Opinion
SC: 164774 COA: 358794
06-16-2023
Vanessa FERRIOLE, Plaintiff-Appellant, v. CITY OF DETROIT, City of Detroit Police Department, and Casey Schimeck, Defendants-Appellees.
Order
On order of the Court, the application for leave to appeal the July 28, 2022 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.
Cavanagh, J. (dissenting).
I dissent from the Court's denial of leave in this case. I would reverse and remand to the Court of Appeals to consider defendants’ arguments on plaintiff's comparative negligence. When reviewing motions for summary disposition under MCR 2.116(C)(10), courts "may not weigh evidence, make determinations of credibility, or otherwise decide questions of fact." Sabbagh v. Hamilton Psychological Servs., PLC , 329 Mich. App. 324, 346, 941 N.W.2d 685 (2019). But that is exactly what the Court of Appeals and the trial court did here.
Plaintiff sued defendants for her injuries under the motor vehicle exception to governmental immunity, MCL 691.1405, after being T-boned by a police car that ran a red light while responding to an emergency call. The statute "imposes liability for bodily injury and property damage resulting from a governmental employee's negligent operation of a government-owned motor vehicle." Hannay v. Dep't of Transp. , 497 Mich. 45, 62, 860 N.W.2d 67 (2014) (quotation marks and citation omitted). According to plaintiff, Officer Casey Schimeck negligently proceeded into the intersection on a red light without slowing down and yielding the right of way to plaintiff. According to defendants, Officer Schimeck did not breach the applicable standard of care and plaintiff was more than 50% comparatively at fault for failing to yield to an emergency vehicle and for illegally passing across a solid double yellow line.
The record reflects that the traffic light was green as plaintiff approached the intersection with Alter Road from westbound Charlevoix Street in Detroit. She slowed down and veered left to pass two vehicles stopped at the light, with the rear vehicle signaling a right turn. Officer Schimeck's emergency vehicle slowed down on Alter to approach the intersection at between 40 and 49 miles per hour, with a posted speed limit of 35. Schimeck was familiar with the intersection and, despite looking both ways, only saw the stopped vehicles, assumed that her vehicle's lights and sirens were heeded, and concluded that the coast was clear. However, Schimeck's view of westbound Charlevoix east of Alter was obscured by several buildings. Meanwhile, plaintiff looked left, entered the intersection at about 30 miles per hour, looked right, and then her car was struck by the police cruiser and pinned against a building.
At the close of discovery, plaintiff filed a motion for partial summary disposition under MCR 2.116(C)(10), arguing that there was no genuine issue of material fact that the officer breached the duty of care and that plaintiff was not comparatively negligent. Defendants filed a countermotion asserting governmental immunity and that plaintiff was more than 50% comparatively negligent. The trial court denied both motions in part, finding that questions of fact remained on both the officer's negligence and plaintiff's comparative negligence, but that plaintiff was not comparatively at fault on the solid-double-yellow-line theory because there was no solid double yellow line. On appeal of the countermotion, the Court of Appeals reversed and remanded for entry of summary disposition in defendants’ favor.
When reviewing a motion under MCR 2.116(C)(10), a trial court must consider all evidence submitted by the parties in the light most favorable to the party opposing the motion. El-Khalil v. Oakwood Healthcare, Inc. , 504 Mich. 152, 160, 934 N.W.2d 665 (2019). Such a motion may only be granted when there is no genuine issue of material fact. Id. "A genuine issue of material fact exists when the record leaves open an issue upon which reasonable minds might differ." Id. (quotation marks and citation omitted).
The Court of Appeals concluded that summary disposition for defendants was warranted. As to the officer's negligence, the panel first found that there was no question of fact that the police cruiser's lights and siren were on just prior to the collision. I take no issue with this conclusion, as I discern no error in concluding that reasonable minds may not differ considering the video evidence and testimony. However, it was error to conclude that "no reasonable person could disagree that Schimeck acted with the care that a reasonably prudent person would have shown under similar circumstances in carrying out the official duties required of Schimeck as a police officer." Ferriole v Detroit , unpublished opinion of the Court of Appeals, issued July 28, 2022 (Docket No. 358794), p. 11, 2022 WL 3009812. While the panel applied the correct duty-of-care standard, its reasoning failed to account for the speed being traveled by Officer Schimeck or that her vision of the cross-street, which she was familiar with, was obstructed. Given these facts casting doubt on whether the officer exercised due care, I question the panel's conclusion that the officer was not negligent as a matter of law. A reasonable jury could conclude that Officer Schimeck should have slowed down more to account for the possibility of a passing vehicle using the eastbound lane to proceed westbound through the intersection. But instead of allowing the jury to make this determination, the panel substituted its own judgment about the reasonableness of the police officer's conduct.
Whether there was a double yellow line goes to the question of plaintiff's comparative negligence but also informs the question of the officer's negligence. The trial court determined that there was no double yellow line as a matter of law (although I suspect this may be a jury question, as I will explain). Since all inferences must be drawn in favor of plaintiff as nonmovant, El-Khalil , 504 Mich. at 160, 934 N.W.2d 665, an inference of legality for plaintiff's passing maneuver should be drawn. Therefore, reasonable minds could disagree as to whether the officer should have anticipated this potential maneuver and whether due care was taken in response.
The trial court fell into the same trap when it concluded that there was no genuine issue of material fact on plaintiff's comparative negligence as to the double-solid-yellow-line theory. Defendants pointed to their expert's review of the accident scene and testimony that "it's marked as a double yellow line, which you'll see in my photos. Although it is faint, I'll admit to that, it is there." Instead of assessing whether reasonable minds could differ considering the expert testimony and the submitted photographs, the trial court relied exclusively on its own review of the surveillance footage when concluding that there was no double yellow line ("I do not care about witnesses. I'm the trier of fact."). I am skeptical whether summary disposition on that element of the comparative-negligence defense was appropriate but would remand to allow the Court of Appeals to review this issue in the first instance.
Because I believe that the lower courts substituted their own judgment on questions of fact, usurping the jury's role as the arbiter of fact contrary to the well-established standard for assessing a motion brought under MCR 2.116(C)(10), I would reverse and remand.
Welch, J., joins the statement of Cavanagh, J.