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Yoches v. City of Dearborn

Court of Appeals of Michigan

July 13, 2017

ADRIENNE RENEE YOCHES, Individually and as Next Friend to SAMUEL JAMES YOCHES, Plaintiff-Appellee,
v.
CITY OF DEARBORN, Defendant-Appellant, and TROY GIBSON, JODI JERGOVICH, and STEVE JERGOVICH, Plaintiffs, and ADAM FOREHAND, Defendant. LAURA JO LUBECK and RONALD LUBECK, Plaintiffs-Appellees,
v.
CITY OF DEARBORN, Defendant-Appellant. TROY GIBSON, JODI JERGOVICH, and STEVE JERGOVICH, Plaintiffs-Appellees,
v.
CITY OF DEARBORN and CAMP DEARBORN, Defendants-Appellants, and ADAM O'BRIEN FOREHAND, Defendant. LAUREN MARIE CALVIN and TROY RAY GIBSON, Plaintiffs-Appellees,
v.
CITY OF DEARBORN, doing business as CAMP DEARBORN, Defendant-Appellant, and ADAM O'BRIEN FOREHAND, Defendant. CHARLOTTE BADER, Plaintiff-Appellee,
v.
CITY OF DEARBORN, Defendant-Appellant, and ADAM FOREHAND, Defendant. CYNTHIA CIALONE Individually and as Next Friend to EMMANUELE SOUFANE, Plaintiff-Appellee,
v.
CITY OF DEARBORN, Defendant-Appellant, and ADAM FOREHAND, Defendant. ADRIENNE RENEE YOCHES, Individually and as Next Friend to SAMUEL JAMES YOCHES, Plaintiff-Appellee, and TROY GIBSON, JODI JERGOVICH, and STEVE JERGOVICH, Plaintiffs, and CYNTHIA CIALONE, Individually and as Next Friend to EMMANUELLE SOUFANE, Plaintiff/Counter- Defendant/Appellee,
v.
CITY OF DEARBORN, Defendant/Counter-Plaintiff/Third- Party Plaintiff-Appellant, and ADAM FOREHAND, Defendant, and HENRY FORD COMMUNITY COLLEGE SUPPORT STAFF ASSOCIATION, Third-Party Defendant-Appellee.

         Oakland Circuit Court LC Nos. 2014-140398-NO, 2014-140410-NO, 2014-141218-NO, 2014-141760-NO, 2014-142520-NO, 2015-145847-NO, 2014-140398-NO

          Before: O'Brien, P.J., and Jansen and Stephens, JJ.

          Per Curiam

         These consolidated cases arise from a hayride accident at "Camp Dearborn" in Milford Township. In Docket Nos. 330998, 331137, 331139, 331144, 331147, and 331149, defendant, the City of Dearborn ("the City"), appeals as of right the trial court's opinion and order denying its motion for summary disposition pursuant to MCR 2.116(C)(7). The City argues that the trial court erred by concluding that the motor vehicle exception, MCL 691.1405, to governmental immunity under the Governmental Tort Liability Act ("GTLA"), MCL 691.1401 et seq., applied. In Docket No. 331630, the City appeals by leave granted the trial court's opinion and order dismissing the City's third-party complaint against Henry Ford Community College Support Staff Association ("the Association") pursuant to MCR 2.116(C)(10). Yoches v City of Dearborn, unpublished order of the Court of Appeals entered on July 27, 2016 (Docket No. 331630). The City argues that the trial court erred by concluding that a "hold harmless agreement" was unenforceable as a matter of law due to a lack of consideration. For the reasons set forth below, we affirm.

         The City owns and operates Camp Dearborn, a recreational facility located in Milford Township. The Association is a labor organization representing employees of Henry Ford Community College. Plaintiffs are members of the Association. Plaintiff Cynthia Cialone is a volunteer member of the Association's social committee. Cialone acted as liaison in coordinating the "Fall Festival, " an event to be held for the Association's members and their families at Camp Dearborn on October 27th, 2013. As liaison, Cialone reserved a chalet at the facility, contracted with vendors to provide goods and services during the festival, and reserved two wagons for hayrides. Immediately before the hayrides were to begin on October 27, Scott Schier, the City's employee who drove one of the tractors pulling the hay wagons, approached the group and asked who was "in charge." Cialone identified herself as that person. At Schier's request, Cialone signed what was referred to as a hold harmless agreement apparently on behalf of the Association. The agreement provided, in relevant part, as follows:

In consideration for permission to participate in the Fall Hayrides at Camp Dearborn, the below-listed organization agrees to RELEASE AND FOREVER DISCHARGE the City of Dearborn, a municipal corporation, and its officers, departments, employees, and agents from any and all claims, liabilities, or lawsuits, including legal costs and attorney fees, resulting from the use of any City property or in any connection with the hayrides at Camp Dearborn.
The below-listed organization hereby agrees to defend, indemnify, and hold harmless the City of Dearborn, its officers, agents, departments and employees from and against any and all claims and causes of action of any kind arising out of or in connection with the organization's or any of the organization's participants' involvement in the hayrides at Camp Dearborn.
Knowing, understand, and fully appreciating all possible risks, the below-listed organization does hereby expressly, voluntarily, and willingly assume all risk of dangers associated with its participation or any of its participants' involvement in the hayrides at Camp Dearborn. These risks could result in damage to property, personal and/or bodily injury or death to the organization's individual participants.
The organization acknowledges that if it has minor participants, the minors' parents or guardians have granted specific permission for the minors to participate in the hayrides at Camp Dearborn.
The authorized signor acknowledges that he/she has advised the organization's participants of this agreement, the risks involved in the activity, and has the authority to enter into this agreement on behalf of the organization and the organization's participants.

         Below these paragraphs, the agreement warned as follows: "THIS IS A RELEASE READ BEFORE SIGNING." In a section of the form designated for the organization's name, Cialone signed her name and then wrote the Association's address and phone number. In a section for the "[a]uthorized signor's name, address, and telephone number, " Cialone signed her name and printed her name and home address.

         After Cialone completed the agreement, the hayrides began. During the rides, one of the hay wagons tipped over, and several participants were injured as a result. According to plaintiffs, defendant Adam Forehand, the City's employee who drove the tractor that pulled the hay wagon that tipped over, was intoxicated and driving recklessly at the time of the accident. Consequently, plaintiffs brought a series of lawsuits against the City and Forehand. Plaintiffs' lawsuits alleged claims for negligence, gross negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress. Plaintiffs also alleged that the City was vicariously liable for Forehand's negligence. In response to plaintiffs' lawsuit, the City moved for summary disposition on the ground that governmental immunity under the GTLA barred plaintiffs' claims. The City also filed a third-party complaint and counter-complaint against the Association and Cialone, claiming that the Association was bound by the hold harmless agreement discussed above. Alternatively, the City argued that, in the event the Association was not bound by the agreement, the agreement was nevertheless binding against Cialone in her individual capacity. The City and the Association also filed cross-motions for summary disposition regarding enforcement of the hold harmless agreement. With respect to the City's motion for summary disposition on plaintiffs' claims, the trial court concluded that the tractor that pulled the hay wagon constituted a motor vehicle for purposes of the motor vehicle exception to governmental immunity. It therefore denied the City's motion for summary disposition on plaintiffs' claims. With respect to the City's and the Association's cross-motions for summary disposition regarding enforcement of the hold harmless agreement, the trial court concluded that the agreement was unenforceable as a matter of law due to a lack of consideration. It therefore denied the City's motion for summary disposition and granted the Association's motion for summary disposition. As indicated above, the City challenges both orders on appeal.

         In Docket Nos. 330998, 331137, 331139, 331144, 331147, and 331149, the City argues that the trial court erred by concluding that the tractor that pulled the hay wagon was a motor vehicle for purposes of the motor vehicle exception to governmental immunity. We disagree.

         The application of governmental immunity is a question of law subject to de novo review. Seldon v Suburban Mobility Auth for Regional Transp, 297 Mich.App. 427, 433; 824 N.W.2d 318 (2012). A court may grant summary disposition pursuant MCR 2.116(C)(7) if the moving party is entitled to "immunity granted by law." Odom v Wayne Co, 482 Mich. 459, 466; 760 N.W.2d 217 (2008). "When reviewing a motion under MCR 2.116(C)(7), this Court must accept all well-pleaded 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 N.W.2d 211 (2010). "If any affidavits, depositions, admissions, or other documentary evidence are submitted, the court must consider them to determine whether there is a genuine issue of material fact." Id. at 429. "If no facts are in dispute, and if reasonable minds could not differ regarding the legal effect of those facts, the question of whether the claim is barred is an issue of law for the court." Id. "[I]f a question of fact exists to the extent that factual development could provide a basis for recovery, dismissal is inappropriate." Id. This issue also involves the interpretation and application of a statute. "Issues concerning the proper interpretation of statutes are questions of law that we review de novo." Dressel v Ameribank, 468 Mich. 557, 561; 664 N.W.2d 151 (2003). "It is the cardinal principle of statutory construction that courts must give effect to legislative intent. When reviewing a statute, courts must first examine the language of the statute. If the intent of the Legislature is clearly expressed by the language, no further construction is warranted." Id. at 562.

         Generally, "a governmental agency is immune from tort liability if the governmental agency is engaged in the exercise or discharge of a governmental function." MCL 691.1407(1). There are, however, exceptions to this general rule. Specifically, the trial court held that the motor vehicle exception set forth ...


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