THOMAS CHANDLER V COUNTY OF MUSKEGON
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Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
Chie f Justice
Justices
Maura D. Corrigan
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
Opinion
____________________________________________________________________________________________________________________________
FILED OCTOBER 22, 2002
THOMAS CHANDLER,
Plaintiff-Appellee,
v
No. 118811
COUNTY OF MUSKEGON,
Defendant-Appellant.
________________________________
PER CURIAM
The issue raised in this appeal is whether the motor
vehicle exception to governmental immunity applies where an
injury occurred while the vehicle was parked in a maintenance
facility
for
the
purpose
of
operated as a motor vehicle.
cleaning
and
was
not
being
We hold that the injury did not
result from the negligent “operation” of the vehicle within
the meaning of the motor vehicle exception, codified at MCL
691.1405.
Appeals.
Therefore, we reverse the judgment of the Court of
I
On May 21, 1996, plaintiff Chandler and several other
persons,
who
were
performing
community
service
under
a
district court order, were assigned to clean Muskegon Area
Transit System (MATS) buses and trolleys at a MATS bus barn.
Frederick Smith, a Muskegon County employee, was supervising
the workers’ cleaning of the interiors of the vehicles. 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
his
so,
however,
the
bus
doors
closed
on
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.
II
Defendant
moved
for
summary
disposition
under
MCR 2.116(C)(7) and (10), asserting that there was no genuine
issue regarding any material fact and that the claim was
barred by governmental immunity under MCL 691.1407(1).1
1
Except as otherwise provided in this act, a
governmental agency is immune from tort liability
if the governmental agency is engaged in the
2
It
contended that the case was not within the motor vehicle
exception to governmental immunity of MCL 619.14052 because
the bus was not in motion and not being used to transport
passengers at the time of plaintiff’s injury.
Thus, the
injury did not arise out of “operation” of the bus.
The circuit court granted defendant’s motion for summary
disposition, concluding:
[The] activity of cleaning seats in the bus
does not constitute the “operation” of the bus.
The bus was not being used or employed to clean
anything. The bus was not being used or employed
as an instrument to produce any desired work, nor
was it being used or employed to produce any
desired effect of cleanliness.
The circuit court also said that the cleaning of the bus was
a form of maintenance and that the governmental immunity
statute refers only to negligent “operation,” not to negligent
“operation or maintenance.”
Plaintiff appealed.
exercise or discharge of a governmental function.
2
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,
as
defined
in
[the
Motor
Vehicle
Code]
sections 257.1 to 257.923 . . . .
3
III
4
The Court of Appeals reversed.3
The Court discussed a
number of cases from Michigan4 and elsewhere5 and extracted the
principle that a vehicle is in operation “as long as it is
being used or employed in some specific function or to produce
some desired work or effect.”
The Court found the facts of
this case to come within this exception, explaining:
Here, bus 440 was being used in a specific
function or to produce some desired effect when
Smith operated the hydraulic doors as a means of
egress, and in anticipation of the workers entering
the bus. Surely, if a bus driver driving a regular
county route failed to release the air pressure and
an exiting passenger was caught in the doors and
injured as a result, as in Sonnenberg, supra, there
would be no question regarding the application of
the motor vehicle exception.
The negligent
operation of the hydraulic doors would satisfy the
statutory condition that the plaintiff suffer
“bodily injury . . . resulting from the negligent
operation by any . . . employee of the governmental
agency, of a motor vehicle.” MCL 691.1405.
Defendant’s argument that because the bus was
purchased to transport passengers but had been
parked for cleaning at the time of the incident, it
was not in a state of being at work, or in the
active exercise of some function, or employed to
3
Unpublished opinion per curiam, issued February 23,
2001 (Docket No. 220435).
4
Orlowski v Jackson State Prison, 36 Mich App 113; 193
NW2d 206 (1971), Wells v Dep’t of Corrections, 79 Mich App
166; 261 NW2d 245 (1977), Nolan v Bronson, 185 Mich App 163;
460 NW2d 284 (1990), Kuzinski v Boretti, 182 Mich App 177; 451
NW2d 859 (1989), and North v Kolomyjec, 199 Mich App 724; 502
NW2d 765 (1993).
5
Sonnenberg v Erie Metro Transit Auth, 137 Pa Cmmw 533,
536-537; 586 A2d 1026 (1991), and Swartz v Hilltown Twp
Volunteer Fire Co, 721 A2d 817 (Pa Cmmw, 1998).
5
produce some desired work or effect, must fail.
The statute does not require that the motor vehicle
be involved in any particular activity, only that
the injury result from the negligent operation of
the motor vehicle. Thus, we fail to see why the
exception, which would otherwise be applicable to a
door-closing injury, should become inapplicable
simply because the bus was not on an established
route. Also irrelevant is the fact the ultimate
object was to clean the bus. The doors of the bus
were still being operated for the purpose of
exiting the bus (the desired work or effect), an
integral part of the use of the bus. Similarly,
had Smith backed bus 440 into plaintiff, causing
him injury, presumably all would agree that the
exception would still be applicable, although the
bus had been removed from its regular route to be
cleaned. An employee’s negligent operation would
still be involved. [Slip op at 10-11 (emphasis in
original).]
The defendant has filed an application for leave to
appeal to this Court.
IV
This appeal involves a decision on a motion for summary
disposition.
construction.
The
issue
presented
is
one
of
statutory
Both are questions that we review de novo.
Hazle v Ford Motor Co, 464 Mich 456, 461; 628 NW2d 515 (2001);
Brown v Michigan Health Care Corp, 463 Mich 368, 374; 617 NW2d
301
(2000).
When
interpreting
statutory
language,
our
obligation is to ascertain the legislative intent that may
reasonably
statute.
be
inferred
from
the
words
expressed
in
the
Wickens v Oakwood Healthcare System, 465 Mich 53,
60; 631 NW2d 686 (2001).
6
V
The Legislature has not defined “operation” for the
purpose of MCL 691.1405.
Where a nontechnical undefined word
is used in a statute, the Legislature has directed that the
term should be “construed and understood according to the
common and approved usage of the language . . . .”
MCL 8.3a,
see also Stanton v Battle Creek, 466 Mich 611; 647 NW2d 508
(2002).
As might be expected, in undertaking to give meaning
to words this Court has often consulted dictionaries.
Horace
v City of Pontiac, 456 Mich 744, 756; 575 NW2d 762 (1998).
The Random House Webster’s College Dictionary (1997) defines
“operation” as “an act or instance, process, or manner of
functioning or operating.”
We conclude, in accordance with
this definition and in accordance with the narrow construction
given to the exceptions to governmental immunity,6 that the
language “operation of a motor vehicle” means that the motor
vehicle is being operated as a motor vehicle.7
6
Ross v Consumers Power Co (On Rehearing), 420 Mich 567,
618; 363 NW2d 641 (1984); Nawrocki v Macomb Co Rd Comm, 463
Mich 143, 158-159; 615 NW2d 702 (2000).
7
That it is appropriate to give “operation” a narrower
scope than the more expansive definition utilized by the Court
of Appeals or the dissent is reinforced by the fact that the
Legislature itself, when legislating in the transportation
area, uses the word “operation” in a fashion that mirrors the
common definition cited above. For example, in the automobile
no-fault act the Legislature effectively adhered to a more
limited definition of “operation.”
In MCL 550.3105
the
Legislature made benefits payable for injuries arising out of
7
Accordingly, aware that we are considering the dictionary
the “ownership, operation, maintenance or use” of a motor
vehicle.
The obvious import of this listing is that the
Legislature clearly intended that ”operation” was distinct
from ownership, maintenance, and use.
Similarly this construction of the term “operation” is
consistent with the use of this term in the automobile owners’
liability act. That act states:
The owner of a motor vehicle is liable for an
injury caused by the negligent operation of the
motor vehicle whether the negligence consists of a
violation of a statute of this state or the
ordinary care standard required by common law. The
owner is not liable unless the motor vehicle is
being driven with his or her express or implied
consent or knowledge.
[MCL 257.401(1) (emphasis
added).]
This language makes apparent that the “operation of a motor
vehicle” refers to activities that are directly associated
with the driving of a motor vehicle.
Moreover, MCL 257.625, prohibiting operating a motor
vehicle while under the influence of intoxicating liquor,
applies to “operating” in the sense of driving the vehicle.
People v Wood, 450 Mich 399, 404-405; 538 NW2d 351 (1995)
(Once a person using a motor vehicle as a motor vehicle has
put the vehicle in motion, or in a position posing significant
risk of causing a collision, such a person continues to
operate it until the vehicle is returned to a position posing
no such risk.).
Further, this Court has resolved other disputes
concerning the word “operation” in a fashion harmonious with
the instant case. In the context of a dispute about insurance
coverage, in Pacific Employers Ins Co v Michigan Mut Ins Co,
452 Mich 218, 226; 549 NW2d 872 (1996), we contrasted the term
“use” with the narrower term “operation”:
“Use” is defined more broadly than the mere
carrying of persons and, while it encompasses the
“operation” of the bus, it may also include a range
of activity unrelated to actual driving.
8
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.
In light of this, we reject the Court of Appeals and the
dissent’s approach because their construction of “operation”
would construe the term so broadly that it could apply to
virtually any situation imaginable in which a motor vehicle is
involved
regardless
of
the
nature
of
its
involvement.
Therefore, we reject this construction as inconsistent with
the principles of interpretation stated above.
VI
In the context of a motor vehicle, the common usage of
the term “operation” refers to the ordinary use of the vehicle
as a motor vehicle, namely, driving the vehicle.
In this
case, the injury to plaintiff did not arise from the negligent
operation of the bus as a motor vehicle.
The plaintiff was
not injured incident to the vehicle’s operation as a motor
vehicle.
Rather, the vehicle was parked in a maintenance
facility for the purpose of maintenance and was not at the
time being operated as a motor vehicle.
VII
Accordingly, we reverse the judgment of the Court of
9
Appeals and reinstate the summary disposition in favor of the
defendant entered by the circuit court.
CORRIGAN ,
C.J.,
and
CAVANAGH ,
MARKMAN , JJ., concurred.
10
WEAVER , TAYLOR , YOUNG , and
S T A T E
O F
M I C H I G A N
SUPREME COURT
THOMAS CHANDLER,
Plaintiff-Appellee,
v
No. 118811
COUNTY OF MUSKEGON,
Defendant-Appellant.
___________________________________
KELLY, J. (dissenting).
I respectfully dissent. The majority today restricts the
motor vehicle exception to governmental immunity to instances
involving
the
"actual
driving
of
a
motor
vehicle."8
I
disagree.
Operating a motor vehicle requires the performance of
functions some of which are distinct from the act of driving.
At a minimum, the Court should include within its reading of
the statutory exception those functions that are distinct
from, but necessary to and inherent in, driving a motor
vehicle.
8
I would hold that the opening and closing of bus
Slip op at 7.
doors to permit the driver to leave the bus is one such
activity.
Therefore, I would affirm the Court of Appeals
decision that the motor vehicle exception applies to the
factual occurrences alleged by plaintiff.
THE OPERATION OF THE DOORS OF THE BUS IN THIS CASE WAS
INHERENT IN AND NECESSARY TO DRIVING THE BUS
Although it is true that the motor vehicle exception to
governmental
immunity
must
be
narrowly
construed,9
the
majority's reading of the term "operation" is unnecessarily
and inappropriately narrow.
The statute in question makes a governmental agency, such
as defendant, liable for its negligent operation of a motor
vehicle it owns.10
In writing it, the Legislature did not
define the term "operation."
Confronted with providing a
definition, our Court of Appeals in Orlowski v Jackson State
Prison11 adopted the interpretation of "negligent operation"
accepted by most other jurisdictions.
As a consequence, for
over thirty years Michigan courts have followed the rule that
"'negligent operation' may occur even though the vehicle is
standing still as long as it is being used or employed in some
9
Stanton v Battle Creek, 237 Mich App 366; 603 NW2d 285
(1999), aff’d 466 Mich 611 (2002).
10
MCL 691.1405.
11
36 Mich App 113; 193 NW2d 206 (1971).
2
specific function or to produce some desired work or effect."12
This Court did not grant leave to appeal in Orlowski or its
progeny to overturn that precedent.
However, today, without
the benefit of full briefing or oral argument, the majority
announced a new rule redefining "negligent operation" to mean
"negligent driving."
It does this despite the fact that the
long line of Court of Appeals cases discussed in the thorough
Court of Appeals opinion militates against peremptory action
by this Court.
Today's
redefinition
of
"negligent
operation"
particularly inappropriate as applied to this case.
is
Here,
plaintiff alleged that he was injured as a consequence of the
negligent operation of the hydraulic doors on defendant's bus.
His injury occurred after the driver had parked the bus and
shut off the engine.
In order to get out of the bus, the
driver had to open the doors.
Without contest, the doors were
an integral part of the bus.
Their operation was inherent in
and necessary to the operation of the bus.
Consider the majority's definition of "operation" in a
hypothetical case involving the same bus.
Assume that a
passenger was injured because of negligent operation of the
hydraulic doors while the bus was stopped.
The bus was not
being "operated" as the majority defines the term, because it
12
Id. at 116, citing Diggins v Theroux, 314 Mass 735; 51
NE2d 425 (1943).
3
was not being "driven."
governmental immunity?
Would the injury be barred by
If so, what wording in the statute
evidences a legislative intent to define the term so narrowly?
If not, why should the fact that in this case the plaintiff
was not a passenger affect the definition of "operation?"
Recall that the statute does not require that the motor
vehicle be involved in any particular activity.
Recall also
that the statute does not include words such as "upon a
highway."
Assume a second hypothetical case involving the same bus,
in which the bus was stopped on a hill, its engine off.
Through the driver's negligent setting of the brakes, it began
to roll, injuring a pedestrian.
apply?
Would governmental immunity
Could the Legislature have intended that someone thus
injured by the bus would not be entitled to bring suit against
defendant merely because the bus was not being driven?
DECISIONS FROM OTHER JURISDICTIONS FIND OPERATION OF MEANS
OF EGRESS FROM A BUS CONSTITUTES OPERATION OF THE BUS
Other jurisdictions interpreting statutes similar to
Michigan's
have
held
that
functions
involving
entry
or
departure from a bus are part of the operation of a motor
vehicle.
In Groves v Dayton Pub Sch,13 the Ohio Court of
Appeals held that a bus driver's negligence in helping a
13
132 Ohio App 3d 566; 725 NE2d 734 (1999).
4
handicapped student get out of a bus involved the "operation
of a motor vehicle."14
14
Id. at 569.
The Groves court interpreted the Ohio
governmental immunity statute, Ohio Rev Code Ann § 2744.02,
which contains language similar to Michigan's statute:
We start by noting that R.C. § 2744.02(A)(1)
does indeed provide broad immunity to political
subdivisions. It states as follows:
For the purposes of this chapter, the
functions of political subdivisions are hereby
classified
as
governmental
functions
and
proprietary functions. Except as provided in
division
(B) of
this
section,
a
political
subdivision is not liable in damages in a civil
action for injury, death, or loss to person or
property allegedly caused by any act or omission of
the political subdivision or an employee of the
political
subdivision
in
connection
with
a
governmental or proprietary function.
R.C. § 2744.02(B) contains five exceptions to
the
sovereign
immunity
given
to
political
subdivisions by R.C. § 2744.02(A)(1). Only one is
pertinent to the present appeal, and it provides as
follows:
. . . [A] political subdivision is liable in
damages in a civil action for injury, death, or
loss to person or property allegedly caused by an
act or omission of the political subdivision or of
any of its employees in connection with a
governmental or proprietary function, as follows:
* * *
(1) Except as otherwise provided in this
division, political
subdivisions are liable for
injury, death, or loss to person or property caused
by the negligent operation of any motor vehicle by
their employees upon the public roads when the
employees are engaged within the scope of their
employment and authority.
(continued...)
5
In Groves, the plaintiff suffered a hand injury when the
bus driver failed to secure the plaintiff in her wheelchair
before helping her get off the bus.
The defendant claimed
that the bus driver's actions could not constitute "negligent
operation of [a] motor vehicle" for the purpose of the Ohio
exception to governmental immunity.
The Groves Court did not agree.
It concluded:
R.C. Chapter 2744 contains no definition of
the term "operation of any motor vehicle." We find
the term capable of encompassing more than the mere
act of driving the vehicle involved. Neither of
the parties to this appeal refer us to any
authority construing the term in question with
regard to a driver assisting a disabled passenger,
and our research in Ohio law has failed to reveal
any cases on point.
* * *
Here, Groves was a passenger on a school bus
equipped
to
transport
children
confined
to
wheelchairs, which suggests to us that it was
equipped with a ramp with which to lift and lower
the students in their wheelchairs as they boarded
and disembarked from the bus. In addition, Dayton
Public
Schools
had
established
rules
and
regulations pertaining to the safe boarding,
transportation, and disembarking of handicapped
students that required bus drivers to, inter alia,
14
(...continued)
R.C. § 2744.02(B)(1) goes on to provide three
exceptions which reinstate immunity where the motor
vehicle being operated is a patrol car, fire truck,
or emergency medical vehicle responding to an
emergency call, none of which are applicable to the
present case. Thus, our first inquiry must be
whether Dayton Public Schools' bus driver's conduct
falls within the ambit of "operating a motor
vehicle on the public roads within the scope of his
employment." [Id. at 568-569.]
6
secure passengers in their wheelchairs when
assisting them on or off the school bus. Thus, it
can reasonably be inferred that doing so was part
of the bus driver's duties and an integral part of
his operation of the school bus. Furthermore, we
do not exclude the possibility that the driver's
operation of the ramp itself would be considered
operation
of
the
motor
vehicle
under
the
circumstances of this case. [Id. at 569-570.]
Similarly, in Sonnenberg v Erie Metro Transit Auth,15 the
Commonwealth Court of Pennsylvania held that operating a bus'
doors was integral to operating the bus.
In that case, the
doors unexpectedly closed on the plaintiff while she was
getting out of the bus, injuring her.
The issue was whether
the operation of the doors could be "operation" of a motor
vehicle under the Pennsylvania statute.16
The Sonnenberg Court held:
The movement of parts of a vehicle, or an
attachment
to
a
vehicle,
is
sufficient
to
constitute "operation." Moreover, the bus driver's
closing of the bus doors is an act normally related
to the "operation" of a bus. . . . We must
15
137 Pa Cmmw 533; 586 A2d 1026 (1991).
16
The relevant statute, 42 Pa Consol Stat § 8542,
provided:
(b) Acts which may impose liability--The
following acts by a local agency or any of its
employees may result in the imposition of liability
on a local agency:
(1) Vehicle liability.--The operation of any
motor vehicle in the possession or control of the
local agency. As used in this paragraph, "motor
vehicle" means any vehicle which is self propelled
and any attachment thereto, including vehicles
operated by rail, through water or in the air.
7
conclude, therefore, that (the defendant)'s bus was
in
"operation"
when
the
bus
door
struck
Sonnenberg . . . ." [Id. at 537.]
Groves and Sonnenberg use different approaches. However,
both recognize that the functioning of an apparatus that
permits people to enter or depart from a bus should be
considered the "operation" of the vehicle itself.
CONCLUSION
For the reasons stated, I would hold that the stationary
bus was still in operation if, as alleged, the driver operated
the hydraulic doors as a means of egress, thereby injuring
plaintiff.
Not only was any operation of the hydraulic doors
an operation of the vehicle, it was inherent in and necessary
to
driving
the
vehicle.
Therefore,
I
would
decision of the Court of Appeals.
S T A T E
O F
M I C H I G A N
SUPREME COURT
8
affirm
the
THOMAS CHANDLER,
Plaintiff-Appellee,
v
No. 118811
COUNTY OF MUSKEGON,
Defendant-Appellant.
___________________________________
KELLY, J. (dissenting).
I respectfully dissent. The majority today restricts the
motor vehicle exception to governmental immunity to instances
involving the "actual driving of a motor vehicle."17
I
disagree.
Operating a motor vehicle requires the performance of
functions some of which are distinct from the act of driving.
At a minimum, the Court should include within its reading of
the statutory exception those functions that are distinct
from, but necessary to and inherent in, driving a motor
vehicle.
17
I would hold that the opening and closing of bus
Slip op at 7.
9
doors to permit the driver to leave the bus is one such
activity.
Therefore, I would affirm the Court of Appeals
decision that the motor vehicle exception applies to the
factual occurrences alleged by plaintiff.
THE OPERATION OF THE DOORS OF THE BUS IN THIS CASE WAS
INHERENT IN AND NECESSARY TO DRIVING THE BUS
Although it is true that the motor vehicle exception to
governmental
immunity
must
be
narrowly
construed,18
the
majority's reading of the term "operation" is unnecessarily
and inappropriately narrow.
The statute in question makes a governmental agency, such
as defendant, liable for its negligent operation of a motor
vehicle it owns.19
In writing it, the Legislature did not
define the term "operation."
Confronted with providing a
definition, our Court of Appeals in Orlowski v Jackson State
Prison20 adopted the interpretation of "negligent operation"
accepted by most other jurisdictions.
As a consequence, for
over thirty years Michigan courts have followed the rule that
"'negligent operation' may occur even though the vehicle is
standing still as long as it is being used or employed in some
18
Stanton v Battle Creek, 237 Mich App 366; 603 NW2d 285
(1999), aff’d 466 Mich 611 (2002).
19
MCL 691.1405.
20
36 Mich App 113; 193 NW2d 206 (1971).
10
specific function or to produce some desired work or effect."21
This Court did not grant leave to appeal in Orlowski or its
progeny to overturn that precedent.
However, today, without
the benefit of full briefing or oral argument, the majority
announced a new rule redefining "negligent operation" to mean
"negligent driving."
It does this despite the fact that the
long line of Court of Appeals cases discussed in the thorough
Court of Appeals opinion militates against peremptory action
by this Court.
Today's
redefinition
of
"negligent
operation"
particularly inappropriate as applied to this case.
is
Here,
plaintiff alleged that he was injured as a consequence of the
negligent operation of the hydraulic doors on defendant's bus.
His injury occurred after the driver had parked the bus and
shut off the engine.
In order to get out of the bus, the
driver had to open the doors.
Without contest, the doors were
an integral part of the bus.
Their operation was inherent in
and necessary to the operation of the bus.
Consider the majority's definition of "operation" in a
hypothetical case involving the same bus.
Assume that a
passenger was injured because of negligent operation of the
hydraulic doors while the bus was stopped.
The bus was not
being "operated" as the majority defines the term, because it
21
Id. at 116, citing Diggins v Theroux, 314 Mass 735; 51
NE2d 425 (1943).
11
was not being "driven."
governmental immunity?
Would the injury be barred by
If so, what wording in the statute
evidences a legislative intent to define the term so narrowly?
If not, why should the fact that in this case the plaintiff
was not a passenger affect the definition of "operation?"
Recall that the statute does not require that the motor
vehicle be involved in any particular activity.
Recall also
that the statute does not include words such as "upon a
highway."
Assume a second hypothetical case involving the same bus,
in which the bus was stopped on a hill, its engine off.
Through the driver's negligent setting of the brakes, it began
to roll, injuring a pedestrian.
apply?
Would governmental immunity
Could the Legislature have intended that someone thus
injured by the bus would not be entitled to bring suit against
defendant merely because the bus was not being driven?
DECISIONS FROM OTHER JURISDICTIONS FIND OPERATION OF MEANS
OF EGRESS FROM A BUS CONSTITUTES OPERATION OF THE BUS
Other jurisdictions interpreting statutes similar to
Michigan's
have
held
that
functions
involving
entry
or
departure from a bus are part of the operation of a motor
vehicle.
In Groves v Dayton Pub Sch,22 the Ohio Court of
Appeals held that a bus driver's negligence in helping a
22
132 Ohio App 3d 566; 725 NE2d 734 (1999).
12
handicapped student get out of a bus involved the "operation
of a motor vehicle."23
23
Id. at 569.
The Groves court interpreted the Ohio
governmental immunity statute, Ohio Rev Code Ann § 2744.02,
which contains language similar to Michigan's statute:
We start by noting that R.C. § 2744.02(A)(1)
does indeed provide broad immunity to political
subdivisions. It states as follows:
For the purposes of this chapter, the
functions of political subdivisions are hereby
classified
as
governmental
functions
and
proprietary functions. Except as provided in
division
(B) of
this
section,
a
political
subdivision is not liable in damages in a civil
action for injury, death, or loss to person or
property allegedly caused by any act or omission of
the political subdivision or an employee of the
political
subdivision
in
connection
with
a
governmental or proprietary function.
R.C. § 2744.02(B) contains five exceptions to
the
sovereign
immunity
given
to
political
subdivisions by R.C. § 2744.02(A)(1). Only one is
pertinent to the present appeal, and it provides as
follows:
. . . [A] political subdivision is liable in
damages in a civil action for injury, death, or
loss to person or property allegedly caused by an
act or omission of the political subdivision or of
any of its employees in connection with a
governmental or proprietary function, as follows:
* * *
(1) Except as otherwise provided in this
division, political
subdivisions are liable for
injury, death, or loss to person or property caused
by the negligent operation of any motor vehicle by
their employees upon the public roads when the
employees are engaged within the scope of their
employment and authority.
(continued...)
13
In Groves, the plaintiff suffered a hand injury when the
bus driver failed to secure the plaintiff in her wheelchair
before helping her get off the bus.
The defendant claimed
that the bus driver's actions could not constitute "negligent
operation of [a] motor vehicle" for the purpose of the Ohio
exception to governmental immunity.
The Groves Court did not agree.
It concluded:
R.C. Chapter 2744 contains no definition of
the term "operation of any motor vehicle." We find
the term capable of encompassing more than the mere
act of driving the vehicle involved. Neither of
the parties to this appeal refer us to any
authority construing the term in question with
regard to a driver assisting a disabled passenger,
and our research in Ohio law has failed to reveal
any cases on point.
* * *
Here, Groves was a passenger on a school bus
equipped
to
transport
children
confined
to
wheelchairs, which suggests to us that it was
equipped with a ramp with which to lift and lower
the students in their wheelchairs as they boarded
and disembarked from the bus. In addition, Dayton
Public
Schools
had
established
rules
and
regulations pertaining to the safe boarding,
transportation, and disembarking of handicapped
students that required bus drivers to, inter alia,
23
(...continued)
R.C. § 2744.02(B)(1) goes on to provide three
exceptions which reinstate immunity where the motor
vehicle being operated is a patrol car, fire truck,
or emergency medical vehicle responding to an
emergency call, none of which are applicable to the
present case. Thus, our first inquiry must be
whether Dayton Public Schools' bus driver's conduct
falls within the ambit of "operating a motor
vehicle on the public roads within the scope of his
employment." [Id. at 568-569.]
14
secure passengers in their wheelchairs when
assisting them on or off the school bus. Thus, it
can reasonably be inferred that doing so was part
of the bus driver's duties and an integral part of
his operation of the school bus. Furthermore, we
do not exclude the possibility that the driver's
operation of the ramp itself would be considered
operation
of
the
motor
vehicle
under
the
circumstances of this case. [Id. at 569-570.]
Similarly, in Sonnenberg v Erie Metro Transit Auth,24 the
Commonwealth Court of Pennsylvania held that operating a bus'
doors was integral to operating the bus.
In that case, the
doors unexpectedly closed on the plaintiff while she was
getting out of the bus, injuring her.
The issue was whether
the operation of the doors could be "operation" of a motor
vehicle under the Pennsylvania statute.25
The Sonnenberg Court held:
The movement of parts of a vehicle, or an
attachment
to a
vehicle,
is
sufficient
to
constitute "operation." Moreover, the bus driver's
closing of the bus doors is an act normally related
to the "operation" of a bus. . . . We must
24
137 Pa Cmmw 533; 586 A2d 1026 (1991).
25
The relevant statute, 42 Pa Consol Stat § 8542,
provided:
(b) Acts which may impose liability--The
following acts by a local agency or any of its
employees may result in the imposition of liability
on a local agency:
(1) Vehicle liability.--The operation of any
motor vehicle in the possession or control of the
local agency. As used in this paragraph, "motor
vehicle" means any vehicle which is self propelled
and any attachment thereto, including vehicles
operated by rail, through water or in the air.
15
conclude, therefore, that (the defendant)'s bus was
in
"operation"
when
the
bus
door
struck
Sonnenberg . . . ." [Id. at 537.]
Groves and Sonnenberg use different approaches. However,
both recognize that the functioning of an apparatus that
permits people to enter or depart from a bus should be
considered the "operation" of the vehicle itself.
CONCLUSION
For the reasons stated, I would hold that the stationary
bus was still in operation if, as alleged, the driver operated
the hydraulic doors as a means of egress, thereby injuring
plaintiff.
Not only was any operation of the hydraulic doors
an operation of the vehicle, it was inherent in and necessary
to
driving
the
vehicle.
Therefore,
decision of the Court of Appeals.
16
I
would
affirm
the
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