JOSEPH HINZ V MICHIGAN STATE UNIV BD OF TRUSTEES
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STATE OF MICHIGAN
COURT OF APPEALS
JOSEPH HINZ, as Personal Representative of the
ESTATE OF JOHN ALLEN HAWKINS,
deceased,
UNPUBLISHED
May 7, 2009
Plaintiff-Appellee,
v
No. 285125
Ingham Circuit Court
LC No. 07-001056-NI
ALAN ALMY,
Defendant-Appellant,
and
ALEXANDER HAMIL,
Defendant.
JOSEPH HINZ, as Personal Representative of the
ESTATE OF JOHN ALLEN HAWKINS,
deceased,
Plaintiff-Appellee,
v
MICHIGAN STATE UNIVERSITY BOARD OF
TRUSTEES,
No. 285126
Court of Claims
LC No. 07-000026-MZ
Defendant-Appellant.
Before: Bandstra, P.J., and Whitbeck and Shapiro, JJ.
SHAPIRO, J. (concurring in part and dissenting in part).
I concur in the majority’s conclusion that a reasonable trier of fact could not conclude
that the actions of the individual government employee constituted gross negligence, defined by
MCL 691.1407(7)(a) as “conduct so reckless as to demonstrate a substantial lack of concern for
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whether an injury results.” Accordingly, I concur in the majority’s reversal of the circuit court
and remand for entry of summary disposition as to defendant Almy.
I respectfully dissent, however, from the majority’s reversal of the court of claims denial
of defendant Michigan State University Board of Trustees’ motion for summary disposition. In
my view, the facts of this case fall within the exception to governmental immunity set forth in
MCL 691.1405 for bodily injuries resulting from “the negligent operation . . . of a motor
vehicle.” Further, I conclude that a reasonable trier of fact could find that leaving this truck
unfenced, unlocked, and unattended while the key was in the ignition and its motor was
operating constitutes negligence.
In Chandler v County of Muskegon, 467 Mich 315, 322; 652 NW2d 224 (2002), our
Supreme Court held that the motor vehicle exception did not apply where the vehicle was
“parked in a maintenance facility for the purpose of maintenance.” Thereafter, in Martin v InterUrban Transit, 271 Mich App 492; 722 NW2d 262 (2006), this Court, interpreting Chandler,
ordered dismissal of a claim brought by a bus-rider who slipped on icy stairs while she was
entering a city-owned shuttle bus. This Court viewed Chandler as limiting the exception to cases
involving only the act of “driving.” Our Supreme Court peremptorily reversed the decision,
however, and noted that “operation” of a vehicle is not limited solely to “driving.” Martin v
Inter-Urban Transit, 480 Mich 936; 740 NW2d 657 (2007). The Court stated that the “loading
and unloading of passengers is an action within the operation of a shuttle bus.” Id. Justices
Corrigan and Taylor dissented from the order, opining that the central issue was not the location
of the incident, i.e., on the bus, but rather whether the injury was related to the operation of the
bus rather than to its maintenance. The dissenting Justices argued that removing ice from the
stairway was a maintenance, rather than an operative function and so not within the exception.
Id. at 937.
The instant case plainly does not involve maintenance of the vehicle. Moreover, the
injury directly relates to the vehicle’s operation. Turning on the vehicle’s engine for the purpose
of driving it on the public roads is operation of the vehicle. This conclusion is consistent with
Chandler, which holds that for the exception to apply, the motor vehicle must be “operated as a
motor vehicle” (emphasis in original), and with Martin, which makes clear that “operation of a
motor vehicle” is not limited to decisions about safe navigation of the roadways.
Finally, I do not believe that Terry v Detroit, 226 Mich App 418; 573 NW2d 348 (1997)
requires us to conclude, as matter of law, that Almy’s actions do not rise to the level of
negligence. In Terry, the vehicle was not left running in a public, unguarded area, but rather left
off in a “guarded and secured . . . garage.” By contrast, in this case, it is alleged that the truck
was left running in an unsecured, unlocked location and that doing so violated both a city
ordinance and MSU policy. This is much more akin to the actions found to present a jury
question in Davis v Thornton, 384 Mich 138; 180 NW2d 11 (1970) than those in Terry. Indeed,
the allegedly negligent actions in the instant case far exceed those in either Terry or Davis.
Accordingly, I would hold governmental immunity does not bar the claim against the
Michigan State University Board of Trustees under the government immunity exception set forth
in MCL 691.1405, and would affirm the court of claims.
/s/ Douglas B. Shapiro
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