A plaintiff appealed the trial court’s order granting the defendant’s motion for summary disposition under MCR 2.116(C)(10). Holding that there was a genuine issue of material fact as to whether the plaintiff was more than 50 percent at fault for the accident, the Michigan appeals court reversed and remanded.At around 9:15 p.m. on November 2, 2013, the plaintiff was walking home from the Applebee’s restaurant where he worked. He testified that he was walking northbound on Monroe Street, while the defendant was driving northbound on Monroe Street, talking on his cell phone with his girlfriend. The defendant’s vehicle struck the plaintiff near the intersection of Monroe Street and LaSalle Road, severely injuring him.
At the time, Monroe Street consisted of four lanes, two heading north and two heading south. The roadway was straight and flat. Several witnesses testified it was dark at the time of the accident, and the area where the plaintiff was hit was not-well lit. Also, the defendant testified that the road conditions were clear, that he was not under the influence of any substances, and that he had his lights on.
The plaintiff recalled that before the accident, he was walking on the shoulder to the left of the fog line, but he could not remember the exact spot where he was hit. He was certain, however, that he was not in the road because he remembered crossing Monroe already and because he walked the same path every single day. He explained that he usually stayed on the gravel part of the shoulder but would sometimes walk on the paved part of the shoulder, which he described as something like a bike path. The defendant, however, testified that the plaintiff was in the road when he hit him, and the responding police officer opined that the plaintiff had been crossing the road when he was struck.
The defendant moved for summary disposition under MCR 2.116(C)(10), asserting that the undisputed facts showed that the plaintiff was in the road, wearing all black, when he was struck and that, as a matter of law, no reasonable juror could conclude that the defendant was more at fault than the plaintiff. The trial court agreed and granted summary disposition in the defendant’s favor. The plaintiff moved for reconsideration, which the court denied.
On appeal, the plaintiff contended that there were factual disputes on two key points: whether he was wearing a black jacket or a red shirt and whether he was walking in the roadway or on the shoulder. The Michigan appeals court agreed.
The defendant and the officer testified that the plaintiff was wearing a black leather jacket when he was struck by the defendant’s vehicle. However, the plaintiff testified that he was wearing a red shirt and was carrying his black leather jacket. Furthermore, the defendant testified at one point that he did not recall who placed the plaintiff’s jacket over him after the accident, which suggests that he was not wearing his jacket at the time of impact. Viewing these facts in the light most favorable to the plaintiff, the appeals court concluded that there was a factual dispute as to whether he was wearing a red shirt or a black jacket at the time of the accident.
In addition, the appeals court reasoned, there was a factual dispute regarding whether the plaintiff was on the shoulder or in the roadway when he was struck by the defendant’s vehicle. The defendant consistently asserted that the plaintiff was in the road when he hit him, and the officer testified that based on the physical evidence at the scene, he believed the plaintiff had been crossing the road at the moment of impact. Accordingly, the plaintiff was required to come forward with evidence establishing a genuine issue of material fact. And as the party opposing the motion, the plaintiff could not rest upon mere allegations or denials in the pleadings and was required to set forth specific facts using documentary evidence to show the existence of a genuine issue for trial.
The plaintiff argued that the evidence allowed for an inference that he was on the shoulder because it was his habit or routine to walk along a specific route and stay off the roadway. MRE 406 states that evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. Such evidence must establish a set pattern or show that something is done routinely or has been performed on countless occasions. Here, the plaintiff typically walked to and from work. He explained that when he leaves Applebee’s, he walks down Mall Road, and then he crosses at the light when he gets to Monroe Street. That would be right at the corner of Monroe Street and Mall Road.
He stated that he would then take Monroe Street to his house and added that he walked the same path every single day. Furthermore, he recalled that on the night of the accident, he left Applebee’s, walked down Mall Road, and crossed Monroe Street, before continuing down northbound Monroe toward his home. The plaintiff testified about the shoulder and where he would usually walk. He explained that the shoulder on Monroe Street is mostly gravel, although there is about two feet of pavement from the white line. He stated that he would usually always walk off the pavement when he could, but when he got to driveways or bridges, he would have to be on the pavement. He indicated that when he is on the pavement, he is on something like a bike path. The plaintiff testified that he usually stays pretty clear of the road.
Viewing this evidence in the light most favorable to the plaintiff, the court concluded it was apparent that he traveled the same route routinely and on countless occasions. Therefore, the habit evidence was admissible to establish that his behavior on the night in question was in conformity with that routine practice. The evidence allowed for an inference that the plaintiff was, per his routine, on the shoulder and staying clear of the roadway.
Moreover, even if the plaintiff was in the roadway and was wearing a black jacket, reasonable minds could differ on his level of fault. The plaintiff’s expert reviewed the specifications for the defendant’s vehicle and was aware that the defendant’s vehicle had halogen lights. He opined that the lights would illuminate around 175 to 200 feet in front of the vehicle. He further opined that, given that it was a straight, flat road and that the plaintiff was wearing red, the defendant should have seen him. Viewed in the light most favorable to the plaintiff, the defendant did not see him until he was hitting him. In sum, even if there was evidence that the plaintiff was negligent for walking in the roadway, there was also evidence that the defendant was negligent for failing to see him in time to avoid the accident.
The plaintiff further argued that he was entitled to a presumption of negligence because the defendant violated the assured clear distance statute and was unable to rebut the presumption by showing a sudden emergency or adequate excuse. Here, there was no testimony that the plaintiff suddenly darted in front of the defendant, thereby making it impossible for the defendant to avoid striking him with his vehicle. Indeed, there was no testimony about unusual or extenuating circumstances that would excuse the defendant’s failure to see the plaintiff until it was too late. A jury viewing the conflicting evidence in this case could conclude that even if the plaintiff was in the roadway and was wearing a black jacket, he would have been illuminated by the defendant’s headlights in enough time for the defendant to avoid the accident. Thus, contrary to the defendant’s argument, it was not clear as a matter of law that the plaintiff bore the majority of liability.
The appeals court therefore reversed and remanded.
The pedestrian accident attorneys at the Neumann Law Group represent injured people throughout Michigan from offices in Traverse City and Grand Rapids. Call us at (231) 463-0122 or at (616) 717-5666 for a free consultation.
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