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Wood v. City of Detroit

Court of Appeals of Michigan

March 15, 2018

BRUCE T. WOOD, Plaintiff-Appellee,
v.
CITY OF DETROIT and JAMES DERRICK PENNINGTON, Defendants-Appellants.

         Wayne Circuit Court LC No. 15-012410-NF

          Before: M. J. Kelly, P.J., and Jansen and Meter, JJ.

          M. J. KELLY, P.J.

         Defendants, the City of Detroit and James Pennington, appeal as of right the trial court's order denying their motion for summary disposition. For the reasons stated herein, we affirm in part and reverse in part.

         I. BASIC FACTS

         On July 3, 2015, plaintiff, Bruce Wood, was crossing the street at the intersection of Rosa Parks Boulevard and West Grand Boulevard in Detroit, when he heard something. He testified that he turned toward the sound and saw a tire about a foot away from him. He added that he tried to stop it, but the next thing he recalled was waking up in the hospital. It is undisputed that, as a result of being struck by the tire, Wood sustained significant bodily injuries. It is further undisputed that the tire came off a van owned by the City of Detroit that was being operated by Pennington. Pennington testified that he had been driving about 20 to 25 miles per hour down Rosa Parks Boulevard when he left rear tire came off. He stated that he felt a "jolt" when he lost the tire, then coasted to a stop, parked his vehicle, and went to investigate where the tire went. The authorities were contacted after he saw Wood lying on the ground.

         Wood filed an action in the Wayne Circuit Court for first- and third-party no-fault benefits. Defendants moved for summary disposition under MCR 2.116(C)(7), (8) and (10), asserting that there was no genuine issue regarding any material fact and that Wood's claim was barred by governmental immunity under MCL 691.1407(1). Defendants argued that the motor vehicle exception to governmental immunity set forth by MCL 691.1405 was inapplicable because if there was negligence, it constituted negligent maintenance, not negligent operation of a motor vehicle. They also asserted that there was no evidence of gross negligence on Pennington's part as required to hold him liable under MCL 691.1407(2). The trial court denied the motion, finding:

they're all issues of fact including the gross negligence. If [Wood] can prove no one put lug nuts on this vehicle, that's gross negligence, as far as I'm concerned or at least raises an issue of fact as to whether it's gross negligence or not. In addition to that, I don't see how you can say that a tire is not part of operating a motor vehicle; it is.

         II. GOVERNMENTAL IMMUNITY

         A. STANDARD OF REVIEW

         Defendants argue that the trial court erred by denying their motion for summary disposition because they were entitled to governmental immunity and the exceptions to governmental immunity set forth in MCL 691.1405 and MCL 691.1407(2) were inapplicable as a matter of law. Challenges to a trial court's decision on a motion for summary disposition are reviewed de novo. Barnard Mfg Co, Inc v Gates Performance Engineering, Inc, 285 Mich.App. 362, 369; 775 N.W.2d 618 (2009). "Similarly, the applicability of governmental immunity is a question of law that this Court reviews de novo." McLean v McElhaney, 289 Mich.App. 592, 596; 798 N.W.2d 29 (2010). The proper interpretation and application of a statute are also reviewed de novo. Id. at 596.

         B. ANALYSIS

         1. MOTOR VEHICLE EXEMPTION

         "As a general rule, a governmental agency is immune from tort liability when it is 'engaged in the exercise or discharge of a governmental function.' " Poppen v Tovey, 256 Mich.App. 351, 354; 664 N.W.2d 269 (2003), quoting MCL 691.1407(1).[1] In order to assert a viable claim against a governmental agency, a plaintiff must plead facts that establish an exception to governmental immunity applies to his or her claim. Mack v Detroit, 467 Mich. 186, 198; 649 N.W.2d 47 (2002). Here, Wood asserts that his claim against the City should be allowed to proceed because ...


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