-1- 

### STATE OF MICHIGAN

COURT OF APPEALS

MARK STIEVE and DENISE STIEVE,

Plaintiffs-Appellees, UNPUBLISHED March 9, 2017

v No. 329591 Wayne Circuit Court CITY OF DEARBORN, DEARBORN POLICE DEPARTMENT and KYLE BOWEN, also known as KYLE BOWMAN, LC No. 13-014500-NI

Defendants-Appellants.

Before: G LEICHER , P.J., and M URRAY and F ORT H OOD , JJ.

M URRAY

, J., ( concurring in part and dissenting in part ).

The majority opinion concludes that defendant City’s motion fo r summary disposition was properly denied because there was a genuine issue of materi al fact on whether the City was liable for plaintiff’s injuries under the motor vehicle excepti on to the Governmental Tort Liability Act, MCL 691.1405. It similarly concludes that a gen uine issue of material fact exists as to whether Officer Bowen was grossly negligent and therefore not entitled to governmental immunity under MCL 691.1407. I agree with sections I, II and I IIC of the majority opinion, and with parts of IIIA. However, I disagree with the conclusion in part IIIB that there is a genuine issue of material fact regarding whether Officer Bowen was gros sly negligent. My disagreements with the major ity opinion are briefly discussed b elow.

First, I agree that there is a genuine issue of material fact on whether the City is liable under the motor vehicle exception to governmental immunity, but I do not agree that one factor for the jury to consider is whether “Bowen was reasonably respo nding to the call from dispatch.” According to Supreme Court precedent, Bowen’s decision to deem the dispatch call an emergency situation cannot be a basis upon which to impose liab ility against the City under the motor vehicle exception. In Robinson v City of Detroit , 462 Mich 439, 457; 613 NW2d 307 (2000), the Court held that “the decision to pursue a fleeing m otorist, which is separate from the operation of the vehicle itself, is not encompassed within a na rrow construction of the phrase ‘operation of a motor vehicle.’ ” The same holds true with res pect to Officer Bowen’s decision to deem the dispatch call an eme rgency situation requiring an i mmediate response. But even taking that factor out of consid eration, I nevertheless conclud e that there remains a genuine issue of material fact whether the City is liable under the motor veh icle exception for the reasons set forth in the remaining portions of part IIIA of the majority op inion.-2- Second, I disagree with the major ity opinion’s conclusion that a genuine issue of material fact exists regarding whether Officer Bowen’s conduct amounted to gross negligence as defined by MCL 691.1407. As the majority notes, gross negligence is de fined as “conduct so reckless as to demonstrate a substantial lack of concern for whether an inj ury results.” MCL 691.1407(2)(c). Evidence of ordinary negligence, such as the n egligence required to establish liability under the motor vehicle exception, does not create a genuine issue of material fact as to gross negligence. See Maiden v Rozwood , 461 Mich 109, 122-123; 597 NW2d 817 (1999). Instead, a plaintiff must establish facts showing that Officer Bowen’s conduct evidenced “a wilful disregard for safety measure and a singular disregard fo r substantial risk.” Oliver v Smith

, 290 Mich App 678, 685; 810 NW2d 57 (2010). And, importantly fo r purposes of this case, the violation of a statutorily impos ed duty typically only constitu tes ordinary negligence, not gross negligence. Poppen v Tobey , 256 Mich App 351, 358; 664 NW2d 268 (2003). Applying this difficult standard, nothing in th e record establishes a genuine issue of material fact as to whether

Officer Bowen’s conduct amounted to a substantial lack of conce rn for whether an injury results. Even if a reasonable juror coul d conclude that a violation of t he state’s safety st atutes occurred in this case, that would be insuffi cient to establish gross neglig ence. Poppen , 256 Mich App at 358. And, there is no evidence counte ring the police officers’ testi mony as to the reasonableness of considering the dispatch call an emergency situation, as the ca ll referenced an individual with a handgun addressing two unarmed females in a public street. In addition, it is undisputed that the emergency run occurred in the middle of a bright day with dry d riving conditions. Though these facts in conjunction with the c onflicting evidence of the speed and whether the lights or siren were properly activated, could a llow a reasonable jury to concl ude negligence may have occurred in the operation of the vehicle, no reasonable juror c ould conclude Officer Bowen acted with a wilful disregard for safety measures or a singular disre gard for a substantial risk. As a result, I would reverse the tr ial court’s order denying Officer Bowen’s motion for summary disposition.

/s/ Christopher M. Murray