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

* Former Court of Appeals judge, sitting on the Court of Appeals by assignment.

- 1

- 

### 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

JON SNYDER

, P ersonal R epresentative of the ESTATE OF CHRISTINA CAROLINE SNYDER,

Plaintiff

- Appellee, UNPUBLISHED August 22, 2024

v No. 367210 Washtenaw Circuit Court CHARLES EDWARD HORN, LINDA LORRAINE HORN, and STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, LC No. 19

- 000769

- NI

Defendant s ,

and

CITY OF YPSILANTI

,

Defendant

- Appellant

.

Before: O’B RIEN , P .J., and C AVANAGH and S HAPIRO * , JJ.

P ER C URIAM

. Defendant, City of Ypsilanti, appeals as of right an order denying its motion for summary disposition of plaintiff’s negligence claim arising from a motor vehicle accident involving a parked , unoccupied fir etruck. Defendant had argued that it was entitled to governmental immunity because the motor

- vehicle exception did not apply under the facts of this case . We reverse.

I. BACKGROUND FACTS

On May 29, 2017, at about 10:45 p

. m

. , the Ypsilanti Fire Department was dispatched to the scene of a rollover accident on Interstate 94 (I

- 94)

. Upon arrival, other emergency vehicles were already on the scene . Thus, the fire truck was parked partially on the roadway and partially on the shoul der so as to block other motorists traveling on the expressway from entering into the accident scene. The fire truck was bright yellow and had its emergency flashing lights activated.- 2

-

Shortly after arrival, the fire truck was struck in the rear by a vehicl e traveling at a high rate of speed which was being driven by Charles Edward Horn (Horn)

. Plaintiff’s decedent

, Christina Caroline Snyder

, was a backseat passenger in that vehicle and died. The frontseat passenger was severely injured but survived. Subs equently, Horn was convicted of reckless driving causing death and reckless driving causing impairment of a bodily function

. 1

Plaintiff filed this action against defendant, the City of Ypsilanti

, alleging that its fire truck was “parked in an unsafe manner in the lane of travel, without any traffic control devices . . . .” Plaintiff alleged , in part, that defendant “was guilty of ordinary negligence and misconduct” by: failing to take precautions to avoid a collision; unsafel y parking or standing in the roadway; performing an unsafe “Lane Plus One maneuver ”; failing to use traffic control devices ; and interfering with the normal flow of traffic.

Ultimately, defendant filed a motion for summary disposition, arguing that it was entitled to governmental immunity under MCL 691.1407(1) because “ordinary negligence and misconduct” are insufficient to state a claim upon which relief can be granted. Further, defendant argued, to the extent that plaintiff was attempting to claim (alth ough not specifically pleaded ) that the motor

- vehicle exception to governmental immunity, MCL 691.140 5 , was applicable, plaintiff’s claim must be dismissed. At the time of the accident, the fire truck

— which was bright yellow and had its emergency lights ac tivated

— wa s properly parked using a technique known as

a “Lane +1 Blocking ” maneuver 2 and was unoccupied . The firetruck provided lane

- blockage

protection for victims and emergency personnel working at the earlier rollover traffic accident, and thus, the f

iretruck was not being “operated” as a motor vehicle. Moreover, defendant argued, the fire truck was easily visible and avoidable yet Horn slammed into the back of it without attempting
to brake or avoid it

— likely because he was texting while driving

— and t hus, no reasonable jury could find defendant negligent . Accordingly, defendant was entitled to summary disposition under MCR 2.116(C)(7), (C)(8), and (C)(10).

On June 20, 2023, plaintiff filed a motion for summary disposition under MCL 2.116(C)(10), argu ing that (1) defendant’s fire truck was “improperly occupying the entire right most travel lan e of I

- 94” which contributed to the fatal car accident; and (2) defendant was not entitled to governmental immunity because “it owned the vehicle that was negligently occupying the travel lane of I

- 94 and angled in such a manner that was dangerous for the p ublic[.]” In support of its motion, plaintiff allegedly attached the affidavit and deposition testimony of purported accident reconstruction expert, Tim Robbins, who testified that the positioning of the fire truck at

1 H orn’s convictions were affirmed on appeal. See People v Horn , unpublished per curiam opinion of the Court of Appeals, issued January 14, 2021 (Docket No. 350129)

.
2 According to the National Traffic Incident Management Responder Training Program Michigan Student Handout, Lesson 4, attached to defendant’s brief in support of motion for summary disposition, this protocol occurs “when responders block the involved lane(s) plus one additional lane to provide a protected lateral space for safety.”- 3

-

issue was not in accordance with indus try best practices. 3 Accordingly, plaintiff argued that defendant was not entitled to governmental immunity because the motor

- vehicle exception applied and summary disposition under MCR 2.116(C)(10) should be granted in plaintiff’s favor.

Defendant responded to plaintiff’s motion for summary disposition and sought sanctions, arguing that plaintiff misunderstood governmental immunity law and the motor

- vehicle exception

—

which was thoroughly explained in defendant’s motion for summary disposit ion.

On July 5, 2023, p laintiff responded to defendant’s motion for summary disposition, arguing that defendant’s fire truck was improperly placed in the right lane of travel on Interstate 94 which resulted in Horn driving into the back of the firetruck ca using the death of plaintiff’s decedent. Because the vehicles from the prior accident were located in the ditch, the fire truck should have been parked or positioned so as to block the shoulder only and not the right travel lane. Plaintiff argued that def endant was not entitled to governmental immunity because this case arose from the negligent operation of the fire truck

— although it was temporarily parked , and thus, the motor

- vehicle exception applied.
Defendant replied to plaintiff’s response to its moti on for summary disposition, arguing that (1) plaintiff’s complaint “failed to state a legally viable cause of action by failing to allege facts giving rise to an exception to governmental immunity; ” (2) plaintiff cannot establish that defendant’s firetruck was being “operated

, ” i.e., driven, at the time of the accident as explain ed in Chandler v Muskegon Co , 467 Mich 315, 320

- 322; 652 NW2d 224 (2002) ; and (3) plaintiff cannot establish that his decedent’s injuries resulted from any negligent operation of the firetruck as required under MCL 691.1405. Accordingly, defendant argued that its motion for summary disposition should be granted.

On July 12, 2023, the trial court heard oral arguments on the motions for summary disposition and the parties argued consistently with their briefs. The trial court first held that the complaint sufficiently pleaded a claim in avoidance of governmental immunity. The trial court also held that the firetruck was being “operated” because it was being used to block the la ne of travel as required to implement the “Lane +1 Blocking” maneuver. In other words, the firetruck was being used to perform that emergency function as was their job as firefighters

. Therefore, defendant’s motion for summary disposition based on that g round was also denied. The parties then addressed whether a genuine issue of material fact existed on the issue of negligence

. Plaintiff argued that the Lane +1 Blocking maneuver was not required under the circumstance s and, further, that cones and flare s should have been in place to direct traffic away from the right

- most lane of travel since that blocking maneuver was employed

. Defendant argued that plaintiff’s own expert admitted that traffic control devices like cones and flares had no causal relatio nship to Horn hitting the firetruck. Further, the Lane +1 Blocking maneuver was necessary under the circumstances of this accident. The trial court held that there were genuine issues of material fact with regard to the Lane +1 Blocking maneuver, and thu s, denied both plaintiff’s and defendant’s motions for

3 The affidavit and deposition testimony were not attached to the motion or brief in support of the motion located in the lower court record. However, they were at tached to plaintiff’s brief in support of response to defendant’s motion for summary disposition.- 4

-

summary disposition brought under MCR 2.116(C)(10). Thereafter, the court granted a motion for stay pending appeal in light of the governmental immunity issue. On July 20, 2023, an order was entered consistent with the trial court’s rulings. This appeal followed.

Defendant argues that the trial court erred in holding that the motor

- vehicle exception to governmental immunity applies to plaintiff’s claims because controlling law directs that the parking of a firetruck as a roadblock in one lane of travel for the protection of persons involved in an accident and first responders on the scene does not constitute the operation of a motor vehicle. In the alternative , even if the motor

- vehicl e exception applies, no reasonable juror could conclude that negligence occurred in that regard or that the accident directly resulted from the parking of the firetruck , i.e., that it was the proximate cause

. We agree with defendant that the motor

- vehicle exception to governmental immunity did not apply under the facts of this case, and thus, defendant was entitled to governmental immunity as a matter of law

.
II. STANDARD OF REV IEW

A trial court’s decision on a motion for summary disposition is reviewed de novo. Loweke v Ann Arbor Ceiling & Partition Co, LLC , 489 Mich 157, 162; 809 NW2d 553 (2011). Defendant brought its motion for summary disposition , in relevant part, under MCR 2.116(C)(7), arguing that plaintiff’s claims were barred by governmental im munity. The issue whether governmental immunity applies presents a question of law which is reviewed de novo. Seldon v Suburban Mobility Auth for Regional Transp , 297 Mich App 427, 433; 824 NW2d 318 (2012). A motion brought under subrule (C)(7) “does no t test the merits of a claim but rather certain defenses” that may negate the need for a trial. Nash v Duncan Park Comm , 304 Mich App 599, 630; 848 NW2d 435 (2014) (quotation marks and citation omitted), vacated in part on other grounds 497 Mich 1016 (201 5). “In reviewing a motion for summary disposition under MCR 2.116(C)(7), a court considers the affidavits, pleadings, and other documentary evidence presented by the parties and accepts the plaintiff’s well

- pleaded allegations as true, except those contr adicted by documentary evidence.” McLean v Dearborn , 302 Mich App 68, 72

- 73; 836 NW2d 916 (2013). “ If the facts

are no t in dispute and reasonable minds could not differ concerning the legal effect of those facts

, whether a claim is barred by immunity is a question for the court to decide as a matter of law.” Ray v Swager , 321 Mich App 755, 761 n 1; 909 NW2d 917 (2017), quoting Poppen v Tovey , 256 Mich App 351, 354; 664 NW2d 269 (2003).

III. ANALYSIS
The trial court erred in denying defendant’s motion f or summary disposition because the
motor

- vehicle exception did not apply under the facts of this case

, and thus, defendant was entitled to governmental immunity as a matter of law.

As a general rule, under the governmental tort liability act, MCL 691.1401 et seq ., a governmental agency is immune from tort liability when it is “ engaged in the exercise or discharge of a governmental function. ” MCL 691.1407(1). “[T]he immunity conferred upon governmenta l agencies is broad , and the statutory exceptions thereto are to be narrowly construed.” Nawrocki v Macomb Co Rd Comm , 463 Mich 143, 158; 615 NW2d 702 (2000) (emphasis in original) . One statutory exception is the motor

- vehicle exception. This exception provides that a governmental
agency “ shall be liable for bodily injury and property damage resulting from the negligent- 5

-

operation by any officer, agent, or employee of the governmental agency, of a motor vehicle of which the governmental agency is owner

. . . .” MCL 691.1405. Thus, for the exception to apply, the alleged injury must have resulted directly from the negligent operation of a mot or vehicle. See Robinson v Detroit , 462 Mich 439, 456

- 457 ; 613 NW2d 307 (2000). Mere involvement of a motor vehic le is not sufficient to abrogate immunity. See Peterson v Muskegon Co Bd of Rd Comm’rs

, 137 Mich App 210, 213

- 214; 358 NW2d 28 (1984). And causation under the statute must be direct as opposed to the lesser “but for” causation standard in other negligence cases. Robinson , 462 Mich at 457 n 14.

Here, there is no dispute that defendant is a governmental agency and that defendant owned th e firetruck at issue. Rather, the parties ’ dispute centers on whether the parked, unoccupied firetruck was being “operated

, ” within the contemplation of the motor

- vehicle exception

, at the time of the accident.

In Chandler v Muskegon Co , 467 Mich 315; 65 2 NW2d 224 (2002), our Supreme Court specifically considered what the phrase “operation of a motor vehicle” means for purposes of the
motor

- vehicle exception. In that case, the plaintiff was injured while trying to pry open the doors of a parked bus after the doors closed on a person’s neck while the person was trying to exit the bus so that the bus could be cleaned

. Id . at 316. The plaintiff sued, and the county defendant sought summary dismissal on the ground that the action was barred by governmental immunity because the motor

- vehicle exception did not apply since the bus was not in operation, i.e., in motion, when the injury occurred. Id . at 317. The trial court granted the motion and this court reversed that decision, holding that the bus was in op eration “as long as it is being used or employed in some specific function or to produce some desired work or effect.” Id . at 318. Our Supreme Court disagreed. Acknowledging that the Legislature did not define the term “operation” for purposes of MCL 69 1.1405, the Chandler Court turned to the dictionary definition and held that, in accordance with th at definition and “the narrow construction given to the exceptions to governmental immunity, [] the language ‘operation of a motor vehicle’ means that the mo tor vehicle is being operated as a motor vehicle.” Id . at 320

- 321 (emphasis in original)

. In other words, the Supreme Court held, “the ‘operation of a motor vehicle’ encompasses activities that are directly associated with the driving of a motor vehicle.” Id . at 321. And, in that case, because the bus was parked for the purpose of maintenance when the plaintiff was inju red

, the bus was not being operated as a motor vehicle; thus, the defendant was entitled to summary disposition. Id . at 322.

Similarly, in Poppen v Tovey , 256 Mich App 351; 664 NW2d 269 (2003), the injured plaintiff struck the rear end of a city water tr uck that was stopped in one of the two through

- lane s of travel with its emergency flashers and overhead warning lights activated so that an employee could inspect a fire hydrant. Id . at 352. The city defendant moved for summary disposition, arguing that the motor

- vehicle exception to governmental immunity did not apply, and the trial court agreed that the plaintiff’s injuries did not arise from the “operation” of a government

- owned vehicle. Id . at 353. On appeal, this Court affirmed the trial court’s de cision. Citing to our Supreme Court’s decision in Chandler , 467 Mich at 3 20

- 321 , this Court held that the phase “operation of a motor vehicle” for purposes of the motor

- vehicle exception meant that the vehicle was being operated as a motor vehicle, and th erefore, included only “activities that are directly associated with the driving of a motor vehicle.” Id . at 355. Accordingly, because the city water truck was stopped for a period of time to allow for a city inspection at the time the plaintiff struck i t, the- 6

-

truck’s “presence on the road was no longer ‘directly associated with the driving’ of that vehicle” and it “was not being operated ‘as’ a motor vehicle at the time of the accident [

. ] ” Id . at 355

- 356.

In St r ozier v Flint Community Sch , 295 Mich App 82; 811 NW2d 59 (2011), this Court again considered the meaning of the term “operation” with regard to the motor

- vehicle exception to governmental immunity. Id . at 87

- 88. In St r ozier , a passenger on a school bus was injured when the bus co llided with a garbage truck that had been making periodic, brief stops in the right lane of travel so that garbage could be picked up and placed in the truck. Id . at 84. The city defendant moved for summary disposition, arguing that it was entitled to g overnmental immunity because the motor

- vehicle exception did not apply since the bus was stopped, and thus, not in “operation” at the time of the accident. Id . at 87. The trial court denied the defendant’s motion and this Court affirmed that decision, ho lding that even if the garbage truck was making temporary stops to pick up garbage, it was in “operation” at the time of the accident. Id . at 88. That was so because the function of a garbage truck is to pick up garbage which cannot be done unless the
tr uck makes periodic, brief stops to actually pick up garbage. Id . at 91. Therefore, the motor

vehicle exception to governmental immunity applied and summary disposition was not warranted.

The facts in this case are factually similar to Chandler and Poppe n and distinguishable from those of Strozier

. Here, the unoccupied firetruck

— which was bright yellow and had its emergency lights activated

— was parked partially on the roadway and partially on the shoulder so as to block other motorists traveling on the e xpressway from entering into an existing accident

scene when Horn struck the firetruck

. At the time of the collision, t he firetruck was not being operated “as a motor vehicle;” rather, it was being used as a roadblock or barricade. See Chandler

, 467 Mich at 320

- 321. The firetruck’s presence on the road was no longer “directly associated with the driving” of that vehicle. Id . at 321 ; Poppen
, 256 Mich App at 355

- 356. In fact, it was unoccupied. Like the bus in Chandler and the water truck in P oppen , the firetruck was not being used as a motor vehicle at the time of the accident. In other words, t he fact that it was a motor vehicle was irrelevant to the accident occurring. If wooden barricades had been erected instead of the firetruck being us e as a barricade

, in all likelihood Horn would have struck the wooden barricades

. Unlike the garbage truck in Strozier , the firetruck was not “carrying out its intended function” at the time it was struck by Horn. Strozier , 295 Mich App at 91. According ly, the motor vehicle exception to governmental immunity does not apply and defendant was entitled to summary disposition. We vacate the trial court’s order denying defendant’s motion for summary disposition and remand for entry of an order granting the m otion and dismissing plaintiff’s claims against defendant. In light of this resolution, we need not consider defendant’s alternative argument.
Vacated and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.

/s/ Colleen A. O’Brien /s/ Mark J. Cavanagh