LEONARD ZELANKO V WASHTENAW COUNTY BD OF RD COMMISS
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STATE OF MICHIGAN
COURT OF APPEALS
DONA REGAN and BRIAN REGAN,
FOR PUBLICATION
January 11, 2002
9:00 a.m.
Plaintiffs-Appellees,
v
No. 219761
Washtenaw Circuit Court
LC No. 97-004017-NI
WASHTENAW COUNTY BOARD OF
COUNTY ROAD COMMISSIONERS,
Defendant-Appellant,
and
DAVID CAVANAUGH,
Defendant.
LEONARD ZELANKO,
Plaintiff-Appellee,
v
No. 220532
Washtenaw Circuit Court
LC No. 98-009848-CZ
WASHTENAW COUNTY BOARD OF
COUNTY ROAD COMMISSIONERS,
Defendant-Appellant,
Updated Copy
March 15, 2002
and
RICHARD LEE SHEHAN,
Defendant.
Before: Murphy, P.J., and Griffin and Wilder, JJ.
MURPHY, P.J.
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In these consolidated cases, defendant Washtenaw County Board of County Road
Commissioners appeals by leave granted the trial courts' orders denying its motions for summary
disposition. The trial courts held that there were genuine issues of material fact regarding the
question whether the conduct engaged in by defendant's employees involved the negligent
operation of a motor vehicle, which would trigger the exception to governmental immunity found
in MCL 691.1405. We affirm and remand.
In the Regan case, plaintiff Dona Regan was driving a school bus 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 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.
Defendants moved for summary disposition pursuant to MCR 2.116(C)(7) and (10), and
the trial court granted Cavanaugh's motion, finding that no reasonable trier of fact could conclude
that he engaged in gross negligence;1 however, the court denied the road commission's motion,
finding that the allegations in the complaint could lead to a finding that the broom tractor was
negligently operated, and that there were questions of fact regarding whether the alleged actions
fell within MCL 691.1405.
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.
Defendants Shehan and the road commission moved for summary disposition pursuant to
MCR 2.116(C)(7) and (10), and the trial court granted Shehan's motion, finding that no
reasonable trier of fact could conclude that he engaged in gross negligence;2 however, the court
denied the road commission's motion, apparently finding that there was a genuine issue of
material fact under MCL 691.1405.
This Court reviews de novo motions for summary disposition brought pursuant to MCR
2.116(C)(7). Fane v Detroit Library Comm, 465 Mich 68, 74; 631 NW2d 678 (2001). Summary
disposition is proper when a claim is barred because of immunity granted by law. Id. To survive
1
The Regans have not challenged the trial court's dismissal of the action against Cavanaugh.
2
Zelanko has not challenged the trial court's dismissal of the action against Shehan.
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a motion for summary disposition based on governmental immunity, the plaintiff must allege
facts giving rise to an exception to governmental immunity. Id. This Court considers all
documentary evidence submitted by the parties, accepting as true the contents of the complaint
unless affidavits or other appropriate documents specifically contradict them. Id.
Immunity from tort liability is granted to governmental agencies, their employees, and
offices by MCL 691.1407(1), which provides, in part, that "[e]xcept as otherwise provided in this
act, a governmental agency is immune from tort liability if the governmental agency is engaged
in the exercise or discharge of a governmental function." An exception to the general rule of
governmental immunity is provided in MCL 691.1405:
Governmental 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[.]
The Legislature's grant of immunity from tort liability in MCL 691.1407(1) to
governmental agencies is to be interpreted broadly and exceptions to this rule are to be narrowly
drawn and strictly construed. Richardson v Warren Consolidated School Dist, 197 Mich App
697, 699; 496 NW2d 380 (1992).
Defendant relies on Peterson v Muskegon Co Bd of Co Rd Comm'rs, 137 Mich App 210;
358 NW2d 28 (1984), in which the plaintiff was injured when his vehicle struck a patch of snow
and ice. Defendant's reliance on Peterson is misplaced because the case is distinguishable from
the present case. In Peterson, the plaintiff filed suit claiming that the snow and ice had been
negligently plowed off an overpass and onto the highway before the plaintiff came upon the
scene. Id. at 211-212. On appeal, this Court, affirming the trial court's dismissal of the action on
different grounds, stated:
The proper question, therefore, is whether, under all the facts alleged by a
plaintiff, the injuries suffered by the plaintiff may, in fact, be said to have resulted
from the negligent operation of a motor vehicle. Under the facts alleged in this
case, we find that the trial court correctly concluded that plaintiff had not
sufficiently alleged such an injury. The gravamen of plaintiff 's complaint is not
that a snowplow was negligently operated, but rather that snowplowing was
negligently performed. The complaint does not sufficiently allege that the
accident and subsequent injury to plaintiff were caused by the negligent operation
of the snowplow. [Id. at 213-214.]
Here, plaintiffs alleged that the accident and subsequent injuries were caused by the
negligent operation of motor vehicles.
Defendant's reliance on Michigan N R Co v Auto-Owners Ins Co, 176 Mich App 706; 440
NW2d 108 (1989), is also misplaced. There, this Court applied the test enunciated in Peterson in
the context of a no-fault automobile insurance case, where the plaintiff was injured when its train
derailed after crossing a pile of dirt left on the tracks by a county employee who had earlier
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plowed over the railroad crossing. Id. at 707-708, 712. Addressing the issue whether the
accident arose out of the ownership, operation, maintenance, or use of a motor vehicle, this Court
held:
[I]t was not the operation of defendant's vehicle that caused the accident,
but the residual effect of the act of plowing or grading the road. This distinction
is crucial to the resolution of this issue. The operation of the blade truck was not
the cause of plaintiff 's property damage. Rather, it was the end result of the act of
plowing the road that caused the train to derail. Therefore, plaintiff 's damages do
not arise out of the ownership, operation, maintenance or use of a motor vehicle
and are not covered by the no-fault act. [Id. at 712-713.]
Here, once again, the alleged facts are distinguishable because plaintiffs alleged that the
operation of the road commission's vehicles caused the injuries, and not that the injuries were
caused by the end result of defendant's actions.
In Williams v Citizens Mut Ins Co of America, 94 Mich App 762, 764-765; 290 NW2d 76
(1980), this Court, addressing the same no-fault provision as in Michigan N R Co, noted that the
causal connection between the operation of a vehicle and the injury cannot be extended to
something distinctly remote, and each case depends on its own facts. Here, the alleged cause of
the injuries, the operation of motor vehicles, cannot be said to be indirectly and remotely related
to the claimed injuries, if in fact the injuries were caused by the negligent operation of a motor
vehicle.
In Robinson v Detroit, 462 Mich 439, 445; 613 NW2d 307 (2001), our Supreme Court,
addressing the parameters of civil liability of governmental agencies and police officers when a
police chase results in injuries or death,3 stated:
We agree with Fiser v Ann Arbor, 417 Mich 461; 339 NW2d 413 (1983),
that an officer's physical handling of a motor vehicle during a police chase, can
constitute "negligent operation . . . of a motor vehicle" within the motor vehicle
exception. However, plaintiffs' injuries did not, as a matter of law, result from the
operation of the police cars where the police cars did not hit the fleeing car or
physically cause another vehicle or object to hit the vehicle that was being chased
or physically force the vehicle off the road or into another vehicle or object.
[Omission in original.]
The Robinson Court continued by stating that "[c]onversely, if an innocent person is
injured as a result of a police chase because a police car physically forces a fleeing car off the
road or into another vehicle or object, such person may seek recovery against a governmental
agency pursuant to the motor vehicle exception . . . ." Robinson, supra at 445, n 2. The
3
In Robinson, supra at 447-449, a consolidation of two cases, the plaintiffs were passengers in
vehicles that were attempting to elude police. The vehicles, in which the plaintiffs were riding,
eventually crashed into a house and into a nonpolice vehicle. Id.
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plaintiffs' claims in Robinson were rejected because the allegations in their respective complaints
alleged that the police failed to operate their vehicles in a safe, prudent, and reasonable manner,
without alleging that the police vehicles hit the fleeing car or otherwise physically forced the
fleeing car off the road or into another vehicle or object. Id. at 456.
Here, as distinguishable from Robinson, plaintiffs have alleged injuries resulting from the
negligent operation of motor vehicles by road commission employees, where it is alleged that the
operation of a county vehicle caused Dona Regan's vehicle to directly collide with the county
vehicle,4 caused Dona Regan's vehicle to attempt to maneuver around the county vehicle before
the vehicles collided,5 and caused an object, the tire tread, to directly strike Zelanko's vehicle.6
The injuries allegedly resulted from the collision in Regan and the impact of the tire tread in
Zelanko. Therefore, the present facts fit directly within the situations conceived of by our
Supreme Court in Robinson that would give rise to the motor vehicle exception found in MCL
691.1405.
We respectfully disagree, for the reasons stated above, with the dissent's contention that
plaintiffs' complaints failed to allege injuries that resulted from the negligent operation of a
government vehicle, and that there was merely a casual link between the operation of the vehicle
and plaintiffs' injuries. Plaintiffs alleged a direct and physical link between the operation of the
county vehicles and plaintiffs' injuries. We do not believe that Robinson stands for the
proposition that the words "resulting from" have some magical quality that must be used in
drafting a complaint in avoidance of governmental immunity.7 Rather, the gravamen of
4
Paragraph ten of the Regans' complaint alleged that "Mrs. Regan's van struck the back of the
Defendant WCRC tractor at a slow speed . . . ." Paragraphs 15 and 17 of the Regans' complaint
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,
and that the negligence caused the alleged injuries.
5
Paragraph eight of the Regans' complaint alleged that "[c]oncerned about both oncoming traffic
and the cars behind her, Mrs. Regan moved to the left slightly to negotiate her way through the
curve and past the tractor." The Regans had alleged in paragraph six of the complaint that
defendant's vehicle was extending several feet into her lane.
6
Paragraph eleven of Zelanko's complaint alleged that defendant Shehan "caused the tractor and
attached lawnmower which he was operating to drive over a piece of rubber, causing the
lawnmower to throw the piece of rubber tire into the air and strike and shatter the windshield of
[Zelanko's] motor vehicle."
7
In Robinson, supra at 457, n 14, the Court noted that MCL 691.1405 does not entail a
proximate cause "but for" analysis; rather, the focus must be on whether the injuries resulted
from the negligent operation of a motor vehicle. The Robinson Court did not make any statement
directing that the words "resulting from" must be specifically used in a complaint. Here,
although plaintiffs did not use the words "resulting from" in their respective complaints, it is
clear that the complaints alleged facts sufficient to satisfy the "resulting from" requirement of
MCL 691.1405. We reiterate that a party must only allege facts giving rise to an exception to
governmental immunity. Fane, supra at 74. We also note, in light of our holding, that we find it
unnecessary to address any possible conflict between this Court's focus on "causation" in
(continued…)
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plaintiffs' complaints was that the alleged injuries resulted from the negligent operation of motor
vehicles.
In a case factually similar to the present cases, our Supreme Court in Bakun v Sanilac Co
Rd Comm, 419 Mich 202, 204, 208; 351 NW2d 810 (1984), held that the defendant was liable for
the negligent operation of its motor vehicle where the plaintiff 's truck was struck by a county
vehicle while that vehicle was spreading salt on the highway and where the plaintiff alleged that
the vehicle was operated in a negligent manner.
As in Bakun, the 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 MCL 691.1405. Any
other interpretation would render meaningless the Legislature's decision to enact MCL 691.1405,
the statute that creates an exception to governmental immunity for negligent operation of a
government-owned vehicle by an officer, agent, or employee of the governmental agency.8 We
believe that the allegations in both complaints were sufficient to give rise to an exception to
governmental immunity pursuant to MCL 691.1405.
Whether the operation of the motor vehicles was negligent and resulted in plaintiffs'
injuries is for the trier of fact to decide.9 The trial court properly denied defendant's motions for
summary disposition.
Affirmed and remanded for proceedings consistent with this opinion. We do not retain
jurisdiction.
Griffin, J., concurred.
/s/ William B. Murphy
/s/ Richard Allen Griffin
(…continued)
Peterson, Michigan N R Co, and Williams, supra, and Robinson's rejection of proximate cause
analysis.
8
When reviewing the language of a statute, every word should be given meaning, and we should
avoid a construction that would render any part of the statute surplusage or nugatory. Wickens v
Oakwood Healthcare System, 465 Mich 53, 60; 631 NW2d 686 (2001).
9
If underlying issues of fact exist regarding whether a party is entitled to immunity granted by
law, it is proper for the jury to decide those facts. See Vargo v Sauer, 457 Mich 49, 52, 72; 576
NW2d 656 (1998); see also Phinney v Perlmutter, 222 Mich App 513, 524; 564 NW2d 532
(1997).
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