            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



ANTHONY MICHAEL COLLINS,                                           UNPUBLISHED
                                                                   March 21, 2019
               Plaintiff-Appellee,

v                                                                  No. 340508
                                                                   Washtenaw Circuit Court
ASHLEY KOFAHL and CITY OF YPSILANTI,                               LC No. 16-000332-NI

               Defendants-Appellants.


Before: M. J. KELLY, P.J., and SERVITTO and BOONSTRA, JJ.

PER CURIAM.

       Defendants City of Ypsilanti and Officer Ashley Kofahl appeal as of right the trial court
order denying their motion for summary disposition under MCR 2.116(C)(7) (governmental
immunity). We affirm.

                                        I. BASIC FACTS

        On September 15, 2015, Kofahl, who was driving in a marked police vehicle, collided
with plaintiff, Anthony Collins, as he was attempting to make a left-hand turn at an intersection.
Before the crash, Kofahl and another Ypsilanti police officer responded to a silent alarm at a
local business. Kofahl activated the emergency lights on her police vehicle, but did not activate
the siren. She was driving approximately 57 miles per hour. The speed limit, however, was only
30 miles per hour. As Kofahl approached the intersection where the crash occurred, she was
notified that it was a false alarm. In response, she deactivated the emergency lights and
proceeded through the intersection. Although she applied her brakes, the record reflects that at
the time of the crash she was still traveling in excess of the speed limit. Her vehicle made
contact with the driver’s side of Collins’s vehicle. Collins sustained severe physical injuries.

         Collins filed a complaint against the City and Kofahl, alleging negligence, owner
liability, and gross negligence. He pleaded that the motor-vehicle and gross-negligence
exceptions to governmental immunity applied. The City and Kofahl moved for summary
disposition under MCR 2.116(C)(7), arguing that Collins’s claims were barred by the
governmental tort liability act (GTLA), MCL 691.1401 et seq. The trial court determined that
governmental immunity did not apply and it denied summary disposition.
                                II. SUMMARY DISPOSITION

                                 A. STANDARD OF REVIEW

        Defendants argue that the trial court erred by denying their motion for summary
disposition.

               This Court reviews de novo a trial court’s decision on a motion for
       summary disposition. MCR 2.116(C)(7) permits summary disposition of a claim
       that is barred by immunity granted by law. In reviewing a motion under MCR
       2.116(C)(7), a court is required to consider not only the pleadings, but also any
       affidavits, depositions, admissions, or other documentary evidence filed or
       submitted by the parties. The contents of the complaint must be accepted as true
       unless contradicted by the documentary evidence, which must in turn be
       considered in a light most favorable to the nonmoving party. The trial court
       properly grants a motion for summary disposition under MCR 2.116(C)(7) when
       the undisputed facts establish that the moving party is entitled to immunity
       granted by law. [Allen v Bloomfield Hills Sch Dist, 281 Mich App 49, 52; 760
       NW2d 811 (2008) (citations omitted).]

                                         B. ANALYSIS

       Except as otherwise provided, the GTLA 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). Therefore, a governmental agency can be held liable under the
GTLA only if a case falls into one of the enumerated statutory exceptions. Grimes v Mich Dep’t
of Transp, 475 Mich 72, 77; 715 NW2d 275 (2006). One of these is the motor-vehicle
exception. MCL 691.1405 provides in pertinent part:

              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[.]

To establish a case of negligence, the plaintiff must prove: (1) that the defendant owed a duty to
the plaintiff; (2) the defendant breached that duty; (3) the breach of duty was a proximate cause
of the plaintiff’s damages; and (4) that the plaintiff suffered damages. Frohman v Detroit, 181
Mich App 400, 411; 450 NW2d 59 (1989). Additionally, in Michigan, “the rule is that evidence
of violation of a penal statute creates a rebuttable presumption of negligence.” Klanseck v
Anderson Sales & Serv, Inc, 426 Mich 78, 86; 393 NW2d 356 (1986). With respect to Kofahl’s
actions, MCL 257.627 and MCL 257.628(9) proscribe operating a motor vehicle at speeds faster
than the established limit.

       The City contends that it is immune from liability under the GTLA because Kofahl was
not negligent in the operation of the police vehicle as she was excused from compliance with the
speed limit by MCL 257.603 and MCL 257.632. However, at the time of the crash, it is


                                               -2-
undisputed that Kofahl was not in compliance with either statute. MCL 257.603 provides in
relevant part:

               (2) The driver of an authorized emergency vehicle when responding to an
       emergency call, but not while returning from an emergency call, or when
       pursuing or apprehending a person who has violated or is violating the law or is
       charged with or suspected of violating the law may exercise the privileges set
       forth in this section, subject to the conditions of this section.

              (3) The driver of an authorized emergency vehicle may do any of the
       following:

                                             * * *

             (c) Exceed the prima facie speed limits so long as he or she does not
       endanger life or property.

                                             * * *

               (4) The exemptions granted in this section to an authorized emergency
       vehicle apply only when the driver of the vehicle while in motion sounds an
       audible signal by bell, siren, air horn, or exhaust whistle as may be reasonably
       necessary, except as provided in subsection (5), and when the vehicle is equipped
       with at least 1 lighted lamp displaying a flashing, oscillating, or rotating red or
       blue light visible under normal atmospheric conditions from a distance of 500 feet
       in a 360 degree arc unless it is not advisable to equip a police vehicle operating as
       an authorized emergency vehicle with a flashing, oscillating or rotating light
       visible in a 360 degree arc.

              (5) A police vehicle shall retain the exemptions granted in this section to
       an authorized emergency vehicle without sounding an audible signal if the police
       vehicle is engaged in an emergency run in which silence is required. [Emphasis
       added.] [1]

Furthermore, under MCL 257.632:

               The speed limitation set forth in this chapter shall not apply to vehicles
       when operated with due regard for safety under the direction of the police when
       traveling in emergencies or in the chase or apprehension of violators of the law
       or of persons charged with or suspected of a violation, nor to fire department or
       fire patrol vehicles when traveling in response to a fire alarm, nor to public or
       private ambulances when traveling in emergencies. This exemption shall apply


1
  In this case, it is undisputed that, because of the nature of the emergency call, Kofahl was
excused from sounding her siren.


                                               -3-
       only when the driver of the vehicle while in motion sounds an audible signal by
       bell, siren or exhaust whistle as may be reasonably necessary or when the vehicle
       is equipped with at least 1 lighted lamp displaying a flashing, oscillating or
       rotating red or blue light visible under normal atmospheric conditions from a
       distance of 500 feet to the front of such vehicles, unless the nature of the mission
       requires that a law enforcement officer travel without giving warning to suspected
       law violators. This exemption shall not however protect the driver of the vehicle
       from the consequences of a reckless disregard of the safety of others. [Emphasis
       added.]

Thus, both MCL 257.632 and MCL 257.603 would have permitted Kofahl to disregard the speed
limit under certain circumstances, but at the time of the crash, those circumstances did not exist.
Kofahl was no longer responding to an emergency as she had been notified that it was a false
alarm, and, in any event, she did not have her emergency lights activated when she crashed into
Collins’s vehicle. Thus, given her speed at the time of the crash, there is a rebuttable
presumption of negligence. Klanseck, 426 Mich at 86. Moreover, even without the
presumption, viewing the facts in the light most favorable to Collins, a reasonable jury could
conclude that the decision to proceed through the intersection while travelling 57 miles per hour2
in a 30 mile per hour zone during rush hour traffic3 without any emergency lights or sirens was a
violation of the general duty of care a driver owes other motorists. See DePriest v Kooiman, 379
Mich 44, 46; 149 NW2d 449 (1967) (stating that a driver has a duty to exercise due care in the
operation of his vehicle and make reasonable allowances for traffic, weather, and road
conditions).

        On appeal, the City contends that Collins was negligent because he failed to yield the
right of way to Kofahl. However, there is a fact question as to whether Kofahl had the right of
way. Again, the record reflects that Kofahl approached an intersection while travelling at an
excessive rate of speed without her lights or sirens activated. Thus, although the light was green,
she did not have the legal right-of-way because she was travelling at an unlawful speed. See
MCL 257.649(7) (“The driver of a vehicle traveling at an unlawful speed forfeits a right of way
that the driver might otherwise have under this section.”). Nevertheless, the City seeks to excuse
Kofahl’s actions by pointing out that when Kofahl’s lights were activated, Collins should have
seen them and yielded the right away notwithstanding the fact that Kofahl turned off her lights
before crashing into his vehicle. See MCL 257.650(1) (“The driver of a vehicle within an
intersection intending to turn to the left shall yield the right of way to a vehicle approaching from
the opposite direction which is within the intersection or so close to the intersection as to


2
  Although there is conflicting evidence as to Kofahl’s exact speed at the moment of impact, at
least some of the evidence on the record supports a finding that she was travelling at 57 miles per
hour when she entered the intersection and crashed into Collins’s vehicle. Likewise, to the
extent that the record reflects that the speed limit was 35 miles per hour instead of 30 miles per
hour, we must view the facts in the light most favorable to Collins.
3
 We acknowledge that there was also testimony that the traffic was light at the time of the crash.
However, resolution of such factual disputes is not proper on summary disposition.


                                                -4-
constitute an immediate hazard . . . .”). However, Collins testimony was that he did not see
Kofahl’s vehicle before he began his turn. Therefore, although there is also evidence suggesting
that Collins either did or should have seen Kofahl’s vehicle and yielded to her, resolution of
factual disputes is not proper on a motion for summary disposition.

         Next, the City contends that Kofahl’s decision to turn off her emergency lights was not
part of the operation of the vehicle, so the motor-vehicle exception does not apply. We disagree.
“]T]he ‘operation of a motor vehicle’ 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). Moreover, unlike the decision to pursue a fleeing vehicle, which is made independently
of the actual operation of a motor vehicle, Robinson v City of Detroit, 462 Mich 439, 457; 613
NW2d 307 (2000), Kofahl’s actions in this case were taken in connection with her operation of
her motor vehicle. By way of comparison, we note that there is no meaningful distinction
between a driver’s decision to operate his or her vehicle with or without headlights and a
decision to operate the vehicle with or without emergency lights. In both cases, the decision to
operate the motor vehicle with or without the respective types of lights is subsumed into the
broader operation of the entire motor vehicle. Consequently, when determining whether Kofahl
was negligent, it is appropriate to consider Kofahl’s decision to deactivate her emergency lights
while speeding toward an intersection in heavy traffic and her decision to operate her vehicle at
an excessive rate of speed while approaching an intersection without using her emergency
lights.4

       Because there are factual questions on whether Kofahl was negligent in the operation of
the police vehicle, the trial court did not err by denying the City summary disposition under
MCR 2.116(C)(7).

       Defendants next argue that Kofahl is entitled to immunity pursuant to the gross
negligence exception for individual governmental employees or officers. MCL 691.1407(2)
provides in relevant part:

                (2) Except as otherwise provided in this section, and without regard to the
       discretionary or ministerial nature of the conduct in question, each officer and
       employee of a governmental agency, each volunteer acting on behalf of a
       governmental agency, and each member of a board, council, commission, or
       statutorily created task force of a governmental agency is immune from tort
       liability for an injury to a person or damage to property caused by the officer,


4
  We note, briefly, that in the proceedings before the trial court, the parties relied on internal
police policies to ascertain whether Kofahl was negligent in her operation of the police vehicle.
Reliance on such policies, however, is improper as it would encourage the abandonment of
policies in place for the protection of others. See, generally, Buczkowski v McKay, 441 Mich 96,
99 n 1; 490 NW2d 330 (1992) (“Imposition of a legal duty on a retailer on the basis of its
internal policies is actually contrary to public policy. Such a rule would encourage retailers to
abandon all policies enacted for the protection of others in an effort to avoid future liability.”).



                                                -5-
       employee, or member while in the course of employment or service or caused by
       the volunteer while acting on behalf of a governmental agency if all of the
       following are met:

              (a) The officer, employee, member, or volunteer is acting or reasonably
       believes he or she is acting within the scope of his or her authority.

             (b) The governmental agency is engaged in the exercise or discharge of a
       governmental function.

             (c) The officer’s, employee’s, member’s, or volunteer’s conduct does not
       amount to gross negligence that is the proximate cause of the injury or damage.

MCL 691.1407(8)(a) defines gross negligence as “conduct so reckless as to demonstrate a
substantial lack of concern for whether an injury results.” Through this language, the Legislature
intended to limit employee liability to only “situations where the contested conduct was
substantially more than negligent.” Maiden v Rozwood, 461 Mich 109, 122; 597 NW2d 817
(1999). This Court has stated that gross negligence involves:

       almost a willful disregard of precautions or measures to attend to safety and a
       singular disregard for substantial risks. It is as though, if an objective observer
       watched the actor, he could conclude, reasonably, that the actor simply did not
       care about the safety or welfare of those in his charge. [Tarlea v Crabtree, 263
       Mich App 80, 90; 687 NW2d 333 (2004).]

Whether a government employee’s conduct constitutes gross negligence under MCL 691.1407 is
generally a question of fact. Id. at 88. But a court may grant summary disposition under MCR
2.116(C)(7) if “no reasonable person could find that a governmental employee’s conduct was
grossly negligent.” Id.

        In this case, it is undisputed that Kofahl was acting within the scope of her authority
while in the exercise or discharge of a governmental function. Further, a reasonable jury could
conclude that her actions—entering an intersection at rush hour without any lights or sirens while
travelling almost twice the posted speed limit—demonstrates an “almost willful disregard of
precautions or measures to attend to safety and a singular disregard for substantial risks.” Id. at
90.

       Kofahl next argues that she was not “the” proximate cause of Collins’s injuries. In 2017,
the Michigan Supreme Court announced a new framework for determining whether an
individual’s conduct is “the proximate cause” of an injury for purposes of determining
governmental immunity under MCL 691.1407(2)(c). See Ray v Swager (On Remand), 321 Mich
App 755, 758; 909 NW2d 917 (2017) (Ray II), citing Ray v Swager, 501 Mich 52; 903 NW2d
366 (2017) (Ray I). As this Court explained on remand,

       The analysis under this framework begins with determining whether the
       defendant’s gross negligence was a cause in fact of the plaintiff’s injuries.
       Provided that a defendant’s gross negligence was a factual cause, the court must
       then consider whether the defendant was a proximate—i.e. legal—cause by

                                                -6-
       addressing foreseeability and whether the defendant may be held legally
       responsible for his or her conduct. In addition to considering the governmental
       actor’s conduct, it must also be decided whether there are other proximate causes
       of the injury. . . .

               Once the various proximate causes have been determined, the question
       then becomes whether taking all possible proximate causes into account, the
       government actor’s gross negligence was the proximate cause of injury. This
       requires considering defendant’s actions alongside any potential proximate causes
       to determine whether defendant’s actions were, or could have been, the one most
       immediate, efficient, and direct cause of the injuries. The relevant inquiry is not
       whether the defendant’s conduct was the immediate factual cause of injury, but
       whether, weighing the legal responsibilities of the actors involved, the
       government actor could be considered the proximate cause. [Ray II, 321 Mich
       App at 759-760 (quotation marks and citations omitted).]

“Under the GTLA, a proper proximate cause analysis must assess foreseeability and the legal
responsibility of the relevant actors to determine whether the conduct of a government actor, or
some other person, was ‘the proximate cause,’ that is, as our caselaw has described it, “the one
most immediate, efficient, and direct cause” of the plaintiff’s injuries.” Ray I, 501 Mich at 59.

        Ray I and Ray II concerned a 13-year-old student athlete struck and injured by an
automobile while he practiced running with his cross-country team. Ray II, 321 Mich App at
758-759. Although eyewitness accounts varied, there was evidence that the plaintiff’s coach
urged him into the road despite a “red hand” on the pedestrian traffic signal. Id. at 759. The
coach asserted governmental immunity, claiming that he was not the proximate cause of the
injury because the student’s own action of running into the road and the fact the automobile
struck him were more immediate and direct causes of his injury. Id. This Court initially agreed,
but our Supreme Court used the opportunity, as discussed above, to sharpen the legal distinction
between cause-in-fact and proximate cause. Id. On remand, this Court concluded that there
were “myriad variables affecting the actors’ respective negligence and legal responsibility” that
prevented any assessment or weighing of the individual actors’ competing legal responsibilities.
Id. at 762. Because the coach’s actions could have been the proximate cause, this Court held that
summary disposition on the basis of governmental immunity was inappropriate. Id.

        Kofahl argues that her “decision to deactivate her lights immediately prior to impact
cannot be the proximate cause of the crash” because Collins cannot establish whether, had
Kofahl left her emergency lights on, the crash could have been avoided. Kofahl also argues that
if Collins “had not entered the intersection to make his left turn, the crash would not have
occurred.” However, the proximate cause of the crash was not Kofahl’s decision to turn off her
emergency lights alone, but the fact that she was traveling at nearly twice the legal speed limit
through a heavily-trafficked downtown district when she did so. Moreover, Kofahl’s argument
that the crash would not have occurred absent Collins’s decision to turn left is exactly the type of
“but-for” cause-in-fact style reasoning that our Supreme Court disavowed in Ray I. See Ray I,
500 Mich at 73 (noting that this Court erred by confusing cause-in-fact with proximate
causation).


                                                -7-
        As in Ray II, there are diverging factual issues that might affect the determination of
which proximate cause out of several competing options constitutes “the one most immediate,
efficient, and direct cause” of Collins’s injuries. Accordingly, the trial court correctly held that
Kofahl cannot defeat Collins’s claims on governmental immunity grounds. The factfinder at trial
must determine whether Kofahl’s conduct was “the one most immediate, efficient, and direct
cause of the plaintiff’s injury.” See id.

                                       III. CONCLUSION

         The trial court correctly held that a reasonable factfinder could conclude that Kofahl’s
speeding constituted the negligent operation of the vehicle and Kofahl’s conduct in going nearly
twice the speed limit in downtown Ypsilanti could reasonably constitute gross negligence that
was “the one most immediate, efficient, and direct cause of the plaintiff’s injury.” Accordingly,
the trial court did not err in denying defendants’ motion for summary disposition on the basis of
governmental immunity.

       Affirmed.

                                                             /s/ Michael J. Kelly
                                                             /s/ Deborah A. Servitto




                                                -8-
