Troy Gibson v. City of Dearborn
331139
| Mich. Ct. App. | Jul 13, 2017Background
- Hayride at Camp Dearborn organized for an association; Cynthia Cialone (association volunteer) coordinated and signed a "hold harmless" form just before rides began.
- During the hayride a hay wagon tipped over; plaintiffs alleged the tractor driver (City employee Adam Forehand) was intoxicated and negligent, causing injuries.
- Plaintiffs sued the City and Forehand for negligence and related claims; City moved for summary disposition based on governmental immunity (MCL 691.1401 et seq.).
- The City argued the motor vehicle exception (MCL 691.1405) did not apply because the tractor/hay wagon was not a "motor vehicle;" trial court denied City’s (C)(7) motion.
- The City sought to enforce the hold harmless/indemnity agreement against the Association and Cialone; the trial court (on cross-motions under MCR 2.116(C)(10)) held the agreement unenforceable for lack of new consideration.
- Court of Appeals consolidated appeals and affirmed: motor vehicle exception applies; hold harmless agreement lacked consideration and was unenforceable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the tractor and hay wagon are a "motor vehicle" under the motor vehicle exception | Motor vehicle exception applies because the tractor/hay wagon are motor-driven conveyances carrying passengers on a roadway | Tractor/hay wagon are more like non-vehicle equipment (e.g., forklift) and thus outside the exception | Held: motor vehicle exception applies; tractor/hay wagon comparable to broom tractor/tractor mower and Gradall cases; summary disposition denied |
| Whether City is vicariously liable for employee’s gross negligence notwithstanding governmental immunity | Plaintiffs: gross negligence by employee defeats immunity and supports vicarious liability | City: gross negligence by employee does not automatically render the agency vicariously liable if immunity otherwise applies | Held: MCL 691.1407(1) does not make the agency vicariously liable for employee gross negligence unless an exception (e.g., motor vehicle) applies; 691.1408 does not impose liability on agency |
| Enforceability of the hold harmless/indemnity agreement (consideration) | City: release/indemnity implied part of the parties’ rental/registration agreement; Rowady rule allows pooled consideration | Association: hold harmless was a separate agreement signed at the site with no new consideration; City had preexisting duty to provide hayride | Held: agreement unenforceable for lack of new consideration under preexisting duty rule; not part of the original contract, so (C)(10) dismissal for City was erroneous and Association prevailed |
| Whether the hold harmless was part of a larger contract (affecting consideration) | City: receipts/flyer and rental contract are a package; hold harmless falls within the larger contract consideration | Association: receipts/flyer do not mention hold harmless; contract was finalized earlier when payment made | Held: no evidence hold harmless was part of the already-formed contract; Rowady inapplicable to save the agreement |
Key Cases Cited
- Stanton v. City of Battle Creek, 466 Mich 611 (Mich. 2002) (adopts a narrow dictionary-based definition of "motor vehicle" for MCL 691.1405 and excludes industrial equipment like forklifts)
- Regan v. Washtenaw County Rd Comm’rs (On Remand), 257 Mich App 39 (Mich. Ct. App. 2003) (broom tractor and tractor mower qualify as "motor vehicles" under MCL 691.1405)
- Wesche v. Mecosta Co Rd Comm, 267 Mich App 274 (Mich. Ct. App. 2005) (Gradall excavator treated as a motor vehicle for § 691.1405 when operating on/along roadways)
- Rowady v. K Mart Corp., 170 Mich App 54 (Mich. Ct. App. 1988) (discusses consideration for releases embedded in larger contracts; whole-of-contract consideration can support multiple promises)