A 12-year-old boy appealed the dismissal of his case where he was struck and injured by a bus operated by Cass County Public Transit. The boy was walking home from Dowagiac Middle School with his friends and some other children when he tried to, or was about to, cross Riverside Drive, in Dowagiac, Michigan, so that he could get to his home.
Background
The bus driver was driving the County’s “Dial-A-Ride” bus and had recently picked up Malyssa Tiffin, as well as her child, from downtown Dowagiac, Michigan, and was driving them to an apartment complex on Riverside Drive. The bus driver drove this route at least a few times every day. Because of the apartment complexes and the junior high school, she knew that children along the road liked to horseplay, so she’d always “coast” or go slow down Riverside Drive. It’s a two-lane road with a posted speed limit of 25 miles an hour.
According to Tiffin, she felt that the bus driver was driving recklessly because the bus didn’t have seat belts, and she found herself sliding around. However, she clarified that although she thought the bus driver was taking turns too aggressively, she didn’t think that the bus driver ever exceeded the speed limit or strayed out of her driving lane. She believed the bus driver was driving faster than 15 mph on Riverside Drive. The plaintiff’s friend, said that the bus was traveling at least 35 mph, apparently because the bus was driving faster than other traffic on the road at the time.
The driver testified that when she reached Riverside Drive she saw the plaintiff on the side of the road but then all of a sudden she somehow struck him with the bus. She didn’t know how the child came to the position to be struck by the bus, and she didn’t see him go into the street.
There was conflicting witness testimony as to the speed of the bus and exactly where the accident happened. Expert accident reconstructionist testimony also was in conflict.
The plaintiff’s injuries included a traumatic brain injury, bilateral fractures of his ribs, a traumatic subdural hematoma, a fracture to his left clavicle, blunt chest trauma, and blunt abdominal trauma. After the collision, the young boy was unconscious, spent considerable time in the hospital, and didn’t remember anything about the day when he was struck by the bus.
Defendants filed to dismiss the case pursuant to MCR 2.116(C)(7) and (C)(10), alleging that each of them was entitled to governmental immunity pursuant to the Michigan Governmental Tort Liability Act, and that the motor-vehicle exception, did not apply to the County. The trial court granted their motion because it determined that the plaintiff was in the road when he was struck by the bus, and the bus driver hadn’t operated the bus negligently. An appeal followed.
The Plaintiff’s Argument
The plaintiff argued that the trial court erred by granting the County summary disposition because there were genuine issues of material fact regarding whether the bus driver was operating the bus with reasonable care and caution at the time of the collision.
The Court of Appeals’ Decision
Under the Michigan Governmental Tort Liability Act, “a governmental agency is immune from tort liability if the governmental agency is engaged in the exercise or discharge of a governmental function,” unless an exception otherwise precludes this immunity.”
MCL 691.1405 provides a motor-vehicle exception to the grant of governmental immunity, stating that “[g]overnmental 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 such, Court was asked to determine whether the bus driver was negligent in her operation of the bus.
The Court of Appeals wrote that a 1956 Michigan Supreme Court case stated that in the absence of statutory requirements, “it is the motorist’s duty in the use and operation of his automobile to exercise ordinary and reasonable care and caution, that is, that degree of care and caution which an ordinarily careful and prudent person would exercise under the same or similar conditions.” However, the Court of Appeals stated that a driver isn’t required to “guard against every conceivable result, to take extravagant precautions, to exercise undue care” and is “entitled to assume that others using the highway in question would under the circumstances at the time use reasonable care themselves and take proper steps to avoid the risk of injury.”
Additionally, the Court has held that a driver is not “bound to anticipate that a minor will come loping into his lane of traffic when he is unaware of the child’s presence.” Thus, the fact that an accident occurred does not, by itself, give rise to a presumption of negligence. Nevertheless, a driver’s actual knowledge of the presence of children will impose a heightened duty of vigilance, the Court opined.
Having discovered the oncoming vehicle, it’s the pedestrian’s duty to keep watch of its progress and to exercise reasonable care and caution to avoid being hit. Also, MCL 257.655 requires pedestrians to “not walk upon the main traveled portion of the highway” where sidewalks are provided.
The Court of Appeals found there was no evidence suggesting that the bus driver was driving in any manner other than a straight line within her lane of travel. However, that doesn’t conclusively establish that she wasn’t driving negligently, the Court said.
But the evidence was inconsistent regarding how fast the bus driver was driving. Plus, the bus driver was aware of the young plaintiff and his friends at the side of the road, and it was allegedly known generally that students tended to cross the road in that area. Numerous witnesses said that the bus driver couldn’t have avoided the accident. One witness said that if the impact had occurred in the road, the bus driver would have been unable to stop or react in time. Nevertheless, the friend opined that there were no cars in the other lane until after the accident, so the bus driver could have hit her brakes or swerved into the lane of opposing traffic. The friend also opined that the bus driver was substantially exceeding the speed limit. Consequently, there is a conflict in the evidence, and depending on the jury’s resolution of that conflict, it could permissibly find that the bus driver was driving negligently at the time of the impact.
Was a 12-Year-Old’s Testimony Believable?
The Court of Appeals noted that the friend was 12 at the time, and his high estimation of the bus’s speed was seemingly based only on a comparison to other traffic. His view of the lack of oncoming traffic was contradicted by a motorist who drove past the impact in the opposite direction.
Nevertheless, the Court said in deciding a summary disposition motion, it may only set aside a conflict in the evidence where an outlier’s testimony is physically or effectively impossible or is irreconcilably disproved by unquestionable and unambiguous objective evidence. The friend’s age and vantage point might suggest his opinion might be entitled to little weight, but his testimony was not impossible, the Court said. The weight to be given to his testimony, if any, would therefore be a matter of credibility for the jury, not grounds to disregard it when deciding a motion for summary disposition.
There was evidence in the record that the bus driver was aware of plaintiff and his friends at the side of the road, she at least should’ve been aware that children occasionally crossed the road in that general area, and that she was exceeding the posted speed limit at the time of impact and had available ways to avoid the accident.
But the Court of Appeals said that at this procedural stage of the proceedings, it couldn’t determine the credibility or weight to be given any particular evidence. The jury could choose to believe a “constellation of evidence” from which it could be reasonably inferred that the bus driver was driving negligently at the time of the accident.
As a result, the County wasn’t definitively entitled to governmental immunity because there is a genuine issue of material fact regarding whether the motor-vehicle exception was applicable. The Court found that summary disposition for the County pursuant to MCR 2.116(C)(7) was improper. The case was reversed and remanded. Chivis v. Cass Cty. Pub. Transit, 2021 Mich. App. LEXIS 5121 (Mich. App., Aug. 26, 2021).
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