Michigan Court of Appeals; Docket #316026; Unpublished
Judges O’Connell, Fitzgerald, and Markey; Unanimous; 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:
Not Applicable
CASE SUMMARY:
In this unanimous unpublished per curiam Opinion involving a snowmobile-automobile collision and a tort claim brought by plaintiff snowmobile operator for noneconomic damages, the Court of Appeals affirmed that plaintiff was more than 50 percent at fault for the collision and, therefore, was precluded by the comparative fault provision in MCL 500.3135(2)(b) from recovering damages.
Plaintiff was driving a snowmobile at night and, while entering into a roadway, collided with defendant’s vehicle. Plaintiff filed a tort action against defendant for damages. Defendant moved for summary disposition, arguing plaintiff was more than 50 percent at fault for the accident and, therefore, could not collect damages under the comparative fault provision in §3135(2)(b). The trial court granted defendant’s motion.
In affirming the dismissal of plaintiff’s claim, the Court of Appeals explained that, pursuant to §3135(2)(b), a person is not subject to tort liability for noneconomic loss with regard to his ownership, maintenance, or use of a motor vehicle when the party seeking damages is greater than 50 percent at fault for the accident. The court also noted that, under MCL 257.401(1), a driver has a duty to operate a vehicle with ordinary care to prevent causing injury to others or to property.
Applying these principles to this case, the Court of Appeals said:
“[T]he trial court determined that the only factual disputes were not material. Specifically, it was undisputed that defendant had the right of way, and regardless of whether plaintiff looked both ways, plaintiff proceeded across the road at his own risk.”
Plaintiff asserted the trial court erroneously granted summary disposition for defendant because eyewitness testimony showed that plaintiff looked both ways and that defendant’s wife had stated that defendant “thought he gave plaintiff enough time to cross the road.” Plaintiff argued this created a material dispute about whether he was more than 50 percent at fault. The Court of Appeals disagreed and said:
“Viewed in the light most favorable to plaintiff, deposition testimony established that plaintiff did not see defendant’s vehicle, but defendant saw plaintiff. Nonetheless, defendant still had the right of way. Defendant also indicated he slowed down twice once he saw plaintiff and was driving … 10 miles less than the posted speed limit when the impact occurred. Sergeant Douglas Chapman of the Shiawassee Sheriff’s Department … testified that he concluded that plaintiff failed to yield the right of way; consequently, he was at fault for the accident.”
According to the Court of Appeals, if this case went to trial a jury would have to determine what other actions defendant should have taken to “exercise ordinary and reasonable care and caution.” Further, the court noted that plaintiff failed to present evidence that he did not “take off” or “dart” in front of defendant’s vehicle.
The Court of Appeals concluded:
“In sum, no reasonable juror could find that defendant was more at fault than plaintiff in causing the accident as required by MCL 500.3135(2)(b); therefore, the trial court did not err in granting defendant’s motion for summary disposition.”
