Michigan Court of Appeals; Docket #336881; Unpublished
Judges Sawyer, Cavanagh, and Fort Hood 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:
CASE SUMMARY:
In this per curiam opinion, the Court of Appeals upheld the grant of summary disposition against Plaintiff Allan Cecile (“Cecile”) regarding the issue of comparative negligence. The Court upheld the grant of summary disposition against Cecile because it found he was negligent by not using the cross walk, the weather conditions were dark and rainy, and the trial court properly refused to admit evidence that showed the area was properly lighted.
Cecile worked for two auto dealerships that were directly across the street from one another. Cecile crossed the street to go from one dealership to the other when he was struck by Defendant Xiaoli Wang (“Wang”). The one witness to the accident claimed that she was two cars ahead of Wang and that she did not see Cecile until she passed. Further, the witness explained that it was dark and rainy at the time of the accident. Cecile suffered a head injury and he could not remember any of the circumstances leading up to the injury. Cecile attempted to introduce evidence showing that the area was well lighted, but the trial court disallowed this evidence because it found that it directly contradicted Cecile’s deposition testimony. Wang motioned for summary disposition and the trial court granted it.
The Court upheld the trial court’s grant of summary disposition because the evidence all demonstrated that Cecile was negligent. The Court first explained that in an automobile negligence action damages “shall not be assessed in favor of a party who is more than 50% at fault” MCL 500.3135(2)(b). Moreover, a plaintiff’s use of a crosswalk, or lack of the use, is relevant to the negligence inquiry. Here, the Court that no reasonable juror could find for Cecile because he did not use the cross walk that was right next to him, he crossed the street when it was dark and rainy, and he provided no evidence to prove he was not negligent. Moreover, this was during rush hour traffic.
“It is clear from this evidence that no reasonable juror could find that defendant was more at fault for the accident than plaintiff. Plaintiff chose not to use the nearby crosswalk, which is relevant to the issue of comparative negligence. See Mason, 447 Mich at 136 n 5. He instead crossed away from the crosswalk on a five-lane road that was by his own admission congested with rush-hour traffic. Hofner’s testimony established that it was dark, rainy, and sleety.”
The Court also found that the trial court properly denied the admission of evidence supplied by Cecile. The Court explained that a party may not create a factual issue merely by submitting an affidavit that contradicts the party’s own damaging statement. Here, Cecile testified in his deposition that he could not remember if it was dark out. His subsequent affidavit explaining that the area was well lighted, was therefore in contradiction with his earlier testimony and could properly be denied.
“Plaintiff suggests on appeal that his affidavit did not contradict his deposition testimony because an area may be well lighted when it is dark out. But plaintiff testified in his deposition that he could not remember whether it was light or dark out; it thus makes no sense for him to assert in an affidavit that he remembered that the area was well lighted by the car dealerships and the traffic because this implies that he remembers it being dark out but nonetheless well lighted.”
Thus, the Court upheld the lower court’s grant of summary disposition.
