667 N.W.2d 57 | Mich. Ct. App. | 2003
Dona REGAN and Brian Regan, Plaintiffs-Appellees,
v.
WASHTENAW COUNTY BOARD OF COUNTY ROAD COMMISSIONERS, Defendant-Appellant, and
David Cavanaugh, Defendant.
Leonard Zelanko, Plaintiff-Appellee,
v.
Washtenaw County Board of County Road Commissioners, Defendant-Appellant, and
Richard Lee Shehan, Defendant.
Court of Appeals of Michigan.
*58 Blaske & Blaske, P.L.C. (by Thomas H. Blaske and E. Robert Blaske), Arbor, Battle Creek, for Dona and Brian Regan.
Sommers, Schwartz, Silver & Schwartz, P.C. (by Patrick Burkett and David F. Greco), Southfield, for Leonard Zelanko.
Smith, Haughey, Rice & Roegge (by Jon D. Vander Ploeg) and Highland & Zanetti, P.C. (by R. Michael John), Grand Rapids, southfield, for the Washtenaw County Board of County Road Commissioners.
Before: MURPHY, P.J., and RICHARD ALLEN GRIFFIN, and WILDER, JJ.
ON REMAND
MURPHY, P.J.
This consolidated appeal is before us by order of the Michigan Supreme Court, 468 Mich. 851, 658 N.W.2d 490 (2003). The Supreme Court, in lieu of granting leave to appeal, remanded the cases with instructions to reconsider our previous decision[1] in light of the rulings in Stanton v. Battle Creek, 466 Mich. 611, 647 N.W.2d 508 (2002), and Chandler v. Muskegon County, 467 Mich. 315, 652 N.W.2d 224 (2002). On reconsideration, we conclude that the broom tractor in the Regan case and the tractor mower in the Zelanko case are "motor vehicles" under M.C.L. § 691.1405,[2] and that in both cases the motor vehicles were being operated as motor vehicles when the alleged negligence occurred. Moreover, plaintiffs alleged that the operation of the motor vehicles in a negligent manner directly caused injuries for which they seek recovery, thereby properly pleading in avoidance of governmental immunity under the motor-vehicle exception, M.C.L. § 691.1405. We therefore, once again, affirm the trial court's denial of defendant's motions for summary disposition.[3]
Our previous opinion in this matter presented the factual circumstances involved in both cases.
In the Regan case, plaintiff Dona Regan was driving a[van][4] when she collided with a broom tractor owned by defendant road commission and operated by defendant David Cavanaugh, an employee of defendant. The Regans' complaint alleged that the tractor, which was the third vehicle in a five-vehicle convoy performing shoulder maintenance, straddled a fog line and extended several feet into her lane, which caused Regan to move to the left in an effort to pass the tractor, at which time a blinding dust cloud formed and Regan's vehicle and *59 the county vehicle collided. The Regans further alleged that the operator was negligent in failing to pay proper attention to his course of travel and the movement of others on the highway, in failing to keep a sharp and careful lookout, in failing to be observant of conditions, and in failing to keep his tractor constantly under control.
* * *
In the Zelanko case, plaintiff Leonard Zelanko's tractor-trailer rig was struck in the windshield by a piece of tire tread propelled by a tractor mower operated by defendant Richard Lee Shehan, an employee of defendant, after Shehan ran over the tire tread while cutting grass along the side of the highway. The tire tread shattered the windshield and caused injuries to Zelanko. Zelanko alleged that the operator was negligent in failing to operate the tractor with due care and caution, in failing to maintain control of the tractor at all times, in failing to avoid driving over the tire tread, and in failing to keep a sharp lookout so as to avoid injuring Zelanko. [Regan v. Washtenaw Co. Bd. of Co. Rd. Comm'rs, 249 MichApp. 153, 155-156, 641 N.W.2d 285 (2002).]
Defendant previously argued to this Court that the trial court erred in denying its motions for summary disposition in the Regan and Zelanko cases. Defendant maintained that plaintiffs' complaints did not allege injuries arising out of the negligent operation of a motor vehicle, but rather out of negligent street-sweeping and lawn-mowing; therefore, M.C.L. § 691.1405 was inoperative. We rejected defendant's argument, noting that the allegations contained in the complaints alleged injuries caused by the negligent operation of the broom tractor and the tractor mower. Regan, supra at 155-156, 161, 641 N.W.2d 285 n.n. 4-6. We ruled that "[pjlaintiffs alleged a direct and physical link between the operation of the county vehicles and plaintiffs' injuries," id. at 162, 641 N.W.2d 285, and we concluded:
[T]he operation of a motor vehicle by a governmental employee is typically in a setting where a governmental function is being undertaken; the question here is not whether governmental immunity precludes liability for the exercise of the governmental function, but whether the allegations in plaintiffs' complaints allege injuries resulting from the negligent operation of a motor vehicle, thereby triggering the exception found in M.C.L. § 691.1405. Any other interpretation would render meaningless the Legislature's decision to enact M.C.L. § 691.1405, the statute that creates an exception to governmental immunity for negligent operation of a governmentowned vehicle by an officer, agent, or employee of the governmental agency. We believe that the allegations in both complaints were sufficient to give rise to an exception to governmental immunity pursuant to M.C.L. § 691.1405. [Id. at 163, 641 N.W.2d 285.]
Against this backdrop, we now review the cases cited by our Supreme Court pursuant to which we are to reconsider our previous ruling. In Stanton, supra at 613, 647 N.W.2d 508, the plaintiff was injured when a forklift driven by a city employee rolled forward and struck the plaintiff at a site owned by the city. The sole question before the Supreme Court was "whether a forklift is a `motor vehicle' within the ambit of the motor vehicle exception to governmental immunity, M.C.L. § 691.1405." Id. at 612, 647 N.W.2d 508. The Court held that the forklift was not a "motor vehicle" for purposes of the statute. Id. The Stanton Court, considering various *60 dictionary definitions of the term "motor vehicle," held:
The definition of a "motor vehicle" as "an automobile, truck, bus, or similar motor-driven conveyance" is the narrower of the two common dictionary definitions. Therefore, we apply it to the present case. A forkliftwhich is a piece of industrial construction equipmentis not similar to an automobile, truck, or bus. Thus, the motor vehicle exception should not be construed to remove the broad veil of governmental immunity for the negligent operation of a forklift. [Id. at 618, 647 N.W.2d 508, quoting Random House Webster's College Dictionary (2001) (emphasis in original).]
In Chandler, supra at 316, 652 N.W.2d 224, the injury forming the basis of the lawsuit occurred while the government's motor vehicle, a bus, was parked in a bus barn for the purpose of cleaning and was not being driven.[5] The Supreme Court focused on the word "operation" as used in M.C.L. § 691.1405, and again turned to a dictionary definition.[6]Chandler, supra at 319-320, 652 N.W.2d 224. The Court held that the motor-vehicle exception did not apply because the vehicle was not being "operated" when the injury occurred. Id. at 322, 652 N.W.2d 224. The Supreme Court ruled:
Accordingly, aware that we are considering the dictionary definition of the word "operation," as well as construing a governmental immunity statute, which we must construe narrowly, we conclude that the "operation of a motor vehicle" encompasses activities that are directly associated with the driving of a motor vehicle. [Id. at 321, 652 N.W.2d 224.]
The Supreme Court held that operation of a motor vehicle means "that the motor vehicle is being operated as a motor vehicle." Id. at 320, 652 N.W.2d 224 (emphasis in original).
Taking into consideration the holdings in Stanton and Chandler, it can be stated that in order to maintain a suit within the motor-vehicle exception to governmental immunity, § 5, the vehicle must be a motor-driven conveyance similar to an automobile, truck, or bus, and the alleged injuries must be caused by activities that are directly associated with the driving of the motor vehicle. Statutory construction *61 involves an issue of law that this Court reviews de novo. In re RFF, 242 Mich. App. 188, 198, 617 N.W.2d 745 (2000). With these principles in mind, we now turn to the cases before us.[7]
With respect to whether the broom tractor and tractor mower are "motor vehicles" for purposes of § 5, we find that both vehicles fit the definition enunciated in Stanton. Both vehicles are clearly motor-driven conveyances, in that they are motorized and carry or transport operators over the road, or alongside the road, while the operators are performing governmental duties. We respectfully disagree with the dissent's test that the "principal function" of the vehicle must be to transport or carry passengers or property in order to be considered a "motor vehicle" under § 5. Similar language is not found anywhere in the Stanton decision or the statute, and the dissent's use of a "principal function" test suggests that a vehicle must be used chiefly for the purpose of transporting persons or property and cannot be used, in any significant manner, for maintenance or other purposes to qualify under § 5. Limiting the definition in this manner would exclude numerous governmental vehicles that traverse Michigan roadways, including snowplows, utility and construction vehicles, and emergency vehicles that are used in a maintenance, improvement, or service capacity.[8] This clearly was not the Legislature's intent in enacting M.C.L. § 691.1405. Surely, the Legislature did not intend to preclude liability for negligent actions associated with the operation of a governmental vehicle designed to be driven on or alongside roadways where the vehicle has maintenance and service capabilities.
Further, the broom tractor and tractor mower are comparable to an automobile, bus, or truck. The broom tractor was driven on the roadway, and was so intended to be operated.[9] In that sense, it is no different than any of the other vehicles specifically identified in Stanton. The *62 tractor mower[10] was operated on the shoulder of the roadway and along the sides of the road, and was so intended to be operated.[11] The relationship between the tractor mower, used for mowing the grass along I 94, and the roadway itself is inseparable. As an automobile, bus, and truck are invariably connected to the roadways, so are the tractor mower and broom tractor in the cases at bar. There is no similar connection or relationship between the road and a forklift as was involved in Stanton. For purposes of § 5, a tractor owned and operated by a governmental agency being negligently driven on the roadway or alongside the roadway is no different than a utility truck owned and operated by the government being driven in a similar manner on or alongside the road. To create a distinction between the two, in analyzing the statute, would be illogical. A reading of the language used by the Legislature in M.C.L. § 691.1405 indicates a desire and purpose, in part, to make roadways as safe for travel as possible by creating liability for governmental vehicles that are operated negligently and that create a danger for citizens as they use those same roadways.[12] That purpose would not be fulfilled by a ruling that the roadway-utilizing broom tractor and tractor mower, which allegedly caused injuries to persons using the roadways, are not motor vehicles. The vehicles in both cases are properly defined as "motor vehicles" under § 5.
With respect to whether the broom tractor and the tractor mower were being operated as motor vehicles resulting in injury under Chandler, there is absolutely no question that the motor vehicles were in operation and being driven when the incidents giving rise to the lawsuits occurred, and that the manner of operation was the alleged cause of the injuries. As required by Chandler, and pursuant to the complaints, the injuries in both cases were allegedly caused by activities directly associated with the driving of the motor vehicles. Chandler is clearly factually distinguishable because the bus in that case was not being driven but was in for cleaning at the time of the injury.
The dissent's conclusion, and defendant's argument, that the alleged injuries did not result from activities directly associated with the driving of motor vehicles but were instead allegedly caused by the negligent use of maintenance equipment, appears to exclude the possibility that so-called maintenance equipment may be driven and operated as vehicles on or alongside the road while at the same time performing maintenance. We recognize that in some instances a distinction must be made between the operation of a motor vehicle and maintenance or construction services being performed by that same vehicle. For example, if a county cement-mixer, while being driven down the road, negligently strikes another vehicle causing injury, it can be said that an injury was caused by a motor vehicle as it was being operated as a motor vehicle; therefore, § 5 would be applicable. However, if the cement-mixer reached its destination at a work site and, while parked, began pouring cement in a negligent manner giving rise to an injury, it cannot be said that an injury was caused by a motor vehicle as it was being operated *63 as a motor vehicle under the precedent in Chandler.
Here, the maintenance activities undertaken by the broom tractor and the tractor mower cannot be separated from the operation of the motor vehicles, i.e., the maintenance is directly associated with the driving of the vehicles. The broom tractor sweeps the pavement as it proceeds down the roadway. The tractor mower cuts grass as it proceeds on the shoulder of, or alongside, the roadway. In Bakun v. Sanilac Co. Rd. Comm., 419 Mich. 202, 203, 351 N.W.2d 810 (1984), our Supreme Court held that "county road commissions are liable for the negligent operation of their motor vehicles even though liability is incurred in connection with the construction, improvement, or maintenance of a state trunk line highway." (Emphasis added.) Since plaintiffs alleged that both vehicles caused injuries because of the manner in which they were driven or operated, it matters not that while the vehicles were driven, maintenance work was also being accomplished.[13] The trial court did not err in denying defendant's motions for summary disposition.
Affirmed.
RICHARD ALLEN GRIFFIN, J., concurred.
WILDER, J., {dissenting).
Respectfully, I dissent. On reconsideration in light of Stanton v. Battle Creek, 466 Mich. 611, 647 N.W.2d 508 (2002), and Chandler v. Muskegon County, 467 Mich. 315, 652 N.W.2d 224 (2002), I would reverse the trial court's decision in each case.
I. Facts and Proceedings
A. Docket No. 219761
Plaintiff Dona Regan,[1] while driving her conversion van[2] on US-12 between Saline and Clinton, collided with defendant's[3] broom tractor[4] as it was driven by David Cavanaugh, defendant's employee. The broom tractor was the third vehicle in a five-vehicle convoy performing shoulder maintenance on U.S. 12. On the day of the collision, the weather was hot and windy. Regan slowed as she approached the broom tractor rounding a curve, but as she attempted to pass the broom tractor, a blinding cloud of dust formed. Unable to see, Regan swerved to the right and applied her brakes, but nevertheless collided with the broom tractor. In her complaint, Regan alleged that Cavanaugh negligently operated the vehicle by failing to pay proper attention to his surroundings, failing to *64 keep an appropriate lookout, failing to keep the tractor under control, and failing to operate the vehicle with concern for the safety of Regan and others. Regan also alleged that defendant was liable as the owner of the vehicle and had breached its duty to her by permitting "Cavanaugh to operate the motor vehicle owned by [defendant] to regravel on a blustery, windy day; and ... failed to provide a water truck to hose down the dust and debris stirred up by the tractor, thus enabling both Plaintiff Dona Regan and [another driver] to be blinded and unable to safely proceed."
Defendant and Cavanaugh moved for summary disposition pursuant to MCR 2.116(C)(7) and (10). Although the trial court found that no reasonable juror could conclude that Cavanaugh was grossly negligent and granted his motion, the trial court denied defendant's motion. The trial court stated that because the allegations in Regan's complaint could lead to a conclusion that Cavanaugh was negligently operating the broom tractor and questions of fact existed concerning whether the alleged actions were within the scope of M.C.L. § 691.1405, the motor-vehicle exception to governmental immunity, summary disposition was inappropriate. The trial court subsequently denied defendant's motion for reconsideration. This Court granted defendant's application for leave to appeal.
B. Docket No. 220532
Plaintiff Leonard Zelanko suffered injuries after a piece of rubber tire tread that was propelled by defendant's roadside tractor mower[5] shattered the windshield of the tractor-trailer rig he was driving on 1-94 in Washtenaw County. Zelanko claimed that Richard Shehan, defendant's employee, ran over the tire tread with the mower while cutting the grass and that the mower threw the tire tread toward Zelanko's truck. In his complaint, Zelanko alleged that Shehan negligently failed to operate the tractor mower with due care, failed to maintain control, failed to avoid the piece of tire tread when he knew or should have known that hitting the tire tread would result in injury to Zelanko, and failed to keep a sharp lookout. Zelanko claimed that defendant was liable for negligent entrustment of the tractor and attached mower to Shehan.
Shehan and defendant moved for summary disposition pursuant to MCR 2.116(C)(7) and (C)(10). The trial court granted Shehan's motion, finding that Zelanko failed to allege or demonstrate that Shehan acted in a grossly negligent manner. The trial court denied defendant's motion apparently finding that a genuine issue of material fact existed concerning defendant's negligence, although the precise basis of the trial court's ruling is unclear from the record. This Court granted defendant's application for leave to appeal and consolidated this case with Docket No. 219761.
C. This Court's Prior Opinion
On appeal, defendant argued that plaintiffs did not assert claims that resulted from the negligent operation of motor vehicles but asserted claims that focused on the performance of governmental functions, i.e., sweeping and mowing. On that basis, defendant argued that plaintiffs' claims did not fall within the ambit of the motor-vehicle exception to governmental immunity, M.C.L. § 691.1405. Regan v. Washtenaw Co. Bd. of Co. Rd. Comm'rs, 249 Mich.App. 153, 158-162, 641 N.W.2d 285 (2002). In a divided opinion, this Court held that in each case, the trial court properly denied defendant's motion for *65 summary disposition. Id. at 163, 641 N.W.2d 285. The majority found that plaintiffs had sufficiently alleged that the negligent operation of a motor vehicle caused their injuries and that the basis of their claims was not that the "end result of defendant's actions" caused their injuries. Id. at 159, 641 N.W.2d 285.
Additionally, the majority concluded that because Regan had alleged injuries that resulted from impact with defendant's vehicle, and Zelanko had alleged injuries that resulted from impact with an object propelled by defendant's vehicle, plaintiffs' claims were distinguishable from the plaintiffs' claims in Robinson v. Detroit, 462 Mich. 439, 613 N.W.2d 307 (2000), and the motor-vehicle exception was clearly applicable. Regan, supra at 160-161, 641 N.W.2d 285, citing Robinson, supra at 445, 613 N.W.2d 307. Defendant sought leave to appeal this Court's decision, and the Supreme Court's remand followed.
II. Standard of Review
We review de novo a trial court's decision on a motion for summary disposition. Poppen v. Tovey, 256 MichApp. 351, 664 N.W.2d 269 (2003). In deciding whether governmental immunity entitles a defendant to summary disposition pursuant to MCR 2.116(C)(7), the court must review the affidavits, depositions, admissions, and other documentary evidence submitted by the parties. Id.; Sewell v. Southfield Pub. Schools, 456 Mich. 670, 674, 576 N.W.2d 153 (1998). We accept as true the allegations in the plaintiffs complaint to the extent that affidavits or other documents submitted by the movant do not specifically contradict them. Sewell, supra at 674, 576 N.W.2d 153; Fane v. Detroit Library Comm., 465 Mich. 68, 74, 631 N.W.2d 678 (2001).
Summary disposition pursuant to MCR 2.116(0(10) is appropriate when no genuine issues of material fact exist, except concerning the amount of damages, and the moving party is entitled to judgment as a matter of law. Veenstra v. Washtenaw Country Club, 466 Mich. 155, 164, 645 N.W.2d 643 (2002). The court must consider the affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties in a light most favorable to the nonmoving party. Id.
III. Analysis
"[Governmental immunity is a characteristic of government." Mack v. Detroit, 467 Mich. 186, 198, 649 N.W.2d 47 (2002). Accordingly, to assert a viable claim against a governmental agency, a plaintiff must plead facts that establish an exception to governmental immunity. Id. The immunity enjoyed by governmental agencies is broad, and the statutory exceptions to immunity are narrowly construed. Stanton, supra at 617, 647 N.W.2d 508. The exception to governmental immunity on which plaintiffs rely is the motor-vehicle exception, M.C.L. § 691.1405, which provides that
[g]overnmental agencies shall be liable for bodily injury and property damage resulting from the negligent operation by any officer, agent, or employee of the governmental agency, of a motor vehicle of which the governmental agency is the owner, as defined in [the Michigan Vehicle Code], as amended, being sections 257.1 to 257.923 of the Compiled Laws of 1948.
Although our prior opinion focused on whether plaintiffs had alleged injuries resulting from the operation of a motor vehicle, the Supreme Court, through its order of remand, has drawn our attention to two other requirements of the statute. For a plaintiff to pursue a claim under § 5, the vehicle in question must be a motor vehicle, and the plaintiffs claims must result from the negligent operation of the motor vehicle.
*66 The majority first concludes that the broom tractor and tractor mower are "motor vehicles" for purposes of § 5.[6] I respectfully disagree. Whether a vehicle is a "motor vehicle" for purposes of M.C.L. § 691.1405 presents a question of statutory interpretation, Stanton, supra at 615, 647 N.W.2d 508, and is, therefore, a question of law for the court. Haliw v. Sterling Hts., 464 Mich. 297, 302, 627 N.W.2d 581 (2001). In Stanton, the Court determined that a motor vehicle, for purposes of M.C.L. § 691.1405, is "`an automobile, truck, bus, or similar motor-driven conveyance.'" Stanton, supra at 618, 647 N.W.2d 508, quoting Random House Webster's College Dictionary (2001). The Stanton Court concluded that a forklift, "a piece of industrial construction equipment," did not meet that definition. Id. (Emphasis in original.)
In the instant cases, each vehicle consisted of a farm tractor with a piece of functioning equipment attached to it. Because the vehicles cannot be classified as automobiles, buses, or trucks, under Stanton, the vehicles must qualify as "similar motor-driven conveyancefs]" in order to be classified as "motor vehicles" for purposes of § 5 Unlike the majority, I would conclude that the vehicles are not similar to automobiles, buses, or trucks and, therefore, are not "motor vehicles" within the meaning of § 5.
Automobiles and buses are designed principally for carrying passengers, including the driver. See Random House Webster's College Dictionary (2001) (defining an automobile as a "passenger vehicle designed for operation on ordinary roads...."); and M.C.L. § 257.4b (defining a bus as "a motor vehicle designed for carrying 16 or more passengers...."). A truck is designed primarily for transporting property. See M.C.L. § 257.75. A common purpose, therefore, of automobiles, buses, and trucks as motor-driven conveyances is that their principal function is to transport and carry either passengers or property.
In contrast, although the operators of the broom tractor and the tractor mower in question were transported or carried by these vehicles, it is undisputed that the principal function of these vehicles is road maintenance. Thus, although the broom tractor and the tractor mower are motor-driven conveyances, they are not similar in their principal function to automobiles, buses, and trucks. On this basis, and consistent with the requirement that we narrowly construe the undefined term "motor vehicle," I would conclude that the motor-vehicle exception to governmental immunity does not apply here because the broom tractor and the tractor mower are not "similar motor-driven conveyances," and, therefore, are not motor vehicles within the meaning of § 5. Stanton, supra at 618, 647 N.W.2d 508.
I would also conclude that even if a "motor vehicle" was involved in each incident, plaintiffs' injuries, nevertheless, did not result from the negligent "operation" of a motor vehicle. In Chandler, the Supreme Court concluded that "`operation of a motor vehicle' means that the motor vehicle is being operated as a motor vehicle." Chandler, supra at 320, 652 N.W.2d *67 224 (emphasis in original). "Operation," the Court said, has a narrower meaning than the term "use," which "`may include a range of activity unrelated to actual driving.'" Id. at 320 n. 7, 652 N.W.2d 224, quoting Pacific Employers Ins. Co. v. Mich. Mut. Ins. Co., 452 Mich. 218, 226, 549 N.W.2d 872 (1996). "`Operation of a motor vehicle,'" however, "encompasses activities that are directly associated with the driving of a motor vehicle." Id. at 321, 549 N.W.2d 872.
In the instant cases, I would find that plaintiffs' injuries did not result from operation of the tractors as motor vehicles. Rather than allegedly resulting from activities directly associated with the driving of a motor vehicle as a motor vehicle, plaintiffs' injuries were allegedly caused by the negligent use of maintenance equipment. Even assuming that the tractors are motor vehicles, the use of the broom and the mower was not incident to driving the tractors as motor vehicles. See Chandler, supra at 322, 652 N.W.2d 224. In this regard, the broom tractor and the tractor mower are different in operation from, for example, a snowplow that, in design, is a truck with salt in the truck bed and a blade or blades attached to the front to push the snow. Although the snowplow engages in a maintenance function as it moves on the roadway, its operation on the roadway is directly related to its operation as a truck, or in other words, as a motor vehicle.
On the other hand, plaintiff Regan alleged that defendant was negligent by permitting its employee to use the broom on "a blustery, windy day" without providing "a water truck to hose down the dust and debris stirred up by the tractor...." Plaintiff Zelanko alleged that defendant negligently entrusted the operation of the tractor mower to its employee because the employee "was incompetent or unqualified to operate the tractor and attached lawnmower." Defendant's employee was allegedly incompetent and unqualified to operate the tractor mower because he "failed to avoid driving [the lawnmower] over [a] piece of rubber and/or other debris" in the grass that he was mowing.
These challenged functions are not directly related to the operation of the vehicles as motor vehicles. Rather, the challenged functions relate to the operation of the maintenance attachments to the vehicles. In other words, if the maintenance functions had been performed differently, by using a water truck to keep dust down in the case of the broom tractor, or by clearing debris from the mowing area before mowing in the case of the tractor mower, the claimed negligence might have been avoided. Neither the alleged negligent operation of the vehicles nor these potential corrective measures have anything at all to do with the operation of the vehicles at issue as motor vehicles.[7] I conclude, therefore, that in neither case did the plaintiffs injury arise out of the operation of a motor vehicle as a motor vehicle, and that governmental immunity is not avoided under the motor-vehicle exception found in § 5.
For the above reasons, and in light of the Supreme Court's holdings in Stanton, supra, and Chandler, supra, I would hold that plaintiffs' claims do not satisfy the requirements of the motor-vehicle exception to governmental immunity, and that *68 the trial court erred when it denied defendant's motions for summary disposition.
NOTES
[1] Regan v. Washtenaw Co. Bd. of Co. Rd. Comm'rs, 249 Mich.App. 153, 641 N.W.2d 285 (2002).
[2] MCL 691.1405 provides that "[g]overnmental agencies shall be liable for bodily injury and property damage resulting from the negligent operation by any officer, agent, or employee of the governmental agency, of a motor vehicle of which the governmental agency is owner...."
[3] For purposes of this opinion, we shall refer to the Washtenaw County Board of County Road Commissioners and the Washtenaw County Road Commission as "defendant" in the singular.
[4] In our original opinion we mistakenly stated that Regan was driving a school bus at the time of the collision. Regan, supra at 155, 641 N.W.2d 285. Regan, a school-bus driver, was actually driving a van at the time of the collision.
[5] The specific facts were as follows:
Smith drove one of the buses into the barn, turned off the engine, and started to exit through the open bus doors. As he was doing so, however, the bus doors closed on his neck, apparently because he had neglected to release the hydraulic air pressure valve.
The plaintiff had been waiting to clean the bus when he saw `the incident. He attempted to pry open the doors and to hold them until someone came to reach through the bus window and release the air valve. Plaintiff injured his shoulder in the process and brought this action against the county. [Chandler, supra at 316, 652 N.W.2d 224.]
[6] We are unable to discern which dictionary definition, as between different dictionaries and the various definitions contained in a single text, was implicitly guiding our Legislature when the motor-vehicle exception was first adopted over fifty years ago. Considering the extensive changes in vehicles and transportation over the last half century, there is a likelihood that definitions have evolved. Although we typically attempt to determine the intent of the Legislature that actually adopted a particular act, Blank v. Dep't of Corrections, 462 Mich. 103, 148-149, 611 N.W.2d 530 (2000)(Markman, J., concurring), the Michigan Supreme Court has clearly determined that the intent of the Legislature in the 1940s can be deciphered solely by reference to a particular portion of the definitions specifically contained in the 1997 and 2001 versions of Random House Webster's College Dictionary. Chandler, supra at 320, 652 N.W.2d 224; Stanton, supra at 617, 647 N.W.2d 508.
[7] Plaintiffs argue that the issue whether the broom tractor and tractor mower are "motor vehicles" was never raised below or on appeal by defendant, and thus is not properly preserved for review. We agree that the issue was not preserved and typically would not be considered. Nevertheless, we have been specifically directed by the Supreme Court to consider the ruling in Stanton. However, we do agree, in some instances, with a statement made by this Court in Burns v. Detroit (On Remand), 253 Mich.App. 608, 616, 660 N.W.2d 85 (2002), mod 468 Mich. 881, 658 N.W.2d 468 (2003), in which, faced with a similar situation, the Court stated that "[w]hile we respect our Supreme Court's authority to raise [an] issue on remand sua sponte, we believe that invoking [the sua sponte] issue to benefit a party who failed to raise the issue would be entirely inappropriate." Because, in light of our ruling, defendant does not benefit from consideration of the issue, and because consideration of the issue would most likely be helpful for purposes of judicial economy in these cases that have been in the appellate system for an extensive period, we shall substantively address the matter.
[8] It is possible, under the dissent's definition, to conclude that a fire engine is not a "motor vehicle" because it is more properly described as a piece of firefighting equipment rather than a vehicle principally used to transport or carry persons or property. We also note that the dissent references definitions found in the Michigan Vehicle Code, M.C.L. § 257.1 et seq.; however, the Stanton Court indicated that reference to the Vehicle Code was improper. Stanton, supra at 616, 647 N.W.2d 508. For this reason, we also reject Zelanko's reliance on definitions contained in the Vehicle Code.
[9] The broom tractor is a tractor mounted with a broom designed to brush loose dirt and gravel off the road. The operator testified at his deposition that the broom tractor is driven on the pavement, and on the day of the incident, his job was to "sweep the gravel off the road."
[10] The mower is attached to the side of the tractor.
[11] The operator of the tractor mower stated in his deposition that at the time of the incident giving rise to the lawsuit, he was "driving down the paved shoulder of the road."
[12] This purpose is further evidenced by the highway exception to governmental immunity. MCL 691.1402. MCL 691.1402(1) provides that the appropriate governmental agency "shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel."
[13] We acknowledge that some of plaintiffs' allegations of negligent conduct are not directly associated with the driving of a motor vehicle, e.g., negligent entrustment, and those claims cannot survive. However, there are numerous allegations contained in both complaints that the motor vehicles were operated in a negligent manner, thus causing injuries, e.g., failure to pay proper attention to the course of travel, failure to keep the tractor under control, and failure to operate the tractor in a manner so as not to endanger motorists. The dissent does not address these allegations.
[1] Plaintiff Brian Regan's claim is for loss of consortium.
[2] Our prior opinion, Regan v. Washtenaw Co. Bd. of Co. Rd. Comm'rs, 249 Mich.App. 153, 641 N.W.2d 285 (2002), stated that Regan was driving a school bus at the time of the collision. Id. at 155, 164, 641 N.W.2d 285. Our review of the record shows that although she had driven a school bus earlier in the day, she was driving her van at the time of the collision.
[3] Throughout this opinion, "defendant" refers to the Washtenaw County Road Commission.
[4] The record reflects that the broom tractor is a farm tractor with a front-mounted cylindrical broom.
[5] The record shows that the tractor mower is a farm tractor with a side-mounted mower.
[6] As the majority points out, defendant did not preserve this issue, and we address it because the Supreme Court has ordered us to do so. Because the unpreserved question before us involves statutory interpretation, I cannot join the majority in its suggestion that invoking an issue sua sponte is entirely or always inappropriate, because, as the Supreme Court stated in Mack, supra at 209, 649 N.W.2d 47, "[t]he jurisprudence of Michigan cannot be, and is not, dependent upon whether individual parties accurately identify and elucidate controlling legal questions."
[7] This conclusion is analogous to the determination by our Supreme Court that in order to obtain personal-injury-protection benefits pursuant to M.C.L. § 500.3105, the use of a motor vehicle "as a motor vehicle" requires that the injury be closely related to the transportational function of the motor vehicle. McKenzie v. Auto Club Ins. Ass'n, 458 Mich. 214, 220, 225-226, 580 N.W.2d 424 (1998).
