggest that Bland braked somewhat
forcefully before coming to a complete stop at a stop sign. It appears from the video recording
that plaintiff fell as the bus came to a complete stop and when her hand was not on the handrail.
Although the video recording appears to show that Bland was driving in a straight path at the time
of plaintiff’s fall, plaintiff testified that Bland’s driving and “turning real fast,” rather than a sudden
stop, caused her to fall.

        We also conclude that a reasonable jury could conclude that plaintiff’s testimony was
credible and that Bland’s operation of the bus caused her to begin to lose her balance, which
ultimately resulted in her falling to the floor when Bland stopped at the stop sign. Conversely,
because plaintiff chose not to hold the handrail while Bland operated the bus, a reasonable jury
could also conclude that plaintiff’s injuries resulted from her failure to hold the handrail while
Bland decelerated and stopped the bus. Or a jury could conclude that both parties were negligent
and determine their respective percentage of fault. Thus, because there was a material question of
fact regarding whether plaintiff’s injuries resulted from Bland’s negligent operation of the bus, the
trial court improperly granted summary disposition in favor of JATA on the negligent operation
claim.

                                      B. GROSS NEGLIGENCE

        “Generally, governmental employees acting within the scope of their authority are immune
from tort liability except in cases in which their actions constitute gross negligence.” Tarlea v
Crabtree, 263 Mich App 80, 89; 687 NW2d 333 (2004). “ ‘Gross negligence’ is defined by statute
as ‘conduct so reckless as to demonstrate a substantial lack of concern for whether an injury
results.’ ” Wood v City of Detroit, 323 Mich App 416, 423; 917 NW2d 709 (2018), quoting MCL

                                                   -5-
691.1407(8)(a). “ ‘Evidence of ordinary negligence is not enough to establish a material question
of fact regarding whether a government employee was grossly negligent.’ ” Wood, 323 Mich at
423-424, quoting Chelsea Investment Group LLC v Chelsea, 288 Mich App 239, 265; 792 NW2d
781 (2010). Thus, a plaintiff must present evidence or allege that a defendant’s “contested conduct
was substantially more than negligent.” Costa v Community Emergency Med Servs, Inc, 475 Mich
403, 411; 716 NW2d 236 (2006). The question whether conduct constituted gross negligence is
generally a question of fact, but a trial court may grant summary disposition when reasonable
minds could not differ regarding this issue. Briggs v Oakland Co, 276 Mich App 369, 374; 742
NW2d 136 (2007).

        In this case, plaintiff used her walker to board the bus and was able to do so without
assistance. Upon realizing that she could not walk through the aisles with her walker, plaintiff
informed Bland, “I’ll just have to stand. I’ve done it before.” Bland asked plaintiff if she was all
right. Plaintiff stated, “I’m OK,” and Bland replied, “OK.” Bland’s interaction with plaintiff
demonstrated that he was mindful of plaintiff’s mobility issues and her decision to stand on the
bus. Bland then exited the parking lot onto the roadway, stopped at several intersections and bus
stops, entered the Meijer parking lot, and avoided road hazards in the parking lot. Bland traveled
between 15 to 19 miles per hour before braking and coming to a complete stop, after which plaintiff
fell. Bland’s driving did not exceed 20 miles per hour in the parking lot and did not exceed 35
miles per hour on the roadway. Although there were questions of fact regarding whether Bland’s
driving constituted negligence, we conclude that reasonable minds could not conclude that Bland’s
driving to avoid road hazards, driving four miles over the speed limit, and braking to stop at a stop
sign constituted conduct so reckless as to demonstrate a substantial lack of concern for whether an
injury resulted. Because there was not a material question of fact as to whether Bland’s conduct
constituted gross negligence, we conclude that the trial court properly granted summary disposition
on this claim. Consequently, we need not address whether Bland’s conduct was the factual and
legal cause of plaintiff’s injuries with respect to the gross negligence claim. See MCL
691.1407(2).

        Affirmed in part, reversed in part, and remanded to the trial court for proceedings consistent
with this opinion. We do not retain jurisdiction.



                                                              /s/ Thomas C. Cameron
                                                              /s/ Douglas B. Shapiro
                                                              /s/ Anica Letica




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