            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



ESTATE OF RITA H. HUGHES, by ROBERT D.                             UNPUBLISHED
HUGHES, Personal Representative,                                   April 30, 2019

               Plaintiff-Appellee,

v                                                                  No. 340447
                                                                   Wayne Circuit Court
CITY OF LIVONIA,                                                   LC No. 16-013486-NI

               Defendant-Appellant.


Before: TUKEL, P.J., and K. F. KELLY and M. J. KELLY, JJ.

K. F. KELLY, J. (concurring in part and dissenting in part).

        I agree with the majority that there is no question that Fobar’s operation of the bus was
not negligent. The fact that he simply encountered a pothole while driving does not rise to the
level of a question of fact and the trial court erred finding otherwise. However, I respectfully
disagree with the majority’s conclusion that there was a question of fact with regard to whether
Fobar negligently secured Hughes’s wheelchair, or even if there is a question of fact, I do not
believe that it is even relevant to the question presented here. Such a conclusion fails to
narrowly apply the motor vehicle exception to governmental immunity. Because the decedent’s
injuries did not occur during the “operation of a motor vehicle,” the City is entitled to
governmental immunity. I would reverse.

        Pursuant to MCL 691.1407(1), governmental agencies are immune from tort liability
when they are engaged in governmental functions, subject to certain exceptions. See Robinson v
City of Lansing, 486 Mich 1, 6; 782 NW2d 171 (2010). There is no dispute that the City is a
governmental agency, or that Fobar, the city employee driving the bus owned by defendant at the
time of the accident, was engaged in a governmental function. See Cobb v Fox, 113 Mich App
249, 257; 317 NW2d 583 (1982). Thus, defendant was immune from tort liability unless an
exception applied. MCL 691.1407(1). The exception at issue in this matter is the motor vehicle
exception provided in MCL 691.1405:

       Governmental agencies shall be liable for bodily injury and property damage
       resulting from the negligent operation by any officer, agent, or employee of the



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       governmental agency, of a motor vehicle of which the governmental agency is
       owner, . . . .

“[I]t is a basic principle of our state’s jurisprudence that the immunity conferred upon
governmental agencies and subdivisions is to be construed broadly and that the statutory
exceptions are to be narrowly construed.” Stanton v City of Battle Creek, 466 Mich 611, 618;
647 NW2d 508 (2002) (emphasis added).

        Michigan courts have struggled with the proper interpretation of the word “operation” in
the context of the motor vehicle exception because the Legislature did not offer a statutory
definition for the term. It has been construed to mean “the ordinary use of the vehicle as a motor
vehicle, namely, driving the vehicle.” Chandler, 467 Mich at 321-322. However, the word
“operation” has also been determined to encompass “activities that are directly associated with
the driving of a motor vehicle.” Id. at 321. In Chandler, the plaintiff, an individual who was
court ordered to perform community service, was cleaning county-owned buses and trolleys at
the “bus barn.” Id. at 316. The county employee supervising the cleaning drove one of the buses
into the barn, turned off the engine, started to exit through the bus doors, and the doors closed on
his neck. Id. The plaintiff saw this happen, and pried the doors open until someone reached
through the bus window to release the air pressure valve. Id. The plaintiff injured his shoulder,
and sued the county. Id. This Court determined that the bus parked in the bus barn for
maintenance purposes was not being operated as a motor vehicle, and reinstated summary
disposition in favor of the defendant county. Id. at 322. The Court explained:

       In the context of a motor vehicle, the common usage of the term “operation”
       refers to the ordinary use of the vehicle as a motor vehicle, namely, driving the
       vehicle. In this case, the injury to plaintiff did not arise from the negligent
       operation of the bus as a motor vehicle. The plaintiff was not injured incident to
       the vehicle's operation as a motor vehicle. Rather, the vehicle was parked in a
       maintenance facility for the purpose of maintenance and was not at the time being
       operated as a motor vehicle. [Id. at 321–322.]

The Court cautioned: “we reject the Court of Appeals and the dissent's approach because their
construction of ‘operation’ would construe the term so broadly that it could apply to virtually any
situation imaginable in which a motor vehicle is involved regardless of the nature of its
involvement.” Id. at 321. I believe that the explanation of the term “operation” from Chandler
compels that the scope of the motor vehicle exception to governmental immunity does not extend
to the facts of this case.

        However, I also acknowledge that in Martin v Rapid Inter-Urban Transit Partnership,
480 Mich 936, 936; 740 NW2d 657 (2007), the Michigan Supreme Court specifically held that
“[t]he loading and unloading of passengers is an action within the ‘operation’ of a shuttle bus.”
In Martin v Rapid Inter-Urban Transit Partnership, 271 Mich App 492, 193-494; 722 NW2d
262 (2006), rev’d by 480 Mich 936 (2007), this Court held that the motor vehicle exception to
governmental immunity did not apply to the plaintiff’s claims because she was injured when she
slipped and fell down the steps of a city shuttle bus. Thus, her claim was barred by
governmental immunity. Id. at 502. The Michigan Supreme Court, however, ruled as follows:


                                                -2-
       In lieu of granting leave to appeal, we REVERSE the judgment of the Court of
       Appeals. MCL 691.1405 states that 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 the owner . . . .” In this case, the plaintiff
       alleges that she slipped and fell down the steps of a shuttle bus owned and
       operated by the defendants as she was attempting to exit the bus. The loading and
       unloading of passengers is an action within the “operation” of a shuttle bus.
       Accordingly, the plaintiff has satisfied the exception to governmental immunity
       set forth in MCL 691.1405. We REMAND this case to the Kent Circuit Court for
       reinstatement of the order denying the defendants’ motion for summary
       disposition, and for further proceedings not inconsistent with this order. [Martin,
       480 Mich at 936.] (Emphasis added.)

        Assuming that this peremptory order of the Michigan Supreme Court is binding on this
Court, the language in Martin nevertheless supports the conclusion that the City was entitled to
summary disposition. Quite simply, the decedent was not injured during the loading process. In
fact, she was loaded without incident and the bus operated for several minutes before her
wheelchair inexplicably lost its anchoring.

        The estate cites Seldon v Suburban Mobility Auth for Regional Transp, 297 Mich App
427, 435; 824 NW2d 318 (2012) for the unremarkable proposition that loading passengers
constitutes the operation of a motor vehicle for purposes of the motor vehicle exception.
However, like Martin, Seldon only confirms that the City was entitled to summary disposition.
The plaintiff was ejected from her wheelchair when the bus driver applied the brakes to stop at a
yellow light. Seldon, 297 Mich App at 432. On appeal, the defendant argued that the trial court
erred in denying it summary disposition on the basis that the defendant owed the plaintiff a duty
to advise her of the availability of a shoulder restraint. Id. This Court determined that the
defendant had no legal duty to advise the plaintiff of the availability of the shoulder restraint
because the bus was not equipped with restraints for all passengers, and neither federal
regulations nor the defendant’s internal policies required the bus driver to do so. Id. at 433-434.

        The defendant in Seldon also argued that, even if it owed the plaintiff a duty to inform her
of the shoulder restraint, the failure to do so did not constitute “operation” of a motor vehicle for
purposes of the exception. Id. at 434. This Court determined:

               Here, even if [the defendant] owed plaintiff a duty to inform her of the
       availability of a shoulder restraint, the failure to so advise her did not implicate
       MCL 691.1405. Although the loading and unloading of passengers is an activity
       within the operation of a motor vehicle, the failure to inform plaintiff that a
       shoulder restraint was available, without more, did not constitute the “operation”
       of the motor vehicle. Notably, plaintiff’s wheelchair was loaded onto the bus and
       secured without incident, and plaintiff was not injured during the loading or
       unloading process. Thus, the motor vehicle exception to governmental immunity
       was inapplicable, and the trial court erred by denying [the defendant’s] motion for
       summary disposition based on governmental immunity. [Id. at 435.]


                                                 -3-
       Seldon is directly on point. Here, the decedent was loaded onto the bus without incident.
She was not injured during the loading or unloading process. As such, the motor vehicle
exception to governmental immunity is inapplicable and the trial court in this case erred by
denying the City summary disposition based on governmental immunity.

       Again, exceptions to governmental immunity are to be construed narrowly, Stanton, 466
Mich at 618, no matter how tragic the injury.

       I would reverse with instructions to enter summary disposition in the City’s favor.

                                                            /s/ Kirsten Frank Kelly




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