Michigan Court of Appeals; Docket # 336595; Unpublished
Judges Jansen, Servitto, and Shapiro per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion; Link to Concurrence
STATUTORY INDEXING:
General / Miscellaneous [§3135]
TOPICAL INDEXING:
CASE SUMMARY:
In this unanimous unpublished per curiam opinion, the Court of Appeals upheld the lower court’s grant of summary disposition for Defendants Daniel Green (“Daniel”) and Paul Green (“Paul”) regarding the application of the sudden emergency doctrine and the application of the comparative fault doctrine. The Court of Appeals upheld the lower court because Plaintiff could not rebut the sudden emergency doctrine and Plaintiff was more than 50 percent at fault for the accident he was involved in.
Plaintiff was involved in an accident with Daniel and Paul. Daniel was driving a truck that was owned by Paul at the time of the accident. The two were coming around a bend in the roadway when both saw the vehicle in front of them swerve suddenly and reveal Plaintiff on a homemade mini-bike that did not have lights, did not have reflectors, and was painted black. Daniel applied the brakes to avoid hitting Plaintiff but still struck him from behind. The accident occurred around 5:50 PM and Daniel and Paul testified that it was dark outside. The two claimed they were traveling around 40-45 mph at the time of the accident.
After the accident, two police officers arrived at the scene-Sergeant Daniel Zydbek “(Zybek”) and Deputy Ryan Sottile (“Sottile”). Zybek is a certified accident reconstructionist and he investigated the scene. Zybek determined that the accident location was on the southbound lane, near the fog line, at the very edge of the lane. He testified that there was no evidence to suggest that at the time of impact, Plaintiff’s vehicle was on the shoulder of the road. Plaintiff argued that he was stopped on the shoulder of the roadway at the time of the accident. Zybek also testified that he did not believe Plaintiff’s vehicle could legally be operated on a public road. Sottile testified that he could smell alcohol on Plaintiff and later blood tests revealed that Plaintiff had a blood-alcohol level of .15 at the time of the accident. Finally, both officers testified that the speed limit on the road was 55 mph with a recommendation that cars slow down to 35 mph when going around the bend in the road. Defendants contended that they were traveling below 55 mph, but above 35 mph at the time of the accident. Plaintiff brought a third-party tort action against Defendant and Defendants moved for summary disposition based on the sudden emergency doctrine or alternatively, that Plaintiff was more than 50 percent at fault. The trial court granted the motion for summary disposition.
The Court first found that the rear-end collision statute was inapplicable to the case. The rear-end collision statute creates a statutory presumption of negligence when a vehicle rear ends another vehicle. However, this statutory presumption only applies when the vehicle overtaken was either (1) proceeding in the same direction or (2) lawfully standing upon the highway. The Court reasoned that the first criterion was not applicable because Plaintiff argued that he was stopped and not traveling the same direction as the defendants. The Court then reasoned that the second criterion was not applicable because if Plaintiff was not on the shoulder, then he could have moved his vehicle off the paved road. If he could have moved his vehicle off the paved road, then he was not parked legally. Thus, the plaintiff was not entitled to the statutory presumption of negligence against Defendant because he was not lawfully parked on the road.
The Court next examined the assured-clear-distance statute. The assured-clear-distance statute creates negligence per se when an individual violates it. The Court then articulated that there is an exception to the assured-distance-statute under the sudden-emergency doctrine. To fall within the sudden emergency doctrine, the circumstances of the accident must present a situation that is “unusual or unsuspected.”
The Court found that there was clear, positive, and credible evidence opposing the presumption of negligence under the assured-clear-distance statute. The evidence showed that Defendants slowed down as they were approaching the bend, Defendants were not speeding when they approached Plaintiff, Zydek demonstrated that the plaintiff was likely in the road at the time of the accident, the mini-bike did not have the proper safety requirements, and Plaintiff did not do more than make a mere pledge to establish an issue of fact at trial.
“Here, there was clear, positive and credible evidence opposing the presumption of negligence under the assured-clear-distance statute. . . . Daniel testified that he started slowing down to about 40 or 45 mph right before the curve. . . . [Zydek] testified that there was no evidence to suggest that at the time of impact, plaintiff’s vehicle was on the shoulder of the road. . . . [the mini-bike] had no headlights, taillights or reflectors, was painted black, and was not registered with the state.”
Second, the Court found that the sudden-emergency doctrine was applicable. The Court explained that the sudden-emergency doctrine applied because Plaintiff’s vehicle was not parked in the proper place, it was dark, the defendant was not speeding, and the defendants had limited visibility due to the car in front of them. Further, the plaintiff offered no credible evidence to rebut Defendants’ contention.
“Given the testimony of defendants, there was clear, positive, and credible evidence opposing the statutory presumption of negligence in MCL 257.627, allowing the trial court to take the question of whether the sudden emergency doctrine applied away from the jury. . . . Plaintiff offered no substantively admissible evidence to rebut the evidence presented by defendants concerning the location of the accident or defendants’ speed at the time of the accident.”
The Court finally examined the greater fault bar for auto no-fault third-party actions. MCL 500.3135(2)(b) states that “[d]amages shall be assessed on the basis of comparative fault, except that damages shall not be assessed in favor of a party who is more than 50% at fault.” The Court found the evidence of Plaintiff’s negligence to be “extradentary” due to his alcohol intake, the lack of safety features on his mini-bike, where he parked the vehicle, and the time of day he drove. Thus, the Court found that the lower court did not err in finding the plaintiff more than 50 percent at fault.
“Plaintiff’s demonstrated negligence, on the other hand, was extraordinary. He was operating in the roadway, at a point situated in a curve that limited visibility. He was intoxicated, on an unregistered vehicle and operating it after sunset without any lights or reflective devices whatsoever. Given the admissible evidence provided regarding the location and circumstances surrounding he accident and the fact that plaintiff’s ability to function is presumed to be impaired due to his alcohol level, the trial court did not err in finding that plaintiff was 50% or more at fault for the accident.”
Thus, the Court upheld the lower court’s grant of summary disposition for the defendants.
Concurrence by Judge Jansen
Judge Jansen concurred in the result only.
