If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.

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### S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

ANTHONY ARNOLD,

Plaintiff

- Appellant, UNPUBLISHED May 16, 2024

and

NORTH WEST LABS, INC.,

Intervening Plaintiff,

v No. 366368 Wayne Circuit Court

LC No. 20

- 014518

- NI

CITY OF DETROIT,

Defendant

- Appellee

,

and

JOHN DOE,

Defendant.

Before: B ORRELLO

, P .J., and S WARTZLE and Y OUNG , JJ.

P ER C URIAM

.

In this first

- party and third

- party no

- fault action, plaintiff , Anthony Arnold, challenges the
trial court ’ s order granting summary disposition to defendant , the c ity of Detroit ( “the City” )

, under MCR 2.116(C)( 7) and MCR 2.116(C)( 8 ). We reverse the portion of the order granting summary disposition under MCR 2.116(C)(7) and remand fo r further proceedings consistent with this opinion.

I. BACKGROUND

Arnold alleges that on November 6, 2019, he was visiting his child at the residence of the
child ’ s mother on Evergreen Road. At some time between 10:20 p.m. and 10:38 p.m., Arnold- 2

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went to retrieve a diaper bag from the mother’s vehicle, which was parked facing north on Evergreen Road. Arnold entered the vehicle through the driver ’ s side door , closed the door, and
sat in the driver ’ s seat as he reached for the diaper bag in the vehi cle’s backseat. Before opening the door to exit the vehicle, Arnold looked behind the vehicle

, and in the rearview mirror

, and did not observe any oncoming traffic. When Arnold opened the driver ’ s side door to exit the vehicle, however, a bus owned by th e City and traveling north on Evergreen Road struck the driver ’ s door
of the vehicle , causing injuries to Arnold

. He alleges that after the collision, the bus driver pulled
in front of the vehicle for 30 seconds before driving away. Arnold was able to id entify the bus as Detroit Department of Transportation (DDOT) cab number 1027. Arnold contacted the Detroit Police Department the next day and filed a report regarding the accident.

Arnold filed a complaint against the City and John Doe, the alleged bus driver and a DDOT employee

. Arnold alleged three counts: (1) personal injury protection (PIP) benefits against the City ; (2) bodily injury liability against Doe; and (3) owner liability against the City

. The City filed

an answer to Arnold ’ s complaint denying , or neither admitt ing nor den ying , the substantive allegations in the complaint. Relevant to th is appeal

, the City raised as an affirmative defense that
Arnold failed to state a claim under any exception to the City ’ s governmental immunity provide d by the Governmental Tort Liability Act (GTLA), MCL 691.1401 et seq

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Doe was later deposed and testified that he was employed as a bus driver for the City and assigned to a route that traversed Evergreen Road. He believed he worked the afternoon shift on the date of the alleged accident but was not certain. Doe denied (1) that he was involved in an
accident that day

, (2) that he had ever come into contact with a car door on Evergreen Road , and (3) that his bus was ever damaged in 2019.

The City filed a motion for summary disposition under MCR 2.116(C)(7) (immunity granted by law)

, 2 arguing it was entitled to summary disposition because Arnold ’ s claims were barred by the GTLA

. The City argued that (1) Arnold failed to allege facts of Doe ’ s negligence to support a cause of action under the motor vehicle exception to the GTLA , and (2) the accident was
the result of Arnold opening a car door into traffic in violation of MCL 257.676b ( prohibiting interference with the normal flow of vehicular or pedestria n traffic) and Detroit City Code, § 55

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- 7 ( prohibiting opening vehicle doors so as to impede traffic). Th erefore

, the City argued, it wa s immune from tort liability under the GTLA

, and Arnold f ailed to allege facts supporting an exception to its governme ntal immunity.

In response, Arnold argued that under MCL 691.1405, a government agenc y is not immune from liability for bodily injury or property damage resulting from the negligent operation of a

1 The GTLA states, in relevant part, that a governmental agency is generally immune from tort liability if the agency is engaged in the exercise or discharge of a governmental function, unless the injury is proximately caused by an employee’s gross negligence. MCL 691.1407(1) and (2)(c).

2 The City also filed a motion for summary disposition under MCR 2.116(C)(8) (failure to state a claim) with respect to Arnold’s PIP claim, arguing it was not the appropriate insurer against whom
to pursue PIP benefits. The trial court granted the City’s motion under MCR 2.116(C)(8)

. Arnold does not challenge this on appeal.- 3

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motor vehicle by an agency employee. Arnold f urther argue d that the City did not offer any
evidence showing that Doe was not negligent , whereas Arnold’s own deposition testimony
established that Doe negligently struck the v ehicle

. Therefore, according to Arnold, t he City failed
to establish entitlement to summary disposition under MCR 2.116(C)(7).

The City ’s reply provided a photo of the area of the accident taken from Google Maps, which purportedly demonstrated that Evergreen Road was not a wide street

. The City argued that
Arnold was , therefore

, require d to take care to ensure the road was clear before opening the car
door. The City further argued that, by Arnold ’ s own testimony, he did not look before opening
the car door into traffic and thus caused the accident. 3

The trial court ruled that the City was entitled to summary disposition under

MCR 2.116(C)(7) as to Arnold’ s bodily injury and owner liability claims . It reasoned that Arnold failed to present any testimony or documentary evidence refuting his own negligence or setting
forth a basis for the City ’s or Doe’s negligence as required to defeat the City’s immunity under the

GTLA. 4 Arnold now appeals.

II. ANALYSIS

Arnold first argues that the trial court erred by granting the City’s motion under MCR 2.116(C)(7) because he established a genuine issue of material fact regarding whether Doe operated the bus in a negligent manner. We agree.

We review de novo a trial court ’ s decision on a motion for summary disposition. El

- Khalil v Oakwood Healthcare, Inc , 504 Mich 152, 159; 934 NW2d 665 (2019). “ Further, the determination regarding the applicability of governmental immunity and a statutory exception to governmental immunity is a question of law that is also subject to review de novo. ” Snead v John Carlo, Inc , 294 Mich App 3 43, 354; 813 NW2d 294 (2011).

Summary disposition is appropriate under MCR 2.116(C)(7) when a defendant is entitled to immunity granted by law. Norman v Dep ’ t of Transp , 338 Mich App 141, 146; 979 NW2d 390 (2021). “ When reviewing a motion under MCR 2.11 6(C)(7), the trial court must accept as true all of the plaintiff ’ s well

- pleaded factual allegations and construe them in favor of the plaintiff unless disputed by documentary evidence submitted by the moving party. ” Id

. “ A party may support a
motion und er MCR 2.116(C)(7) by affidavits, depositions, admissions, or other documentary
evidence ” and the trial court is required to consider such material if submitted. Maiden v Rozwood

, 461 Mich 109, 119; 597 NW2d 817 (1999). A party opposing a motion under MC R 2.116(C)(7)

“ need not reply with supportive material. ” Maiden , 461 Mich at 119. “ If no facts are in dispute, or if reasonable minds could not differ regarding the legal effect of the facts, the question whether the claim is barred by governmental immun ity is an issue of law for the trial court to decide. ”

3 Arnold testified, in fact, that before he opened the car door to exit the vehicle, he looked behind the vehicle and in the rearview mirror for oncoming traffic and saw none.

4 As noted, the trial court also summarily dismissed Arnold’s remaining PIP claim under

MCR 2.116(C)(8).- 4

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Norman , 338 Mich App at 146

- 147. “ The trial court properly grants a motion for summary disposition under MCR 2.116(C)(7) when the undisputed facts establish that the moving party is
entitled to immun ity granted by law. ” Allen v Bloomfield Hills Sch Dist , 281 Mich App 49, 52; 760 NW2d 811 (2008).

“ Except as otherwise provided, the government tort liability act

. . . broadly shields and grants to governmental agencies immunity from tort liability when an agency is engaged in the exercise or discharge of a governmental function. ” Moraccini v Sterling Hts , 296 Mich App 387, 391; 822 NW2d 799 (2012). Further,

[t]he existence and scope of governmental immunity was solely a creation of the
courts until th e Legislature enacted the GTLA in 1964, which codified several exceptions to governmental immunity that permit a plaintiff to pursue a claim against a governmental agency. A governmental agency can be held liable under the GTLA only if a case falls into o ne of the enumerated statutory exceptions. An activity that is expressly or impliedly authorized or mandated by constitution, statute, local charter, ordinance, or other law constitutes a government function. [ Id . at 391

- 392 (quotation marks and citation s omitted).]

Among the six exceptions to governmental immunity enumerated in the GTLA is the motor vehicle exception, MCL 691.1405, which states : “G overnmental agencies shall be liable for bodily injury and property damage resulting from the negligent operation by an officer, agent, or employee of the governmental agency, of a motor vehicle of which the governmental agency is owner

. . . . ”

A t issue is whether Doe operated the vehicle in a negligent manner such that the motor vehicle exception to gover nmental immunity under the GTLA applies. On the facts presented to

us, w e hold t he trial court erred by granting the City ’ s motion for summary disposition under MCR 2.116(C)(7) because , when viewing the facts in the light most favorable to Arnold as the

n onmoving party, hi s factual allegations establish a question of fact regarding whether Doe negligently operated the bus , and thus, whether the motor vehicle exception to the GTLA applies

. Arnold alleged in his complaint that Doe breached his duty of care by, among other things: (1) operating the bus without having it under constant control; (2) failing to properly observe the presence of other people on the road and failing to take timely and appropriate action to avoid a collision; (3) operating the bus i n a careless and heedless manner without due regard for Arnold ’ s rights and safety; (4) failing to maintain the horn, brak e s, or other equipment of the bus in good working order or failing to sound the horn or apply the brakes as necessary to avoid a colli sion; and (5) operating the bus in excess of the speed limit. Arnold also alleged that Doe ’ s negligence was the proximate cause of his injuries.

In its motion for summary disposition , the City presented the following documentary evidence: (1) the summons and complaint filed by Arnold ; (2) a complaint filed by intervening plaintiff North West Labs, Inc. (North West) ; (3) a traffic crash report; (4) Arnold ’ s deposition testimony; and (5) this Court ’ s opinion in Parkman v Enterprise Leasing Co of Detroit LLC

, unpublished per curiam opinion of the Court of Appeals, issued December 28, 2017 (Docket No. 335240). In its reply brief, the City added (1) a photo of Evergreen Road purportedly
demonstrat ing that it was “ not a wide boulevard ” and that Arnold failed to take care to observe whether a vehicle was approaching before opening the car door; (2) the summary disposition- 5

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scheduling order; and (3) a December 16, 2019 letter from Arnold ’ s counsel to the City requesting preservation of video footage from the bus in volved in the collision. With the possible exception of the photo of Evergreen Road, 5 none of the documentary evidence presented by the City disputed
Arnold ’ s factual allegation that Doe ’ s negligence was the proximate cause of his injuries

. 6 T h e trial co urt, therefore, erred by granting summary disposition to the City . Specifically, summary disposition is properly granted under MCR 2.116(C)(7) “ when the undisputed facts establish that the moving party is entitled to immunity granted by law, ” Allen , 281 Mich App at 52, and a factual dispute exists here as to whether the motor vehicle exception to the GTLA applies

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The City argues, and the trial court found, that it was entitled to summary disposition under MCR 2.116(C)(7) because Arnold failed to present evidence refuting his own negligence or setting forth a basis for negligence on the part of the City or Doe . But whether Arnold presented evidence
in this manner is irrelevant to whether the City was entitled to summary disposition on the basis of govern mental immunity. The relevant inquiry for a trial court reviewing a motion under MCR 2.116(C)(7) is whether, accepting all of the plaintiff ’ s well

- pleaded and undisputed factual allegations as true, the defendant is entitled to immunity granted by law. N orman , 338 Mich App at 146. Here, notwithstanding the City’s supporting documentary evidence, a factual dispute exists
as to whether Doe negligently operated the bus and, therefore, whether an exception to immunity under the GTLA applies. T he City also a rgues that this case is controlled by Parkman

. The City ’ s motion for summary dispositio n and its brief on appeal both cite Parkman , unpub op at 4, to support the proposition that Arnold “ has alleged no facts to support a claim that Defendant City

was negligent. ” U nder MCR 7.215(C)(1), unpublished opinions are not binding under the rule of stare decisis, al though they may be considered for their instructive or persuasive value. Haydaw

v Farm Bureau Ins Co , 332 Mich App 719, 726 n 5 ; 957 NW2d 858 (2020 ).

In any event, Parkman is distinguishable from this case. In Parkman , the plaintiff alleged in her complaint that the defendant negligently swerved into the plaintiff ’ s parked vehicle as she was opening her car door, but the defendant driver ’ s unrebutted testimony was that he was driving straight ahead and had not entered the parking lane when the plaintiff opened her car door and hit
his vehicle. Parkman

, unpub op at 2 . The only evidence presented by the plaintiff were photographs of her ve hicle , her own testimony,, and the defendant driver ’ s testimony. Id . This Court held that the trial court erred by denying the defendant ’ s motion for summary disposition under MCR 2.116(C)(7) because (1) the defendant presented evidence disputing the plaintiff ’ s

5 This image countered Arnold ’s deposition testimony that there is room on Evergreen Road for parked vehicles to open their car d oors and that Doe was driving too close to the vehicle when the
collision occurred

. But th is image did not dispute the various allegations of Doe’s negligence in Arnold’s complaint unrelated to the road’s width.

6 We note that Doe ’s deposition testimony

, specifically his assertion that the alleged accident did

not occur

, would dispute Arnold ’s well

- pleaded factual allegations as to Doe ’s negligence. However, our standard of review requires the trial court to accept all of Arnold ’s well

- pleaded
factual all egations as true and construe them in favor of Arnold “unless disputed by documentary

evidence submitted by the moving party .” Norman , 333 Mich App at 146 (emphasis added). The City did not submit Doe ’s testimony in support of its motion for summary disposition; rather, it was submitted by Arnold in his response to the City ’s motion.- 6

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well

- pleaded factual allegations and (2) the plaintiff failed to present evidence supporting her allegation that the defendant driver negligently swerved into her parked vehicle. Id

. at 4. These facts are distinguishable from the instant case because here

, the City never present ed documentary evidence disputing Arnold ’ s well

- pleaded factual allegations of Doe ’ s negligence

.

Arnold lastly argues a reasonable juror could conclude from his testimony that Doe was negligent, and that photos of the vehicle and the traffic crash report support his testimony that Doe was negligent. Because “this Court’s review of a trial court’s decision on a motion for summary disposition is limited to the evidence that was presented to the court at the time the moti on was decided,” Karaus v Bank of New York Mellon , 300 Mich App 9, 15 n 2; 831 NW2d 897 (2012), we do not consider the photos of the car door first submitted by Arnold as an exhibit to his motion
for reconsideration.

We hold Arnold pleaded sufficient fact s to create a question of fact as to whether Doe negligently operated the bus, and the City failed to present documentary evidence disputing those facts. The City , therefore, failed to establish entitlement to immunity under the GTLA, and the
trial court erred by granting its motion for summary disposition under MCR 2.116(C)(7).

III. CONCLUSION

We reverse the portion of the trial court’s order granting summary disposition under MCR 2.116(C)(7) and remand for further proceedings consistent with this opini on. We do not retain jurisdiction.

/s/ Stephen L. Borrello
/s/ Brock A. Swartzle /s/ Adrienne N. Young