Lead Opinion
Defendant Suburban Mobility Authority for Regional Transportation (SMART) appeals as of right the trial court’s order denying in part its motion for summary disposition with respect to its claims of governmental immunity. Flaintiff cross-appeals the same order to the extent that the court granted summary disposition for defendant Queen Ferry and partially granted summary disposition for SMART. We hold that because SMART had no duty to secure plaintiff in her wheelchair or inform her of the availability of a shoulder restraint, the failure to inform plaintiff did not constitute the operation of a motor vehicle under MCL 691.1405, which states the motor vehicle exception to governmental immunity. Because plaintiff failed to establish a justiciable question of fact regarding whether Perry operated the bus negligently or acted with gross negligence, we affirm the grant of summary disposition in favor of Perry and the partial summary disposition in favor of SMART and
Plaintiff instituted this action because of injuries that she sustained in January 2008 while riding on a SMART bus driven by defendant Perry. Plaintiff was ejected from her wheelchair and sustained bilateral ankle fractures when Perry applied the brakes to stop at a yellow traffic signal light. Plaintiff alleged claims of negligence and gross negligence against SMART and Perry. The trial court denied summary disposition for SMART with regard to its claims of governmental immunity and granted summary disposition for Perry on plaintiffs gross negligence claim. SMART now appeals and plaintiff cross-appeals the trial court’s decisions.
I. DUTY TO ADVISE
SMART first argues that the trial court erred by denying its motion for summary disposition on the basis that it owed plaintiff a duty to advise her of the availability of a shoulder restraint. We review de novo a trial court’s decision on a motion for summary disposition. Robertson v Blue Water Oil Co,
In order to establish a prima facie negligence claim, a plaintiff must prove four elements: (1) duty, (2) breach of the duty, (3) causation, and (4) damages. Fultz v Union-Commerce Assoc,
SMART had no legal duty to advise plaintiff of the availability of a shoulder restraint. Regulations promulgated by the United States Department of Transportation (DOT) to effectuate the purpose of the Americans with Disabilities Act (ADA), 42 USC 12101 et seq., prohibit a transit operator from requiring passengers in wheelchairs to use seat belts or shoulder restraints unless the operator requires the same of all passengers. 49 CFR 37.1; 49 CFR 37.5. Because SMART buses are not equipped with such devices for all passengers, SMART could not have legally required plaintiff to use a shoulder restraint. Requiring operators to inform passengers in wheelchairs of the availability of seat belts or shoulder restraints, in light of the unavailability of such devices for passengers not using wheelchairs, would impose a different duty on operators depending on whether a passenger is able-bodied or wheelchair-bound and runs contrary to the tenet that disabled passengers are to be treated the same as able-bodied passengers.
Further, while appendix D, subpart G, § 37.165 to 49 CFR, part 37 states that an “entity’s personnel have an obligation to ensure that a passenger with a disability is able to take advantage of the accessibility and safety features” on a vehicle, this obligation requires only that drivers or other personnel provide assistance with lifts,
II. OPERATION OF A MOTOR VEHICLE
SMART next argues that even if it owed plaintiff a duty to inform her that a shoulder restraint was available, the failure to do so did not constitute the “operation” of a motor vehicle within the meaning of MCL 691.1405, which states the motor vehicle exception to governmental immunity. MCL 691.1405 provides that “[governmental agencies shall be liable for bodily injury .. . resulting from the negligent operation ... of a motor vehicle[.]” In Chandler v Muskegon Co,
Here, even if SMART owed plaintiff a duty to inform her of the availability of a shoulder restraint, the failure to so advise her did not implicate MCL 691.1405. Although the loading and unloading of passengers is an activity within the operation of a motor vehicle, the failure to inform plaintiff that a shoulder restraint was available, without more, did not constitute the “operation” of the motor vehicle. Notably, plaintiffs wheelchair was loaded onto the bus and secured without incident, and plaintiff was not injured during the loading or unloading process. Thus, the motor vehicle exception to governmental immunity was inapplicable, and the trial court erred by denying SMART’S motion for summary disposition based on governmental immunity.
III. SUDDEN STOPPING
SMART next argues that even if the motor vehicle exception to governmental immunity was applicable, the trial court erred by determining that plaintiff established a question of fact regarding whether Perry’s sudden stopping of the bus was
Plaintiff argues that this issue, pertaining to whether plaintiff has presented sufficient evidence to establish a jury question regarding negligence, is not appealable as of right pursuant to MCR 7.203(A) and MCR 7.202(6)(a)(v). Those provisions state that this Court has jurisdiction to decide an appeal of right from an order denying governmental immunity under MCR 2.116(C)(7) or “denying a motion for summary disposition under MCR 2.116(C)(10) based on a claim of governmental immunity,” but the appeal is limited to “the portion of the order with respect to which there is an appeal of right.” MCR 7.203(A)(1). In Walsh v Taylor,
A motion pursuant to MCR 2.116(C)(10) “tests the factual support of a plaintiffs claim.” Spiek v Dep’t of Transp,
The trial court erroneously determined that plaintiff presented evidence establishing a justiciable question of fact regarding whether Perry operated the bus negligently. It is well settled that, absent evidence of other negligence pertaining to the operation of a bus, a plaintiff bus passenger may not recover for injuries sustained when the bus suddenly stopped because such stops are normal incidents of travel. Russ v Detroit,
IV DUTY TO APPLY SEAT BELTS
On cross-appeal, plaintiff argues that the trial court erroneously determined that SMART did not owe her a duty to secure her in her wheelchair using a personal restraint such as a seat belt or shoulder restraint. The trial court correctly determined that SMART owed no such duty. The Federal Transit Administration’s (FTA) bulletin “Questions and Answers Concerning Common Wheelchairs and Public Transit” provides:
Does a wheelchair user have to use the seatbelt and shoulder harness?
Under the broad non-discrimination provisions in Section 37.5 of the DOT’S ADA regulations [49 CFR 37.5], a transit operator is not permitted to mandate the use by wheelchair users of seatbelts and shoulder harnesses, unless the operator mandates the use of these devices by all passengers, including those sitting in vehicle seats. For example, on fixed route buses, if none of the other passengers are required to wear shoulder belts then neither can the person in the mobility device be required to do so.
Transit operators may establish a policy that requires the seatbelt and shoulder harness to be used by all riders, including those who use wheelchairs as well as those who use vehicle seats, if seatbelts and shoulder harnesses are provided at all seating locations. [Emphasis added.]
Thus, where, as here, a transit operator has not adopted a policy requiring all passengers to wear restraints, the operator may not require passengers in wheelchairs to wear restraints.
Further, 49 CFR 37.165(f) provides that the personnel of transit operators “shall assist individuals with disabilities with the use of securement systems” “[w]here necessary or upon request...Therefore, according to 49 CFR 37.165(f), a regulation promulgated by the DOT, and the FTA’s interpretation of the DOT’s nondiscrimination regulation, transit operators may not place personal restraints on passengers in wheelchairs absent some indication by the passenger that he or she wishes to wear one. Pursuant to 42 USC 12149(a), the United States Congress conferred on the Secretary of Transportation the obligation to issue regulations pertaining to public transportation other than by aircraft and certain rail operations. Congress directed that “[t]he regulations ... shall include standards applicable to facilities and vehicles!)]” 42 USC 12149(b). “When Congress has ... [given] an express delegation of authority to [an] agency to elucidate a specific provision of the statute by regulation,... any ensuing regulation is binding in the courts unless procedurally defective, arbitrary or capricious in substance, or manifestly contrary to the statute.” United States v Mead Corp,
Accordingly, we conclude that the trial court properly granted summary disposition for SMART on the basis that it had no
V GROSS NEGLIGENCE
Finally, plaintiff argues that the trial court erroneously granted summary disposition for Perry on plaintiffs gross negligence claim. MCL 691.1407(2) sets forth the standard for governmental immunity pertaining to individual actors and employees of governmental agencies. The subsection provides:
Except as otherwise provided in this section, and without regard to the discretionary or ministerial nature of the conduct in question, each officer and employee of a governmental agency, each volunteer acting on behalf of a governmental agency, and each member of a board, council, commission, or statutorily created task force of a governmental agency is immune from tort liability for an injury to a person or damage to property caused by the officer, employee, or member while in the course of employment or service or caused by the volunteer while acting on behalf of a governmental agency if all of the following are met:
(a) The officer, employee, member, or volunteer is acting or reasonably believes he or she is acting within the scope of his or her authority.
(b) The governmental agency is engaged in the exercise or discharge of a governmental function.
(c) The officer’s, employee’s, member’s, or volunteer’s conduct does not amount to gross negligence that is the proximate cause of the injury or damage.
The parties do not dispute that Perry was driving the bus within the scope of her authority or that SMART was engaged in the exercise or discharge of a governmental function. Rather, plaintiff argues that Perry acted with gross negligence by failing to secure her using a personal restraint and by suddenly stopping the bus with such force that plaintiff was ejected from her wheelchair.
The Legislature has defined “gross negligence” as “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.” MCL 691.1407(7)(a). “[E]vidence of ordinary negligence does not create a material question of fact concerning gross negligence.” Maiden v Rozwood,
Plaintiffs argument that Perry’s failure to secure her using a personal restraint constituted gross negligence lacks merit. As previously discussed, SMART had no duty to apply a restraint such as a seat belt or shoulder restraint on plaintiff. In fact, if Perry had done so absent plaintiffs request, she would have violated DOT regulations promulgated to effectuate the purposes of the ADA. See 49 CFR 37.1; 49 CFR 37.5. Accordingly, it cannot be said that Perry’s failure to apply a restraint constituted “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.” MCL 691.1407(7)(a).
Moreover, Perry’s actions did not constitute “the proximate cause” of plaintiffs injuries as required by MCL 691.1407(2)(c). A “determination whether a governmental employee’s conduct constituted
Here, plaintiffs ejection from her wheelchair occurred when Perry applied the brakes to stop for a yellow traffic signal light. Thus, the application of the brakes was “ ‘the one most immediate, efficient, and direct cause preceding [plaintiffs] injury,’ ” Curtis,
Affirmed in part and reversed in part. SMART, being the prevailing party, may tax costs pursuant to MCR 7.219.
Notes
We know from plaintiffs deposition that she had previously worked as a bus driver for the Southeastern Michigan Transportation Authority (SEMTA), now known as SMART, and was familiar with passengers in wheelchairs, wheelchair restraints, and shoulder restraints. Although she had not operated the specific kind of bus involved in this accident, a bus designed with a lift and used to transport disabled persons, she testified that she had ridden this type of bus previously and had neither used nor been advised of the presence of a shoulder restraint and had not requested to use one. Plaintiff further testified that her wheelchair was equipped with a lap belt, but it did not reach around her. Similarly, Perry testified that the lap belt did not reach around plaintiff and that she did not believe that the shoulder restraint would have fit around plaintiff either. Moreover, the record shows that when emergency services personnel arrived, plaintiff was lifted back into her wheelchair and SMART transported her to the same hospital that had been her original destination. Notably, the emergency services personnel used their own restraint rather than the bus’s shoulder restraint to secure her in her wheelchair.
Concurrence in Part
(concurring in part and dissenting in part). I respectfully concur in part and dissent in part. While I agree that the trial court properly granted summary disposition regarding the claim of gross negligence, I disagree that the trial court erred in only granting in part SMART’S motion for summary disposition. Because I conclude that the trial court properly determined that defendants owed plaintiff a duty to advise her of the availability of a seat belt, that there is a genuine issue of material fact relating to whether a sudden stop caused plaintiffs injuries, and that the motor vehicle exception to governmental immunity applies, I would affirm in whole.
The majority correctly notes that federal regulations precluded defendants from requiring plaintiff to utilize a seat belt to restrain her in her wheelchair. However, I am not persuaded that the federal prohibition in question eliminated a duty to inform plaintiff that a shoulder restraint was available for wheelchair users so that she could decide whether she wished to use it. The federal regulations do not prohibit, restrict, or comment in any specific way about a transportation provider’s responsibility to advise passengers in wheelchairs of available seat belts. However, appendix D, subpart G, § 37.165 to 49 CFR, part 37, which represents the Department of Transportation’s interpretation of 49 CFR, part 37, exhorts the public transportation authority’s personnel to “ensure that a passenger with a disability is able to take advantage of the accessibility and safety features on vehicles.” This arguably includes apprising the passenger of the existence of the accessibility features, because a passenger cannot take advantage of a feature of which he or she is unaware. The record reveals that plaintiff had requested to be positioned behind the driver’s seat to minimize her mobility
Likewise, I disagree with the majority’s conclusion that the motor vehicle exception to governmental immunity is inapplicable under the facts of this case. My disagreement with the majority regarding the motor vehicle exception arises from our differing interpretations of the term “loading.” The parties in this case cite and discuss at some length the significance of the Michigan Supreme Court’s order in Martin v Rapid Inter-Urban Partnership,
In this case, the plaintiff alleges that she slipped and fell down the steps of a shuttle bus owned and operated by the defendants as she was attempting to exit the bus. The loading and unloading of passengers is an action within the “operation” of a shuttle bus. Accordingly, the plaintiff has satisfied the exception to governmental immunity set forth in MCL 691.1405. [Id. (emphasis added).]
In this case, the purported negligence of SMART, through Perry, involves the failure to mention the availability of a seat belt capable of strapping plaintiff into her wheelchair. I conclude that this constitutes a component of the loading of passengers in wheelchairs, “an action within the ‘operation’ of a shuttle bus.” Martin,
Further, I disagree with the majority’s conclusion that plaintiff failed to present a genuine issue of material fact regarding whether Perry’s alleged sudden stopping of the vehicle constituted a negligent act. The only evidence of the bus’s speed near the time of plaintiffs ejection from her wheelchair shows that Perry was driving within the posted 35-miles-per-hour speed limit. However, the record does not specify with certainty at what moment or within what distance from the yellow traffic control light Perry began applying the bus’s brakes. While Perry estimated that she began braking within approximately three car lengths of the traffic signal, I conclude that an inference of negligence reasonably arises from the fact that Perry’s braking of the bus at a traffic signal light was sudden enough to dislodge plaintiff from her wheelchair to the floor of the bus with enough force to break both her ankles. Consequently, I would permit a jury to determine whether Perry committed a negligent act that caused plaintiffs injury.
Finally, I join the majority’s holding regarding plaintiffs issues on cross-appeal. As stated above, though I do believe that defendants had a duty to inform plaintiff of the availability of the shoulder restraint,