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Estate of Ousley v Phelps Towing, Inc (UNP – COA 8/26/2021; RB #4309)


Michigan Court of Appeals; Docket #351378; Unpublished
Judges Murray, Jansen, and Stephens;  Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion

Evidentiary Issues [§3135]

Negligence – Duty

In this unanimous unpublished per curiam decision, the Court of Appeals affirmed the trial court’s summary disposition order dismissing Plaintiff Estate of Oscar Ousley’s third-party action against Defendant Phelps Towing, Incorporated (“Phelps”). The Court of Appeals held that the Estate failed to present any evidence that Phelps’s tow truck driver acted negligently when he accidentally ran over Ousley.

Oscar Ousley arranged with Phelps to have a vehicle towed from Phelps’s lot to his property. Phelps dispatched its employee, Joseph Mitchell, to the property with the vehicle, and after arriving at the property, Ousley and his son told Mitchell that they wanted the vehicle dropped between two outbuildings on the property. Mitchell began to drive in reverse towards the location between the outbuildings, as Ousley and his son walked toward their barn and out of Mitchell’s view. Mitchell continued to drive the vehicle in reverse at less than three miles per hour, “ ‘constantly watching’ ” his side mirrors in the process, but as he neared the drop point, he noticed Ousley lying on the ground, ostensibly having been run over at some point. Notably, the truck Mitchell was driving was equipped with a “back-up beeper” that automatically activated whenever the truck was being driven in reverse.

Ousley sustained several injuries as a result of being run over but could not recall exactly what happened. In the Estate’s subsequent lawsuit, it retained accident reconstructionist Rodney Sadler, who offered several opinions about things Mitchell potentially could have done to have avoided running over Ousley, but all of which Sadler caveated were theoretical, because he had nothing more than assumptions about things such as “[the point from which] the truck started moving, how fast it was going, or what path it took.” Moreover, Sadler stated that Mitchell “ ‘did nothing wrong, per se,’ ” but perhaps could have “ ‘done something differently,’ ” such as installing a rearview camera (even though equipment of rearview cameras is not a requirement for tow trucks). Phelps moved for summary disposition, arguing that the Estate failed to present any admissible evidence to raise a genuine issue of fact about whether Mitchell had acted negligently. The trial court agreed and granted Phelps’s motion.

The Court of Appeals affirmed the trial court’s summary disposition order, noting that the Estate “simply presented no evidence of negligence,” and that the mere fact that Ousley was struck by the truck is not enough to establish negligence. The only witness to the crash was Mitchell, who testified that, at all pertinent times, he operated the tow truck with considerable caution. Sadler’s opinions did not create a question of fact, as “Sadler testified only that there were certain things Mitchell might have done differently,” but “did not say that the standard of care, or any law or regulation, required Mitchell to take those steps.”

"Plaintiff’s expert, Sadler, did not provide sufficient evidence to raise a material question of fact about whether Mitchell breached the standard of care. Sadler testified only that there were certain things Mitchell might have done differently, which may have yielded a different result. He did not say that the standard of care, or any law or regulation, required Mitchell to take those steps. In fact, Sadler admitted that Mitchell had 'done nothing wrong' but that there were extra precautions that might have prevented the accident if Mitchell had taken them. Such hindsight-driven opining is not sufficient to raise a genuine issue of material fact. We also note that Sadler was not offered as a standard-of-care expert for tow truck drivers or other commercial drivers, he did not purport to know or otherwise opine on the applicable standard of care, and he admitted that he had no personal knowledge of the key facts and that most of his opinions were based on his assumptions about what had occurred."

The Court also rejected the Estate’s argument that summary disposition was premature because it was granted before the close of discovery. The Court noted that the Estate failed to submit an affidavit identifying witnesses that it had not yet obtained who might be able to support its position, failed to explain why their testimony had not yet been obtained, and failed to indicate what their “probable testimony would be.”

"Plaintiff argues that summary disposition was premature because the trial court granted it before the close of discovery. 'As a general rule, a motion for summary disposition under MCR 2.116(C)(10) is premature if discovery has not been completed, unless there is no fair likelihood that further discovery will yield support for the nonmoving party’s position.' Kern v Kern-Koskela, 320 Mich App 212, 227; 905 NW2d 453 (2017) (quotation marks and citation omitted). Under MCR 2.116()(1), however, a party asserting that the party’s position cannot be presented because that party cannot obtain affidavits from witnesses supporting that position must present an affidavit identifying the witnesses, why their testimony cannot be obtained, and what the 'probable testimony' of the witnesses would be. Plaintiff submitted no such affidavit here. The trial court did not prematurely grant summary disposition."

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