Michigan Court of Appeals; Docket #356952; Unpublished
Judges Letica, Redford, and Rick; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
Not Applicable
TOPICAL INDEXING:
Sudden Emergency Doctrine
SUMMARY:
In this unanimous, unpublished, per curiam decision, the Court of Appeals affirmed the trial court’s summary disposition order dismissing Plaintiff Martin Cousineau’s auto negligence action against Defendant Janet Cousineau. The Court of Appeals held that Janet Cousineau was shielded from liability by the sudden-emergency doctrine because, under the specific facts and circumstances of this case, it was not reasonably foreseeable that she would encounter a patch of black ice which would cause her to lose control of her vehicle.
Martin Cousineau was a passenger in a vehicle being driven by his wife, Janet Cousineau, on a sunny, winter morning in Genesee County, Michigan. Janet was driving approximately 40-45 miles per hour when she encountered a patch of black ice which caused her to lose control of her vehicle and crash into a guardrail. As a result of the crash, Martin sustained injuries and filed a third-party auto negligence action against Janet. Janet moved for summary disposition, arguing that the black ice constituted a sudden emergency, and supported her motion with the following evidence: her own affidavit, in which she testified (1) that the patch of black ice was “ ‘not in clear view . . . for any significant length of time’ ” before she encountered it, (2) that she had not encountered any other black ice or icy road conditions that morning prior to losing control of her vehicle on the black ice in question, (3) that she was operating her car at a reasonable speed, given the conditions, at the moment she encountered the black ice in question, (4) that Martin did not ask her to reduce her speed or alter her driving in any way prior to the crash, and (5) that her unexpected encounter with the black ice was the sole cause of the crash; and Martin’s deposition testimony, in which he testified (1) that there was no snow on the roads, (2) that Janet did, in fact, encounter a patch of black ice which caused her to lose control, (3) that he did not ask her to slow down prior to her encountering the black in question, and (4) that her encounter with the black ice was “ ‘completely’ ” unexpected. Based on this evidence, the trial court granted Janet’s motion.
On appeal, Martin first argued that the sudden emergency doctrine was not applicable because black ice on the roads during Michigan winters is so common as to never be “reasonably unsuspected.” The Court noted, however, that in Young v Flood, 182 Mich App 538 (1990), it held that although “ ‘it is not unusual for Michigan roads to be icy in the winter, this does not mean that icy patches cannot be unsuspected.’ ” In this case, both Janet’s affidavit and Martin’s testimony established that the black was unsuspected, and thus the sudden-emergency doctrine applied.
“Plaintiff argues that the sudden-emergency doctrine did not apply because encountering icy conditions while driving during a Michigan winter is neither unusual nor reasonably unsuspected. This Court, however, has held that, although ‘it is not unusual for Michigan roads to be icy in the winter, this does not mean that icy patches cannot be unsuspected.’ Young v Flood, 182 Mich App 538, 543; 452 NW2d 869 (1990). Indeed, ‘Michigan roads are not ice-covered and dangerously slippery all winter long.’ Id.; see also Vsetula v Whitmyer, 187 Mich App 675, 681; 468 NW2d 53 (1991) (citation omitted) (‘Icy patches on Michigan roads in winter can be unsuspected.’).
Both plaintiff’s deposition and Janet’s affidavit testimonies establish that no material factual dispute exists regarding whether Janet encountered unsuspected black ice. The record reflects no evidence indicating otherwise.3 Because plaintiff failed to establish the existence of a genuine issue of material fact concerning whether Janet unexpectedly encountered black ice, the trial court properly concluded that the sudden-emergency doctrine applied.”
Martin also argued that the traffic crash report—on which Janet was assigned the hazardous action, “ ‘Speed too Fast’ ”—created a genuine issue of material fact as to whether Janet’s negligence caused the crash. The Court of Appeals rejected this argument, too, holding that the officer’s conclusion regarding Janet’s speed was inadmissible: there was no indication that the officer who dictated the report witnessed or was present when the crash occurred, and thus no indication that his conclusion that Janet was driving too fast was based on personal knowledge.
“Plaintiff argues that the crash report was substantively admissible because the police officer who authored the report could be called to testify regarding its substance. But the crash report identifies two police officers, one as the investigating officer, and another as having reviewed it, and the report itself does not indicate which officer entered the phrase ‘Speed too Fast’ in the hazardous action section. Further, there is no indication that either officer personally observed the accident. Plaintiff’s deposition testimony indicated that an unknown person called the police after the accident. No evidence in the record establishes that an officer was present when the accident occurred and made the report based on the police officer’s personal observations. Accordingly, the crash report statement lacked admissibility. The trial court did not err in this regard.”
