Governmental immunity; The motor vehicle exception; MCL 691.1405; “Gross negligence” exception to immunity for governmental employees; MCL 691.1407(2)(c) & 691.1407(8)(a); The law of the case doctrine; Pioneer State Mut Ins Co v Wright; Respondeat superior; Ross v Consumers Power Co (On Rehearing); Res ipsa loquitor; Spoliation of evidence; Brenner v Kolk; Adverse inference; Contributory negligence; MCL 600.2955a

The court held that the trial court did not err by denying defendants-city and driver (Pennington) summary disposition of plaintiff’s claims of negligent operation and respondeat superior. It also found there remained questions of fact as to plaintiff’s claims of gross negligence against defendants-mechanics. Plaintiff was struck by a tire that came loose from a city van being driven by Pennington. The trial court denied defendants’ motion for summary disposition. In a prior appeal, the court affirmed in part, reversed in part, and remanded. Plaintiff later filed a complaint claiming the city’s mechanics were grossly negligent in maintaining or repairing the van, but discovery failed to identify the mechanic who serviced it before the accident. The trial court consolidated the claims, then denied defendants’ motions for summary disposition. In the present appeal, the court first found that trial court did not err by concluding that the court’s first decision was law of the case as to the admissibility of plaintiff’s expert’s affidavit and declining to consider the merits of the city’s arguments. That panel’s implicit conclusion that the expert’s affidavit was admissible “is the law of the case [and] binds us on this subsequent appeal, and we cannot make a contrary determination.” The court also rejected defendants’ claim that the trial court erred by denying them summary disposition of plaintiff’s respondeat superior and gross negligence claims, noting the city was “not entitled to dismissal because plaintiff has adduced facts, that if believed, would allow a trier of fact to conclude that the motor vehicle exception applies, i.e., it can be held vicariously liable for Pennington’s negligence under the motor vehicle exception.” It next rejected their contention that the trial court erred by denying them summary disposition of plaintiff’s negligence claim based on res ipsa loquitur and because the doctrine does not apply to gross negligence. It found that the city was not injured by the trial court’s statement about the doctrine of res ipsa loquitur and its "challenges with respect to res ipsa loquitur are not justiciable.” Next, the court remanded for the trial court to allow an “adverse inference instruction against only those defendant mechanics who exercised control with respect to the maintenance logs.” Finally, it concluded that the record supported “the trial court’s determination that ‘[t]here is a question of fact as to whether [p]laintiff was more than 50% at fault for the incident.’” Affirmed in part, reversed in part, and remanded.