                          STATE OF MICHIGAN

                           COURT OF APPEALS



ESTATE of NANCY SANDERS, by MICHAEL                                UNPUBLISHED
SANDERS, Personal Representative,                                  October 23, 2018

               Plaintiff-Appellee,

v                                                                  No. 340006
                                                                   Washtenaw Circuit Court
KENNETH A. WRIGHT,                                                 LC No. 14-000679-NI

               Defendant-Appellant.


Before: CAVANAGH, P.J., and MARKEY and LETICA, JJ.

PER CURIAM.

        Defendant, Kenneth A. Wright, appeals by right the trial court’s order denying his motion
for summary disposition on the basis of governmental immunity under MCL 691.1407(2).
Defendant asserts the undisputed facts show that he was not grossly negligent in that his
“conduct [was not] so reckless as to demonstrate a substantial lack of concern for whether an
injury results.” MCL 691.1407(8). Defendant, a bus driver for the University of Michigan,
struck and killed Nancy Sanders while turning left at an intersection controlled by a blinking red
light. Defendant testified that he simply did not see Sanders or anyone else in the intersection
except a blur immediately before impact. Defendant contends that the trial court erred by finding
a genuine question of fact existed regarding the issue of gross negligence. We agree, therefore,
we reverse and remand for entry of summary disposition in favor of defendant.

                            I. SUMMARY OF PERTINENT FACTS

       The parties do not dispute that at the time of the accident defendant was a governmental
employee who was acting within the scope of his authority, driving a bus, and that the
government agency, the University of Michigan (UM), was engaged in the exercise or discharge
of a governmental function. See MCL 691.1407(2)(a), (b). The only contested issue in this case
is whether sufficient evidence existed to support plaintiff’s claim that there was a material
question of fact regarding whether defendant’s conduct amounted to gross negligence under
MCL 691.1407(2)(c). “Gross negligence” is defined in the statute as “conduct so reckless as to
demonstrate a substantial lack of concern for whether an injury results.” MCL 691.1407(8)(a).

       The pertinent evidence presented on the issue of gross negligence came from defendant’s
deposition and from testimony at defendant’s criminal trial. Defendant was acquitted of
committing a moving violation causing death, MCL 257.601d. Pertinent testimony at
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defendant’s criminal trial included that of Susan Hines, who was driving a vehicle on the other
side of the accident intersection, John Blackburn, a UM security officer driving behind the bus,
and Ann Arbor Police Officer Jamie Adkins, an accident reconstructionist.

        The accident occurred on June 19, 2014, just after 6:00 A.M. Defendant testified that he
was traveling west on Ann Street and brought the bus to a complete stop at the stop bar in the
left-turn lane so he could turn left onto Zina Pitcher Place. Defendant further testified that he
signaled to make a left turn from Ann Street to Zina Pitcher Place. Observing only a vehicle
(Hines) on the other side of the intersection heading east on Ann Street, he testified he observed
no pedestrians in the intersection. According to defendant, he was completely stopped in the
left-turn lane for 3-5 seconds, assured himself the oncoming car would remain stationary, and
again checked the intersection before beginning to turn left. Defendant testified that during the
left turn he saw only a blur a “fraction of a second” before impact and applied the brakes.
Unfortunately, it was too late to avoid hitting Sanders.

         Susan Hines could not confirm that defendant had his turn signal on, but she knew,
apparently from the position of the bus in the left-turn lane, that it intended to turn left. Hines
testified that the bus came to a complete stop and that she intended to wait for the bus to turn
because it arrived at the intersection first. Hines testified that the bus was not traveling at an
excessive speed and was being operated safely. Hines did not see Sanders in the intersection
until after hearing the collision and seeing the results of the impact.

       John Blackburn, driving behind the bus, also testified that defendant was operating the
bus in a safe manner at the time defendant made the left turn. Like defendant and Hines,
Blackburn did not see Sanders before the collision.

         Ann Arbor Police Officer Jamie Adkins testified at defendant’s criminal trial and was
recognized as an expert in the field of reconstruction of accidents. Adkins offered her opinion
regarding the position of Sanders in the Zina Pitcher Place crosswalk, the speed of the bus during
its turn, and the likely position of Sanders and the bus during the critical seconds before impact.
According Adkins, it would take an average pedestrian walking at an average pace almost 5
seconds to cross the intersection. In Adkins’ opinion, at 4 seconds before impact, Sanders would
have just been stepping off the curb onto the Zina Pitcher Place crosswalk, and defendant’s bus
would have already been almost 20 feet west of the stop bar in the left turn lane of west-bound
Ann Street. According to Adkins, if defendant had perceived Sanders at any point sooner than 2
seconds before impact, he would have had time to react and avoid the collision.

       Defendant’s motion for summary disposition was argued on August 16, 2017. Defendant
argued that there was no evidence of gross negligence and at most the evidence showed only
ordinary negligence that could not survive summary disposition. Plaintiff’s counsel argued that a
question of fact existed regarding gross negligence. Plaintiff argued that “[t]his is the most
egregious case of distracted driving outside of, you know, somebody who’s either drunk or
admittedly texting. He wasn’t looking.” Plaintiff’s theory was that defendant was concerned
with the on-coming vehicle and that he did not look left before turning in that direction.

        The trial court ruled that a material question of fact existed regarding gross negligence,
particularly in light of the jury’s ability to determine defendant’s credibility. The trial court

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reasoned that “if someone hits a pedestrian after not having looked, then that, I think, certainly, is
enough to go to the jury on gross negligence.”

                                  II. STANDARD OF REVIEW

        The defendant’s motion for summary disposition implicates MCR 2.116(C)(7) (immunity
granted by law). This Court reviews de novo the trial court’s grant or denial of summary
disposition. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). Although not
required to do so, a party moving for summary disposition under MCR 2.116(C)(7) may support
the motion with affidavits, depositions, admissions, or other admissible documentary evidence,
which the reviewing court must consider. Maiden, 461 Mich at 119; MCR 2.116(G)(5). When a
motion is brought under MCR 2.116(C)(7), the trial court must accept as true the allegations of
the complaint unless contradicted by the parties’ documentary submissions. Patterson v
Kleiman, 447 Mich 429, 434 n 6; 526 NW2d 879 (1994). Where reasonable minds could not
differ on the evidence presented that a government employee was not grossly negligent, the
question whether the claim is barred by governmental immunity is an issue of law for the court.
Jackson v Saginaw Co, 458 Mich 141, 142, 146; 580 NW2d 870 (1998). When a party is
entitled to governmental immunity as a matter of law, summary disposition under MCR
2.116(C)(7) is properly granted. Oliver v Smith, 290 Mich App 678, 684-685; 810 NW2d 57
(2010). A genuine issue of material fact exists if the evidence permits reasonable minds to draw
different conclusions. Dextrom v Wexford Co, 287 Mich App 406, 431; 789 NW2d 211 (2010).

                                         III. DISCUSSION

        We conclude that the trial court erred by not granting defendant summary disposition
because reasonable minds could not differ that the evidence failed to show defendant’s operation
of the bus was grossly negligent as defined by MCL 691.1407(8)(a). The undisputed evidence
established that defendant was a government employee immune from tort liability because he
was (1) acting within the scope of his employment; (2) the government agency was discharging a
governmental function, and (3) defendant’s conduct did not amount to gross negligence. MCL
691.1407(2); see Maiden, 461 Mich at 122-123, holding that “evidence of ordinary negligence
does not create a material question of fact concerning gross negligence.” Reasonable minds
could not differ that the evidence failed to raise a question of fact regarding gross negligence;
defendant was entitled judgment as a matter of law. Id. at 127; Jackson, 458 Mich at 142, 146.

        Under Michigan law, MCL 691.1401 et seq., governmental agencies and their employees
have extensive immunity from tort liability while they are “engaged in the exercise or discharge
of a governmental function.” MCL 691.1407(1), (2); Odom v Wayne Co, 482 Mich 459, 469-
470; 760 NW2d 217 (2008). A “governmental agency” means “this state or a political
subdivision,” MCL 691.1401(1)(a), and “includes a public university or college of this state,
whether established as a constitutional corporation or otherwise.” MCL 691.1401(1)(g). A
governmental function is “an activity that is expressly or impliedly mandated or authorized by
constitution, statute, local charter or ordinance, or other law.” MCL 691.1401(1)(b). A
government employee is immune from tort liability if (1) the employee is acting within the scope
of his employment; (2) the government agency is discharging a government function, and (3) the
employee’s conduct does not amount to gross negligence. MCL 691.1407(2).


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        In this case, the parties do not dispute that the University of Michigan is a governmental
agency engaged in the exercise or discharge of a governmental function and that defendant was a
governmental employee who was acting within the scope of his authority as a bus driver. See
MCL 691.1407(2)(a), (b). The parties only contest whether sufficient evidence supported
plaintiff’s claim that a question of fact exists whether defendant’s conduct was grossly negligent.
See MCL 691.1407(2)(c). To survive a motion for summary disposition, plaintiff was required
to show the existence of a genuine issue of material fact on the element of gross negligence.
Bellinger v Kram, 319 Mich App 653, 659; 904 NW2d 870 2017); Oliver, 290 Mich App at 685.

        “Gross negligence” is defined by statute as “conduct so reckless as to demonstrate a
substantial lack of concern for whether an injury results.” MCL 691.1407(8)(a). For conduct of
a government employee to fall outside the protections of tort immunity, it must be substantially
more than ordinary negligence. Maiden, 461 Mich at 121. In an ordinary negligence case, a
plaintiff must establish: “(1) a duty owed by the defendant to the plaintiff, (2) a breach of that
duty, (3) causation, and (4) damages.” Case v Consumers Power Co, 463 Mich 1, 6; 615 NW2d
17 (2000). Where a party owes another a duty of care, the general standard of care requires that
the party exercise reasonable care under the circumstances. Id. at 6-7. “Ordinary care means the
care that a reasonably careful person would use under the circumstances.” Id. at 7. A failure to
exercise reasonable care under the circumstances would establish only ordinary negligence, not
gross negligence. See Costa v Community Emergency Med Serv, Inc, 475 Mich 403, 411; 716
NW2d 236 (2006). Consequently, allegations or evidence of inaction (failure to watch for or
perceive pedestrians) or claims that a defendant could have taken additional precautions (paid
closer attention to the crosswalk before executing a left turn) are insufficient to establish gross
negligence. See Bellinger, 319 Mich App at 660. Rather, gross negligence is conduct that is
“characterized as a willful disregard of safety measures and a singular disregard for substantial
risks.” Oliver, 290 Mich App at 685; see also Tarlea v Crabtree, 263 Mich App 80, 90; 687
NW2d 333 (2004) (“gross negligence” is “almost a willful disregard of precautions or measures
to attend to safety and a singular disregard for substantial risks”).

        The trial court erred by concluding that because a jury could choose not to believe
defendant’s testimony that he looked for pedestrians in the intersection before beginning his turn
the evidence created a material question of fact whether defendant was grossly negligence. But,
whether defendant looked before beginning his turn and failed to perceive Sanders until it was
too late or whether defendant began the left turn without having “double checked” the
intersection as he testified is irrelevant: either finding would support at best only a breach of the
reasonable care standard of ordinary negligence. See Case, 463 Mich at 6-7 (“Ordinary care
means the care that a reasonably careful person would use under the circumstances.”); Costa,
475 Mich at 411 (“A claim that a defendant has violated [the] applicable standard of . . . care
sounds in ordinary negligence.”). Operators of motor vehicles must exercise ordinary care by
being watchful for pedestrians in the roadway and safely operating their vehicles to avoid
harming them. See In re Miller’s Estate, 300 Mich 703, 708; 2 NW2d 888 (1942). The failure
of a motorist to maintain “a reasonable and proper lookout” for a pedestrian would amount to
ordinary negligence. See Johnson v Hughes, 362 Mich 74, 77-78; 106 NW2d 223 (1960).
Looking at the evidence in the light most favorable to plaintiff, we must conclude that the
evidence only creates a question of fact regarding ordinary negligence. But as noted, for conduct
of a government employee to constitute gross negligence, it must be substantially more than
ordinary negligence. Maiden, 461 Mich at 121. And, “evidence of ordinary negligence does not

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create a material question of fact concerning gross negligence.” Id. at 122-123. Consequently,
the trial court erred by not granting defendant summary disposition. Id. at 127; Jackson, 458
Mich at 142; Oliver, 290 Mich App at 684-685.

        Plaintiff’s argument to the contrary is essentially that defendant must have been able to
see Sanders had defendant been looking at the crosswalk and should have been able stop to avoid
the collision. In essence, plaintiff is arguing that gross negligence may be inferred from the fact
that an accident occurred. This argument is flawed. Not even negligence may be presumed from
the mere fact that an accident has occurred. See In re Miller’s Estate, 300 Mich at 711 (“The
mere happening of an accident raises no presumption of negligence.”)(Citation omitted);
Whitmore v Sears Roebuck & Co, 89 Mich App 3, 9; 279 NW2d 318 (1979). Plaintiff’s theory
of the case is akin to arguing the doctrine of res ipsa loquitur. “Res ipsa loquitur is a Latin term
meaning, ‘the thing speaks for itself.’ ” Woodard v Custer, 473 Mich 1, 6; 702 NW2d 522
(2005), quoting Black’s Law Dictionary (6th ed). Under this doctrine, a “[r]ebuttable
presumption or inference that [a] defendant was negligent . . . arises upon proof that the
instrumentality causing injury was in [the] defendant’s exclusive control, and that the accident
was one which ordinarily does not happen in absence of negligence.” Id. But our Supreme
Court has rejected application of this doctrine to establish gross negligence. Maiden, 461 Mich
at 127. “While the doctrine of res ipsa loquitur may assist in establishing ordinary negligence, it
is not available where the requisite standard of conduct is gross negligence or wilful and wanton
misconduct.” Id. Again, while the evidence in this case might establish negligence, it is
insufficient to create a material question of fact regarding gross negligence. Id. at 122-123.

        Plaintiff’s argument and the trial court’s reasoning that credibility issues regarding
defendant and other witness create an issue of material fact concerning gross negligence are also
unavailing. Plaintiff was required to present evidence supporting his theory that defendant was
grossly negligent. But the only evidence before the court merely created a question of fact
regarding ordinary negligence as discussed above. Maiden, 461 Mich at 127 (“Plaintiff failed to
meet her burden to come forward with specific facts to support her claim that [defendant’s]
conduct was grossly negligent.”). To survive a motion for summary disposition premised on
immunity granted by MCL 691.1407(2), evidence that the employee’s conduct amounted to
ordinary negligence is insufficient; the plaintiff must present evidence that the conduct at issue
was substantially more than negligent. Radu v Herndon & Herndon Investigations, Inc, 302
Mich App 363, 383; 838 NW2d 720 (2013), citing Maiden, 461 Mich at 122-123 and Costa, 475
Mich at 411. Without any affirmative evidence of grossly negligent conduct, plaintiff is left with
relying on speculation and conjecture, which cannot create a question of fact to survive summary
disposition. Karbel v Comerica Bank, 247 Mich App 90, 97-98, 635 NW2d 69 (2001).

       In sum, the record contains no evidence that defendant’s “conduct [was] so reckless as to
demonstrate a substantial lack of concern for whether an injury results[,]” MCL 691.1407(8)(a),
or that it could be “characterized as a willful disregard of safety measures and a singular
disregard for substantial risks.” Oliver, 290 Mich App at 685. Consequently, reasonable minds
could not differ that defendant was entitled to governmental immunity under MCL 691.1407(2).
Fundenburks Capital Area Transp Auth, 481 Mich 873; 748 NW2d 804 (2008). The trial court
erred by not granting defendant summary disposition. Id.; Maiden, 461 Mich at 122-123, 127.



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        We reverse and remand for entry of judgment in defendant’s favor. As the prevailing
party, defendant may tax costs pursuant to MCR 7.219. We do not retain jurisdiction.

                                                        /s/ Mark J. Cavanagh
                                                        /s/ Jane E. Markey
                                                        /s/ Anica Letica




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