Court rules for defendants in wheelchair ramp injury

By Eric Berkman
BridgeTower Media Newswires
DETROIT—A Michigan Court of Appeals panel affirmed the Ingham Circuit Court’s summary disposition for the defendants in a negligence case against a metro Lansing transit authority.

In Estate of McCoy v. CATA, the plaintiff filed suit on behalf of her mother, Ruth McCoy, who was hurt when she fell from the wheelchair ramp of a shuttle bus.

The plaintiff claimed the driver, defendant Jose Pizana, was grossly negligent in failing to lock the brakes on McCoy’s wheelchair. The COA determined, however, that the plaintiff did not sufficiently show Pizana’s alleged actions factually caused the harm.

“Although plaintiff contends that Pizana’s testimony that he locked the wheelchair brakes was merely self-serving, there is no evidence to contradict this assertion,” the COA stated, noting that while a safety consultant opined in an affidavit that Pizana was at fault, he provided no foundation for his opinion. “Therefore ... [the] plaintiff’s theory of the case was premised on speculation or conjecture.”

Judges Stephen L. Borrello, Kirsten Frank Kelly and Deborah A. Servitto ruled unanimously in the unpublished opinion.

Plaintiff’s counsel Sima G. Patel of Fieger Law in Southfield declined comment other than to say they are considering seeking further review in the Michigan Supreme Court. Defense counsel Carol A. Smith could not be reached for comment.

The case

McCoy, an elderly woman struggling with blood-sugar issues and a difficult recovery from a broken leg, moved into a nursing home in 2011.

She was originally using a wheelchair prescribed for her, but after she gained more weight, the nursing home gave her a different one.

On Nov. 20, 2016, a Capital Area Transportation Authority shuttle bus, specially equipped to transport passengers in wheelchairs, arrived at McCoy’s church to pick her up and return to the nursing home. Pizana was the driver.

The procedure for transporting passengers in wheelchairs involved lowering a ramp, rolling the wheelchair onto the ramp, locking its wheels by applying the brakes and placing a safety belt across the ramp. Then the driver would raise the ramp, place the wheelchair in the bus and strap the wheelchair to the floor.

According to McCoy’s daughter, plaintiff Helen Graham, Pizana — who was a driver unfamiliar to her and her mother — displayed an “attitude” upon arrival and she had to admonish him to lock the brakes on McCoy’s wheelchair.

Pizana denied having an “attitude” and insisted he complied with all safety procedures.

When the bus arrived at the nursing home, Pizana said he noticed McCoy had urinated on the floor during transport. He also said he wheeled McCoy to the ramp and locked the brakes on her wheelchair and that the safety belt was still in place from the drive over and that a safety plate extending off the ramp was raised at the time.

As Pizana descended the stairs of the bus to lower the lift, he saw the wheelchair was moving and attempted to reach for it. He also said he saw the safety belt initially stop McCoy, but she fell underneath it to the ground, suffering injury.

Pizana went into the nursing home to get help and couldn’t recall how McCoy landed on the ground or where the wheelchair was in relation to her landing and he couldn’t specify a cause for the accident, according to the COA opinion.

A week after the incident, Graham complained to Lawrence Hodge, a parishioner at McCoy’s church who had driven a CATA bus for six years, about her mother’s fall and how Pizana transported her.

Hodge, who had previously transported McCoy himself, later noted that McCoy had trouble keeping both feet on her wheelchair footplates and often her left foot would fall between them.

Meanwhile, though CATA employees could not identify what caused the accident, Graham presented an affidavit from Roger Allen, a commercial transportation and safety consultant, concluding that Pizana did not lock the brakes or have the safety strap properly in place and that CATA violated a duty to hire safe and prudent drivers.

After the incident, Graham, acting as McCoy’s conservator, filed an action for negligence and gross negligence against CATA and Pizana in circuit court.

The defendants moved for summary disposition.

Graham, proceeding as representative of McCoy’s estate following her mother’s death in August 2017, cited Allen’s affidavit in opposition.

But the trial court, finding the affidavit “conclusory” and devoid of facts to support it, granted summary disposition, ruling that the plaintiff’s theory of liability was based on speculation and conjecture.

After the trial court denied the plaintiff’s motion for reconsideration, the plaintiff appealed.

COA analysis

The COA agreed with the circuit court that the plaintiff did not present sufficient evidence to show factual causation.

Specifically, the panel pointed to a lack of evidence that the wheelchair McCoy was using —the whereabouts of which were unclear once Graham requested her mother receive a new one after the accident — was ever evaluated to meet the needs of McCoy’s weight or to maintain the straightness of her previously broken leg.

“[I]t is unclear if the decedent’s weight coupled with the placement of her one leg in a raised position caused her to become unbalanced under the circumstances,” the opinion stated.

Meanwhile, the COA observed, while the parties say McCoy urinated on the bus, the nursing home reported that a leaking water bottle in McCoy’s purse caused the wetness.

“It is possible that the decedent may have tried to move to avoid the wetness of the water bottle or may have tried to move her foot that, according to Hodge, she commonly removed from the wheelchair’s footplates,” the opinion stated. “These adjustments may have caused her to become off balance and result in the wheelchair toppling over.”

Regarding Allen’s affidavit, the panel noted that the consultant never addressed McCoy’s bodyweight and the maintenance of the wheelchair.

“[I]f the decedent continued to gain weight, the question becomes whether this wheelchair was equipped to handle a person of her size, and whether the brakes would have been impacted as a result.”

Additionally, the COA found no evidence the plaintiff requested that the church preserve security camera footage of Pizana’s pickup of McCoy at the church — footage that may have helped assess whether the driver complied with CATA policies.

“Although evidence of Pizana’s negligence during the church pickup would not be dispositive of his conduct during the drop off at the nursing home, the wheelchair and the video recording from the church as well as the nursing home may have elevated plaintiff’s proofs from possibility to reasonable likelihood of probability,” the panel stated.

Accordingly, said the COA, “the trial court properly granted summary disposition.”


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