Michigan Court of Appeals; Docket #346583; Unpublished
Judges Riordan, O’Brien, and Swartzle; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
Applicability of Comparative Fault to Noneconomic Loss Claims [§3135(2)]
TOPICAL INDEXING:
Not Applicable
SUMMARY:
In this unanimous unpublished per curiam decision, the Court of Appeals affirmed the trial court’s summary disposition order dismissing the plaintiff’s first-party action against defendants Christopher Folts and Tradd Vauter. The Court of Appeals held, as a matter of law, that the plaintiff decedent, Young Homrich, was more than 50% at-fault for the subject pedestrian-versus-motor vehicle collision and that the plaintiff was therefore barred from recovery pursuant to MCL 500.3135(2)(b).
Folts was driving his vehicle on an unlit road in the early morning hours before the sun had risen when he crashed into Homrich as she attempted to cross the street at a location without a crosswalk. The collision occurred just after Folts had crested a hill; the street was lined with three-foot tall recycle bins; and Homrich was only 4’ 8” and wearing dark clothing. After the collision, Folts pulled over and activated his hazard lights, at which point two other pedestrians also rendered assistance and signaled to oncoming traffic to slow down by waving flashlights they had with them. Shortly thereafter, Tradd crested the hill in his vehicle. He noticed Folts’s mirror in the westbound lane and Folts’s vehicle stopped in the right shoulder lane, so he swerved to the left and struck Young, who was lying in the roadway. Young’s Estate subsequently filed the underlying third-party automobile negligence action against Folts and Tradd, both of whom moved for summary disposition, arguing that there was no genuine of issue of material fact as to whether they were negligent. The trial court agreed, and granted their motions.
The Court of Appeals affirmed the trial court’s summary disposition order in favor of Folts and Tradd, holding that Folts was confronted with a sudden emergency when Young ran into the road in front of him. The officers that investigated the collision concluded that Young was 100% at fault, and a driver that was several car lengths behind Folts when the collision occurred opined that Folts could not have avoided Young under the circumstances.
We agree with the trial court as there is no genuine issue of material fact that Folts was not negligent. Based on this evidence, we conclude that Folts was confronted with a sudden emergency, and there is no question of fact as to whether Folts breached his duty under MCL 257.627(1) because the potential peril was not in clear view for any significant length of time, and it was totally unexpected. Additionally, Young was wearing dark clothing on an unlit roadway before sunrise when she suddenly ran into Auburn Road at a location without a crosswalk and without yielding to oncoming vehicles. After investigating the scene of the collision, two Oakland County Sheriff’s Deputies concluded that Young was 100% at fault, and there is no evidence that Folts was distracted or otherwise inattentive. Thus, there is no genuine issue of material fact regarding whether Young was more than 50% at fault for the collision, and trial court properly concluded that the estate is barred from recovery under MCL 500.3135(2)(b).
The Estate did present the expert opinions of Dr. Daniel G. Lee—who “opined that Young was visible for 2.2 seconds before the collision”—which the Estate argues was enough time for Folts to take evasive action and avoid the collision. The Court of Appeals held that Dr. Lee’s opinions did not create a genuine issue of material fact, however, because they were “based on the unfounded premise that Folts’s view of Young was not obstructed during the period in which Young ran into the road.”
The Court of Appeals did determine that there was a genuine issue of material fact as to whether Tradd breached his duty, considering he failed to slow down when he saw Folts’s mirror in the road, Folts’s vehicle stopped on the side of the road with its hazard lights flashing, and the two pedestrians waving their flashlights signaling oncoming traffic to slow down. However, the Court of Appeals held that the trial court properly granted summary disposition in Tradd’s favor as well because there was no genuine issue of material fact as to whether Young was more than 50% at fault for the prior collision with Folts.
Tradd was driving at or below the posted speed limit with his headlights on. He did not see Young lying in the road or Robert and Patricia standing on the shoulder signaling with their flashlights to slow down, but he saw Folts’s mirror in the road and Folts’s vehicle stopped on the shoulder with its hazard lights flashing. Upon observing those hazards, Tradd veered to avoid them but did not slow down. Based on this evidence, a reasonable juror could conclude that Tradd breached his duty by failing to exercise ordinary and reasonable care. Huggins v Scripter, 469 Mich 898, 898; 669 NW2d 813 (2003). Additionally, the presence of those hazards and Tradd’s admitted observation of them creates a factual issue regarding whether it was totally unexpected for Young to be lying injured in the road when Tradd struck her, and thus, whether Tradd breached his statutory duty under MCL 257.627(1). Vander Laan, 385 Mich at 232. Nonetheless, summary disposition was properly granted because, as discussed above, there was no genuine issue of material fact as to whether Young was more than 50% at fault for the collision. MCL 500.3135(2)(b).
