Estate of Eric Johnson v. Jason Charles Ugljesa Hass
332855
| Mich. Ct. App. | Oct 19, 2017Background
- On Feb 20, 2014, Jason Hass (driver) struck and fatally injured Eric Johnson, who was running in the middle of the southbound lane at night in dark clothing on a rainy Pontiac road.
- Eddie Turner, driving ahead of Hass, first noticed Johnson ahead (testified he could see Johnson only when closer than 50–100 yards) and moved from the right lane into the left lane; Hass, about two car lengths behind Turner, then had roughly one car length to react and swerved but struck Johnson.
- Hass testified he was driving 35–40 mph, did not see Johnson until very close, and that visibility was poor; no criminal charges were filed.
- Plaintiff (estate) sued for negligence; Hass’s father (vehicle owner) was also named. Defendants moved for summary disposition arguing Johnson’s conduct (running in dark clothing in the lane) made him more than 50% at fault under comparative-fault limitations.
- Plaintiff submitted an expert affidavit (Sammie Hall) asserting Hass was following too closely; defendants challenged the affidavit as untimely and conclusory. The trial court granted summary disposition for defendants under MCR 2.116(C)(10). This appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a genuine issue of material fact existed on whether Hass breached a duty and caused Johnson's death | Hass was negligent (tailgating); expert Hall’s reconstruction shows Hass could/should have avoided collision | No evidence Hass drove negligently; Hass could not see pedestrian until too late; Turner’s maneuver prevented Hass from seeing earlier | No genuine issue; no evidence of defendant breach; summary disposition affirmed |
| Whether Johnson was more than 50% at fault (comparative negligence) | Even if Johnson wore dark clothes, Hass was at least 50% at fault because he hit Johnson and could/should have seen him sooner | Johnson ran in the middle of the lane at night in dark clothing and failed to evade oncoming traffic; thus Johnson was primarily at fault | Johnson was more than 50% at fault as a matter of law; damages barred under MCL 500.3135(2)(b) |
| Admissibility/weight of Hall’s expert affidavit | Hall’s affidavit created a triable issue that Hass followed too closely | Hall’s affidavit was untimely, based on stale site inspection, hearsay, and conclusory; inadmissible under MRE 702 | Hall’s affidavit was conclusory and insufficient to create a fact issue; trial court properly disregarded it |
Key Cases Cited
- Zaher v. Miotke, 300 Mich. App. 132 (discussing de novo review of summary disposition)
- Innovation Ventures, LLC v. Liquid Mfg., LLC, 499 Mich. 491 (standards for MCR 2.116(C)(10) and consideration of evidence outside pleadings)
- Loweke v. Ann Arbor Ceiling & Partition Co., LLC, 489 Mich. 157 (elements of negligence)
- Quinto v. Cross & Peters Co., 451 Mich. 358 (expert opinion must be supported by facts; conclusory expert affidavit insufficient)
- Huggins v. Scripter, 469 Mich. 898 (comparative negligence may be resolved on summary disposition when no reasonable juror could find otherwise)