A public park patron filed suit after being struck by a rock thrown from a passing lawnmower. The Michigan appeals court reversed the circuit court’s denial of the defendants’ motion for summary disposition, concluding the patron made no allegation rising to the level necessary to prevent the defendants’ use of governmental immunity.On May 20, 2013, the plaintiff visited Williams Island beach with her family. They sat at a picnic table. Approximately 30 minutes later, a Yates Township maintenance crew arrived. A Yates Township employee was tasked with cutting the grass using a riding lawnmower. The plaintiff asserted that on his first pass, the employee drove the power mower within 10 feet of the picnic table, causing dust and debris to be thrown into the air. As a result, the plaintiff and her family decided to leave. The plaintiff alleged that before they could retreat, the employee drove by again within a few yards. A rock shot out from the mower and struck the plaintiff between the eyes on the forehead. She suffered a fracture to the left nasal bone as well as swelling and bruising around her eyes and nose.
The plaintiff filed suit, alleging that the employee was grossly negligent, and the Township was vicariously liable for his actions. Her theory of gross negligence was based on the employee driving “the power mower dangerously close” to her and her family and failing “to inspect for hazards . . . such as rocks which could become flying projectiles.”
The defendants filed a motion for summary disposition, claiming governmental immunity. They argued that the employee’s alleged conduct did not rise to the level of gross negligence. He averred that he had actually inspected the area for any loose materials that might be thrown, and the accident occurred despite his best efforts. Absent gross negligence, the defendants contended that the Township could not be held vicariously liable. The plaintiff retorted that the employee’s act of driving a power mower, which spewed excessive amounts of dust and debris, within 10 feet of park patrons displayed an unreasonable disregard for safety, negating the defendants’ immunity claim.
The circuit court denied the defendants’ motion to dismiss the case, reasoning that jurors could determine that gross negligence did occur. Specifically, the court reasoned that it was reasonably foreseeable that a rock could be discharged.
The defendants appealed, reasserting governmental immunity.
The appeals court first outlined the governmental immunity statute. Pursuant to MCL 691.1407(2), a governmental actor such as the employee is immune from tort liability for injuries caused in the course of employment while acting on behalf of their government employer if: (a) the individual 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; or (c) the individual’s conduct does not amount to gross negligence that is the proximate cause of the injury or damage. The statute defines “gross negligence” as “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.”
The plaintiff did not challenge that the employee was acting within the scope of his authority and was engaged in a governmental function. The only question was whether his conduct could be deemed grossly negligent. Gross negligence, the appeals court explained, suggests an almost willful disregard of precautions or measures to attend to safety and a singular disregard for substantial risks. It is as though, if an objective observer watched the actor, he could reasonably conclude that the actor simply did not care about the safety or welfare of those in his charge.
Here, the appeals court concluded, reasonable minds could not differ over whether the employee’s conduct rose to the level of gross negligence. The plaintiff alleged only that the employee drove the power mower within 10 feet of park patrons, and the mower spewed dust and debris in her direction. She did not allege that the ground was littered with visible rocks or sticks that the employee should have noticed and avoided. Instead, the complaint and her affidavit implied that as the employee drove the power mower, the mower collected and threw a rock that was not visible to the operator. Even if driving the power mower within 10 feet of park patrons was not a safe practice, this conduct would be merely negligent. After all, the danger did not arise from the mower’s blades coming within striking distance of citizens but from the tips of mowed grass and dust vacuumed from the ground being discharged from the mower to serve as mulch.
Moreover, the Township, as a governmental agency, could only be held vicariously liable if its employee, acting during the course of employment and within the scope of authority, committed a tort while engaged in an activity that is nongovernmental or proprietary, or that falls within a statutory exception. The employee was acting during the course of employment and within the scope of his authority as he carried out the governmental function of mowing the grass in a state park, and no immunity exception applied. Accordingly, the Township could face no liability.
The appeals court therefore reversed and remanded for the dismissal of the plaintiff’s action.
The personal injury attorneys at the Neumann Law Group represent injured people throughout Michigan from offices in Traverse City and Grand Rapids. Call us at (231) 463-0122 or at (616) 717-5666 for a free consultation.
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