                         STATE OF MICHIGAN

                            COURT OF APPEALS


KATHY J. DIEM and JERRY C. DIEM,                                  UNPUBLISHED
                                                                  April 19, 2018
              Plaintiffs-Appellants,

v                                                                 No. 337335
                                                                  Clare Circuit Court
HOME-OWNERS INSURANCE COMPANY,                                    LC No. 15-900011-NI
DOUGLAS GILDENSTERN, and ANDREW
KRAWCZYNSKI, also known as JOHN DOE
SNOWPLOWER,

              Defendants,

and

BOARD OF CLARE COUNTY ROAD
COMMISSIONERS,

              Defendant-Appellee.


Before: MURPHY, P.J., and JANSEN and SWARTZLE, JJ.

PER CURIAM.

        Plaintiffs, Kathy J. Diem (plaintiff) and Jerry C. Diem (Diem), appeal as of right,
challenging the circuit court’s December 14, 2015 order granting summary disposition in favor
of defendants, the Board of Clare County Road Commissioners (the Road Commission), and its
employee, Andrew Krawczynski, pursuant to MCR 2.116(C)(7) (governmental immunity). We
affirm.

                                          I. FACTS

        Plaintiff claimed that on the afternoon of February 9, 2013, she was cresting a hill on
Townline Lake Road in Harrison, Michigan, when she saw a vehicle approaching from the
opposite direction. According to plaintiff, she pulled as far right as she could, but there were
snowbanks on either side of the road and the road was too narrow for both cars to pass. The
oncoming vehicle hit her vehicle head-on, causing serious injuries. A traffic crash report
indicated that the accident occurred when both vehicles were going over a hill at the same time,
and snowbanks on both sides of the road made the road narrow.

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        Plaintiffs filed suit against the Road Commission and Andrew Krawczynski, alleging that
Krawczynski had dangerously narrowed the road to one passable lane and that Douglas
Gildenstern, the driver of the other vehicle, had been traveling at an excessive rate of speed. The
Road Commission and Krawczynski moved for summary disposition under MCR 2.116(C)(7),
arguing that governmental immunity barred plaintiffs’ claims. After discovery and supplemental
briefing, the circuit court agreed with defendants and dismissed plaintiffs’ case. This appeal
followed.

                                 II. STANDARD OF REVIEW

        This Court reviews de novo the trial court’s decision on a motion for summary
disposition. Wood v City of Detroit, ___ Mich App ___, ___; ___ NW2d ___ (2018) (Docket
No. 335760); slip op at 2. “[T]he applicability of governmental immunity is a question of law
that this Court reviews de novo.” Id. (citation omitted). Likewise, we review the applicability
of any exceptions to governmental immunity de novo. Moraccini v Sterling Hts, 296 Mich App
387, 391; 822 NW2d 799 (2012).

        “As a general rule, a governmental agency is immune from tort liability when it is
‘engaged in the exercise or discharge of a governmental function.’ In order to assert a viable
claim against a governmental agency, a plaintiff must plead facts that establish an exception to
governmental immunity applies to his or her claim.” Wood, ___ Mich App at ___; slip op at 2
(citations omitted). “A defendant is entitled to summary disposition under MCR 2.116(C)(7) if
the plaintiff’s claims are barred because of governmental immunity.” Pew v Mich State Univ,
307 Mich App 328, 331-332; 859 NW2d 246 (2014). The moving party may support a motion
under MCR 2.116(C)(7) with affidavits, depositions, admissions, or other documentary evidence
that would be admissible at trial. Id. This Court considers the contents of the plaintiff’s
complaint to be true, unless contradicted by the documentary evidence. Id. If reasonable minds
could not differ on the legal effects of the facts, whether governmental immunity bars a
plaintiff’s claim is a question of law. Snead v John Carlo, Inc, 294 Mich App 343, 354; 813
NW2d 294 (2011).

                                 III. HIGHWAY EXCEPTION

      Plaintiff first argues that the highway exception to governmental immunity is applicable.
We disagree.

        The governmental immunity act provides “broad immunity from tort liability to
governmental agencies whenever they are engaged in the exercise or discharge of a
governmental function.” Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 595; 363
NW2d 641 (1984). A plaintiff may only sue a governmental entity in tort if the suit falls within
one of the six statutory exceptions to governmental immunity. Moraccini, 296 Mich App at 392.
This Court broadly construes the scope of governmental immunity and narrowly construes its
exceptions. Id. The highway exception to governmental immunity provides that “[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.” MCL 691.1402(1). This duty extends only to the improved portion

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of the highway designed for vehicular travel, and exists whether the road is paved or unpaved.
Nawrocki v Macomb Co Rd Comm, 463 Mich 143, 161, 180; 615 NW2d 702 (2000).

        A plaintiff seeking to establish the highway exception to governmental immunity must
prove that his or her injuries resulted from a defect of the surface, “as distinct from the
accumulation of ice.” Haliw v Sterling Hts, 464 Mich 297, 308; 627 NW2d 581 (2001). A
plaintiff must establish that a “combination of ice and a defect” caused his or her injury. Id. at
310. A plaintiff who cannot establish a defect in the surface of the highway cannot establish that
a defective highway proximately caused his or her injury. Id. at 311. There must be “a
persistent defect in the highway . . . rendering it unsafe for public travel at all times, and which
combines with the natural[1] accumulation of ice or snow to proximate cause injury . . . .” Id. at
312.

        Plaintiffs take issue with the physical structure of the roadbed, and argue that the road
was not maintained in a safe manner for travel because the snowpack, which constituted the
roadbed surface, had not been reasonably maintained. However, where plaintiffs have failed to
identify any defect with the actual roadbed surface, we conclude that plaintiffs’ argument lacks
merit.

        In this case, plaintiffs have not established, or even alleged, that there was a defect in the
road surface. Even accepting as true that the snowpack is part of the road surface, plaintiffs do
not allege that a defect in the snowpack caused the accident. Rather, plaintiffs allege that the
snow banks created when the road was plowed caused the road to narrow to one passable lane,
which in turn, caused the accident in which plaintiff sustained serious bodily injuries. Because
plaintiffs have neither alleged nor proven that there was a defect in the highway surface, they are
not entitled to take advantage of the highway exception to governmental immunity.

        Further, plaintiffs argue that by plowing the snow into banks, the Road Commission
created a hazard that renders it liable under an “increased hazard” theory. In support of this
argument, plaintiffs rely on precedent from this Court that is contrary to more recent precedent
from our Supreme Court. In 1997, this Court stated that a governmental agency may be liable
for unnatural accumulations of ice and snow. Skogman v Chippewa Co Rd Comm, 221 Mich
App 351, 354; 561 NW2d 503 (1997). However in 2001, our Supreme Court stated that there
must be an independent defect apart from the accumulation of ice or snow for the highway
exception to governmental immunity to apply. Haliw, 464 Mich at 308 n 9. A determination of
whether the ice or snow is a natural or unnatural accumulation is not central to whether the
defect rendered the surface unreasonably safe. Id. Additionally, in 2008, our Supreme Court
stated that an accumulation of ice and snow, “regardless of whether it accumulated through
natural causes or otherwise,” did not constitute a defect in the surface and governmental
immunity barred the plaintiff’s claim. Buckner Estate v City of Lansing, 480 Mich 1243, 1244;




1
  In Haliw, the Court also stated that it does not matter whether the accumulation of ice and snow
is natural or unnatural. Haliw, 464 Mich at 308 n 9.


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747 NW2d 231 (2008). Accordingly, the presence of an accumulation of ice or snow, whether
natural or unnatural, does not render the actual road surface defective.

       This Court must follow decisions by our Supreme Court even if a panel of this Court
decided the same issue in a contrary fashion. Charles A Murray Trust v Futrell, 303 Mich App
28, 48-49; 840 NW2d 775 (2013). Under Michigan Supreme Court precedent, it does not matter
whether the presence of snow is natural or manmade because snow does not constitute a defect in
the road surface itself. Because there was no defect in the road’s surface itself, the highway
exception to governmental immunity does not apply.

                              IV. MOTOR VEHICLE EXCEPTION

       Plaintiffs next argue that the trial court erred when determining that the motor vehicle
exception to governmental immunity did not apply. We disagree.

        A second exception to governmental immunity is that “[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 owner . . . .” Wood, ___ Mich App at ___; slip op at 2; MCL 691.1405.
The word operation “encompasses activities that are directly associated with the driving of a
motor vehicle.” Chandler v Muskegon Co, 467 Mich 315, 321; 652 NW2d 224 (2002). This
generally means “the ordinary use of the vehicle as a motor vehicle, namely, driving the
vehicle.” Id. at 321-322.

       A vehicle may be in operation while it is stopped if it is carrying out its intended
function, such as a garbage truck that is stopped while picking up garbage. Strozier v Flint
Community Schs, 295 Mich App 82, 91; 811 NW2d 59 (2011). However, the injury must “result
from the negligent operation” of the vehicle. MCL 691.1405 (emphasis added). An injury does
not “result from” the operation of a motor vehicle if the vehicle “did not hit the [other] car or
physically force it off the road or into another vehicle or object.” Robinson v Detroit, 462 Mich
439, 457; 613 NW2d 307 (2000) An injury also does not “result from” the operation of a motor
vehicle if there is an intervening decision, separate from the operation of the vehicle itself. Id.

        Plaintiffs contend that the motor vehicle exception applies here because the collision
resulted from the snowplow’s act of plowing snow. Plaintiffs are incorrect because the
snowplow driver’s decision regarding how wide to plow the road was an intervening decision for
purposes of the motor vehicle exception. In this case, the snowplow itself was not involved in
the accident. It did not physically hit Diem’s car or force it into another vehicle. Diem alleged
that the condition of the road itself forced her vehicle into the other vehicle because the road was
too narrow. As in Robinson, Krawczynski’s decision about how wide to plow the road was an
intervening decision, separate from the operation of the snowplow itself. Because plaintiffs’
injuries did not result from the snowplow’s use as a vehicle, but rather resulted from the plow
operator’s separate decision regarding how wide to plow the road, the motor vehicle exception
does not apply in this case.




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                                    V. GROSS NEGLIGENCE

       Finally, plaintiffs argue that the trial court erred when it determined that Krawczynski
was entitled to governmental immunity because his conduct in plowing the road too narrowly
was not the proximate cause of the accident. We disagree.

         A defendant who is an individual employee of a governmental agency is entitled to
governmental immunity if (1) the employee reasonably believed he or she was acting within the
scope of his or her authority, (2) the employee was engaged in the exercise or discharge of a
governmental function, and (3) the employee’s conduct “does not amount to gross negligence
that is the proximate cause of the injury or damage.” MCL 691.1407(2)(a) to (c). The proximate
cause of an injury is “the one most immediate, efficient, and direct cause preceding an injury.”
Robinson, 462 Mich at 458-459. This Court must consider the defendant’s actions alongside
other potential proximate causes to determine whether the defendant’s actions could have been
the proximate cause. Ray v Swager, 501 Mich 52, 76; 903 NW2d 366 (2017). Nonhuman and
natural forces cannot be considered “the proximate cause” of an injury. Id. at 72.

        In this case, accepting plaintiffs’ allegations as true, the road was too narrow for both cars
to pass. However, plaintiffs also alleged that Gildenstern’s vehicle was traveling “at a rate of
speed that was in excess of that required by the circumstances,” and that Kathy Diem was injured
as a result of the vehicles colliding. The trial court did not err when it determined that the
narrowness of the road was not the proximate cause of the accident. If we accept as true that the
road was too narrow for the two vehicles to pass safely, the narrowness of the road was certainly
a proximate cause of the accident, but the more direct cause was the impact with Gildenstern’s
vehicle. Accordingly, the narrowness of the road was not the most direct, immediate, and
efficient reason why Kathy Diem was injured. The circuit court did not err by granting summary
disposition on this ground.

       Affirmed.


                                                              /s/ William B. Murphy
                                                              /s/ Kathleen Jansen
                                                              /s/ Brock A. Swartzle




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