Bus Passenger’s Cause of Action Dismissed Against Transportation Commission – Court of Appeals Affirms Trial Court’s Judgment for Transportation Commission

In Palmer v. Blue Water Area Transportation Commission, the Court of Appeals affirmed a trial court’s judgment of no cause of action against a governmental entity (here a transportation commission) in a suit by a bus passenger alleging negligence and gross negligence against the governmental entity and its employee, respectively.

Plaintiff fell while boarding the bus.  She attributed the fall to the driver’s actions, claiming the driver allowed the bus to lurch or move forward as she was boarding.  Plaintiff’s story was inconsistent.  In various contexts, she gave varying versions of what happened prior to her fall.  The bus driver testified the bus was in park and she had her foot on the brake while plaintiff boarded the bus and did not move the bus prior to plaintiff’s fall.

Since defendant was a governmental entity, the plaintiff claimed negligent operation of a motor vehicle, under the motor vehicle exception to governmental immunity (MCL 691.1405); gross negligence against the driver, claiming that such negligence was the proximate cause of her injuries (MCL 691.1407); and that she suffered a “threshold injury” (serious impairment of a bodily function) under MCL 500.3135 of the No-Fault Act.

Primarily finding plaintiff’s testimony to be inconsistent and therefore not credible, the trial court judge granted the governmental entity’s motion for judgment finding no cause of action existed.

The Court of Appeals affirms in this opinion.  The opinion is rather unremarkable as a whole, but it does contain a convenient synopsis of the standards applicable to bring a cause of action under the motor vehicle exception and the gross negligence exception to governmental immunity.  It also points out that to prove a threshold injury for (economic or non-economic) damages under the No-Fault Act, the plaintiff must first establish the proper standards of care and that such standards were breached by the governmental entity.

This is significant, because it establishes the fundamental principle that before a plaintiff can seek any ordinary tort damages arising out of the alleged operation of a motor vehicle under the No-Fault Act in an action against a governmental entity, he or she must first establish the existence of a valid statutory exception to immunity.

The correlation between the Governmental Tort Liability Act (the GTLA), and, specifically, the “motor vehicle” exception under MCL 691.1405, and the No-Fault Act, MCL 500.3100 et seq. provides some interesting issues, many of which are either making their way up through the appellate courts, or residing on applications or grants thereof in the Supreme Court of Michigan.

For example, the Supreme Court has granted to consider the extent of “economic damages” available to a plaintiff injured in an automobile accident with a government vehicle in the case of Hannay v. MDOT, Supreme Court Case No. 146763 (see the Court’s grant order here: hannay-v-mdot).  This is a significant case as the Court is set to consider the extent and scope of damages available in actions against the government within the meaning of MCL 691.1405, which allows only for “bodily injury and property damage” in actions for negligent operation of a motor vehicle.  I previously wrote a blog explaining the details of this case, which you can read here:  Supreme Court to Consider Scope of Damages Available for “Bodily Injury” Under the Motor Vehicle Exception to Governmental Immunity.  I am also writing an amicus curiae brief on behalf of several entities in this case.

In Hunter v. Sisco, ___ Mich. App. ___ (2013), which was cited by the Court of Appeals panel in this case, cross applications have been filed.  Underlying issues in that case include the extent of “noneconomic” damages available to plaintiffs claiming negligent operation of a motor vehicle under MCL 691.1405.  I wrote about that case in an earlier blog which you can read here:  Supreme Court Asked to Consider Whether “Non-Economic Damages” Are Available to Plaintiffs in Actions Against the Government Under the Motor Vehicle Exception to Governmental Immunity.  The disposition of Hannay could very well impact the outcome of this case.

It appears the answer to the latter question, to wit, whether non-economic damages are available under the motor vehicle exception, is considered by the Court of Appeals to be “No”.  Just yesterday, I wrote about a case in which the Court of Appeals, again citing Hunter, held non-economic, pain and suffering damages were not available to a plaintiff in a wrongful death action against the government filed, in part, under the motor vehicle exception.  The Supreme Court denied the plaintiff’s application for leave to appeal in that case.  See my post here:  Supreme Court Denies Application to Reconsider Court of Appeals Decision Affirming Non-Economic Damages Are Not Available Against the Government Under the Motor Vehicle Exception.

The issue remains extant because the Supreme Court has not directly addressed the “scope and extent” of the damages that are available to an individual plaintiff in actions against the government under the motor vehicle exception.  The closest case, which is cited in the Supreme Court’s grant order in the Hannay case, is Weschler v. Mecosta County Rd. Comm’n, 480 Mich. 75 (2008), which defined the term “bodily injury” under the GTLA’s motor vehicle exception as “physical or corporeal injury to the body”. Weschler however addressed “loss of consortium” damages claimed by the plaintiff’s spouse and held that such claims were not recoverable under the “motor vehicle exception”.  Id.  This did not answer the question of the extent and scope of damages available directly to the plaintiff claiming injury to his or her own person under the exception.

Feel free to call Carson J. Tucker, Chair of the Appeals and Legal Research Group at Lacey & Jones, LLP at (248) 283-0763 if you have any questions about any of these cases.

Throughout its storied history, Lacey & Jones has distinguished itself from other law firms by maintaining a robust Appeals and Legal Research Group.  Effective appellate representation demands different skills than those required by litigation attorneys.  Our appellate attorneys are adept at analyzing the intricacies of each case from an objective and critical perspective.  From reviewing and preparing the lower court record, identifying appealable errors, and developing a strategy to raise issues that will be addressed by appellate courts, our seasoned appellate team is capable of handling the most complex appeals from the application stage to oral advocacy before the highest courts.  Our research abilities and knowledge of current issues in nearly all major subject-matter areas of the law provide our clients with efficient and immediate assistance with complex and high-exposure cases.   We are experienced at navigating through the Michigan Court of Appeals and Supreme Court to shepherd the appeal in the most expeditious fashion possible so that it can be reviewed and quickly ruled upon.  During the last three decades alone, the Appeals and Legal Research Group at Lacey & Jones has been responsible for over 150 published decisions in the Michigan Court of Appeals and Supreme Court, including seminal decisions in workers’ compensation, governmental immunity, employment and labor law, civil rights law and insurance coverage.  Because of its specialized knowledge and focus on appellate law and its recognized expertise, the Appeals and Legal Research Group at Lacey & Jones has been asked to participate as amicus curiae writing briefs for the Supreme Court or as special counsel to the Michigan Attorney General and other governmental entities in some of the most significant cases in the Court of Appeals and Supreme Court.   Below are some of the recent significant cases in which Lacey & Jones, LLP’s Appeals and Legal Research Group has participated.

• State Farm v. MMRMA, ___ Mich App ___ (2013), amicus curiae for Oakland County in support of MMRMA application, by Carson J. Tucker
• Hannay v MDOT, ___ Mich ___ 201_), application granted, amicus curiae to be filed for MTA, et al., by Carson J. Tucker
• Yono v. MDOT, ___ Mich ___ (201_), oral argument on application granted, amicus curiae for Oakland, Macomb and Wayne County filed by Carson J. Tucker in support of the state’s application
• Huddleston v. Trinity Health, et al., ___ Mich ___ (201_), oral argument on application granted, amicus curiae with Lawrence Garcia, Esq., for MDTC
• Ashley, LLC v Pittsfield Twp., 494 Mich 875 (2013), application granted, for Pittsfield Township by Carson J. Tucker (resolved by settlement)
• Bailey v. Schaaf, ___ Mich ___ (2013), amicus curiae for MDTC by Carson J. Tucker
• Atkins v. SMART, 492 Mich 707 (2012), oral argument on application, Court of Appeals case reversed by opinion, Carson J. Tucker
• Hagerty v Manistee, 493 Mich 933 (2013), amicus curiae for Michigan Municipal League, et al., by Carson J. Tucker
• McMurtrie v Eaton Corp, 490 Mich 976 (2011)
• Findley v DaimlerChrysler Corp., 490 Mich 928 (2011)
• Brewer v. AD.Transport Express, Inc, 486 Mich 50 (2010)
• Stokes v Chrysler, 481 Mich 266 (2008)
• Brackett v Focus Hope, Inc, 482 Mich 269 (2008)
• Rakestraw v Gen Dynamics, 469 Mich 220 (2003)
• Sington v Chrysler Corp., (2002)

Other appeal cases Carson Tucker has handled include

• Hamed v. Wayne County, et al., 490 Mich. 1 (2011), reversing Court of Appeals published opinion after being briefed and argued by Carson J. Tucker on behalf of Wayne County
• Odom v. Wayne County, et al., 482 Mich. 459 (2008), reversing Court of Appeals after being briefed and argued by Carson J. Tucker on behalf of Wayne County and Wayne County Sheriff and Deputies

• Michigan Department of Transportation v Employers Mutual Casualty Co, et al., 481

  Mich. 862 (2008), reversing Court of Appeals after being briefed and argued on application by Carson J. Tucker for Trucking Company and Insurer

• Nuculovic v. Hill and SMART, 287 Mich. App. 58 (2010), briefed by Carson J. Tucker for SMART
• Molnar v. Amy Allen, Oakland County Care House, et al, 359 Fed. Appx. 623 (6th Cir. 2009), affirming district court’s judgment in favor of client represented by Carson J. Tucker
• Molnar v. Amy Allen, Oakland County Care House, et al., Case No. 09-1536 (2009), successful defense of application to United States Supreme Court by Carson J. Tucker
• Wetherill v. McHugh, et al., Case No. 10-638 (2011), co-draft response on behalf of South Dakota National Guard to petition for appeal to United States Supreme Court, cert denied by Supreme Court.

Supreme Court Denies Application to Consider Whether Noneconomic Damages are Available Under No-Fault Act Against Governmental Entities

In Hodges.v.City of Dearborn et al, the Court of Appeals reversed a trial court’s decision to allow a suit to proceed against a governmental entity in a wrongful death, liability suit involving a collision between a police vehicle responding to a reported fire and the plaintiff’s decedent’s vehicle.  The Court of Appeals held the plaintiff’s estate could not proceed against the governmental entity and the individual police officer on several fronts.  Most remarkable at this point is the Court’s reference to the decision in Hunter v. Sisco, et al., which I wrote about in a previous blog post Hunter v. Sisco, et al. Application Filed in Supreme Court, for the proposition that noneconomic, emotional / pain and suffering damages are not available in actions against the government under the motor vehicle exception to governmental immunity.  MCL 691.1405.  As mentioned, the application to address that issue is currently pending in the Supreme Court in Hunter.  The Supreme Court also recently granted an application to address the “scope” of “bodily injury” damages available under the motor vehicle exception – to consider whether that term encompasses economic damages that are ordinarily available to plaintiff’s in motor vehicle accident cases.  Read my blog post about that case here:  Hannay v. MDOT – Supreme Court Grants to Consider Scope of Available Damages Under Motor Vehicle Exception to Governmental Immunity

The Supreme Court’s order denying leave is here:  Hodges v. City of Dearborn.SC.Order

Feel free to call Carson J. Tucker, Chair of the Appeals and Legal Research Group at Lacey & Jones, LLP at (248) 283-0763 if you have any questions about any of these cases.

Throughout its storied history, Lacey & Jones has distinguished itself from other law firms by maintaining a robust Appeals and Legal Research Group.  Effective appellate representation demands different skills than those required by litigation attorneys.  Our appellate attorneys are adept at analyzing the intricacies of each case from an objective and critical perspective.  From reviewing and preparing the lower court record, identifying appealable errors, and developing a strategy to raise issues that will be addressed by appellate courts, our seasoned appellate team is capable of handling the most complex appeals from the application stage to oral advocacy before the highest courts.  Our research abilities and knowledge of current issues in nearly all major subject-matter areas of the law provide our clients with efficient and immediate assistance with complex and high-exposure cases.   We are experienced at navigating through the Michigan Court of Appeals and Supreme Court to shepherd the appeal in the most expeditious fashion possible so that it can be reviewed and quickly ruled upon.  During the last three decades alone, the Appeals and Legal Research Group at Lacey & Jones has been responsible for over 150 published decisions in the Michigan Court of Appeals and Supreme Court, including seminal decisions in workers’ compensation, governmental immunity, employment and labor law, civil rights law and insurance coverage.  Because of its specialized knowledge and focus on appellate law and its recognized expertise, the Appeals and Legal Research Group at Lacey & Jones has been asked to participate as amicus curiae writing briefs for the Supreme Court or as special counsel to the Michigan Attorney General and other governmental entities in some of the most significant cases in the Court of Appeals and Supreme Court.   Below are some of the recent significant cases in which Lacey & Jones, LLP’s Appeals and Legal Research Group has participated.

• State Farm v. MMRMA, ___ Mich App ___ (2013), amicus curiae for Oakland County in support of MMRMA application, by Carson J. Tucker
• Hannay v MDOT, ___ Mich ___ 201_), application granted, amicus curiae to be filed for MTA, et al., by Carson J. Tucker
• Yono v. MDOT, ___ Mich ___ (201_), oral argument on application granted, amicus curiae for Oakland, Macomb and Wayne County filed by Carson J. Tucker in support of the state’s application
• Huddleston v. Trinity Health, et al., ___ Mich ___ (201_), oral argument on application granted, amicus curiae with Lawrence Garcia, Esq., for MDTC
• Ashley, LLC v Pittsfield Twp., 494 Mich 875 (2013), application granted, for Pittsfield Township by Carson J. Tucker (resolved by settlement)
• Bailey v. Schaaf, ___ Mich ___ (2013), amicus curiae for MDTC by Carson J. Tucker
• Atkins v. SMART, 492 Mich 707 (2012), oral argument on application, Court of Appeals case reversed by opinion, Carson J. Tucker
• Hagerty v Manistee, 493 Mich 933 (2013), amicus curiae for Michigan Municipal League, et al., by Carson J. Tucker
• McMurtrie v Eaton Corp, 490 Mich 976 (2011)
• Findley v DaimlerChrysler Corp., 490 Mich 928 (2011)
• Brewer v. AD.Transport Express, Inc, 486 Mich 50 (2010)
• Stokes v Chrysler, 481 Mich 266 (2008)
• Brackett v Focus Hope, Inc, 482 Mich 269 (2008)
• Rakestraw v Gen Dynamics, 469 Mich 220 (2003)

County Sheriff Not Liable for Civil Damages for Contempt of Probate Court Order to Estate of Mental Health Patient Awaiting Transport to County Mental Health Facility

In In re Estate of Bradley (1), the Michigan Supreme Court held the Governmental Tort Liability Act (GTLA), MCL 691.1401, et seq., provides immunity from tort liability to a county sheriff and his or her deputies for alleged violation of a probate court order, which resulted in the suicide death of a patient awaiting transport from his home to a county mental health authority.  The decedent’s personal representative had secured a court order from the probate court to have the county sheriff pick up the decedent and transport him to the county mental health authority for psychiatric evaluation.  The Sheriff never executed the court’s order.  Nine days later, the decedent committed suicide.  The decedent’s estate filed suit against the sheriff and an individual deputy, alleging, among other things, the failure to timely abide by the probate court’s order constituted actionable contempt and allowed the court to impose compensatory damages against the sheriff to the decedent’s estate.  The probate court denied the sheriff’s motion for summary disposition.  The circuit court reversed, holding the Sheriff and his deputy were immune from the imposition of such damages under the GTLA.  The Court of Appeals reversed, holding that the decedent’s estate could avoid the GTLA’s immunity altogether and receive compensatory damages from the probate court’s finding of contempt and imposition of damages against the sheriff.  In a 5-2 opinion, the Court reversed.  Justice Kelly wrote the majority opinion, joined by Chief Justice Young and Justices Markman, Zahra, and Viviano.  Justices Cavanagh and McCormack issued separate dissents.

This is an important holding for several reasons.  First, the case reaffirms the jurisdictional principle of governmental immunity adhered to in Michigan.  By explaining the concept that the government is immune from tort liability unless the government’s suit immunity is explicitly waived by the Legislature in the GTLA, this case reinforces the notion that subject-matter jurisdiction in Michigan courts over a cause of action over a particular governmental defendant is lacking unless a cause of action can be plead and proved to fall within the explicit statutory waivers of immunity allowed by the Legislature.  As the saying goes, the state created the courts and is not subject to them but by expression of the People’s will through legislature waiver.

Secondly, the opinion finally approaches offering a definition of the phrase “tort liability” as it appears in the GTLA.  As was expressed in the seminal decision in Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567 (1984), and later in the case I prosecuted before the Court, Odom v. Wayne County, 482 Mich. 459 (2008), the GTLA preserved immunity as to all governmental entities (including individual governmental actors) for all tort liability for all actions performed by the government unless an explicit exception exists in the GTLA.  As the Court explains here, the question of immunity depends not on the nature of the action or conduct but whether the Legislature, through the GTLA has made available to private individuals a remedy.  This emphasizes the notion, addressed to some extent in Maiden v. Rozwood, 461 Mich. 109 (1999), that the government (and its individual actors) can commit torts, i.e., be negligent, and yet not be liable because no remedy exists.  This is a fundamental point in the current opinion one must understand before addressing the remedy available, if any, to an individual for a governmental official’s violation of a court order and liability for contempt.

To be sure, county sheriffs, as constitutional officers, have inherent common law powers and duties, in addition to those additional powers imposed by law, i.e., by statute.  They are answerable (to the government) for a breach of their duties, and this certainly includes contempt of a court order.  One of the inherent common-law duties of the county sheriff is to execute orders of the court and another is to take custody of those whom the court orders and to ensure safe and proper treatment of those in custody by virtue of lawful judicial order.

However, as the majority correctly points out, the liability to an individual under the contempt provision, MCL 600.1721 does not extend to allow the imposition of a remedy for a tort by the Sheriff – the court has no more inherent authority to lift the jurisdictional bar to imposing tort liability on the Sheriff unless a remedy is available under the GTLA.  Here, the only remedy as to the Sheriff’s deputy would be the “gross negligence” exception or the “intentional tort” exception, both of which were discussed at great length by the Court in Odom, supra.

Moreover, a review of the fundamental common law powers and duties of the Sheriff, in conjunction with the retained-unless-surrendered immunity of the government reveals the imposition of duties and fines or punishment against the sheriff, while not necessarily subject to total immunity, are limited to the sheriff’s (and his or her deputies’) duties to the public at large.  Thus, any violation of his or her duties or contempt of a court’s order does not give rise to a personal cause of action sounding in tort cognizable within the exceptions of the GTLA.  The “immunity” from “tort liability” encompasses the Sheriff’s office, as well as the acts of his or her deputies.  See Odom, supra; see also In re Bradley’s Estate, Slip. Op. at 25.

Justice Cavanagh dissents.  He argues MCL 691.1407(1) does not preclude civil contempt against the government, nor the imposition of sanctions in the form of forced indemnity payments to the estate for decedent’s death.

Justice McCormack also writes a compelling and well-researched dissent.  The premise is the Legislature, by enactment of the GTLA, did not grant immunity for contempt.  Slip Op. at 1-2.  This proposition, I would submit, is both correct and incorrect.

It is correct because the government, here the judiciary, retains a measure of authority required via the Michigan Constitution, to impose conduct-altering controls upon other members (and branches) of government, be it a member of the executive branch of state government, such as the constitutional office of county sheriff, or another public official.  This power can and should be exercised by the courts under the auspices of their inherent authority to force public officers to do something, or, in the necessary case remedy a failure or neglect of those orders by fine or imposition of punishment.

The premise is incorrect, however, to the extent it implies that the Legislature ever retained authority to grant immunity.  Under the jurisdictional principles of governmental immunity adhered to in Michigan, immunity from suit was never surrendered to the Legislature in order that it could divest the courts and other governmental entities, including individual governmental employees and officers of the inherent retained immunity of the sovereign.

The jurisdictional principle of immunity requires explicit legislative waiver of suit immunity and precision and clarity in both the form of the action and the nature of the remedy for governmental entities to be hailed into courts to answer in a cause of action brought by a private individual.  The majority’s explanation of tort liability offers some explanation that the government can be negligent, and that negligence can cause a private individual harm and damages, yet the government may not be answerable in a court of law to that individual for those damages.  This is, in all essence, an acknowledgment of the inherent, preexisting immunity the government retained to be free from liability for commission of ordinary negligence towards individual members of the public in conducting the day-to-day affairs of the government’s business.

Only “gross negligence” or an “intentional tort”, if proved, waives the suit immunity of individuals and only satisfaction of those other statutory exceptions in the GTLA can impose liability on the government; otherwise the government and its subordinate actors are cloaked with the retained immunity of the sovereign.  Mack v. City of Detroit, 467 Mich. 186, 195, 202 (2002); Lash v. Traverse City, 479 Mich. 180, 196 (2007).

A court’s authority, vis-a-vis other governmental actors within other branches of government, through exercise of the contempt powers, is essentially an act that is authorized and which occurs within the operational sphere of the government’s day-to-day functions.  This says nothing of a private individual’s rights to recover tort damages from the government for harm caused directly, or indirectly, by the government’s simple or ordinary “negligence”, which is simply not actionable under the GTLA.  There is no cause of action against the government (or its individual actors) for ordinary negligence, though a duty may exist and may be breached in a given case.  Maiden, supra, Mack, supra, Odom, supra.

The authority of a court to impose contempt sanctions vis-a-vis another co-equal branch of government is limited to fine or imprisonment as a breach of a separate and cognizable duty to the state itself – not to recognize the grievance of a private individual seeking compensatory tort damages.

Justice McCormack correctly concludes contempt is unequivocally not a species of tort.  Slip Op. at 8.  Indeed, as she points out, it is and always has been a form of action quasi-criminal in nature under Michigan and common-law jurisprudence.  Id.  But, the appropriate definition of contempt and its purpose reveals the limits placed on its use as a civil remedy by or for private individual citizens, as opposed to a recognized remedy for the People, i.e., the government, as a whole, to enforce obedience and to compel action based on lawful orders that will affirm the orderly administration of justice and punish those whose violations of such orders have resulted in a wrong, however tragic.

Indeed, viewed from this orientation, the concept a single individual should be allowed to recover potentially great sums for a contemptuous act on the part of the government, via the enforcement powers of the government (here the judiciary), reveals the fundamental error that contempt can be used in this manner.

Not to mention that contempt authority exists without regard to the jurisdiction a court must have to address the merits of a cognizable cause of action under the GTLA – and those are only what causes of action are recognized by the Legislature as having removed the jurisdictional bar to the government’s suit immunity.

Further, under this view, Justice McCormack’s point that the contempt statute includes sheriffs and the GTLA does not apply is entirely correct.  Slip Op. at 10.  But, this does not mean the sheriff, coroner, etc., or any other official named in that provision, can be held to answer to a private individual for damages caused by tortious conduct that is otherwise immune from suit.

This is a very thorough opinion and there are extremely critical points made by both the majority and dissent.  It provides useful jurisprudence on the future development of the meaning of “tort liability” under the GTLA.