Transportation Authority loses argument that unloading bus passengers is "not operating a motor vehicle."
In Horvath v. Don Johnson, et al., the Court of Appeals rejected the defendant's claim that loading and unloading bus passengers does not constitute operating a bus "as a motor vehicle". Under governmental immunity statutes, governmental entities remain responsible for their employees' negligence in operating motor vehicles. The so-called "Engler Majority" or "Gang of Four" insurance-oriented Justices of the Supreme Court have interpreted this statute in a way that has denied standing to a number of injury victims. For example, it has held that maintaining a bus, conducting a police chase, or plowing snow may not constitute "operation of a motor vehicle"--even if the actor is doing precisely that. This trend was rejected in the Horvath case, however, when the Court of Appeals dismissed the bus authority's claim that unloading passengers was not "operation" of the vehicle.
The elderly plaintiff was injured when the driver of the bus closed the door on his back foot as he stepped to the pavement. Horvath was dragged for a distance and claimed that the driver had acted impatiently because he was slow in disembarking. The driver acknowledged he was impatient but claimed that he thought the 70-year old was intoxicated. The driver also could not explain how the bus door closed. On these facts, the Court of Appeals held that it was a factual issue for the jury to decide whether the bus driver was guilty of gross negligence.
The Court also rejected the bus authority's claim that Horvath's detailed application for no fault PIP benefits submitted within weeks of the incident was inadequate to satisfy the statutory requirement that "written notice" of the incident be provided to the defendant within 60 days. The bus authority was suggesting that an additional, redundant injury notice must be filed.