                          STATE OF MICHIGAN

                            COURT OF APPEALS



TINA PARKMAN,                                                      UNPUBLISHED
                                                                   December 28, 2017
              Plaintiff-Appellee,

v                                                                  No. 335240
                                                                   Wayne Circuit Court
ENTERPRISE LEASING COMPANY OF                                      LC No. 14-013632-NF
DETROIT LLC and DAVID GLENN, SR.,

              Defendants,

and

CITY OF DETROIT,

              Defendant-Appellant.


Before: MURRAY, P.J., and K. F. KELLY and FORT HOOD, JJ.

PER CURIAM.

        Defendant, the City of Detroit, appeals as of right the trial court’s order denying its
motion for partial summary disposition. For the reasons stated herein, we reverse and remand
for further proceedings consistent with this opinion.

                         I. FACTS AND PROCEDURAL HISTORY

       This matter arises out of a collision between a Detroit Department of Transportation
(DDOT) bus driven by defendant, David Glenn, Sr.,1 and a rental car driven by plaintiff, Tina
Parkman. Following the collision, plaintiff filed a negligence action2 against defendants
claiming that Glenn breached his duty to operate the bus with reasonable care under the
Michigan Vehicle Code and common law, and that the City, as the owner of the bus, was liable


1
  Glenn is not a party to this appeal, but we refer to the City and Glenn collectively as
defendants.
2
  Plaintiff also brought a claim for personal protection benefits against the owner of the rental
car, Enterprise Leasing Company of Detroit LLC, which is not at issue in this appeal.


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for his negligent acts. Specifically, plaintiff alleged that she was lawfully parked on the curb
facing eastbound Warren in Detroit when Glenn drove past and swerved the bus into the front
driver’s side door of her rental car.

       After filing separate answers to plaintiff’s first amended complaint, defendants filed a
joint motion for partial summary disposition pursuant to MCR 2.116(C)(7), (8), and (10),3
arguing that Glenn was entitled to governmental immunity because plaintiff failed to plead gross
negligence in her complaint, and that the City was entitled to governmental immunity because
Glenn did not operate the bus in a negligent manner; thus, the motor vehicle exception to
governmental immunity, MCL 691.1405, did not apply. In so doing, they contested plaintiff’s
account of the collision, asserting that she caused the accident by opening the rental car door into
the path of the bus in violation of MCL 257.626b of the Michigan Vehicle Code and Detroit
Ordinance, § 55-1-17 (supposedly in effect at the time of the collision), and that the door made
contact with the bus’s right rear wheel panel.

        In her response to the motion for partial summary disposition, plaintiff again asserted,
consistent with the claim made in her complaint, that the collision occurred when Glenn
negligently swerved the bus into the parking lane in violation of MCL 257.634 of the Michigan
Vehicle Code. To support this argument, she attached and cited to an excerpt of her deposition
transcript where she testified that the front of the bus hit her rental car door, an excerpt of
Glenn’s deposition transcript where he testified regarding pictures taken of the damaged rental
car, and those pictures. Thus, plaintiff contended, the motion for summary disposition should be
denied under MCL 691.1405, because she “pled sufficient facts to support her allegations that
the [City’s] bus was operated in a negligent manner.”

        In reply to plaintiff’s response, defendants reiterated their argument that the collision was
not caused by any negligence on their part, stating, “Defendant Glenn has testified in his
deposition that the [bus] was in its lane at the time of impact and that Plaintiff’s door struck the
right rear tire of the [bus].” To the reply, defendants attached that portion of Glenn’s deposition
transcript where he testified that he was driving straight ahead and did not enter the parking lane
when plaintiff opened the door of the rental car and hit the right rear tire of the bus.

       At the motion hearing, plaintiff’s counsel conceded governmental immunity with regard
to Glenn, but otherwise, the parties made arguments consistent with those made in their briefs.
Ultimately, the court granted the motion for partial summary disposition as to the claim against
Glenn, but denied the motion with regard to the City, stating:

       As to defendant’s argument that there is no negligence, on the part of the City, the
       Court finds a genuine issue of material fact. Plaintiff claims that she was legally
       parked and that, as she was exiting the vehicle, the bus swerved into her vehicle,
       striking her vehicle door. Mr. Glenn testified that the bus was in its lane at the


3
  Although defendants stated at the top of the motion that it was being filed pursuant to MCR
2.116(C)(7), (8), and (10), they only provided the standards of review for MCR 2.116(C)(7) and
(8) in their brief in support of the motion, and failed to cite to MCR 2.116(C)(10) elsewhere.


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       time of the impact and that plaintiff’s door struck the right rear tire of the bus.
       The issue is -- is -- as it relates to how the accident happened, is a question of fact
       for the trier of fact. [Id. at 15.]

The court’s order reflected this determination.

                                          II. ANALYSIS

        The City argues that the trial court should have granted its motion for summary
disposition pursuant to MCR 2.116(C)(7) and (10), because it is entitled to governmental
immunity. Specifically, it asserts plaintiff failed to establish a genuine issue of material fact that
Glenn operated the bus in a negligent manner, and that she herself caused the collision by
opening her car door into traffic in violation of MCL 257.626b, 4 and former Detroit Ordinance, §
55-1-17.5

        Defendants filed their motion for partial summary disposition pursuant to MCR
2.116(C)(7), (8), and (10), but at the motion hearing, defendants’ counsel stated, “Your Honor,
we bring this motion based on MCR 2.116(C)(7).” Then, in its ruling on the record, the court
provided the standards of review for MCR 2.116(C)(7), (8), and (10), but failed to specify which
it used to deny the motion as to the City, stating only that a genuine issue of material fact existed
with regard to negligence, and that “how the accident happened[] is a question of fact for the trier
of fact.” This implies that the court denied summary disposition under both MCR 2.116(C)(7)
and (10), but the proper subrule is MCR 2.116(C)(7), which governs motions for summary
disposition based on governmental immunity.6

     We review de novo a trial court’s decision on a motion for summary disposition under
MCR 2.116(C)(7), and the applicability of governmental immunity. Seldon v Suburban Mobility


4
  MCL 257.626b provides: “A person who operates a vehicle upon a highway or a frozen public
lake, stream, or pond or other place open to the general public including an area designated for
the parking of vehicles in a careless or negligent manner likely to endanger any person or
property, but without wantonness or recklessness, is responsible for a civil infraction.”
5
  According to the City, the ordinance provided that no person should open the door of a vehicle
into the flow of traffic.
6
  A party moving for summary disposition under MCR 2.116(C)(10) “must support its motion
with affidavits, depositions, admissions, or other documentary evidence in support of the
grounds asserted.” Barnard Mfg Co, Inc v Gates Performance Engineering, Inc, 285 Mich App
362, 369-370; 775 NW2d 618 (2009), citing MCR 2.116(G)(3). “If the moving party fails to
properly support its motion for summary disposition, the nonmoving party has no duty to
respond and the trial court should deny the motion.” Id. at 370. Thus, although not questioned
below or on appeal, if the City intended to file its motion pursuant to MCR 2.116(C)(10), it
failed to meet its evidentiary burden under MCR 2.116(G)(3), because it did not attach any
exhibits to its initial motion, only including a short excerpt of Glenn’s deposition testimony with
its reply brief. Plaintiff, then, had no duty to even respond.


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Auth for Regional Transp, 297 Mich App 427, 432-433; 824 NW2d 318 (2012). Summary
disposition is proper under MCR 2.116(C)(7) “when a claim is barred by immunity granted by
law.” Beals v Michigan, 497 Mich 363, 370; 871 NW2d 5 (2015) (quotation marks and citation
omitted). “To survive such a motion, the plaintiff must allege facts justifying the application of
an exception to governmental immunity.” Id. And we must “accept all well-pleaded factual
allegations as true and construe them in favor of the plaintiff, unless other evidence contradicts
them.” Dextrom v Wexford Co, 287 Mich App 406, 428; 789 NW2d 211 (2010). When “no
[material] facts are in dispute, or if reasonable minds could not differ regarding the legal effect of
the facts, the question whether the claim is barred by governmental immunity is an issue of law.”
Willett v Charter Twp of Waterford, 271 Mich App 38, 45; 718 NW2d 386 (2006) (quotation
marks and citation omitted; alteration in original).

         “The governmental tort liability act, MCL 691.1401 et seq., provides immunity from tort
liability to governmental agencies engaged in a governmental function.” Stanton v Battle Creek,
466 Mich 611, 614-615; 647 NW2d 508 (2002), citing MCL 691.1407(1). However, the
exception to governmental immunity at MCL 691.1405 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 . . . .” Neither party disputes that the City and DDOT are
governmental agencies, that Glenn was an employee of the City, or that defendants were engaged
in a governmental function when the collision occurred. The only issue, then, concerns whether
plaintiff presented sufficient evidence to establish a material factual dispute that Glenn was
operating the bus in a negligent manner, causing the collision.

        Viewing the factual allegations and the evidence in a light most favorable to plaintiff, we
hold that plaintiff failed to establish a genuine issue of material fact as to whether Glenn operated
the bus in a negligent manner. Glenn’s testimony, attached to defendants’ reply brief, was that
he was driving straight ahead and had not entered the parking lane when plaintiff opened the car
door and hit the rear of the bus. This testimony, that Glenn continually operated the bus in the
proper lane, was unrebutted. Although plaintiff alleged in her complaint that he negligently
swerved into the car, she provided no evidence to the trial court in support of that allegation.
The only evidence presented by plaintiff were pictures of the rental car taken after the accident
and Glenn’s testimony about those pictures. But to accept that evidence as support for her claim
that the car door never extended beyond the parking lane would require speculation, as there was
no evidence about where the car was parked before the accident. In light of Glenn’s unrebutted
testimony, it is immaterial whether it was the front or back of the bus that made contact with the
car door, as that testimony does not create any material factual dispute; the testimony makes it no
more or less likely that Glenn caused the collision by negligently swerving into the parking lane.
Accordingly, the court erred when it denied the motion for partial summary disposition as to the
City, as the City is entitled to governmental immunity.

     Reversed and remanded for entry of an order granting the City’s motion for partial
summary disposition. We do not retain jurisdiction. Having prevailed in full, the City may tax




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costs. MCR 7.219(A).



                             /s/ Christopher M. Murray
                             /s/ Kirsten Frank Kelly
                             /s/ Karen M. Fort Hood




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