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
SHANNON HESTER, UNPUBLISHED
August 15, 2019
Plaintiff-Appellant,
v No. 343927
Washtenaw Circuit Court
JEREMIA WALTER BRABBS, LC No. 17-000865-NI
Defendant-Appellee.
Before: CAVANAGH, P.J., and STEPHENS and O’BRIEN, JJ.
PER CURIAM.
Plaintiff appeals as of right an order granting summary disposition in defendant’s favor
on the ground that governmental immunity barred this action arising from a motor vehicle
accident. We affirm.
On December 21, 2015, plaintiff was a front seat passenger in a vehicle stopped at a red
light in the city of Ann Arbor when the vehicle defendant was driving struck the rear of that
vehicle. Defendant was an employee of the University of Michigan, the University of Michigan
owned the vehicle that defendant was driving, and defendant was driving the vehicle in the
course of his employment for the University.
The police report from the scene notes that defendant was “unable to stop” in an assured
clear distance from the vehicle in which plaintiff was a passenger. An incident report from
LogistiCare Michigan (the owner of the vehicle in which plaintiff was a passenger and the
employer of its driver) noted that defendant’s brakes did not work properly and that defendant
claimed his brakes froze. However, defendant denied having made this statement to LogistiCare.
Defendant averred in his affidavits that he was driving below the speed limit of 35 miles per hour
when the vehicle that plaintiff was riding in suddenly, and without warning, stopped. Although
he applied his brakes, defendant could not stop in time to avoid hitting the vehicle. Defendant
further averred that there was no problem with the brakes on his vehicle either before or after the
minor collision. Plaintiff claimed that she saw defendant driving at a “high-speed,” but she
could not estimate the exact speed of defendant’s vehicle.
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In August 2017, plaintiff filed this case alleging that defendant drove his vehicle in a
grossly negligent manner, causing her injuries. Defendant denied the allegations in his answer,
but stipulated that he was a University of Michigan employee driving a University of Michigan
vehicle in the course of his employment. In January 2018, both sides stipulated to a case
management order which stated that there were no deadlines for discovery or motion practice.
However, all discovery and motion filing was to be conducted in a timely manner. Both parties
conducted discovery.
In March 2018, defendant filed a motion for summary disposition, arguing that this case
should be dismissed under MCR 2.116(C)(7) and (C)(10). Defendant argued that no reasonable
juror could find that he was grossly negligent; therefore, he was entitled to governmental
immunity. In support of his motion, defendant submitted an interrogatory response answered by
plaintiff, two sworn affidavits by defendant, a State of Michigan Crash Report, and a LogistiCare
Michigan Accident Report. Plaintiff opposed the motion, arguing that there were disputed facts
regarding the failure of defendant’s brakes and his awareness of defective brakes. Further, she
argued, the motion was premature because defendant had not yet been deposed.
Following oral arguments, the trial court granted defendant’s motion. First, the court
rejected plaintiff’s claim that dismissal would be premature, holding that plaintiff “had months
and months and months to do discovery,” but waited until the day before case evaluation briefs
were due and trial preparation was about to begin to claim that further discovery was needed.
Second, the court held that plaintiff presented no evidence that would tend to show that
defendant was grossly negligent, i.e., engaged in conduct so reckless as to demonstrate a
substantial lack of concern for whether injury results—by being unable to stop his vehicle in the
assured clear distance resulting in a minor collision. Record evidence was that defendant’s
vehicle was driven before and after the collision without problems. Thus, the court concluded
that no reasonable juror could find that defendant had been grossly negligent and he was entitled
to governmental immunity. This appeal followed.
Plaintiff first argues that defendant was not entitled to summary disposition because
factual disputes existed on the issue of whether he knowingly drove a vehicle without properly
functioning brakes in poor weather and at high speeds. We disagree.
We review de novo a trial court’s decision on a motion for summary disposition. Maiden
v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). We also review de novo the
applicability of governmental immunity as a question of law. Herman v Detroit, 261 Mich App
141, 143; 680 NW2d 71 (2004). Defendant brought his motion under MCR 2.116(C)(7) and
(C)(10), and the trial court did not indicate under which subrule it granted defendant’s motion.
However, because defendant’s motion was premised on immunity granted by law, our review is
focused on MCR 2.116(C)(7). See Jackson v Saginaw Co, 458 Mich 141, 147 n 5; 580 NW2d
870 (1998). When we consider a motion for dismissal based on governmental immunity under
MCR 2.116(C)(7), we review the affidavits, depositions, and other documentary evidence
submitted to determine whether the claim is barred by immunity. Odom v Wayne Co, 482 Mich
459, 466; 760 NW2d 217 (2008) (citations omitted). The allegations in the complaint are
accepted as true unless contradicted by the documentary evidence. Id. Where reasonable minds
could not differ on the evidence presented that the governmental employee was not grossly
negligent, the question whether the claim is barred by immunity is an issue of law for the court.
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Jackson, 458 Mich at 142, 146, 152; Dextrom v Wexford Co, 287 Mich App 406, 429; 789
NW2d 211 (2010).
Neither party disputes that defendant is entitled to governmental immunity under MCL
691.1407(2) unless his conduct amounted to gross negligence. MCL 691.1407(8)(a) defines
gross negligence as “conduct so reckless as to demonstrate a substantial lack of concern for
whether an injury results.” Clearly, the Legislature limited employee liability to those
“situations where the contested conduct was substantially more than negligent.” Maiden, 461
Mich at 122. We have stated that gross negligence involves
almost a willful disregard of precautions or measures to attend to safety
and a singular disregard for substantial risks. It is as though, if an objective
observer watched the actor, he 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).]
Here, plaintiff alleges that factual disputes existed on the issues whether defendant
knowingly drove a vehicle without properly functioning brakes in poor weather and at high
speeds. In support of her claim that the defendant’s vehicle’s brakes were defective, plaintiff
relies on the incident report drafted by a LogistiCare Michigan employee which stated that
“[defendant’s] brakes did not work properly and hit [vehicle’s] rear bumper.” The statement
went on to claim that “[defendant] stated his brakes froze.” Plaintiff alleges that this statement
shows the brakes of defendant’s vehicle were defective and the source of the accident. Even if
we accept plaintiff’s evidence as true, there is no evidence that defendant knew that the brakes
were defective before the collision occurred. Plaintiff relies on the University of Michigan’s
policy requiring that vehicle users inspect the vehicles before use, but there is no record evidence
that defendant did not check the brakes before driving the vehicle or, if he did check the brakes,
he would have discovered a defect. And, in fact, defendant attested in his affidavits that the
brakes were functioning without any problems both before and after the collision.
Plaintiff also claims that defendant was driving at a high rate of speed, but she admitted
in her interrogatories that she did not actually know what speed he was driving. Even if
defendant was negligent by driving at a speed that would not permit him to stop in time under the
circumstances, ordinary negligence is insufficient to create a material question of fact concerning
gross negligence. See Maiden, 461 Mich at 122-123. According to the record evidence, the
damage to the vehicles was minimal and there were no obvious injuries, indicating that
defendant’s speed did not show a reckless disregard for injuries. Considering these facts and the
evidence, we must agree with the trial court that reasonable minds could not differ in concluding
that defendant’s conduct did not amount to gross negligence. That is, there is no evidence that
suggests defendant engaged in “conduct so reckless as to demonstrate a substantial lack of
concern for whether an injury results.” MCL 691.1407(8)(a). Accordingly, governmental
immunity barred this action against defendant.
Next, plaintiff claims that the trial court’s grant of summary disposition was premature.
We disagree.
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“Generally, a motion for summary disposition is premature if granted before discovery on
a disputed issue is complete. However, summary disposition may nevertheless be appropriate if
further discovery does not stand a reasonable chance of uncovering factual support for the
opposing party’s position.” Oliver v Smith, 269 Mich App 560, 567; 715 NW2d 314 (2006)
(quotation marks and citation omitted). But “the mere fact that the discovery period remains
open does not automatically mean that the trial court’s decision to grant summary disposition
was untimely or otherwise inappropriate.” Marilyn Froling Revocable Living Trust v Bloomfield
Hills Country Club, 283 Mich App 264, 292; 769 NW2d 234 (2009). In addition, it is not
premature to grant summary disposition when a plaintiff merely failed to conduct discovery or
failed to discover beneficial evidence.
In this case, plaintiff claims that defendant was served with a discovery request on March
16, 2018, but the only evidence supporting this claim is her counsel’s statement made during the
motion hearing. Furthermore, plaintiff argues that defendant did not cooperate with her
discovery requests and deliberately delayed the proceeding until the motion hearing was
conducted. Again, plaintiff only cites to her counsel’s statements at the motion hearing to
support these claims. While defense counsel admits that plaintiff’s counsel approached him
regarding scheduling a deposition, plaintiff’s counsel failed to follow up after their discussion
regarding the deposition. And, defendant argues, plaintiff submitted no discovery requests and
did not seek relief under MCR 2.313(A).
In light of the trial court’s scheduling and case management order, it is clear that
summary disposition was not premature in this case. Although discovery was not technically
complete, the trial court’s case management order indicates that discovery was unlimited and
would not be complete until the day of trial. The mere fact that discovery was ongoing does not
preclude summary disposition in this case. See Marilyn Froling Revocable Living Trust, 283
Mich App at 292. “[A] party opposing summary disposition cannot simply state that summary
disposition is premature without identifying a disputed issue and supporting that issue with
independent evidence.” Id. Although plaintiff’s counsel claimed to have knowledge of evidence
that defendant knew the brakes were defective, he has never indicated what this evidence is or
where it would come from. Absent a clear indication of what this claimed evidence is, the trial
court did not err in finding that there was not a reasonable chance that further discovery would
result in factual support for plaintiff’s claim of gross negligence.
Further, plaintiff waited several months before actively pursuing discovery. Although
plaintiff correctly notes that the trial court’s case management order imposed no time limit on
discovery, this same order stated that the parties were to conduct discovery in a timely manner.
The trial court’s scheduling of a case evaluation gave plaintiff’s counsel plenty of notice as to the
necessity of conducting discovery in a timely manner. Plaintiff was given a reasonable amount
of time to conduct discovery because the motion for summary disposition was only granted a
month before the scheduled trial—and after a several-month discovery period. The trial court’s
grant of summary disposition was not premature in light of plaintiff’s lack of discovery over the
course of several months and the fact that trial was only a month away. In addition, plaintiff
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failed to show that there was a reasonable chance of discovering factual support for her claim.
See Oliver, 269 Mich App at 567.
Affirmed.
/s/ Mark J. Cavanagh
/s/ Cynthia Diane Stephens
/s/ Colleen A. O’Brien
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