Bus driver has immunity after crash, court rules

By Lee Dryden
BridgeTower Media Newswires
 
DETROIT — A Michigan Court of Appeals panel recently ruled for the defendant on governmental immunity after a pedestrian was struck and killed by a University of Michigan bus.

In Sanders v. Wright, the Washtenaw County Circuit Court denied the defendant’s motion for summary disposition, ruling that a material question of fact existed regarding gross negligence.

The appeals court panel reversed, ruling that the trial court erred by “concluding that because a jury could choose not to believe defendant’s testimony that he looked for pedestrians in the intersection before beginning his turn the evidence created a material question of fact whether defendant was grossly negligent.”

The Oct. 23 unpublished per curiam opinion was issued by Judges Mark J. Cavanagh, Jane E. Markey and Anica Letica.

Nancy Sanders was killed just after 6 a.m. June 19, 2014, when struck by a bus driven by defendant Kenneth Wright while turning left at an intersection controlled by a blinking red light.

The defendant testified that he “simply did not see Sanders or anyone else in the intersection except a blur immediately before impact,” according to the appeals court opinion.

The only contested issue is whether sufficient evidence existed to support the plaintiff’s claim that there was a material question of fact regarding whether defendant’s conduct amounted to gross negligence, which is defined in statute as “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.”

In a criminal trial, the defendant was acquitted of committing a moving violation causing death. He testified that he saw no pedestrians in the intersection.

“According to defendant, he was completely stopped in the left-turn lane for 3-5 seconds, assured himself the oncoming car would remain stationary, and again checked the intersection before beginning to turn left,” the opinion stated. “Defendant testified that during the left turn he saw only a blur a ‘fraction of a second’ before impact and applied the brakes. Unfortunately, it was too late to avoid hitting Sanders.”

The defense argued there was no evidence of gross negligence and at most the evidence showed only ordinary negligence that could not survive summary disposition. Plaintiff’s counsel argued that this is “the most egregious case of distracted driving outside of, you know, somebody who’s either drunk or admittedly texting. He wasn’t looking,” the opinion stated.

The trial court ruled for the plaintiff, reasoning that “if someone hits a pedestrian after not having looked, then that, I think, certainly, is enough to go to the jury on gross negligence.”

The panel concluded that the trial court erred by not granting summary disposition to the defendant because “reasonable minds could not differ that the evidence failed to show defendant’s operation of the bus was grossly negligent as defined by MCL 691.1407(8)(a).”

“The undisputed evidence established that defendant was a government employee immune from tort liability because he was (1) acting within the scope of his employment; (2) the government agency was discharging a governmental function, and (3) defendant’s conduct did not amount to gross negligence,” the opinion stated.

It is irrelevant whether the defendant looked before beginning his turn and failed to perceive Sanders until it was too late or whether he began the left turn without having “double checked” the intersection, the panel ruled, as either finding would support “at best only a breach of the reasonable care standard of ordinary negligence.”

“In essence, plaintiff is arguing that gross negligence may be inferred from the fact that an accident occurred. This argument is flawed. Not even negligence may be presumed from the mere fact that an accident has occurred,” the panel stated, citing In re Miller’s Estate (1942).

The panel cited Karbel v. Comerica Bank (2001) when stating, “Without any affirmative evidence of grossly negligent conduct, plaintiff is left with relying on speculation and conjecture, which cannot create a question of fact to survive summary disposition.”

Defense counsel Julie L. Kosovec of Brooks, Wilkins, Sharkey, & Turco PLLC in Birmingham said this was “a horrible, tragic accident and nobody feels worse about it than our client Mr. Wright.”

“But the reality is that, for a lot of different policy reasons, the Legislature has granted government employees qualified immunity when acting in the scope of their employment. There are only a few narrow exceptions to this immunity, one of which is gross negligence,” she said in reaction to the appeals court decision. “When looking at all the facts of this case, it is clear that it was just a tragic accident and there was nothing about Mr. Wright’s actions that could ever rise to the level of gross negligence. For this reason, we were pleased with the result.”

While the opinion is unpublished, Kosovec believes it will “serve the important purpose of promoting consistent, predictable rulings in future cases.”

“First, governmental immunity is a matter of public interest and the Court of Appeals opinion clearly establishes the burden of proof necessary to survive a dispositive motion in cases involving a claim of gross negligence of a governmental employee in connection with a motor vehicle accident,” she said.

Kosovec added that “the tragic nature of the accident in this case allows for an important teaching point in gross negligence cases.”

“As the Court of Appeals held, a plaintiff must present actual evidence of gross negligence by the individual defendant to survive a motion for summary disposition,” she said. “Merely assuming that Mr. Wright must have been grossly negligent because the accident occurred or speculating that he must have been distracted in some way is insufficient as a matter of law. In short, the doctrine of res ipsa loquitur does not apply to gross negligence cases and speculation or conjecture is not permitted to create a question of fact.”

Plaintiff’s counsel Stephanie L. Arndt did not respond to requests for comment.