A divided Michigan Court of Appeals panel said a lower court erred when it denied the Department of Natural Resources’ motion for summary disposition after a catastrophic collision happened between a snowmobile and a crossover utility vehicle operated by a DNR employee.
The majority said the Court of Claims made the wrong call when it concluded that a genuine issue of material fact existed as to whether the plaintiff could establish the motor vehicle exception to governmental immunity outlined in MCL 691.1405.
“Viewing the evidence in the light most favorable to [plaintiff], we conclude that the factual record does not establish a genuine issue of material fact regarding negligence,” the majority wrote. “The evidence only establishes that an accident took place, which is an insufficient basis on which to infer causation.”
The unpublished decision, Goss v. Dep’t of Natural Res. (MiLW 08-107996, 11 pages), was issued by Judges Michelle M. Rick and Kathleen Jansen.
Judge Kathleen A. Feeney authored a partial dissent.
“I [] hesitate to conclude that, in the absence of eye witnesses or in the wake of destroyed evidence following an accident such as this, accident reconstruction experts can only speculate and cannot create a genuine issue of material fact,” she wrote. “It is for the jury to decide whether to believe Goss’s expert opinion. It is an analysis based upon the available evidence and scientific principles. The majority’s attempt to dismiss it as more speculation and guess work is a mere attempt to gavel a Square-D peg into a round hole.”
Neither Christopher P. Desmond of Ven Johnson Law, who represented the plaintiff, nor Assistant Attorney General Adam R. de Bear, who represented the defendant, could be reached for comment.
Trail collision
This case stems from a catastrophic collision between a snowmobile operated by Mark Goss and a John Deere Gator 625i crossover utility vehicle, or Gator, operated by DNR Ranger Roy Lee Pederson. Pederson died at the scene, and Goss was seriously injured.
The collision occurred near Sault Ste. Marie. Goss was riding on Trail 8, a former railroad grade. Pederson was grooming the Algonquin Ski Trail with a grooming rake attached to his Gator. There is no posted speed limit where Trail 8 intersects with the Algonquin Ski Trail.
There were no eyewitnesses to the collision at the intersection. Goss has no recollection of the accident, and his friend, Joseph Eckelstafer, who had become separated from Goss because of another stop sign, did not see the accident.
Eckelstafer called 911 and the Sault Ste. Marie Police responded. The officers weren’t sure what happened at first, but eventually concluded that the Gator pulled out in front of Goss’s snowmobile.
Sault Ste. Marie Police Sergeant Francis DeShano, who is now retired, investigated the accident. He determined the accident occurred at a high rate of speed and that visibility was poor due to the surrounding trees. He estimated that the Gator had traveled halfway across the intersection when the collision happened. DeShano concluded that Pederson failed to yield the right-of-way to Goss based on his investigation.
Goss’ accident-reconstruction expert, Timothy Robbins, determined the impact speed was 51 mph, and said there were three possible ways the accident may have happened. He opined that, in any of the scenarios, Pederson failed to yield the right-of-way to Goss, and Goss didn’t have time to avoid the accident.
The experts for the Pederson Estate and the DNR, however, concluded that Goss’ speed was at least 62 mph, and that Goss could see the Gator before he entered the intersection. They opined that the accident resulted from Goss’ failure to yield to Pederson while Pederson was in the intersection.
Goss filed suit against the DNR in the Court of Claims for negligence and gross negligence. He argued that the motor vehicle exception to governmental immunity applied, thus the DNR could not invoke governmental immunity under the Governmental Tort Liability Act, or GTLA.
The DNR moved for summary disposition under MCR 2.116(C)(7) and (C)(10) after discovery. The DNR claimed that, since there were no eyewitnesses to testify about Pederson’s conduct, Goss could not establish negligence or causation.
Goss however, contended that he had plenty of evidence to show Pederson’s negligence and causation through his expert’s testimony.
The Court of Claims agreed with Goss and denied summary disposition.
The DNR appealed.
While Goss’ case was pending in the lower court, Goss and Christy Goss filed suit against the Pederson estate in a separate gross negligence matter. Christy’s claim was for loss of consortium.
The Court of Claims, which consolidated the case with Goss’ suit against the DNR for purposes of discovery and trial, granted the Pederson estate’s motion for summary disposition, saying that the Gosses could not show that Pederson acted recklessly.
The Gosses appealed.
Motor Vehicle Exception
The appellate majority agreed with the DNR’s argument that the Court of Claims erred when it concluded that a genuine issue of material fact existed on whether Goss could establish the motor vehicle exception to governmental immunity.
Here, the majority noted, the sole issue is whether Goss can prove that an exception to governmental immunity applies. And since the DNR does not dispute that Goss sustained serious bodily injuries from the accident, the sole question is whether Pederson negligently operated the Gator.
MCL 691.1405 requires a plaintiff to show that his injuries “result[ed] from” the negligent operation of a motor vehicle. The DNR relied on Robinson v. Detroit and Curtis v. City of Flint as support that the “resulting from” standard is more stringent than the common-law proximate causation test.
The majority said the Court of Claims erred when it used the but-for causation standard rather than the “resulting from” causation standard.
“Nevertheless, the error was harmless because there is little (if any) distinction between the resulting-from and but-for causation standards where the two vehicles physically collide,” the majority explained. “The DNR does not cite any cases that have applied Robinson and Curtis outside the context where there is no direct contact between the government-owned vehicle and Goss’ vehicle.
Here, it is undisputed that the Gator contacted Goss’s vehicle.
“There was no third vehicle involved in this accident,” the majority noted. “Therefore, the distinction between the ‘resulting from’ causation standard and the ‘but for’ causation standard has no meaningful distinction in this context.”
Causation
As for causation, the majority said plaintiffs cannot rely on speculation and conjecture when there are no eyewitness to an accident.
In this case, Goss did not meet his burden of showing that a genuine issue of material fact existed regarding negligence.
“As an initial matter, Goss alleged in his complaint that Pederson, acting as an agent of the DNR, was negligent for failing to stop at the stop sign,” the judges said. “However, the testimony of Goss’s accident-reconstruction expert, Robbins, ultimately did not support that allegation, and Goss never filed an amended complaint.”
Robbins opined that there were three possible scenarios that happened to cause this accident, all of which point to Pederson having entered the intersection first.
“In each scenario, Goss would not have had time to avoid the impact,” the judges said. “To believe that one of these three scenarios occurred, as the dissent does, one would have to conclude that Pederson could see the snowmobile approaching at a high speed, and yet intentionally pulled out in front of it. Not only is this nonsensical, but moreover, none of the evidence or testimony supports that conclusion.”
The court concluded that, viewing the evidence in the light most favorable to Goss, the factual record does not show a genuine issue of material fact regarding negligence. Rather, the evidence merely shows that an accident happened, which is an insufficient basis on which to infer causation.
“Goss was required to set forth specific facts that would support a reasonable inference of cause and effect; rather, Goss’s causation theory is premised on mere conjecture and speculation,” the judges noted. “He failed to meet his burden to present sufficient evidence to ‘exclude other reasonable hypotheses with a fair amount of certainty,’ particularly where the experts retained by the DNR and the Pederson Estate opined that Goss could have seen the Gator before he entered the intersection, that Goss should have responded to the yield sign by slowing down to reach a speed which would allow him to stop to avoid collision with cross-traffic, and that the accident was the result of Goss’s failure to yield to Pederson while the Gator was in the intersection.”
Because the Court of Claims erred in denying the DNR summary disposition, the appellate majority remanded the matter for entry of an order granting the DNR’s motion.
If you would like to comment on this story, contact Cory Linsner at clinsner@milawyersweekly.com .
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