By Eric Berkman
BridgeTower Media Newswires
DETROIT-A Michigan Court of Appeals panel held that the defendants should have been granted summary disposition in a negligence case stemming from a driver's fatal collision with a Wayne County vehicle.
In Sakofske v. Gering, the COA determined that government immunity barred the claim against the county, brought by the estate of truck driver John Sakofske, who died after his tractor-trailer collided with a county dump truck stationed in the right lane of I-275 to keep traffic away from a work crew on the highway's shoulder.
The plaintiff alleged that the dump truck, which was equipped with flashing arrow boards, was pulling into the right travel lane from the ramp lane when the crash occurred, but the COA said any suggestion the dump truck was moving was too speculative to consider.
"In this case, it is undisputed that [the] dump truck was stationary in the right lane of I-275 at the time of the collision," the opinion stated. "Therefore, because [the dump truck's operator] was not engaged in 'activities that are directly associated with the driving of a motor vehicle' at the time of the collision, the motor vehicle exception [to governmental immunity] does not apply."
Judges Kirsten Frank Kelly and Thomas C. Cameron issued the unpublished opinion reversing the Wayne County Circuit Court. Judge Michael J. Riordan concurred.
Defense counsel Paul T. O'Neill, a Wayne County assistant corporation counsel, said the ruling reaffirms that when a government vehicle is stationary and therefore not operational, governmental immunity precludes lawsuits like this.
"This is a tragic case and our condolences go out to the family but the Court of Appeals made the absolute right decision," O'Neill said.
Plaintiff's counsel Christopher P. Desmond of Johnson Law PLC in Detroit declined comment other than to say his client anticipates pursuing an appeal with the Michigan Supreme Court.
The case
On Nov. 12, 2015, a Wayne County Department of Public Services work crew was cleaning a wall along an entrance ramp from eastbound Michigan Avenue onto I-275 South.
The department stationed dump trucks at intervals in the right lane of the highway to force motorists away from the workers on the shoulder. Each truck had flashing arrow boards in the back to direct traffic accordingly.
At some point that afternoon, foreman LeDonn Majors requested an additional dump truck to provide more protection. When Heather Gering, the operator of that vehicle, arrived on the scene, Majors arranged the vehicles so that one dump truck was positioned on the shoulder of the entrance ramp with Gering's vehicle about 700 feet ahead, in the right lane of traffic on the highway, past the end of the ramp lane, according to the COA opinion.
A third dump truck was positioned approximately 700 feet in front of where Gering's truck was parked and a fourth dump truck, operated by Darylann Spencer, was parked directly in front of the others.
About 10 minutes after Gering arrived at the job site, Sakofske - who was traveling south in the right lane of I-275 - hit the back of her dump truck and suffered fatal injuries in the crash.
Gering, who said she was stationary in the right lane of traffic with her arrow board flashing, saw Sakofske's truck approaching at a speed of at least 70 mph and did not see it slowing down. Gering also said she assumed Sakofske would have time to merge into a different lane, but did not move before his vehicle struck her dump truck.
Majors, who was parked in a pickup truck on the shoulder near Gering and saw the crash in his rearview mirror, also testified that Gering's truck was stationary at the time of the accident. The first state trooper to arrive at the scene observed that Gering's dump truck had its emergency brake engaged and another trooper who came to investigate said that based on evidence he found at the site, Gering's dump truck was completely in the right travel lane when struck.
Sakofske's estate brought a claim of gross negligence against Gering and a claim of negligent operation of a motor vehicle against the county under a respondeat superior theory.
According to the plaintiff, Gering was moving at the time of the crash and caused the accident by pulling out in front of Sakofske's tractor-trailer.
In support of this theory, the plaintiff cited deposition testimony from Spencer, who was in front of Gering at the time of the crash and heard the collision. Spencer's testimony suggested that Gering could have been moving into the right travel lane from the ramp lane when her dump truck was struck.
The plaintiff's crash reconstruction expert also testified that the "most likely scenario" was that Gering's dump truck "impeded" into Sakofske's path of travel.
He based his opinion on testimony from Spencer that she saw Gering's dump truck move after hearing a "boom" and that she remembered seeing that Gering had moved up from the "gore area" where the entrance ramp and highway converge.
The defendants moved for summary disposition at the close of discovery, asserting immunity under the governmental tort liability act, MCL 691.1401.
Specifically, the defendants argued that the "motor vehicle exception" to governmental immunity was inapplicable because Gering was not "operating" her dump truck at the time of the crash. The defendants also argued that the claim against Gering failed because there was no evidence she was grossly negligent.
Citing questions of fact as to whether Gering was moving at the time of the crash, the trial court denied the motion. The defendants appealed.
COA analysis
The COA found there was no legitimate factual question about whether Gering was moving and thus the trial court should have applied immunity under the GTLA.
As the court pointed out, both Gering and Majors testified that Gering's dump truck had been stationary for 10 minutes at the time of the crash and drivers of two of the other dump trucks said Gering's dump truck was parked in the right lane. The panel also pointed to testimony of investigating officers who opined that Gering's truck was completely in the right lane with her emergency brake engaged.
Regarding the testimony from Spencer that the trial court relied upon, the COA said that while circumstantial evidence can establish a genuine issue of material fact, "mere conjecture or speculation" cannot.
"Spencer's testimony regarding the potential movement and positioning of Gering's dump truck amounted to speculation and conjecture given that Spencer did not see Gering move the truck into the right lane and did not see the collision take place," the COA said. "Thus, Spencer's testimony was not sufficient to create a genuine issue of material fact."
Turning to the gross negligence claim, the panel stated that there was no evidence that Gering was negligent, let alone grossly negligent.
"The trial court therefore erred when denying defendants' motion for summary disposition on plaintiff's gross negligence claim," the COA concluded.
Riordan, in a concurring opinion, further emphasized that the plaintiff's expert's "hypothetical depiction of the collision" was too speculative to assist the trier of fact.
Published: Thu, Jan 16, 2020
