If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
ANITA KANO, UNPUBLISHED
May 23, 2019
Plaintiff-Appellee,
v No. 341648
Macomb Circuit Court
CURTIS JACOBSON, LC No. 2017-002726-NI
Defendant-Appellant,
and
WHEELS LT and PROGRESSIVE MARATHON
INSURANCE COMPANY,
Defendants.
Before: SAWYER, P.J., and CAVANAGH and SERVITTO, JJ.
PER CURIAM.
Defendant appeals as of right the trial court’s order denying his motion for summary
disposition under MCR 2.116(C)(7) premised on governmental immunity. We reverse and
remand.
This case arises out of a car accident between plaintiff and defendant. At the time of the
accident, defendant was employed as an equipment operator for the Michigan Department of
Corrections (MDOC). As part of defendant’s duties as an equipment operator, he was required
to drive a tractor-trailer to transport items to and from correctional facilities. At the time of the
accident, defendant was driving the tractor-trailer, transporting items to a correctional facility in
Lapeer, Michigan. Plaintiff and defendant were both traveling eastbound on Hall Road in
Macomb Township, and both turned onto a turnaround lane in order to turn left onto westbound
Hall Road. The turnaround was two lanes, and plaintiff and defendant were stopped next to each
other at a stop sign at the end of the turnaround, waiting to turn left onto Hall Road. Plaintiff
was in the left turn lane of the two lane turnaround. When defendant accelerated to make the left
turn onto westbound Hall Road, the left rear tire of defendant’s truck did not clear plaintiff’s
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vehicle and struck the front right wheel of plaintiff’s vehicle. Plaintiff filed a complaint against
defendant alleging a count of negligence and a count of gross negligence. The trial court denied
defendant’s motion for summary disposition, concluding that the motion was premature and
discovery should move forward to determine whether defendant’s conduct rose to the level of
gross negligence.
Defendant argues that the trial court erred in denying his motion for summary disposition
because plaintiff failed to allege facts to establish gross negligence and no reasonable jury could
conclude that defendant’s conduct amounted to gross negligence. We agree.
“This Court reviews de novo a trial court’s decision to deny a motion for summary
disposition.” Rowland v Washtenaw Co Rd Comm, 477 Mich 197, 202; 731 NW2d 41 (2007).
To survive a motion under MCR 2.116(C)(7), “the plaintiff must allege facts justifying the
application of an exception to governmental immunity.” Beals v Michigan, 497 Mich 363, 370;
871 NW2d 5 (2015). Summary disposition may not be opposed on the basis of unsupported
speculation or conjecture. Karbel v Comerica Bank, 247 Mich App 90, 97; 635 NW2d 69
(2001). “When deciding a motion for summary disposition under MCR 2.116(C)(7), a court
must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence
submitted in a light most favorable to the nonmoving party.” Fields v Suburban Mobility Auth
for Regional Transp, 311 Mich App 231, 234; 874 NW2d 715 (2015). “If there is no factual
dispute, whether a plaintiff’s claim is barred under a principle set forth in MCR 2.116(C)(7) is a
question of law for the court to decide.” Id. (citation and quotation marks omitted).
The Governmental Tort Liability Act (GTLA), MCL 691.1401 et seq., “affords broad
immunity from tort liability to governmental agencies and their employees whenever they are
engaged in the exercise or discharge of a governmental function.” Beals, 497 Mich at 370.
MCL 691.1407(2) governs this action, and provides the following:
(2) 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.
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Here, defendant presented an affidavit in which he asserted that, at the time of accident,
he was a governmental employee, working as an equipment operator for the MDOC. He was
transporting equipment to a correctional facility when his tractor-trailer struck plaintiff’s vehicle.
Plaintiff did not dispute that defendant was acting within the scope of his authority or that the
MDOC was engaged in the exercise or discharge of a governmental function. Thus, the dispute
concerns whether defendant was grossly negligent in his conduct.
“ ‘Gross negligence’ is defined by statute as ‘conduct so reckless as to demonstrate a
substantial lack of concern for whether an injury results.’ ” Wood v Detroit, 323 Mich App 416,
423; 917 NW2d 709 (2018), quoting MCL 691.1407(8)(a). “A claim that a defendant has
violated an applicable standard of practice or care sounds in ordinary negligence. However, the
plain language of the governmental immunity statute indicates that the Legislature limited
governmental employee liability to “gross negligence”—situations in which the contested
conduct was substantially more than negligent.” Costa v Community Med Servs, 475 Mich 403,
411; 176 NW2d 236 (2006). “Evidence of ordinary negligence is not enough to establish a
material question of fact regarding whether a government employee was grossly negligent.”
Wood, 323 Mich App at 423-424. “Moreover, [s]imply alleging that an actor could have done
more is insufficient under Michigan law, because, with the benefit of hindsight, a claim can
always be made that extra precautions could have influenced the result.” Id. at 424 (citation and
quotation marks omitted). An actor is grossly negligent when an objective observer “could
conclude, reasonably, that the actor simply did not care about the safety or welfare of those in his
charge.” Tarlea v Crabtree, 263 Mich App 80, 90; 687 NW2d 333 (2004).
In plaintiff’s complaint, plaintiff alleged that defendant was negligent and grossly
negligent when he “attempted to turn westbound on Hall Road, and [in] doing so, the tail end of
the 2012 International ProStar struck plaintiff’s vehicle.” In regard to the negligence and gross
negligence claims, plaintiff asserted that defendant breached a number of duties owed to
plaintiff, including the duty to operate his vehicle in a manner and at rate of speed that would
permit the vehicle to be stopped within safe distance in violation of MCL 257.627(1), not to
operate the vehicle carelessly and with wanton disregard for the safety of others in violation of
MCL 257.626(2), as well as to come to a full stop before entering the roadway in violation of
MCL 257.652. Plaintiff also asserted that defendant breached his duty to control his automobile,
to attempt to stop, and to observe the highway or his surroundings when he knew or should have
known that his conduct could endanger plaintiff or others. To support plaintiff’s claim of gross
negligence, plaintiff asserted that the foregoing duties were breached with an intentional, willful,
or substantial disregard for the inherent risk associated with driving a tractor-trailer. Plaintiff set
forth no further factual allegations to support her claim of gross negligence.
In the lower court, defendant refuted plaintiff’s claims, arguing that plaintiff had failed to
allege any facts to establish that defendant’s conduct was grossly negligent. Defendant presented
evidence that established that plaintiff and defendant were stopped next to each other on a two
lane turnaround, attempting to turn left onto Hall Road. Plaintiff was in the left lane of the
turnaround, and when defendant pulled out into traffic to turn left, the left rear tire of the tractor-
trailer did not clear plaintiff’s vehicle and struck the front of her vehicle. Defendant was driving
approximately 5 miles an hour when the collision occurred, the roads were dry, and the weather
was clear. After the accident, defendant contacted the local police. Plaintiff’s vehicle had minor
damage, a tow truck was not called, and there were no injuries reported at the scene. Defendant
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was not given a citation for the accident, and there were no drugs or alcohol suspected from
either plaintiff or defendant. During oral arguments, plaintiff did not present any evidence to
refute defendant’s evidence or account of the accident. Rather, plaintiff argued that defendant
was required to check the vehicle’s mirror when turning, and if he had not checked his mirror, he
had failed to abide by requirements of the Commercial Driver’s License (CDL) manual. Plaintiff
also asserted that defendant might have checked his mirror but simply did not care if he hit
plaintiff’s vehicle. Plaintiff asserted that, with more discovery, it could be established that
defendant’s conduct amounted to gross negligence.
The trial court erred in denying defendant’s motion for summary disposition. In regard to
the complaint, plaintiff failed to allege facts in the complaint to support a finding of gross
negligence. Rather, plaintiff primarily relied on the assertion that defendant failed to operate his
vehicle in accordance with provisions of the Michigan Vehicle Code. However, establishing that
defendant violated a provision of the Michigan Vehicle Code does not establish gross negligence
because the violation of a statute only creates the rebuttable presumption of negligence.
Kennedy v Great Atlantic & Pacific Tea Co, 274 Mich App 710, 721; 737 NW2d 179 (2007),
citing Candelaria v BC Gen Contractors, Inc, 236 Mich App 67, 82 n 5; 600 NW2d 348 (1999).
Because evidence of ordinary negligence is insufficient to establish gross negligence, plaintiff
had to allege or present evidence that defendant’s conduct was “substantially more than
negligent.” Costa, 475 Mich at 411. However, plaintiff failed to present evidence or allege facts
that would support a finding of gross negligence. Plaintiff merely asserted a brief factual
overview of the accident and concluded that the incident amounted to gross negligence.
Furthermore, the evidence that was presented established that defendant was not suspected of
being under the influence of drugs or alcohol. Defendant stopped at the stop sign, and when the
accident occurred, he was only driving approximately 5 miles an hour. Based on these facts, a
reasonable juror could not conclude that defendant’s conduct was grossly negligent.
Moreover, plaintiff’s reliance on the CDL manual is unfounded. While the Michigan
Vehicle Code requires that a “person shall pass knowledge and driving skills tests that comply
with minimum federal standards prescribed in 49 CFR part 383[,]” the Michigan Vehicle Code
does not state that the CDL manual contains enforceable rules, the violation of which establish
negligence. MCL 257.312f(1). Even if plaintiff could establish through further discovery that
defendant failed to look in his mirror, the violation may amount to ordinary negligence, not gross
negligence. Furthermore, plaintiff’s claim that discovery could establish that defendant did look
in his mirror but simply did not care if he hit plaintiff’s vehicle is mere speculation. Plaintiff
presented no evidence to support the contention that defendant intentionally or with willful
disregard hit plaintiff’s vehicle. Therefore, there was no evidence presented to create a question
of fact as to whether defendant’s conduct was so reckless as to demonstrate a substantial lack of
concern for whether an injury resulted.
The trial court did not conclude, however, that there was a question of fact regarding
gross negligence; rather, the trial court concluded that defendant’s motion was premature
because discovery could establish gross negligence. This Court has stated that, “[i]n general,
summary disposition is premature if granted before discovery on a disputed issue is complete.”
Meisner Law Group PC v Weston Downs Condo Ass’n, 321 Mich App 702, 723; 909 NW2d 890
(2017). “However, “a party must show that further discovery presents a fair likelihood of
uncovering factual support for the party’s position.” Id. at 723-724. “[A] party opposing
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summary disposition cannot simply state that summary disposition is premature without
identifying a disputed issue and supporting that issue with independent evidence.” Marilyn
Froling Revocable Living Trust v Bloomfield Hills Country Club, 283 Mich App 264, 292; 769
NW2d 234 (2009). “Mere speculation that additional discovery might produce evidentiary
support is not sufficient.” Caron v Cranbrook Ed Community, 298 Mich App 629, 646; 828
NW2d 99 (2012). Plaintiff presented no independent support for the argument that defendant
looked in his mirror, was aware that his truck could hit plaintiff’s vehicle, but proceeded to turn
anyway because he did not care that he was going to hit plaintiff’s vehicle. Therefore, based on
the facts alleged and the evidence presented in the lower court, a reasonable juror could not
conclude that defendant’s conduct amounted to gross negligence. Thus, the trial court erred in
denying defendant’s motion for summary disposition.
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ David H. Sawyer
/s/ Mark J. Cavanagh
/s/ Deborah A. Servitto
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