Batton v Auto Owners Ins, et al (COA – UNP 8/3/2023; RB #4620)
Michigan Court of Appeals; Docket #363258; Unpublished
Judges Gadola, Murray, and Maldonado; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEX:
Applicability of Comparative Fault to Noneconomic Loss Claims [§3135(2)]
TOPICAL INDEX:
Not Applicable
SUMMARY:
In this unanimous, unpublished, per curiam opinion, the Court of Appeals reversed the trial court’s summary disposition order dismissing Plaintiff Zane Lee Batton’s automobile negligence action against Defendant Scott David Romesburg. The Court of Appeals held that a question of fact existed as to whether Romesburg was more than 50% at-fault for crashing his motor vehicle into Batton, a bicyclist.
Scott David Romesburg was driving his motor vehicle when he came upon a three-way intersection controlled by a stop sign. As he approached the stop sign and slowed his vehicle to turn right, Romesburg observed Batton riding a bicycle on the sidewalk that runs parallel to the intersecting road. Romesburg continued to slow until his vehicle came to a stop at the stop sign, after which he began his turn. After beginning his turn, however, Batton entered the intersection to the right of Romesburg’s vehicle. As Romesburg continued his right turn, he struck Batton on his bicycle. In Batton’s resultant automobile negligence action, the trial court granted summary disposition in Romesburg’s favor on the issue of comparative negligence, finding that there was no question of fact that Batton was more than 50% at fault based on Mich Admin Code, R 28.1706 and MCL 257.660c. Mich Admin Code, R 28.1706 provides:
“[e]very pedestrian who crosses a roadway at any point other than within a marked crosswalk at an intersection shall yield the right-of-way to all vehicles on the roadway.”
MCL 257.660c provides:
“An individual lawfully operating a bicycle upon a sidewalk or a pedestrian crosswalk has all of the rights and responsibilities applicable to a pedestrian using that sidewalk or crosswalk.”
Batton conceded there was no crosswalk at the intersection, and thus the trial court found that his failure to yield to Romesburg’s vehicle was dispositive of the question regarding comparative negligence.
The Court of Appeals reversed the trial court’s summary disposition order in favor of Romesburg, holding that there was a question of fact regarding comparative negligence when considering the evidence in the light most favorable to Batton. The Court explained that the evidence suggested that Romesburg saw Batton on his bicycle as he approached the stop sign, but only cleared traffic to the left before initiating his right turn. In other words, Romesburg never looked back to determine the location of the bicyclist he knew was approaching the intersection before initiating his turn. Based on these facts, the Court of Appeals determined that a reasonable jury could conclude that a prudent person in Batton’s position would check both directions prior to commencing a turn, and that Romesburg was negligent for not checking for the bicyclist for 30 seconds after initially seeing him on the roadway. The Court also recognized that Romesburg vehcile hit Batton with great force that was further indication that Romesburg executed the turn at an unreasonable rate of speed.
“The trial court erred by failing to view the evidence in a light most favorable to the nonmoving party. See West, 469 Mich at 183. The trial court emphasized that Batton admitted in his deposition to having entered the intersection despite seeing that Romesburg was looking in the opposite direction. However, a reasonable jury could conclude that a prudent person in Batton’s position would expect Romesburg to check both directions prior to commencing his turn. Moreover, the trial court’s opinion wholly overlooks Romesburg’s deposition testimony that he saw Batton riding the bicycle down the sidewalk when he approached the intersection. Romesburg testified that Batton was approximately 400 feet away when he saw Batton, and Batton testified that he was going approximately 10 MPH but slowed down as he approached the intersection. If a jury found these two statements credible, then it could deduce that approximately 30 seconds elapsed between Romesburg seeing defendant and making the turn.2 A jury could find that it was negligent for Romesburg to make the turn despite going 30 seconds without checking Batton’s location. The court also failed to consider the fact that the parties collided so forcefully that Batton’s bicycle got stuck underneath the car, and Romesburg needed help from a police officer to extract it. Moreover, Batton testified that Romesburg’s car hit the side of his bicycle and his leg, and Romesburg testified that there was heavy traffic. Taken together, this evidence could support an inference that Romesburg executed the turn at an unreasonable rate of speed in order to fit into a small gap in the traffic.”
The Court of Appeals further held that Romesburg’s driving arguably violated Mich Admin Code, R 28.1716, which provides
“(3) Notwithstanding the foregoing provisions of this part, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian on any roadway, shall give warning by sounding the horn when necessary, and shall exercise proper precaution upon observing any child or any confused or incapacitated person on a roadway.”
The evidence showed that Romesburg proceeded into the intersection without looking to his right despite knowing that Batton was approaching the intersection from his right, and that he did so, according to his testimony, to ‘slide into’ a ‘gap’ between two vehicles. A reasonable jury could conclude that he therefore ‘failed to exercise due care to avoid colliding with [a] pedestrian’ in violation of the administrative rule[,]” according to the Court.
