            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



DELANA JACKSON, as Attorney in Fact for                           UNPUBLISHED
DANIELLE JACKSON, and DANIELLE                                    October 3, 2019
JACKSON,1

              Plaintiffs-Appellants,

v                                                                 No. 343862
                                                                  Wayne Circuit Court
CITY OF ALLEN PARK and OFFICER S.                                 LC No. 16-004975-NI
HARVEY,

              Defendants-Appellees,

and

OFFICER FRANCO2 and HENRY JACKSON,
JR.,

              Defendants.


Before: BORRELLO, P.J., and K. F. KELLY and SERVITTO, JJ.

PER CURIAM.

       Plaintiff appeals as of right the trial court’s order granting summary disposition to
defendants, City of Allen Park, and Allen Park Police Officers Shaun Harvey and Christopher
Franco.3 We affirm.


1
  Delana Jackson is Danielle Jackson’s mother and has durable power of attorney for Danielle.
Because Delana did not bring any claim on her own behalf, we will refer to and treat Danielle as
“plaintiff.”
2
 Officer S. Harvey’s full name is Officer Shaun Harvey and Officer Franco’s full name is
Officer Christopher Franco.



                                              -1-
                                 I. FACTUAL BACKGROUND

       This action arises from an April 20, 2014, car accident on westbound I-94 in Allen Park,
Michigan. At approximately 12:20 a.m., Christopher Herridge and John Sullivan were in a car
accident on eastbound I-94 (the first accident). Herridge’s vehicle stopped on the grassy median
between eastbound I-94 and westbound I-94, approximately 5 feet away from the I-94
westbound roadway. Sullivan’s vehicle stopped on a grassy area off the shoulder of eastbound I-
94. Herridge called the police and remained inside his vehicle until the police arrived.

        Allen Park Police Lieutenant Christopher Egan was the first police officer to arrive on
scene. Lieutenant Egan stopped his police vehicle on the shoulder of westbound I-94 and walked
over to Herridge’s vehicle to determine whether Herridge needed medical attention (he did not).
While Lieutenant Egan spoke with Herridge, Allen Park Police Officers Segrest and Curtis
stopped their police vehicle behind Lieutenant Egan’s police vehicle on the shoulder of
westbound I-94. Officers Harvey and Franco arrived soon after. Officer Harvey parked his
vehicle in the farthest left travel lane of westbound I-94, next to Lieutenant Egan’s vehicle, in
order “to provide traffic control until [the] Michigan State Police” or the Taylor police arrived.
Officer Harvey activated the emergency lights, left the vehicle running, and exited the vehicle
with Officer Franco. Shortly after Officers Harvey and Franco arrived, Lieutenant Egan drove
his police vehicle to eastbound I-94, stopping on the shoulder, so that he could address the
occupants in Sullivan’s vehicle. Officers Curtis and Segrest eventually followed Lieutenant
Egan to eastbound I-94. Officers Harvey and Franco approached Herridge’s vehicle in the
median and remained there, making small talk with Herridge, for over 20 minutes.

        Around 1:00 a.m., Henry Jackson, Jr. was driving himself, his brother, two friends, and
plaintiff home after a night out in Detroit, Michigan. According to Jackson, he was driving on
westbound I-94 in the left lane or second to left lane behind another vehicle when he noticed
emergency lights on the other side of the highway and a vehicle in the median. Henry initially
thought that Officer Harvey’s vehicle was stopped on the highway shoulder rather than the left
lane. Before Henry realized that it was in the left travel lane, he crashed into rear end of Officer
Harvey’s car (the second accident). Henry testified that he was unable to see the car’s
emergency lights because of the vehicle in front of him and that he did not have enough time to
stop before crashing into the car. Plaintiff was thereafter transported to the hospital with critical
injuries.

       Plaintiff sued Allen Park and Officers Franco and Harvey for negligence and gross
negligence. Defendants moved for summary disposition, asserting that plaintiff’s claims were


3
  The other defendant, Henry Jackson, Jr., was dismissed from this litigation on April 19, 2018,
after the parties stipulated to his dismissal. Additionally, plaintiff and defendants agreed below
that summary disposition with respect to Officer Franco was appropriate. Plaintiff only appeals
the trial court’s order granting defendants’ motion for summary disposition with respect to Allen
Park and Officer Harvey.




                                                -2-
barred by governmental immunity. In response, plaintiff argued that defendants were not
immune from liability because the motor-vehicle exception, MCL 691.1405, was applicable, and
because Officers Franco and Harvey were grossly negligence pursuant to MCL 691.1407(2).
The trial court disagreed and granted defendants summary disposition.

                            II. THE MOTOR-VEHICLE EXCEPTION

        Plaintiff argues that the trial court erred when it granted defendants’ motion for summary
disposition because there is a genuine issue of material fact as to whether the motor-vehicle
exception to governmental immunity applies. We disagree.

        This Court reviews de novo a trial court’s ruling on a motion for summary disposition.
Maskery v Board of Regents of Univ of Michigan, 468 Mich 609, 613; 664 NW2d 165 (2003).
Whether governmental immunity and the statutory exceptions to immunity are applicable are
reviewed de novo. Briggs v Oakland Co, 276 Mich App 369, 371; 742 NW2d 136 (2007). The
trial court granted defendants’ motion for summary disposition pursuant to MCR 2.116(C)(7)
and (10), but did not clarify whether summary disposition, with respect to the motor-vehicle
exception specifically, was appropriate under MCR 2.116(C)(7) or (10).

        Summary disposition under MCR 2.116(C)(7) is appropriate if a claim “is barred by
immunity granted by law.” Allen v Bloomfield Hills Sch Dist, 281 Mich App 49, 52; 760 NW2d
811 (2008). When reviewing a motion under MCR 2.116(C)(7), this Court “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). This Court must also consider any affidavits, depositions, admissions, or other
documentary evidence to determine whether there is a genuine issue of material fact. Id. at 429.
If there are no facts in dispute, and “if reasonable minds could not differ regarding the legal
effect of those facts, the question whether the claim is barred is an issue of law for the court.” Id.
However, dismissal is inappropriate if a question of fact exists to the extent that factual
development may provide a basis for recovery. Id.

       A motion for summary disposition under MCR 2.116(C)(10) should be granted if the
evidence submitted by the parties fails to establish a genuine issue of material fact, and the
moving party is entitled to judgement or partial judgment as a matter of law. Innovation
Ventures v Liquid Mfg, 499 Mich 491, 507; 885 NW2d 861 (2016). A genuine issue of material
fact exists if, after viewing the record in a light most favorable to the nonmoving party,
reasonable minds could differ on an issue. West v Gen Motor Corp, 469 Mich 177, 183; 665
NW2d 468 (2003). This Court reviews only the evidence that was presented at the time the
motion was decided, which, under MCR 2.116(C)(10), includes affidavits, pleadings,
depositions, and other evidence that the parties submitted. Innovation Ventures, 499 Mich at
507.

        Plaintiff argues that the trial court erred when it granted defendants’ motion for summary
disposition because there is a genuine issue of material fact as to whether Officer Harvey’s car
was in “operation” at the time of the second accident. We disagree.




                                                 -3-
        The Governmental Tort Liability Act (GTLA) broadly grants governmental agencies and
governmental officers and employees immunity from tort liability “if the governmental agency is
engaged in the exercise or discharge of a governmental function.” MCL 691.1407(1) and (2)(b).
However, a governmental agency can be held liable if a claim falls within one of the enumerated
statutory exceptions. Moraccini v Sterling Heights, 296 Mich App 387, 392; 822 NW2d 799
(2012). One of these exceptions is the motor-vehicle exception, MCL 691.1405, which provides,
in relevant 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 . . . .

This issue hinges on the proper interpretation of the motor-vehicle exception and, specifically,
the proper meaning of “operation.” Plaintiff contends that a police vehicle is in “operation”
when it is performing a function for which it was designed—in this case, diverting oncoming
traffic away from the median. In contrast, defendants argue that a police vehicle is only in
“operation” when it is being used for an activity that is directly associated with the driving of a
motor vehicle.

        Although the Legislature did not define “operation” for the purposes of MCL 691.1405,
this Court and the Michigan Supreme Court have interpreted its meaning. In Chandler v Co of
Muskegon, 467 Mich 315, 320-321; 652 NW2d 224 (2002), the Michigan Supreme Court
declared that, in the context of MCL 691.1405, “ ‘operation of a motor vehicle’ means that the
motor vehicle is being operated as a motor vehicle” and only “encompasses activities that are
directly associated with the driving of a motor vehicle.” Chandler involved a city bus that was
parked in a maintenance garage for purposes of cleaning, with the engine off, and a plaintiff who
was injured while trying to help the bus driver escape from the bus doors that had closed on his
neck. Id. at 316. The Supreme Court held that the bus was not in operation at the time of the
plaintiff’s injury because the city bus 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 322.

        In Poppen v Tovey, 256 Mich App 351, 352; 664 NW2d 269 (2003), a city water truck
was temporarily stopped in the curb lane of a two-lane road with its “four-way emergency
flashers and overhead warning lights activated” so that a city employee could “inspect a city-
owned and maintained fire hydrant.” A motorist rear-ended the city water truck while it was
temporarily stopped and sued for his injuries. Id. at 353. This Court relied on Chandler to
determine that the city water truck was not in “operation” at the time of the accident because it
had been stopped for approximately three to five minutes and for the purpose of allowing a city
employee to inspect a public facility. Id. at 355-356. Once the city water truck stopped for this
purpose, “its presence on the road was no longer ‘directly associated with the driving’ of that
vehicle.” Id. at 355-356, quoting Chandler, 467 Mich at 321. Accordingly, the motor-vehicle
exception did not apply. Poppen, 256 Mich App at 355.

       However, in Strozier v Flint Community Sch, 295 Mich App 82, 84; 811 NW2d 59
(2011), a passenger on a school bus was injured after the bus collided with a sanitation truck.
The sanitation truck had been making “periodic, brief, temporary stops in the right lane” to allow

                                                -4-
a city worker to collect garbage and dispose of it in the back of the truck. Id. At the time of the
collision, the sanitation truck was temporarily stopped in the road. Id. at 88. The issue in
Strozier was whether the term “operation” requires a motor vehicle “to have been moving at the
time of the collision or whether a stationary vehicle may be operating within the meaning of the
statute.” Id. at 87. This Court held that temporary stops such as the ones performed by the
sanitation truck can fall within the meaning of “operation,” such that the motor-vehicle exception
applied. Id. at 88 (emphasis added). There, we found that the sanitation truck was in
“operation” because the sanitation truck could only perform its intended function if it could make
periodic stops to collect garbage. Id. at 91.

        In this case, Harvey’s car was parked in the left travel lane of westbound I-94 for
approximately 30 minutes while Officers Harvey and Franco spoke with Herridge in the median.
This case is distinguishable from Strozier because the car was parked for approximately 30
minutes whereas the school bus in Strozier was making several temporary stops. Strozier, 295
Mich App at 87-88. Officer Harvey, as directed by Lieutenant Egan, used his car as a roadblock
to divert oncoming traffic from the area where Herridge’s car was stopped. Like the city water
truck in Poppen, the car was parked in the left lane of westbound I-94 to allow a government
employee to perform a governmental function, which in this case was to allow Officers Harvey’s
and Franco’s response to the first accident. Poppen, 256 Mich App at 352. Once Officer Harvey
parked his car to speak with Herridge, the car’s presence on the road was no longer directly
associated with driving—it was to serve as a roadblock. Id. at 355-356. The car was not being
operated as a motor vehicle and was not involved in activity that was directed associated with
driving because it was parked and unoccupied for an extended period of time. Chandler, 467
Mich at 320-321. Because Officer Harvey did not stop the car for the purpose of driving, the car
was not being operated as a motor vehicle at the time of the second accident. Poppen, 256 Mich
App at 355. Accordingly, the trial court properly determined that the motor-vehicle exception to
governmental immunity was inapplicable.

        Next, it is unnecessary to address plaintiff’s argument regarding Officer Harvey’s
purported negligence with respect to the vehicle. Even if there is a question of fact as to whether
Officer Harvey was negligent, the motor-vehicle exception is still inapplicable because the car
was not in “operation” at the time of the second accident. The motor-vehicle exception to
governmental immunity requires the plaintiff to establish that the government-owned vehicle
was in “operation” when plaintiff sustained her injuries and that the governmental employee was
negligent in the operation of that government-owned motor vehicle. MCL 691.1405. Thus, even
if plaintiff could establish a question of fact regarding Officer Harvey’s negligence, she still
cannot overcome governmental immunity because she cannot satisfy the operational element of
the motor-vehicle exception.

                                   III. GROSS NEGLIGENCE

       Plaintiff also argues that the trial court erred when it granted defendants’ motion for
summary disposition because there is a genuine issue of material fact regarding Officer Harvey’s
gross negligence and whether that gross negligence was the proximate cause of her injuries. We
disagree.

       MCL 691.1407(2), provides:

                                                -5-
       (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,
       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.

Gross negligence is defined as “conduct so reckless as to demonstrate a substantial lack of
concern for whether an injury results.” MCL 691.1407(8)(a). Gross negligence suggests
“almost a willful disregard of precautions or measures to attend to safety and a singular disregard
for substantial risks.” Tarlea v Crabtree, 263 Mich App 80, 90; 687 NW2d 333 (2004).
Evidence of ordinary negligence is insufficient to establish a material question of fact regarding a
government employee’s gross negligence. Wood v Detroit, 323 Mich App 416, 423-424; 917
NW2d 709 (2018), citing Chelsea Inv Group LLC v Chelsea, 288 Mich App 239, 265; 792
NW2d 781 (2010). The plaintiff must proffer evidence that the governmental employee’s
conduct was reckless as well as the proximate cause of the plaintiff’s injuries. Chelsea Inv
Group LLC, 288 Mich App at 265. While questions regarding whether a governmental
employee’s conduct amounted to gross negligence are generally issues of fact for the jury to
decide, summary disposition may be granted if reasonable minds could not differ. Briggs, 276
Mich App at 374.

       There is no dispute that Officer Harvey is a public employee that was acting within the
scope of his authority while in the exercise or discharge of a governmental function. Officer
Harvey was responding to the scene of the first accident. The only issue on appeal is whether
Officer Harvey’s conduct constituted gross negligence. The trial court concluded that it did not
and we agree.

        While Officer Harvey failed to use emergency flares, he took some precaution by
activating the emergency lights on his patrol car. Officer Harvey initially parked the car in the
left lane of westbound I-94 because two other police vehicles were already on the shoulder when
Officers Harvey and Franco arrived on the scene. It is true that Officer Harvey did not move his
vehicle out of the left lane after the other two police vehicles drove over to eastbound I-94
because he was talking to Herridge and using his car to divert oncoming traffic away from the
area. However, a failure to take additional precautions, such as using emergency flares, is
insufficient to find gross negligence. Tarlea, 263 Mich App at 90. Gross negligence exists when

                                                -6-
an objective observer could reasonably conclude “that the actor simply did not care about the
safety or welfare of” others. Id. In addition, while an expert’s report and affidavit (such as that
submitted by plaintiff) may create a genuine issue of material fact with respect to negligence, the
facts of this case, as a matter of law, simply do not rise to the level of gross negligence. No
objective observer could conclude, reasonably, that Officer Harvey acted with “reckless
disregard.” Accordingly, plaintiff fails to demonstrate that there is question of fact regarding
Officer Harvey’s gross negligence.

        Because there is no question of fact that Officer Harvey’s actions did not constitute gross
negligence, it is unnecessary to address plaintiff’s argument regarding proximate causation. See
Ray v Swager, 501 Mich 52, 74; 903 NW2d 366 (2017) (“[B]efore an actor can be a proximate
cause, there must be the prerequisite determination that the actor was negligent—that is, that the
actor breached a duty.”).

       Affirmed.



                                                            /s/ Stephen L. Borrello
                                                            /s/ Kirsten Frank Kelly
                                                            /s/ Deborah A. Servitto




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