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STATE OF MICHIGAN COURT OF APPEALS

CHRIS C. LAMBERT, Plaintiff-Appellee, v GREEN OAK TOWNSHIP POLICE DEPARTMENT, Defendant, and THE CHARTER TOWNSHIP OF GREEN OAK and MICHAEL JAIN, Defendants-Apellants.

UNPUBLISHED May 12, 2011

No. 297088 Livingston Circuit Court LC No. 09-02459-NI

Before: DONOFRIO, P.J., and BORRELLO and BECKERING, JJ. PER CURIAM. Defendants, Charter Township of Green Oak and police officer Michael Jain appeal as of right the trial court's denial of their motion for summary disposition in this motor vehicle governmental immunity case. Because the trial court erred when it denied defendant Jain's motion for summary disposition we reverse in part. Because the trial court properly denied defendant Township's motion for summary disposition, we affirm in part and remand for trial on the remaining claim. I On the morning of July 1, 2008, at approximately 6:30 am, plaintiff, Chris C. Lambert, was riding his Harley-Davidson motorcycle on US-23. Plaintiff testified that he is an experienced motorcyclist and was going to visit his daughter and babysit in East Lansing that morning. Plaintiff testified that it was a beautiful day outside and it was sunny and clear while he was riding. Plaintiff was heading northbound on US-23 in the right lane traveling at the speed limit of 70 mph. As he approached the M-36 overpass he was traveling behind a semi truck that was also in the right lane and was also traveling about 70 mph. Plaintiff did not see any markings on the semi truck except that it had a rusty back door. Plaintiff believed he was about

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200 or 300 feet behind the semi truck. According to plaintiff the semi truck aggressively applied its brakes. Plaintiff was still behind the semi truck in the right lane and was about 50 feet behind the semi truck and decided to change lanes to the left lane. Plaintiff signaled his lane change and looked to the left. Plaintiff did not see any traffic in the left lane. He then proceeded to change lanes from the right lane into the left lane of traffic. To his knowledge plaintiff was the only vehicle in the left lane except for a car that was approximately 300 feet ahead of him on US-23. Plaintiff did not see any brake lights on that automobile. Plaintiff testified the bulk of the traffic was in the right lane. Plaintiff testified that after he changed lanes the semi truck "almost right away," or "immediately" "took the left lane." Plaintiff explained that: I mean, I pulled out in the left lane, because the right lane was coming to a stop or aggressively stopping. I noticed I had room on the left side, so I took the room on the left side; as soon as I did, the semi trailer, the semi truck pulled into the left lane. Plaintiff was certain that the semi truck did not signal that he was changing lanes. Plaintiff believed he was "really close" to the semi truck at that point and approximated he was about 15 feet behind when the semi truck started to pull into the left lane. Plaintiff testified that he had slowed down about 5 mph during his lane change into the left lane but the semi truck had slowed down significantly in the right lane from its "aggressive braking action" but could not estimate the semi truck's speed. Plaintiff stated that The semi aggressively applied his brakes. So I went into the left lane because it was clear. As I was pulling up along side of him, he pulled over into the left lane, which pushed me off into the median. *** I was going a little bit faster than him, because he applied the brakes harder than I did. I would have ran into the back of him, because he pulled in front of me. So, instead of hitting the back of a semi at 65 or 70 miles an hour, I decided to take the median. Plaintiff testified that the semi truck was still going fast enough that it did not "just hit" plaintiff as it changed lanes. Plaintiff agreed that the way a semi truck works is that the first part of the truck goes into the lane first and then the trailer follows behind. Plaintiff stated that he was looking at the trailer as it was changing lanes and as it got to about 10 feet away from him he began evasive actions. He aggressively applied his breaks for "milliseconds" but when the truck got very close to him he felt the situation was "critical" and he made the decision to move to the left of the semi truck into the median. Plaintiff stated that there was a gravel shoulder about six feet wide. He got onto the shoulder and then slowly went onto the grass. Plaintiff stated that he could not stay on the gravel -2-

because of inertia as a result of traveling on pavement then immediately onto gravel. Plaintiff stated that he was on the gravel for about 30 feet before he went off onto the grass. He explained that the median had a slope to it and he was "just trying to stay up" on his motorcycle. He was able to keep the motorcycle upright for about 100 feet into the median but because of the slope and the motorcycle sliding on the wet grass, the rear end of the motorcycle started "going out to the left." Plaintiff remembers his body getting down close to the ground and then "the lights went out." Plaintiff has no memory of his motorcycle flipping end over end or his body being propelled forward. He remembered waking up three or four feet in front of the motorcycle. Though he estimated that he travelled about 100 feet into the median, he said it happened very quickly. When plaintiff awoke, plaintiff saw that people had stopped on the side of the road and come to his aid, including, defendant Jain. Jain is a certified police officer who was working for defendant Township of Green Oak in July 2005. On the date of the incident, Jain was finishing up working his regular midnight shift as a patrol officer that ends at 7:00 am. Jain had just responded to a medical assist call at Charring Cross Circle and was headed back to the station via US-23. Jain testified that he had accidentally left his rooftop overhead red and blue blinking lights activated from his previous call. Jain was unaware that the lights were activated when he left the EMS call. As he was driving back to the station he noticed a white car pull over after it turned from westbound Nine Mile onto Fieldcrest. Jain testified that "it was confusing to me, I didn't know why he was pulling over." Jain continued on his way back to the station by entering the on ramp to US-23 with his overhead lights still activated. As he was entering US-23 past the on ramp, he noticed a PT Cruiser begin to pull over into his path and then on to the shoulder of the road. Jain did not realize at that time that the PT Cruiser was pulling over because the driver saw Jain's police lights. He testified as follows: I went to turn on my emergency lights, realized they were on, and kind of then came to the realization that it was possible she was pulling over for my lights so I pulled up next to her in the right lane, I said are you okay, she says, yeah, I pulled over for the lights. I said, okay, go on. Jain admitted that although the shoulder of the road in that particular place on US-23 is wide enough that he could have pulled his patrol vehicle safely behind the PT Cruiser, instead he completely stopped his vehicle in the lane of traffic. Jain stated that the speed limit was 70 mph on US-23 and that there was light morning weekday traffic that day. Jain stated that as the PT Cruiser pulled back out onto the roadway in front of his patrol car they both accelerated in the right lane together and when he reached 55 mph he turned his lights off. He testified that "immediately thereafter" he saw plaintiff's motorcycle flipping end over end in his rear view mirror. Jain turned his lights back on, activated his siren, and called dispatch. Jain believed that plaintiff's motorcycle was about 300 or 400 feet behind him as he traveled on US-23. At that time, Jain had no idea what caused plaintiff to leave the roadway. Jain remembered seeing traffic slow down and then saw the motorcycle in the median. Jain did see a semi truck in the left lane in front of plaintiff.

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Jain headed to the scene of the accident by exiting at Silver Lake Road, coming back southbound on M-36 and then getting back on US-23 northbound. When he arrived at the scene he saw plaintiff and his motorcycle in the median and also a semi truck and a Ford Focus stopped on the left hand shoulder. Jain pulled up behind the Ford Focus and got out of the car and began walking toward the motorcycle and plaintiff. As he was walking toward plaintiff he observed two people at the scene. He remembered the conversations as follows: Someone said that there was a police officer that had someone pulled over, and I said that was me, but I didn't pull her over, she was stopped alongside the road. And he said, oh, okay. And he said that there was a truck that stopped and everyone hit their brakes, and that's what I remember. At deposition, Jain testified that he did not get the names or phone numbers of either of the people at the scene and he testified that he did not remember why he did not get their information. Jain stated that he does not have any way of identifying the people at the scene because he did not call in their license plate numbers and they were not recorded on his dash camera. When Jain spoke with plaintiff, he explained that he was cut off by a semi truck. Jain's dashboard camera was activated from the time he left the medical assist call throughout the entire relevant period involved in this case. We have reviewed the recording and it accurately tracks the events as described by Jain during his deposition. However, as a clarifying point, we think it necessary to point out that the video depicts Jain initially following the PT Cruiser off the traveled portion of the road onto the shoulder of US-23, but then veering back out into the right lane of US-23 and pulling alongside the PT Cruiser and coming to a stop. In the trial court, plaintiff presented an affidavit by Jospeh Jager, an accident reconstructionist and police practice expert. Jager averred that he had reviewed the police report, the dashboard camera recording, and Jain's affidavit. Based on this documentation, in his opinion: Officer Jain violated appropriate and reasonable practices, breached standards of conduct, and operated his vehicle in a negligent manner by improperly stopping his car in the lane of travel on the expressway, in a 70 mile per hour zone, to speak with the driver of the vehicle that pulled over to the shoulder in response to the flashing lights that Officer Jain forgot to turn off from a prior call. Officer Jain should have pulled up behind the vehicles that had pulled over, rather than initiate contact with the driver from the lane of traffic, thereby improperly blocking the approaching traffic on the 70 mile per hour expressway. Officer Jain's negligent conduct, was the cause and a proximate cause of the accident involving [plaintiff's] motorcycle. Officer Jain's negligent conduct caused approaching drivers, as required by law, to pull over onto the one and only open lane of traffic, thereby causing and proximately causing the shift in traffic, including the shift of the truck which ran [plaintiff's] motorcycle off the road. Jager also concluded that Jain acted without due care and in violation of MCL 257.698(5)(c) when he operated his patrol lights at a time when he was not responding to an emergency call. -4-

II Defendant filed his complaint against Green Oak Township Police Department, the Charter Township of Green Oak, and Officer Jain on July 7, 2009. On January 14, 2010, all three defendants filed a motion for summary disposition based on MCR 2.116(c)(7), (8), and (10) arguing that all defendants were governmentally immune from liability and also that Jain's conduct was not negligent nor was it the proximate cause of the motorcycle accident. The trial court heard oral argument on the matter on March 11, 2010. Plaintiff's counsel conceded liability regarding Green Oak Township Police Department because it is not a separate entity subject to suit. The trial court granted summary disposition in favor of Green Oak Township Police Department in an Order dated March 12, 2010. Argument continued regarding the propriety of governmental immunity with regard to the remaining two defendants. Ultimately, the trial court held as follows: THE COURT: I don't care what people said at the scene so far as

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