Author(s): John J. Gillooly, Sarah E. Robertson

From the Editor
by John J. Gillooly
It’s really very simple. Tax dollars are vital to your community. Right now, businesses are preparing to protest your legitimate assessments in an attempt to avoid paying their fair share of taxes for the municipal services they receive.

In order to preserve the life blood of your community, consider these helpful suggestions. U Prepare to fight. The days of simply giving in to your local business taxpayer are long gone. The Chief Financial Officers doing business in your town have been told to lower their tax obligations at whatever cost. They have attorneys, personal property examiners and financial analysts at their disposal. U You don’t need to pay $300 to $500 an hour for tax counsel. Does this sound familiar? Your law firm charges you several hundred dollars an hour and promises a great result in the Tax Tribunal. Unfortunately, only several weeks before your matter is scheduled to go to trial, your attorneys tell you to settle the case. And the loser is . . . the community that has just paid tens of thousands in fees and given up the ability to collect millions in taxes.

Garan Lucow Miller can help. When you visit one of our nine Michigan offices, you won’t notice a bunch of fancy artwork on the walls. What you will see is a dedicated team of experienced and hardworking attorneys with special emphasis in municipal and tax litigation. Our 60-year old, AV rated law firm was founded on the belief of giving its clients superior legal services at an efficient cost. U Did you know that some law firms representing these businesses handle these cases on a contingency fee basis? That means they could recover one-third of whatever they save the business in property taxes. U In tax matters, you will be represented by an experienced team of attorneys with an extensive tax background on both state and federal levels. Please call us today to see how we can assist your community in keeping its tax dollars close to home. HOT TIPS!!

Try more municipal cases!!!! Municipalities need to send a message that their pockets are not bottomless. If plaintiffs and their lawyers see more cases being tried and won, the number of lawsuits filed should begin to decline. The odds are generally in your favor in going to trial. Close to 80% of all cases tried against public entities result in favorable verdicts. Use technology to your advantage. When in trial, juries expect to see, and are positively influenced by, the use of cutting edge technology to help deliver your message.

On the Road The Law and Municipal Vehicles Part II by Sarah E. Robertson

The January, 2005 edition of Gov Law discussed the Michigan statutes that control when a municipality is immune from liability in connection with the use and operation of government owned vehicles. The following are just a few of the cases dealing with the various types and uses of government vehicles.

The case of Robinson v City of Detroit, 462 Mich 439; 613 NW2d 307 (2000) dealt with many issues in the context of police pursuits. Robinson answered many questions in this area, including the following holdings: Police owe a duty to innocent persons, whether those persons are inside or outside the pursued vehicle, but owe no duty to a wrongdoer, whether the wrongdoer is a fleeing driver or a passenger. The injuries to a passenger in a fleeing vehicle do not “result from” operation of the government vehicle, for purposes of motor vehicle exception to governmental immunity, if the pursuing police vehicle does not hit the fleeing car or otherwise physically force it into an accident. The decision to pursue a fleeing motorist does not constitute “operation of motor vehicle” for purposes of the motor vehicle exception to governmental immunity. The requirement that conduct of governmental employees be “the” proximate cause of injury in order to subject them to individual liability means that conduct in question must be the one most immediate, efficient, and direct cause of the accident; and passengers in present actions had no causes of action against the city or officers. Robinson v City of Detroit, 462 Mich 439; 613 NW2d 307 (2000).

In the context of a police chase, where a pursuing police car did not physically force the chased vehicle into a parked vehicle, and where a helicopter cannot physically force the chased vehicle into anything and is not a “motor vehicle” for purposes of the motor vehicle exception to governmental immunity, the City of Detroit was entitled to governmental immunity. Beste v Newell (Unpub, COA No. 230657, 7/16/02). Where the county neither took nor held nor had exclusive use of the vehicle of its employee, which vehicle was involved in an accident while the employee was in the course of her employment, and for which vehicle the county paid the employee mileage, the county was found not to be the “owner” of such a vehicle and thus was immune from any liability. Bertolotti v County of Macomb, 20 Mich App 162; 173 NW2d 723 (1970).

Firetruck, as an emergency vehicle responding to a fire alarm, had a right to run the red light upon giving audible signal and having a reasonable regard for the safety of others. Motor vehicle also had permission of the green light to cross the intersection unless by the reasonable exercise of the senses of sight and hearing he should have noticed or heard warning to the contrary. The Michigan Supreme Court found that the accident occurred without actionable fault by either party. City of Lansing v Hathaway, 280 Mich 87; 273 NW 403 (1937).

City owned and operated front end loader was a self-propelled vehicle transporting defendant on the highway when the collision occurred, and therefore was a “motor vehicle” within the exception to governmental immunity. The government agency was not immune from liability. Recchia v Turner, 197 Mich App 432; 495 NW2d 807 (1993).

City owned and operated forklift was not a “motor vehicle” and therefore the city was immune from liability. The city employee operating the forklift was also immune where he was not grossly negligent in operating the forklift. Stanton v City of Battle Creek, 466 Mich 611; 647 NW2d 508 (2002).

Individual was injured when he was caught in the doors of a county owned and operated bus while it was parked for maintenance and cleaning. The Michigan Supreme Court held that plaintiff’s injuries did not arise from the negligent “operation” of the bus within the meaning of the motor vehicle exception to governmental immunity so that the county was immune from liability. Chandler v County of Muskegon, 467 Mich 315; 652 NW2d 224 (2002). The Court of Appeals held that, because the plaintiff’s injuries were caused by the negligent plowing of the snowplow, and so by the operation of the road commission’s vehicles, rather than the end result of the snowplowing, the government was not immune from liability. Wilson v Lake County Road Commission (Unpub, COA No. 233672, 11/19/02).

The motor vehicle exception will not apply unless there is physical contact between the government-owned vehicle and that of the plaintiff. Physical contact did not occur here. Therefore, the government was immune from liability. The ambulance driver was also immune as his conduct was not the most immediate, efficient, and direct cause of plaintiff’s injuries. Curtis v City of Flint, 253 Mich App 555; 655 NW2d 791 (2003).

Motorist injured when he rear-ended city water truck stopped in curb lane with four-way emergency flashers and overhead warning lights activated during an inspection of city-owned and maintained fire hydrant. Plaintiff’s injuries did not result from operation of a government-owned vehicle so the motor vehicle exception to immunity did not apply and the city was immune from liability. City employee’s failure to employ additional warning devices was not grossly negligent so as to preclude immunity. Poppen v Tovey, 256 Mich App 351; 664 NW2d 269 (2003).

Broom tractor and tractor mower are “motor vehicles” under the motor vehicle exception to governmental immunity. Where a plaintiff alleges that the operation of motor vehicles by county employees in a negligent manner directly caused injuries for which they sought recovery, plaintiff pleads in avoidance of governmental immunity under the motor vehicle exception. Regan v Washtenaw County Board of County Road Commissioners, 257 Mich App 39; 667 NW2d 57 (2003). Summer Preview In the coming months, look for articles discussing: • Brownfield Developments • Improper Takings • The Recreational Land Use Act • Supreme Court Update

Remember that Garan Lucow Miller, P.C. has nine offices throughout the State of Michigan to serve all of your municipal needs:
Wayne County Office . . . . . . 1-800-875-1530
Washtenaw County Office . . . 1-800-878-5600
Ingham County Office . . . . . . 1-888-910-0300
St. Clair County Office . . . . . 1-800-875-4400
Oakland County Office . . . . . 1-800-875-7600
Genesee County Office . . . . . 1-800-875-3700
Kent County Office . . . . . . . . 1-800-494-6312
Northern Michigan Office . . . 1-888-923-1611
Upper Peninsula Office . . . . . 1-888-841-7772