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STATE OF MICHIGAN COURT OF APPEALS

BEVELYN FISHER, Personal Representative of the Estate of TIARA FISHER, deceased, Plaintiff-Appellant, v SOUTHFIELD PUBLIC SCHOOLS, SOUTHFIELD BOARD OF EDUCATION, and YOLETTA PATRICE HALL, Defendants-Appellees, and RICHARD JAMES FARRELL, Defendant.

UNPUBLISHED January 12, 2010

No. 288106 Oakland Circuit Court LC No. 07-087761-NI

Before: Wilder, P.J., and O'Connell and Talbot, JJ. PER CURIAM. Plaintiff appeals as of right the grant of summary disposition in favor of defendants in this wrongful death and negligence action, which arises from the death of 15-year old Tiara Fisher (hereinafter "the decedent"). We affirm. I. Factual and Procedural History The basic facts pertaining to this accident are not in dispute. On December 7, 2005, at approximately 6:42 a.m., defendant Yoletta Patrice Hall (Hall) was driving a Southfield Public Schools bus. She was proceeding to her second stop of the morning at 21851 Evergreen Road near Mada Avenue. She observed the decedent in the process of crossing the street en route to the bus stop. Approaching the stop, Hall activated the flashing/alternating yellow lights on the bus and pulled over to the right in preparation to pick up students. A Lexus, driven by Carolyn Cleveland, was directly behind the bus and began to slow down. However, the second vehicle behind the bus, a pick up truck driven by Richard James Farrell, pulled around the Lexus and entered the left turn lane to pass Cleveland and the bus. Farrell struck the decedent, who suffered multiple fatal injuries. Eyewitness accounts suggest Farrell accelerated as he attempted to pass the Lexus and school bus. -1-

Plaintiff initiated this action in the Oakland Circuit Court, raising three counts against defendants, City of Southfield Public Schools, Board of the Southfield School District and Hall (hereinafter referred to jointly as "defendants"). Defendants filed an answer generally denying liability and also raised several affirmative defenses, including governmental immunity. In accordance with the trial court's scheduling order, discovery was initially set to close on June 20, 2008, but was extended to August 15, 2008. Asserting governmental immunity, defendants sought summary disposition pursuant to MCR 2.116(C)(7) and (C)(10) of plaintiff's wrongful death and negligence/gross negligence claims. The hearing was originally scheduled to occur on July 2, 2008, but was adjourned. Defendants filed another summary disposition motion on August 20, 2008, seeking dismissal of all claims. Although the hearing was scheduled to occur on September 17, 2008, on September 12, 2008, Judge Andrews issued a written opinion and order granting defendants' request for summary disposition. In summary, the trial court determined that defendants were governmentally immune pursuant to MCL 691.1405, because decedent's injuries were not the result of the negligent operation of the school bus. Similarly, the trial court ruled that plaintiff had not established Hall's gross negligence, pursuant to MCL 691.1407. Finally, the trial court determined that plaintiff's due process claims should be dismissed based on a failure to identify a policy or custom, which served as the moving force behind defendants' alleged constitutional violations and the failure to establish that defendants acted with "deliberate indifference" to the decedent's rights. Concurrently, plaintiff filed a motion seeking the adjournment of the summary disposition hearing. Plaintiff's motion implied that discovery was continuing and that the grant of summary disposition would be premature. A review of the lower court record reveals the trial court did not address this motion. However, on September 29, 2008, the trial court issued an order indicating dismissal of the action based on the parties' failure to appear for trial. II. Standard of Review A circuit court's decision on a motion for summary disposition is reviewed by this Court de novo. Walsh v Taylor, 263 Mich App 618, 621; 689 NW2d 506 (2004). A summary disposition motion brought pursuant to MCR 2.116(C)(7) does not test the merits of a claim, but rather certain defenses that may preclude the necessity of trial. DMI Design & Mfg, Inc v Adac Plastics, Inc, 165 Mich App 205, 208; 418 NW2d 386 (1987). Although neither party is required to submit supporting documentation, this Court will consider any admissible evidence supporting or opposing a plaintiff's claims. Linton v Arenac Co Rd Comm, 273 Mich App 107, 111; 729 NW2d 883 (2006). If there are no material facts remaining in dispute, this Court's analysis in accordance with subrule (C)(7) parallels that used in conjunction with MCR 2.116(C)(10). Id. at 111-112. When reviewing a motion under subrule (C)(10), "this Court considers the pleadings, admissions, affidavits, and other relevant documentary evidence of record in the light most favorable to the nonmoving party to determine whether any genuine issue of material fact exists to warrant a trial." Walsh, supra at 621. "A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ." West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). In addition, this Court reviews a trial court's decision pertaining to a discovery matter for an abuse of discretion. VanVorous v Burmeister, 262 Mich App 467, 476; 687 NW2d 132 -2-

(2004). Similarly, "[t]his Court reviews a grant or denial of a motion for leave to amend pleadings for abuse of discretion." Phinney v Perlmutter, 222 Mich App 513, 523; 564 NW2d 532 (1997). "[A]n abuse of discretion occurs only when the trial court's decision is outside the range of reasonable and principled outcomes." Safian v Simmons, 477 Mich 8, 12; 727 NW2d 132 (2007). III. Analysis A. Governmental Immunity Plaintiff contends the trial court erred in granting summary disposition in favor of defendants on the basis of governmental immunity. Specifically, plaintiff argues that defendants City of Southfield Public Schools and the Southfield Board of Education were negligent in failing to comply with MCL 257.1855(4)(c) in assigning the decedent a bus stop that required her to traverse more than three lanes of traffic. In addition, plaintiff claims that defendant Hall was grossly negligent in operating the school bus by failing to stop and activate her red flashing signals immediately upon observing the decedent in the process of crossing the street. Purportedly, Hall is liable because Farrell's attempt to avoid stopping was foreseeable following the activation of her yellow flashing signals on the bus. Generally, "a governmental agency is immune from tort liability if the governmental agency is engaged in the exercise or discharge of a governmental function." MCL 691.1407(1). The operation of a school bus system by a public school district is typically recognized to constitute an immune governmental function. Cobb v Fox, 113 Mich App 249, 257; 317 NW2d 583 (1982). Any recognized exceptions, such as the motor vehicle exception, to this broad grant of immunity are to be construed narrowly. Robinson v Detroit, 462 Mich 439, 455; 613 NW2d 307 (2000). The motor vehicle exception to governmental immunity specifically excepts injuries "resulting from the negligent operation . . . of a motor vehicle." MCL 691.1405. In accordance with rulings by our Supreme Court, the term "operation" is limited to "the ordinary use of the vehicle as a motor vehicle, namely, driving the vehicle." Chandler v Muskegon Co, 467 Mich 315, 321-322; 652 NW2d 224 (2002) (emphasis in original). Because of the narrow construction of this exception as discussed in Robinson, it is required that a decedent's injuries "resulted from" the government-owned vehicle, i.e., that the school bus was physically involved in causing the decedent's injuries while being operated as a motor vehicle. In this instance, it is undisputed that the school bus made no physical contact with the decedent or the vehicle driven by Farrell. Hence, as determined by the trial court, because the school bus was not physically involved in the collision that caused the decedent's injuries, the motor vehicle exception to governmental immunity is inapplicable.1

Plaintiff relies, in part, on an unpublished case from this Court in support of her theory of liability. Helfner v Center Line Public Schools, unpublished opinion per curiam of the Court of Appeals, issued June 20, 2006 (Docket No. 265757). However, plaintiff fails to recognize that
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Contrary to plaintiff's assertions, Hall did not place in motion the object that caused the decedent's injuries. Hall conformed to the requirements of MCL 257.1855, which provides, in relevant part: (1) A school bus driver shall actuate alternately flashing lights only when the school bus is stopped or stopping on a highway or private road for the purpose of receiving or discharging pupils . . . . (2) The driver of a school bus while operating upon the public highways or private roadways open to the public shall receive or discharge pupils from the bus in the following manner: *** (b) If the pupils are required to cross the roadway, the driver of a school bus equipped with red and amber alternately flashing overhead lights . . . shall activate the alternately flashing overhead amber lights not less than 200 feet before the stop, stop the bus on the roadway or private road to provide for the safety of the pupils being boarded or discharged, deactivate the alternately flashing overhead amber lights, and activate the alternately flashing overhead red lights while receiving or discharging pupils. The bus shall stop in the extreme right-hand lane for the purpose of boarding or discharging pupils. [Emphasis added.] Hall's activation of the amber warning lights on the school bus were a signal to drivers in the immediate vicinity to slow down and prepare to stop. While we recognize that it is foreseeable that a driver will ignore the flashing light indicators on a bus to avoid stopping or delay, Farrell's decision to disregard the alternating amber lights is not attributable to any negligence on the part of the bus driver, particularly given her conformance with the requirements provided in MCL 257.1855(2)(b). While this incident was tragic and resulted in the loss of the life of a young girl, the collision of a private motorist's vehicle with the decedent was not the result of or caused by the negligent operation of the school bus. Hence, summary disposition based on governmental immunity was proper. Plaintiff further contends that defendants were grossly negligent for their violation of MCL 257.1855(4)(c), regarding the selection and assignment of the decedent's school bus stop because it required her to cross more than three lanes of traffic. The cited statutory provision, provides in relevant part: (4) The driver of a school bus shall not stop the bus for the purpose of receiving or discharging pupils in the following instances: ***
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this decision was reversed by our Supreme Court for the reasons contained in Judge Whitbeck's dissenting opinion. Helfer v Center Line Public Schools, 477 Mich 931; 723 NW2d 459 (2006).

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(c) Upon a roadway constructed or marked to permit 3 or more separate lanes of vehicular traffic in either direction if the pupils are required to cross the roadway.2 Contrary to plaintiff's assertions, even if this Court were to presume that a violation of the cited statute would constitute negligence per se in these circumstances, the violation of a statutorily imposed duty comprises or constitutes only ordinary negligence and not gross negligence. Poppen v Tovey, 256 Mich App 351, 358; 664 NW2d 269 (2003). Evidence of ordinary negligence does not serve to create a material question of fact concerning the gross negligence necessary to overcome a defense of governmental immunity. Maiden v Rozwood, 461 Mich 109, 122-123; 597 NW2d 817 (1999). Further, plaintiff elects to completely ignore the fact that defendants provided the affidavit of Denise S. Davis, a dispatcher with the Southfield Public Schools. Davis averred that the computer records pertaining to assignment of the decedent's bus stop indicated that "Tiara Fisher was to be on Bus route #14 which would have made her stop the intersection of Stahelin and Midway," precluding the necessity of her crossing of Evergreen Road. Plaintiff has not come forward with any evidence to contradict or dispute this affidavit. The purpose in emphasizing this fact is not to attribute or shift blame to the decedent for use of the wrong bus stop, but merely to demonstrate that defendants' assignment of a bus stop was not in violation of the relevant statutory provision. Based on the fact that the decedent's designated bus stop did not violate MCL 257.1855(4)(c), plaintiff's contention of negligence in the violation of this statutory provision is both insufficient to impose liability and without merit. Plaintiff's additional assertion regarding the gross negligence of Hall for failing to stop the bus in the roadway and immediately activate the flashing red lights is similarly specious. MCL 691.1407 provides, in relevant part: (1) Except as otherwise provided in this act, a governmental agency is immune from tort liability if the governmental agency is engaged in the exercise or discharge of a governmental function. (2) Except as otherwise provided in this section, and without regard to the discretionary or ministerial nature of the conduct in question, each officer and employee of a governmental agency, each volunteer acting on behalf of a governmental agency, and each member of a board, council, commission, or statutorily created task force of a governmental agency is immune from tort liability for an injury to a person or damage to property caused by the officer, employee, or member while in the course of employment or service or caused by the volunteer while acting on behalf of a governmental agency if all of the following are met:

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MCL 257.1855(7) defines "required to cross the roadway" as "not include[ing] crossing the roadway with the assistance of a traffic control signal, or with the assistance of a school crossing guard . . . and applies only to the roadway on which the stop is being made."

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(a) The officer, employee, member, or volunteer is acting or reasonably believes he or she is acting within the scope of his or her authority. (b) The governmental agency is engaged in the exercise or discharge of a governmental function. (c) The officer's, employee's, member's, or volunteer's conduct does not amount to gross negligence that is the proximate cause of the injury or damage. *** (7) As used in this section: (a) "Gross negligence" means conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results. There is no evidence to support plaintiff's contention that Hall was negligent or grossly negligent given her adherence to the dictates of MCL 257.1855(2)(b). To suggest that Hall should have made an unanticipated and sudden stop in the roadway and immediately activated the red flashing bus lights fails to comprehend the increased potential for creating an accident and injuries through such unexpected behavior. Given that Hall complied with MCL 257.1855(2)(b) in the manner of stopping the bus there can be no assertion of ordinary negligence. Having failed to establish even a claim of ordinary negligence, plaintiff's assertion of gross negligence cannot be substantiated. B. 42 USC 1983 Claims In sum, we understand plaintiff's 42 USC 1983 claims to assert constitutional violations premised on defendants' improper or lack of training of Hall and failure to comply with MCL 257.1855, which purportedly translates into a deliberate indifference for the decedent's safety and rights, the existence of a state-created danger and special relationship. Initially we note that, as a matter of law, 42 USC 1983 does not comprise "an independent source of substantive rights." "[R]ather it merely provides a remedy for the violation of rights guaranteed by the federal constitution or statutes." By Lo Oil Co v Dep't of Treasury, 267 Mich App 19, 30; 703 NW2d 822 (2005). In accordance with 42 USC 1983, a person may file an action seeking redress when they experience the deprivation of their federal constitutional rights because of the actions of another person acting under color of state law. Walsh, supra at 635. However, in accordance with Monell v New York City Dep't of Social Services, 436 US 658, 694; 98 S Ct 2018; 56 L Ed 2d 611 (1978): [A] local government may not be sued under

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