Where the defendant city of Detroit was awarded summary disposition in a suit brought by a plaintiff whose vehicle was struck by a bus, the judgment must be vacated because the plaintiff established a genuine issue of material fact regarding whether the bus driver operated the bus in a negligent manner.
“In this first-party and third-party no-fault action, plaintiff, Anthony Arnold, challenges the trial court’s order granting summary disposition to defendant, the city of Detroit (‘the City’), under MCR 2.116(C)(7) and MCR 2.116(C)(8). We reverse the portion of the order granting summary disposition under MCR 2.116(C)(7) and remand for further proceedings consistent with this opinion.
“Arnold was able to identify the bus as Detroit Department of Transportation (DDOT) cab number 1027. Arnold contacted the Detroit Police Department the next day and filed a report regarding the accident.
“Arnold filed a complaint against the City and John Doe, the alleged bus driver and a DDOT employee. Relevant to this appeal, the City raised as an affirmative defense that Arnold failed to state a claim under any exception to the City’s governmental immunity provided by the Governmental Tort Liability Act (GTLA), MCL 691.1401 et seq .
“Arnold first argues that the trial court erred by granting the City’s motion under MCR 2.116(C)(7) because he established a genuine issue of material fact regarding whether Doe operated the bus in a negligent manner. We agree.
“At issue is whether Doe operated the vehicle in a negligent manner such that the motor vehicle exception to governmental immunity under the GTLA applies. On the facts presented to us, we hold the trial court erred by granting the City’s motion for summary disposition under MCR 2.116(C)(7) because, when viewing the facts in the light most favorable to Arnold as the nonmoving party, his factual allegations establish a question of fact regarding whether Doe negligently operated the bus, and thus, whether the motor vehicle exception to the GTLA applies. Arnold alleged in his complaint that Doe breached his duty of care by, among other things: (1) operating the bus without having it under constant control; (2) failing to properly observe the presence of other people on the road and failing to take timely and appropriate action to avoid a collision; (3) operating the bus in a careless and heedless manner without due regard for Arnold’s rights and safety; (4) failing to maintain the horn, brakes, or other equipment of the bus in good working order or failing to sound the horn or apply the brakes as necessary to avoid a collision; and (5) operating the bus in excess of the speed limit. Arnold also alleged that Doe’s negligence was the proximate cause of his injuries.
“We hold Arnold pleaded sufficient facts to create a question of fact as to whether Doe negligently operated the bus, and the City failed to present documentary evidence disputing those facts. The City, therefore, failed to establish entitlement to immunity under the GTLA, and the trial court erred by granting its motion for summary disposition under MCR 2.116(C)(7).
“We reverse the portion of the trial court’s order granting summary disposition under MCR 2.116(C)(7) and remand for further proceedings consistent with this opinion.”
Arnold v. City of Detroit; MiLW 08-108015 , 6 pages; Michigan Court of Appeals unpublished per curiam; Borrello, J., Swartzle, J., Young, J.; on appeal from Wayne Circuit Court; Daniel G. Romano for appellant; Sheri L. Whyte for appellee.
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