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ROBIN ZOLLARS V MICHAEL GRAY
State: Michigan
Court: Court of Appeals
Docket No: 253376
Case Date: 05/12/2005
Preview:STATE OF MICHIGAN
COURT OF APPEALS


LEONARD GOODSON, Plaintiff-Appellee, v SUBURBAN MOBILITY AUTHORITY FOR REGIONAL TRANSPORTATION, a/k/a SMART, MACOMB COUNTY ROAD COMMISSION and DTE ENERGY, Defendants, and CITY OF WARREN and MICHAEL GRAY, Defendants-Appellants.

UNPUBLISHED May 12, 2005

No. 253375 Macomb Circuit Court LC No. 2002-003731-NO

ROBIN ZOLLARS, Plaintiff-Appellee, v MICHAEL GRAY and CITY OF WARREN, Defendants-Appellants, and SUBURBAN MOBILITY AUTHORITY FOR REGIONAL TRANSPORTATION, a/k/a SMART, TERRY DELAINE TRAMMER, and DTE ENERGY, Defendants. No. 253376 Macomb Circuit Court LC No. 2002-005314-NI

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Before: Saad, P.J., and Fitzgerald and Smolenski, JJ. PER CURIAM. Defendants, the city of Warren and Michael Gray, appeal as of right from the trial court's orders denying their motions for summary disposition based on governmental immunity. MCR 2.116(C)(7). We reverse in part, affirm in part and remand. Plaintiffs Leonard Goodson and Robin Zollars filed separate actions for injuries they sustained while riding the same SMART bus. Their actions were consolidated in the trial court. Both plaintiffs allege that they were injured when the bus driver abruptly stopped the bus to avoid hitting a vehicle driven by defendant Gray, who was driving a car owned by his employer, the city of Warren. Gray allegedly proceeded through an intersection against a red light1 and crossed in front of the bus, which had a green light and the right of way, forcing the bus driver to brake suddenly to avoid striking Gray's vehicle, thereby causing both plaintiffs to be propelled forward, resulting in their injuries. There is no dispute that the bus never struck Gray's vehicle. The city of Warren and Gray2 both moved for summary disposition, asserting that plaintiffs' actions were barred by governmental immunity. The trial court denied defendants' motions. Defendants now appeal as of right. This Court reviews de novo a motion for summary disposition under MCR 2.116(C)(7) to determine if the moving party is entitled to judgment as a matter of law. Sewell v Southfield Public Schools, 456 Mich 670, 674; 576 NW2d 153 (1998). A party may support a motion under MCR 2.116(C)(7) with affidavits, depositions, admissions, or other documentary evidence. Patterson v Kleiman, 447 Mich 429, 432; 526 NW2d 879 (1994); MCR 2.116(G)(2). When reviewing a motion under MCR 2.116(C)(7), a court must consider all documentary evidence filed or submitted by the parties. MCR 2.116(G)(5). "However, `the contents of the complaint must be accepted as true unless specifically contradicted by the affidavits or other appropriate documentation submitted by the movant.'" Sewell, supra at 674, quoting Patterson, supra at 434 n 6. Absent a statutory exception, "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). A governmental function is an "`activity which is expressly or impliedly mandated or authorized by constitution, statute or other law.'" Tryc v Mich Veterans' Facility, 451 Mich 129, 134; 545 NW2d 642 (1996), quoting Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 620; 363 NW2d 641 (1984). In this case, defendant Gray, an engineer with the city of Warren's engineering department, was traveling to a construction site to supervise construction at the time of the accident. The city of Warren's charter authorizes the city to create a division of engineering to oversee engineering work and building inspection. Warren Charter,
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