Michigan Court of Appeals; Docket #358829; Unpublished
Judges Letica, Servitto, and Hood; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
Applicability of Comparative Fault to Noneconomic Loss Claims [§3135(2)]
In this unanimous, unpublished, per curiam decision, the Court of Appeals reversed the trial court’s summary disposition order dismissing Plaintiff Dylan Parraghi’s auto negligence action against Defendant Edward Chodyniecki. The Court of Appeals held, first, that Chodyniecki failed to support his motion for summary disposition on the issue of comparative negligence with admissible documentary evidence. The Court of Appeals held, second, that even if Chodyniecki had supported his motion with admissible evidence, there was still a question of fact on the issue of comparative negligence.
Dylan Parraghi, a 15-year-old, had just pulled out of his driveway and was driving on the roadway en route to the closest dirt road designated for ORV operation, when Edward Chodyniecki—who was driving behind Parraghi’s ORV in his truck—quickly closed the gap between the two vehicles as they approached an intersection. Upon reaching the intersection, Parraghi attempted to turn left, just as Chodyniecki attempted to pass him on the left. Chodyniecki testified that Parraghi had taken a looping turn which initially led him to believe that Parraghi was turning right, especially considering Parraghi did not signal his intention to turn left. A collision ensued between the two vehicles, and Parraghi was thrown from his ORV, sustaining head injuries as a result. Parraghi eventually filed an auto negligence action against Chodyniecki, and Chodyniecki moved for summary disposition, supporting his motion with excerpts from the traffic crash report and a copy of a local ordinance governing ORV operation in the county. Chodyniecki asserted that this evidence created a presumption of negligence based on Parraghi’s failure to operate the ORV on the far side of the roadway, his traveling in excess of 25 mph, his failure to operate front and rear lights, his failure to be of legal age (16 years old) and to be supervised by an adult or obtain an ORV safety certificate, and his failure to have a valid ORV driver’s license. Parraghi had no recollection of the accident, but contested Chodyniecki’s motion with a report from an expert accident reconstructionist, who opined that Chodyniecki had violated multiple statutes in his attempted passing of Parraghi’s vehicle, and was therefore responsible for the accident. After weighing the evidence, the trial court found that Parraghi was solely responsible for the accident and granted Chodyniecki’s motion.
The Court of Appeals reversed the trial court’s summary disposition order, holding, first, that Chodyniecki failed to support his motion with admissible documentary evidence, such as would shift the burden to Parraghi, as the nonmoving party, to create a question of fact. The Court noted that, generally, police reports constitute inadmissible hearsay, and that, in this case, “defendant failed to perform any foundational groundword to demonstrate that a police report and its contents were admissible[.]”. The Court also found that the local ordinance did not shift the burden to Parraghi to create a question of fact, because it was not accompanied by any evidence that Parraghi actually violated the ordinance. There was “[no] affidavit from a local official that it had searched its records and determined that the minor did not satisfy the local registration and licensing requirements[,]” nor was there “[any] deposition testimony wherein the minor or plaintiff were questioned regarding the specifics of the operation of the ORV and whether it complied with the local ordinance.”
“In the present case, defendant moved for summary disposition premised on MCR 2.116(C)(10) and presented two documents in support: (A) an excerpt of the police report; and (B) the Sanilac County Ordinance governing ORVs. Those documents failed to support entitlement to summary disposition and initiate the burden upon plaintiff to present documentary evidence in opposition. First, police reports generally constitute inadmissible hearsay . . .
Apparently, defendant intended to submit the entire police report. And, on appeal, defendant asserts that police reports have been admitted in civil cases when the documents were prepared in the ordinary course of business. Irrespective of this general argument, defendant failed to identify or quote specific portions of the police report, classify those portions as admissible evidence or hearsay, and analyze whether, if hearsay, an exception applied to warrant admission. Thus, defendant failed to perform any foundational groundwork to demonstrate that a police report and its contents were admissible in the present case.
Moreover, defendant’s submission of the local ordinance governing ORVs, in and of itself, did not trigger plaintiff’s burden to present documentary evidence. Indeed, defendant failed to submit with the ordinance any affidavit from a local official that it had searched its records and determined that the minor did not satisfy the local registration and licensing requirements such that the minor was qualified to operate an ORV on local roads. Furthermore, defendant did not attach deposition testimony wherein the minor or plaintiff were questioned regarding the specifics of the operation of the ORV and whether it complied with the local ordinance. Thus, defendant did not move for and support his motion for summary disposition. Quinto, 451 Mich at 362; Meemic Ins Co, 292 Mich App at 281. Therefore, the burden did not shift to plaintiff to demonstrate a genuine issue of material fact with admissible evidence. The trial court erred in granting summary disposition under the circumstances.”
The Court of Appeals held, second, that even if Chodyniecki had supported his motion with admissible evidence, there was still a question of fact regarding comparative negligence. The Court noted that, ‘before the violation of an ordinance, rule, or regulation may be considered as bearing on the question of negligence, the court must determine that the purpose of the ordinance was to prevent the type of injury and harm suffered.” There was no investigation into whether the local ordinance Parraghi allegedly violated were enacted to prevent the type of injury and harm suffered in this case. Moreover, in order to establish that Parraghi violated certain aspects of the ordinance—by not having his headlights or taillights activated; by not signaling his turn—Chodyniecki’s testimony would have to be accepted as true, and, as the Court noted, “[w]hen the truth of a material factual assertion made by a moving party is contingent on credibility, summary disposition should not be granted.”
“In the present case, the trial court conducted no analysis of the purpose of the ordinance and whether it was designed to prevent the type of injury and the harm suffered. Section 9 of the ordinance permits, ‘[i]n a court action in this state,’ evidence that the operator of the ORV is prima facie negligent when there is a collision ‘with an ORV required to be operated on the far right of the maintained portion of a road or street pursuant to this ordinance.’ We can surmise that the purpose of the ORV ordinance was to ensure that there were minimal qualifications and training for individuals as young as 16 years of age that operate an ORV on local roads. Further, the ordinance provided local officials with immunity from any liability arising from the use of an ORV on roads; the ability to fine individuals that violated the ordinance; and the ability to collect funds for damages to the road committed by ORV operation with the allocation of the funds to the county treasurer. However, to the extent that an individual that drives a vehicle negligently and then collides with the operator of an ORV, the ordinance was not intended to benefit the negligent driver by presuming that the ORV operator was negligent for seemingly administrative deficiencies. Yet, the trial court failed to make this determination in accordance with the Johnson decision. Thus, any violation of the terms of the ordinance by the minor, if evidence had been presented by defendant, was insufficient to establish that the minor was more than 50% at fault for the accident.
. . .
It should be noted that defendant concluded that the minor did not have headlights and brake lights on the ORV and did not signal his turn. He therefore claims entitlement to summary disposition in light of this purportedly unrefuted and uncontroverted evidence. However, when ruling on a dispositive motion, the court does not determine the credibility of the witnesses. White v Taylor Distrib Co, 482 Mich 136, 139; 753 NW2d 591 (2008). When the truth of a material factual assertion made by a moving party is contingent on credibility, summary disposition should not be granted. Foreman v Foreman, 266 Mich App 132, 135-136; 701 NW2d 167 (2005). The minor testified that his ORV did not have turn signals, but he alleged that he made hand signals.10 Although the minor purportedly had no recollection of the accident, defendant’s testimony regarding the minor’s action or inaction should not be accepted as a matter of course because it presented a credibility determination.”
The Court further held that Parraghi’s expert accident reconstructionist’s affidavit was sufficient to create a question of fact on the issue of comparative negligence and that a reasonable trier of fact could conclude—based on Parraghi’s analysis of Chodyniecki’s alleged statutory violations—that Chodyniecki was, in fact, responsible for the crash.
“Defendant submitted that this affidavit should be disregarded because the statutes cited were inapplicable. But MCL 257.627 addresses speed limits and provides, in pertinent part:
(1) A person operating a vehicle on a highway shall operate that vehicle at a careful and prudent speed not greater than nor less than is reasonable and proper, having due regard to the traffic, surface, and width of the highway and of any other condition existing at the time. A person shall not operate a vehicle upon a highway at a speed greater than that which will permit a stop within the assured, clear distance ahead.
Defendant was estimated to be traveling at a rate of 46 to 53 mph. In his testimony, defendant purportedly acknowledged that the minor pulled out onto the roadway and was at least a quarter mile ahead. Yet, defendant closed the gap with the minor’s ORV and chose to pass the minor at an intersection. According to Alverez, he was stopped at Croswell Road waiting for the minor on the ORV to pass. The minor seemingly began to turn to the right, but this indication only lasted for 1 to 1 ½ seconds before the minor turned to the left. Defendant notes that the minor struck the rear passenger wheel well. Presumably, when deposed or at trial, Nowiski would be asked to address whether the location of the impact was contingent on the speed at which defendant traveled, particularly in light of his ultimate conclusion that defendant, not the minor, caused the accident.
Thus, the affidavit by Nowiski was sufficient to create a factual issue regarding negligence and the percentage of fault. Where reasonable minds could differ regarding the comparative negligence of a party, the issue presents a question for resolution by the trier of fact. See Rodriquez v Solar of Mich, Inc, 191 Mich App 483, 488; 478 NW2d 914 (1991).
Additionally, Nowiski opined that MCL 257.638 was violated by defendant. The statute addresses overtaking and passing on left another vehicle and provides:
(1) A vehicle shall not be driven to the left side of the center of a 2-lane highway or in the center lane of a 3-way highway in overtaking and passing another vehicle proceeding in the same direction unless the left side or center lane is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit the overtaking and passing to be completely made without interfering with the safe operation of a vehicle approaching from the opposite direction or the vehicle overtaken.
(2) A person who violates this section is responsible for a civil infraction.
Again, defendant opines that there is no basis for a violation of this section. However, defendant arguably failed to pass the ORV (the vehicle overtaken) without interfering with its safe operation as reflected by the accident. Indeed, if defendant had waited to pass the ORV after the intersection, there would have been no mistake regarding the minor’s intent to execute a turn at the intersection and the direction in which he chose to proceed.