Estate of Ronald Twigg v. Department of Transportation
334406
| Mich. Ct. App. | Dec 28, 2017Background
- June 15, 2011: Ronald Twigg fatally crashed his motorcycle while exiting I-94 at Zeeb Road; area was under MDOT-directed road repairs contracted to Barret Paving, which subcontracted part to DJ McQuestion.
- Plaintiff Peggy Twigg (decedent’s personal representative) sued MDOT alleging a rut/groove in the traveled portion of the highway caused the crash; she served a statutory notice under MCL 691.1404 alleging holes/ruts.
- Discovery: plaintiff’s expert Gerald Jackson in deposition said debris and/or a rut/groove were possible causes but could not state within a reasonable degree of certainty that the rut caused the crash; later he signed an affidavit asserting the rut likely initiated trouble.
- MDOT moved for summary disposition under MCR 2.116(C)(7) claiming governmental immunity; DJ McQuestion moved under MCR 2.116(C)(10) seeking dismissal of indemnity claims.
- Trial courts denied both motions; appeals were consolidated. The Court of Appeals reversed, holding plaintiff failed to prove causation under the highway exception to governmental immunity and Jackson’s affidavit contradicted his deposition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the highway exception (MCL 691.1402(1)) to governmental immunity applies | Twigg: a rut/groove in the paved travel lane was a defect that likely caused the crash | MDOT: evidence shows construction debris (not a highway defect) and expert testimony is speculative; thus immunity bars the claim | Held: No. Plaintiff failed to show the rut more-likely-than-not caused the crash; highway exception not shown |
| Whether plaintiff’s expert affidavit creates a factual dispute after a deposition that was noncommittal | Twigg: expert’s affidavit states the rut likely caused initial trouble and creates a triable issue | MDOT: affidavit contradicts the expert’s deposition and cannot create a factual issue | Held: Affidavit is inconsistent with deposition and cannot be used to defeat summary disposition |
| Whether lay eyewitness affidavit establishes causation | Twigg: Swanson’s affidavit describing a gap/groove that could catch a motorcycle supports causation | MDOT: lay observation does not establish that the rut more-likely-than-not caused this crash | Held: Lay affidavit was speculative and insufficient to prove causation |
| Effect on indemnity claim against subcontractor DJ McQuestion | N/A | DJ McQuestion: indemnity liability depends on MDOT liability; if MDOT immune, indemnity claim fails | Held: With MDOT entitled to judgment, indemnity claim against DJ McQuestion fails and DJ McQuestion is entitled to summary disposition |
Key Cases Cited
- Spiek v. Dep’t of Transp., 456 Mich. 331 (standard of review for summary disposition)
- Odom v. Wayne County, 482 Mich. 459 (use of documentary evidence on MCR 2.116(C)(7))
- RDM Holdings, Ltd. v. Continental Plastics Co., 281 Mich. App. 678 (consideration of documentary evidence for (C)(7))
- Nawrocki v. Macomb County Rd. Comm., 463 Mich. 143 (highway exception requires defect in physical roadbed surface)
- Grimes v. Dep’t of Transp., 475 Mich. 72 (GTLA and scope of governmental immunity)
- Duffy v. Dep’t of Natural Resources, 490 Mich. 198 (GTLA exceptions analysis)
- Skinner v. Square D Co., 445 Mich. 153 (causation burden: more than speculation; "more likely than not")
- Mitan v. Neiman Marcus, 240 Mich. App. 679 (affidavit cannot contradict earlier deposition)
- Moraccini v. City of Sterling Heights, 296 Mich. App. 387 (summary of governmental immunity principles)
- Paletta v. Oakland County Rd. Comm., 491 Mich. 897 (gravel/debris not within highway-exception repair duty)