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### STATE OF MICHIGAN

COURT OF APPEALS

JOJUAN DYSON,

Plaintiff-Appellee, UNPUBLISHED May 18, 2017

v No. 331256 Wayne Circuit Court CITY OF DETROIT, LC No. 15-001136-NI

Defendant-Appellant,

and

GREGORY COTTON, 1

Defendant.

Before: S ERVITTO , P.J., and C AVANAGH and F ORT H OOD , JJ.

P ER C URIAM

.

Defendant City of Detroit (“de fendant”) appeals as of right th e trial court’s order denying its motion for summary disposition. We reverse and remand for entry of an order granting summary disposition in favor of defendant.

Plaintiff was injured in a June 24, 2014 accident that occurre d when he was riding as a passenger on a city bus. The bus gradually crossed the center line, into the lanes for oncoming traffic, through a construction ba rricade, over a curb, and the n side-swiped a building where it came to rest. There were no signs of braking. When Emergency Medical Services (EMS) staff arrived, the driver, Gregor y Cotton, had no pulse or respiratio ns.

In initiating this lawsuit, plaintiff alleged, in avoidance of governmental immunity, that Cotton negligently operated the city bus. MCL 691.1405. 2 Defendant raised the sudden

1 Although Gregory Cotton is named as a defendant, he died in th e accident that is the subject of this appeal.-2- emergency doctrine as a defense to plaintiff’s claims, and the parties filed cross-motions for summary disposition. As relevant to this appeal, in its motion for summary disposition, 3 defendant argued that the sudden e mergency doctrine applied and Cotton was not negligent in his operation of the city bus. In r esponse, plaintiff argued that Cotton did not suffer a heart attack on June 24, 2014, and that even if h e had, it was not sudden or un expected, and ther efore the sudden emergency doctrine was not applic able. The trial court ultimat ely held that factual disputes existed that preclude d it from granting defendant’s motion for summary disposition.

This Court reviews a trial court’s decision on a motion for su mmary disposition filed pursuant to MCR 2.116(C)(7) de novo. Yono v Dep’t of Transp , 499 Mich 636, 645; 885 NW2d 445 (2016). Summary disposition may be granted pursuant to MCR 2.116(C)(7) “when a claim is barred by immunity granted by law.” Beals v Michigan , 497 Mich 363, 370; 871 NW2d 5 (2015).

To survive such a motion, the plaintiff must allege facts justi fying the application of an exception to governmental i mmunity. [The reviewing court ] consider[s] all documentary evidence submitted by the parties, accepting as tru e the contents of the complaint unless affidavits or other appropriate documents specifically

contradict them

. If the facts are not in dispute and reasonable minds could not differ concerning the legal effect of those facts, whether the claim is barred by immunity is a question for the court to decide as a matter of law. [ Id ., (footnotes, citations and internal quotations omitted; emphasis added).]

We review the record evidence in the light most favorable to th e party opposing the motion for summary disposition. Herman v City of Detroit , 261 Mich App 141, 143-144; 680 NW2d 71 (2004).

In Kozak v City of Lincoln Park , 499 Mich 465, 467; 885 NW2d 443 (2016), the Michigan Supreme Court stated, in pertinent part, as follows:

The governmental tort liability act (GTLA), MCL 691.1401 et seq

., affords broad immunity from tort liability to governmental agen cies and their employees whenever they are engaged in the exercise or discharg e of a governmental function. The GTLA provides several exceptions to this general rule, all of which must be narrowly construed. [ Kozak , 499 Mich at 467 (footnotes and citations omitted).]

2 Plaintiff also alleged that Cotton was grossly negligent in hi s operation of the city bus. MCL 691.1407(2).

3 Defendant did not specify unde r which subrule of MCR 2.116(C) it was seeking summary disposition of plaintiff’s claims . However, our review of the record, including the parties’ arguments at the motion hearing, as well as the trial court’s b ench ruling, leads us to conclude that summary disposition was gr anted pursuant to MCR 2.116(C)(7 ).-3- As noted above, plaintiff assert ed that defendant was liable f or plaintiff’s injuries because Cotton was negligent in operating the city bus. The relevant e xception to governmental immunity, MCL 691.1405, provides, in pe rtinent part as follows:

Governmental agencies shall be liable for bodily injury and pro perty damage resulting from the negligent operation by any officer, agent, o r employee of the governmental agency, of a motor vehicle of which the government al agency is owner[.] . . .

To the extent that defendant c ontended that the sudden emergen cy doctrine applied, and

that Cotton could therefore not be found to be negligent as a m atter of law, the pivotal issue for

us to decide is whether the tria l court correctly concluded tha t factual issues remained concerning whether Cotton experienced a sudden emergency. “The sudden-eme rgency doctrine applies

when a collision is shown to have occurred as the result of a s udden emergency not of the defendants’ own making.” White v Taylor Distrib Co, Inc , 482 Mich 136, 139-140; 753 NW2d 591 (2008) (citation and internal quotation marks omitted). A sudden loss of consciousness while driving may present a sudden emergency. Id. at 140. To be a sudden emergency, the situation must be “totally unexpected.” Id. at 140 (citation omitted). For example, in White , a defendant driver continued driv ing after a bout of diarrhea and then lost consciousness. Id. at 138. The Michigan Supreme Court concluded that there were fact ual questions regarding whether the defendant felt ill as he continued to drive that pr ecluded granting summary disposition in favor of the defendant. Id . at 140.

Defendant supported its motion fo r summary disposition on the basis of the sudden emergency doctrine with reports from two medical experts. Spec ifically, Dr. Gerald Levinson and Dr. Cheryl Loewe both clearly opined that, on the basis of their review of the record evidence, Cotton lost consciousness at the wheel of the city bu s following a sudden cardiac event. In arguing that there are factual disputes on this issu e and that the trial court properly

denied defendant’s motion for summary disposition, plaintiff ar gues that the autopsy report does not indicate that Cotton suffered a heart attack on June 24, 20 14 when driving the city bus. We acknowledge that the autopsy repo rt confirms that Cotton’s mann er of death was an accident, and there is no indication in the autopsy report that he suffer ed from a heart attack on June 24, 2014. However, we also note that plaintiff, in response to def endant’s motion for summary disposition, did not offer any documentary evidence, aside from the autopsy report, to counter defendant’s proffered evidence th at Cotton suffere d a heart att ack on June 24, 2014 when driving the city bus.

Moreover, the present case is not like White , 482 Mich at 140-143, where questions of fact precluded summary disposition. Specifically, in this case the record does not contain

evidence that Cotton felt ill befo re the accident and yet conti nued to drive. We acknowledge that plaintiff presented Cotton’s vol uminous medical records in supp ort of his response to defendant’s motion for summary disposition, and these records c onfirm that Cotton did have significant health issues, includ ing cardiovascular disease and hypertension. While the record confirms that Cotton had taken time off from his job related to his health issues, the record does not reflect that Cotton experien ced prior episodes of losing co nsciousness before the motor vehicle accident on June 24, 2014, or that his ability to drive safely was in any way impaired. Put another way, there is nothing in our review of the record e vidence that would have given a-4- reasonable person grounds to beli eve that driving was not a saf e option. Cf. White , 482 Mich at 140 (observing that the record evi dence confirmed that the defe ndant “may have known or should have known that he was not feeling well when he continue d driving . . . .” and therefore factual issues existed with regard to whether his emergency was “totally unexpected.”). Accordingly, viewing the record in the light most favorable to plaintiff, we conclude that factual issues do not exist regarding whether Cotton encountered a sudd en emergency when operating the bus. Accordingly, where the record evidence does not suppo rt plaintiff’s claim that Cotton’s operation of the bus was negligen t, defendant was entitled to s ummary disposition on the basis of governmental immunity.

Reversed and remanded for entry of an order granting summary d isposition in favor of defendant. We do not retain juri sdiction. Defendant, as the p revailing party, may tax costs pursuant to MCR 7.219.

/s/ Deborah A. Servitto /s/ Mark J. Cavanagh

/s/ Karen M. Fort Hood