*1 v White COMPANY,INC TAYLORDISTRIBUTING WHITE May 7, 2007, at Detroit. Decided 272114. Submitted March Docket No. 2007, at 9:00 a.m. brought in the a action and Derrick White Sherita Birkenheuer, Taylor against Distrib- James Circuit Court Oakland L.E, Inc., Leasing Company, uting Company, Truck Penske driving a van was struck a tractor-trailer Birkenheuer after driving allegedly when Birkenheuer Sherita White court, following gastrointestinal disturbance. The trial a severe summary J., Tyner, granted the defendants’ motion for G. Deborah doctrine, sudden-emergency disposition and the on the basis of the appealed. plaintiffs Appeals Court of held: despite disposition, granting summary court The trial erred documentary plaintiffs failed to submit sufficient the fact that motion, response because the determination evidence negligent experienced a sudden Birkenheuer was whether emergency necessarily depended on Birkenheuer’s own account accident, preceding which not have been could the events required by any documentary evidence which rebutted credibility. finder of fact to assess Birkenheuer’s Reversed. Kelly, J., plaintiffs dissenting, fail- would affirm because the of material submit evidence to create issue
ure to 2.116(C)(10), pursuant to MCR requires summary disposition fact majority inappropriately made states that and further concluding undisputed finding by tes- that Birkenheuer’s factual credibility. timony lacked — —Credibility Summary Disposition Determinations. Orders Motions and regarding an a material fact cannot in which In cases observing determine his demeanor to without witness’s resolved credibility, disposition appropriate if even or her documentary party sufficient evidence failed to submit the adverse 2.116[G][4]). (MCR2.116[C][10];MCR counter the motion 275 op Opinion the Court Granzotto, (by Granzotto), Mark EC. Mark Gursten, Koltonow, Gursten, Raitt, Christensen & EC. Gursten), Steven M. for the (by plaintiffs. *2 Pinkus, Eads, Dolin &
Kopka, (by P.L.C. John T. Eads, Callahan), III and John M. for the defendants. P.J.,
Before: and MURPHY JJ. MARKEY, KELLY, appeal right Plaintiffs as of the trial MURPHY, order granting court’s defendants’ for summary motion 2.116(C)(10) disposition under MCR on the basis of the sudden-emergency dоctrine. This is a action arising from motor vehicle accident in which a van (White) plaintiff driven by Sherita White was struck by from behind operated by tractor-trailer defendant James Birkenheuer allegedly after Birkenheuer blacked reverse, out. concluding We crucial issues, relative to whether negligent Birkenheuer was and truly faced a emergency, require sudden adjudica- trial, tion the trier of making fact at thereby entry of disposition order “inappropriate” under 2.116(G)(4). MCR 2.116(G)(4), Consistent with MCR we reach regardless this conclusion of plaintiffs’ failure to documentary submit sufficient evidence to counter events, Birkenheuer’s version of which was primarily within his exclusive knowledge.
I. DOCUMENTARY EVIDENCE PRESENTED AT SUMMARY DISPOSITION 15, 2004, On March White was stopped her van at the intersection of Novi, 1-96 and Novi Road in Michi- gan, Birkenheuer, when driving who was a tractor- trailer owned defendant Penske Truck Leasing Com- pany, L.E, course his employment with Taylor Inc., defendant Distributing Company, collided Distributing Taylor White v vehicle, causing allegedly rеar of White’s deposition at his testified injury. Birkenheuer serious driving from accident he was day of the on the he was indicated that while He Novi. Cincinnati Canton, Michi- area around at a rest stopped 1-275 he “big had to use the restroom suddenly he gan, because stated Birkenheuer a bowel movement. to have time” he diarrhea of severe episode an experiencing that after while, around for a walked in the rest area stayed restroom, using the he finished to make sure was area fine and his destination he felt then left because rest that he was at the He estimated away. not far Birken- According to 20 minutes.” “maybe area gas- treated for been heuer, previously he had never issues. trointestinal traveling subsequently, proceeded 1-96, drove his truck he driving on westbound
when fifteen exit. Ten to for the Novi Road ramp onto the exit *3 out “just he broke getting ramp after on that seconds Birkenheuer indicated dizzy.” and got into a sweat he felt the sudden thing he did whеn very next He did to the brakes.” “[h]it and dizziness was sweating a normal than brakes, “[m]ore but he did not slam Birkenheuer quickly. to stop he wanted stop” because the truck down to between that he had slowed asserted he out. When just before blacked 10 miles an hour 5 and stated, “Be- brakes, Birkenheuer why he hit his asked know, I’m myself you and I told dizzy I cause was — thing middle of this if I’m in the I don’t care stopping. apply He did not here, stopping.” I’m and sit truck driving brake, nor did he consider “way saw White’s van onto the shoulder. ahead, at the yards point there,” 250 to at least up He remem- dizzy. and become he to sweat where started stop of room plenty the brakes applying bered soon consciousness regained He blacking out. before afterward jarring his truck as it hit White’s van. Birkenheuer indicated that he had no recall be- the point applying tween the brakes and the collision. Birkenheuer described his actions after the collision as follows: flashers,
[I] [s]et the brake and hit the and I wanted tо get out and see if right. got car, [White] was all I out walked to the passed front of the truck again out in the thing street. And the next I trying get remember is up again, guys and some already that were just there ... said stay you are, where Iso never her. saw Birkenheuer also expressed that after he again on the pavement in front of truck, his he invol- untarily urinated and defecated; he had more diarrhea. He claimed that he had never felt dizzy while driving other during than the incident involved in this case and as described above.
Birkenheuer was treated in the local hospital’s emer- (ER) gency room against left medical advice after a few hours. The diagnosis medical by the physician ER regarding what had occurred to Birkenheuer around the time of the accident was “acute syncopal episode.” The ER physician testified that a “syncopal episode” means, in layman’s terms, that Birkenheuer “passed out.” The ER physician indicated that there were possible numеrous causes for a syncopal episode. She further stated that severe bouts of diarrhea could dehydration, cause which in turn could result in a syncopal episode. The physician ER opined, however, that one episode of diarrhea typically would not cause one pass out, but severe abdominal cramps pain could cause a syncopal episode. day *4 accident, after the Birkenheuer saw another physician who diagnosed “viral enteritis with syncopal spell second- ary to hypovolemia from diarrhea.” This suggested a White v suffered bout of diarrhea between severe connection out. passing Birkenheuer and his under summary disposition for Defendants moved 2.116(C)(10) grounds MCR the accident under regard negligent was not the accident re- doctrine because sudden-emergency of his emergency medical unexpected from an sulted did not suffer a and, alternatively, that White making function as a result of the body impairment serious Thereafter, additionally contended defendants accident. summary disposition entitled to they were 2.116(C)(7) on the basis of release White MCR first-party, her in connection with claim signed had party an who is not a no-fault benefits with insurer action. summary disposition favor granted The trial court sudden-emergency of defendants on the basis addressing impairment doctrine without serious The trial court essen- body function or release issues.1 events, which tially Birkenheuer’s version accepted that he was credible. necessarily reflected a conclusion right. Plaintiffs as of appeal
II. ANALYSIS
A. STANDARDOF REVIEW
a trial court’s decision on
This Court reviews de novo
Fischer,
summary disposition.
a motion for
Kreiner
ruled:
The trial court
Mr. Birkenheuer
The evidence establishes that
prior
episodes,
driving
similar
had
his semi truck. He had no
while
symptom just
pain
the accident. He
no
other
before
dizzy
light-
stop
began feeling
attempted
as soon as he
of a
finds the collision occurred as the result
headed. The court
making.
defendants’ own
sudden
not of the
*5
App
620
275 Mich
615
Opinion of the Court
(2004).2
109, 129;
similarly
471 Mich
683
611
NW2d
We
review de
the
of statutes and
interpretation
novo
court
rules. Associated Builders & Contractors v Dep’t of
Director,
Industry
Consumer &
Services
472 Mich
(2005).
123-124; 693
374
NW2d
THE
B. REAR-ENDCOLLISIONSAND
STATUTORY
REBUTTABLEPRESUMPTION
257.402(a)
MCL
provides:
action,
any
any
In
state
court
when it is shown
evidence,
competent
traveling
that a vehicle
in a certain
2
2.116(C)(10).
Summary disposition
granted pursuant
to MCR
2.116(C)(10) provides
summary disposition
MCR
where
is no
there
genuine
fact,
any
regarding
moving party
issue
material
and the
partial
judgment
judgment
entitled
or
matter
as a
of law.A trial court
2.116(C)(10)
may grant
summary disposition
a motion for
if
MCR
pleadings, affidavits,
documentary evidence,
the
and other
when viewed
light
nonmovant,
in a
genuine
most favorable
the
show
there is no
respect
Quinto
Co,
issue with
material fact.
v Cross & Peters
451
2.116(G)(5).
358, 362;
(1996);
Initially,
Mich
NW2d 314
547
MCR
the
moving party
supporting
position
documentary
burden of
has the
its
evidence, and,
supported,
opposing
if so
then
burden
shifts to the
party
genuine
disputed
to establish the existence of a
issue of
fact.
2.116(G)(3)
Quinto,
(4).
362;
supra
see
at
also MCR
“Where the
proof
dispositive
burden
nonmoving party,
at trial
rests on a
may
allegations
nonmoving party
rely
[the]
mere
or denials in
pleadings,
go beyond
pleadings
specific
but must
to set forth
facts
showing
genuine
Quinto, supra
that a
issue of material fact exists.”
at
Generally speaking,
opposing party
362.
present
where the
fails to
documentary
establishing
evidence
the existence of a material factual
dispute,
properly granted.
the motion is
at 363. “A
Id.
issue of
record, giving
material fact
exists when
benefit of reasonable
opposing party,
upon
open
doubt to the
leaves
an issue
which reasonable
might
Corp,
177, 183;
minds
differ.” West v Gen Motors
469 Mich
665
(2003).
finding genuine
NW2d 468
Courts are liberal in
issues of material
(1995).
Co,
98, 101;
fact. Lash v
Ins
210
Allstate
Mich
may only
A
substantively
actually
court
consider
admissible evidence
proffered
summary disposition
relative to motion for
under MCR
2.116(C)(10).
Rozwood,
109, 121;
v
Maidеn
817
NW2d
White v
direction,
and struck the rear end of another
overtook
direction,
lawfully
in the same
stand-
proceeding
vehicle
state,
ing upon any highway within this
the driver or
operator of
first mentioned vehicle shall be deemed
such
negligence.
apply, in
prima
guilty
facie
This section shall
cases,
appropriate
to the owner of such first mentioned
operator.
employer
and to the
of its driver or
vehicle
“Under the rear-end collision statute
rebuttable
offending
driver is
presumption
prima
arises
Miedema,
v
guilty
negligence.”
Vander Laan
facie
(1971),
226, 231;
citing Petrosky
188 NW2d
*6
Dziurman,
543;
(1962),
539,
367 Mich
NW2d 748
Co, 362
Bottling
v LaSalle Coca-Cola
Garrigan
(1961);
262, 263;
positive, overcoming rear-end presumption jury should be settled room).
C. THE SUDDEN-EMERGENCY DOCTRINE
Thе sudden-emergency
explained
doctrine was
Supreme
Marvin,
our
Court in Socony Vacuum Oil Co v
(1946):
528, 546;
313 Mich
D. DISCUSSION light statutory In presumption rebuttable crucial negligence because determina- alleged negligence tions relative to Birkenheuer’s resolved, the onset of a emergency beg sudden to be we conclude that by this case needs be heard and decided jury and should not have been decided the court as a matter of in the summary disposition. law context of Vital to Birkenheuer’s overcoming pre- rebuttable that he sumption guilty was the rear- end collision is the establishment of his sudden- shortly claim that he blacked out before the Additionally, collision. when Birkenheuer first point unsteadiness, and dizziness is experienced sweating, vitally important determining whether the accident brought neg- about Birkenheuer’s own possibly ligence and whether it occurred under circumstances *8 Opinion of the Court
deemed If Birkenheuer unsuspected. feeling some- unsteady, light-headed, what than dizzy earlier claimed, possibly as far back as when he was at the area, juror might rest a reasonable find that he cannot the sudden-emergency seek shelter under doctrine be- cause he created the hazard by deciding to drive or continuing drive.
It is true that Birkenheuer
testified that he first
dizzy and
just
became
blacked out
before the accident
while on the exit ramp and that he felt okay when he
area; however,
left the rest
these claims are virtually
impossible to contradict
documentary evi-
they
dence because
personal physical
reflect
sensations
experienced
alone in his truck. The
hinges
case
on
credibility
of Birkenheuer’s asser-
it
Arguably,
tions.
could
inferred
that Birkenheuer
was experiencing
unsteadiness,
some level of
light-
headedness, or dizziness from the time that he
atwas
the rest area
basis of the medical evidence
suggesting that such symptoms, along with the even-
tual syncopal episode, were caused
aby
virus and
brought
severe,
bout of
voluminous diarrhea
and cramping
area;
suffered at the rest
he supposedly
remained at the
area a
rest
full 20 minutes4 before
proceeding and had
episode
another
of diarrhea at the
However,
accident scene.
we decline to rest our decision
on this somewhat speculative proposition. Birkenheu-
credibility
er’s
is crucial to this case in ascertaining
negligence and the existence of a sudden emergency,
physician
The notes
day
who treated Birkenheuer the
after experienced
accident reflect that
large
Birkenheuer claimed that he
area,
episode
volume of severe diarrhea at the rest
whiсh
lasted five to six
minutes,
began driving again.
and that he then
There is no mention of
waiting
area,
question
for 20 minutes at the rest
which could call into
Again,
jury
Birkenheuer’s
version
the events.
needs to resolve this
action.
White v
ruling necessarily accepted
and the trial court’s
Birken-
“may
account of events. But courts
not resolve
heuer’s
disputes
ruling
factual
or determine
on a
*9
summary disposition
Bailey,
motion.” Burkhardt v
260
636, 646-647;
(2004);
App
Mich
The of a motion for is especially suspect where motive and intent are at issue or credibility deponent’s where a witness or is crucial. Accord- ingly, a where the truth of material factual assertion of a
moving credibility, party depends upon deponent’s there genuine exists a issue for the trier of fact and a motion for summary disposition granted. [Citations should not be omitted.] Co, in D Supreme
Our Court Skinner v Square 153, 161; (1994), recognized Mich also “The principles, stating, permitted these court is not to credibility, assess or to determine facts on a motion for summary judgment.” potential problem
The with these well-established they is that do not principles appear dependent conflicting documentary evidence that causes the cre- dispute, ation of a factual issue or but rather simply a credibility existence of issue relative to a material glance, factual assertion. At first this would appear 2.116(G)(4), run afoul of MCR which provides: (C)(10) specifically A iden- motion under subrule must tify moving party the issues as to which the believes there genuine is no material fact. When a motion issue as (C)(10) provided supported under subrule is made and as rule, may upon party this an adverse not rest the mere must, allegations pleading, her or denials his or but rule, provided in affidavits or as otherwise set forth specific showing genuine for trial. facts that there is judgment, party respond, If does not so the adverse if against [Emphasis him or her.
appropriate, shall be entered added.] emphasized language clearly unambigu-
ously
may
indicates that there
be situations which
inappropriate
disposition is
even if the ad-
documentary
party
verse
fails to submit
evidence suffi-
cient to show a
issue of fact for trial when
C(10)
responding
supported
properly
to a
motion.5The
presents
reading
situation,
case at bar
such a
court rule
this manner would be consistent with
granting
those cases that indicate that the
of a motion
summary disposition suspect
improper
where
deponent
or
of witness
is crucial.
documentary
showing
Defendants submitted
evidence
just
that Birkenheuer
before the accident
experience sweating, dizziness,
and that he did not
*10
ramp.
until he
the
unsteadiness
reached
exit
We note
independent
pinpoint
that
medical evidence did not
sweaty
when Birkenheuer blacked out or became
and
dizzy, nor did the medical evidence
establish
passed
operating
rig
Birkenheuer first
out while
his
walking
accident,
rather than after the
while he was
attempt
words,
near his truck.6 In other
defendants’
to
principles governing statutory interpretation apply equally
The
to the
interpretation
Tibaldi,
App
of the court rules. Richards v
272 Mich
532;
(2006);
Holden,
642, 649;
We procedure, of civil the federal rules law. Under federal 2.116(G)(4), of MCR 56(e), counterpart P FR Civ provides: made on shall be opposing affidavits
Supporting facts as would be knоwledge, shall set forth such personal affirmatively evidence, show and shall admissible testify matters stated competent to the affiant is parts papers all or copies certified therein. Sworn or be attached thereto to in an affidavit shall thereof referred may to be permit affidavits The court or served therewith. to inter- by depositions, answers opposed supplemented motion for sum- affidavits. When a rogatories, or further testimony However, that he established passed Birkenheuer’s own out. accident, have been before would after the which had also out scene, caused the decreased and which could have on the EMS arrived testified, got “I of itself. Birkenheuer level of consciousness *11 again in [truck], the of the truck and to the front the walked regained he conscious- Birkenheuer claimed that note that street.” We presence mind set the and had the the vehicles struck ness when his flashers. parking activatе brake and App 275 Mich 615 mary judgment provided in supported is made and as this rule, party may allega- an upon adverse rest mere party’s pleading, or denials of the adverse but the tions response, party’s adverse or as affidavits otherwise rule, provided showing in this set specific must forth facts party there If the that is a issue trial. adverse respond, summary judgment, appropriate, does not so if against party. [Emphasis shall be entered adverse added.] 56(e) advisory
The committee notes to Civ P provide FR that a “[w]here an issue to material fact cannot as resolved without observation demeanor of wit- nesses order evaluate their credibility, summary added.) judgment (Emphasis is not appropriate.” We logic hold that apply equally should to the inter- pretation Michigan’s similarly worded rule.7 court In v Wilmington Co, Trust Co Ins Manufacturers Life (CA 5, 1980), 624 F2d 707 the defendant insurer denied coverage life-insurance policy the basis that the deceased insured had mаde a false statement in his policy application.8 argued, The plaintiffs-appellants part, that application misstatement was immaterial to the defendant’s decision to issue the policy. found, federal district court on the defen dant’s motion for summary it judgment, beyond genuine dispute there was a false state ment made the deceased insured on the policy application and it was to the material decision to the policy. Accordingly, granted district court Reddo, 761, 784; In Shields v (1989), our Supreme lightly adopt position that “[t]his Court noted Court does not rules, at patterned.” odds the federal which after our rules are Our ruling preference adopt position is consistent with this consistent with federal rules. 8 may comparable construing look We to federal caselaw court rules for guidance Michigan subject. when there is a lack Brenner cases Co, Oil 133; Marathon NW2d 1 *12 629 White v P in of the Civ 56 favor summary judgment FR Id. at 708. Ap- The Court of Fifth Circuit defendant. no thеre was the district court peals agreed with the had made a false of fact that insured genuine issue Id. The form. application statement the insurance the the regarding then moved on to whether court deci- material to the defendant’s false statement was noting After first policy. to issue the life insurance sion materiality, had the burden to show that the defendant the court stated: burden, company the rested on the testi-
To meet this Cummins, mony Mr. L. the underwriter who of John that, accepted application. Cummins testified but Winsor’s misrepresentation, company the not have the would for exclusion. Cum- policy Winsor’s without an aviation issued however, of emphasized, actuarial evaluation mins subjective, calling case-by-case largely risks aviation analysis. appellants competent no part, produced For their Cummins, knowledge sole the evidence to rebut whose rather, lay. impeach Cummins as plan, truth Their was to employer, in favor defendant. The district biased of his the concededly deprived appellants opportunity. of this court then, im question, prospective whether becomes evidence, more, can peachment the movant’s without preclude judgment. On the facts of this suffice to case, States, F.2d it can and does. See Irwin v. United (5th 1977). Cir., Here, Irwin, the 252-253 as (1) knowledge the of the disputed fact is within exclusive (2) movant, subjective in supporting whose evidence is (3) character, upon persuasion whom the burden (citations Trust, supra [Wilmington at 708-709 omit rests. ted).] jury appeals explained
The federal court met its free that the had not to find defendant would credibility part a lack of burden because of Id. at 709. Therefore, the issue of material- witness. Opinion Court ity, federal court reversed the district court’s ruling granted summary judgment had to the defendant. Id.
Here, attempt defendants’ to rebut statutory presumption, they on which had proof, the burden of relied on the of Birkenheuer with respect to his deposition testimony that he blacked out before the ramp accident while on the exit and that he was not feeling ill when he left rest area. These are matters *13 subjective that are in primarily character and within the exclusive of knowledge Birkenheuer. It is self- evident that Birkenheuer would have the motivation to give a of version events that would be favorable to him him, and that would thereby distance all the defendants, from A jury liability. permitted should be assess on credibility his while stand. witness Sum- mary is not disposition simply appropriate these 2.116(G)(4).9 circumstances. MCR 9 Contrary dissenting allegation, opinion’s to the making we are not finding testimony credibility; rather, that Birkenheuer’s lacks we are leaving jury issue for resolve. It is the dissent that is making by arguing determination that we should affirm implicit the trial telling court’s determination that Birkenheuer was by independently finding the truth and his version of events credible. The dissent maintains that Birkenheuer’s account was corroborated by police personnel, state medical but this “corroboration” police was based on Birkenheuer’s own statements to and medical personnel respect transpired, with to what which statements could self-serving. have been To the extent the corroboration was based physical symptoms testing, on observed and medical there is no dispute actually accident, that Birkenheuer blacked out after the explain exhibited, which would the characteristics he but this does not necessarily corroborate Birkenheuer’s claims of what occurred before physical being the accident or his of state at that time. The dissent dizzy maintains that there was no evidence that or ill claimed, appreciate earlier difficulty than but one must the extreme in obtaining evidence, given especially such that Birkenheuer was trav eling alone. 631 White Dissenting Opinion Kelly,
HI. CONCLUSION to be credibility determinations need Because crucial to the of regard resolved with issues doctrine, court the trial erred sudden-emergency Further, dismissing the action. because summarily manner address in defendants’ trial court did not summary disposi support arguments alternative suffered a serious with to whether White respect tion regard function and in to the body impairment insurer, with her no-fault we signed release White appeal, these especially decline address issues documentary evi considering the intensive review analyzing entailed serious- dence v B C See Candelaria Gen Con impairment question. tractors, 67, 83; Inc, App NW2d (1999); Bowers, 495; 549 Bowers v (1996) generally limited to (appellate NW2d review court). ruled the trial issues proceedings Reversed and remanded for consistent opinion. jurisdiction. We do retain MArkey, EJ., concurred. *14 disagree I (dissenting). respectfully
KELLY, summary disposition was majority’s conclusion 2.116(G)(4) “regardless of under MCR “inappropriate” documentary submit sufficient evi- plaintiffs’ failure to events, to Birkenheuer’s version of which dence counter knowledge.” his Ante at within exсlusive primarily was plaintiffs’ because failure to submit 616.1 would affirm of material fact evidence to create a MCR disposition pursuant to requires 2.116(0(10). “concluding majority, in that crucial The no to credibility exist when there is evidence issues” events, leaving is not Birkenheuer’s version of counter [May- Dissenting Opinion Kelly, J. fact, but, credibility rather, for the trier of issues making finding undisputed its own that Birkenheuer’s Ante at 616. And testimony credibility. lacks are to issues this Court decide.
I. FACTS alleged complaint Plaintiffs their that on or about 15, 2004, at approximately p.m., plaintiff March 8:49 Sherita was at or driving White near the intersection Birkenheuer, 1-96 Novi Road. Defendant James J. driving who was semi-truck owned defendant L.R, in Leasing Company, Penske Truck course employment Taylor his with defendant Distributing Company, Inc., negligently stop an “fail[ed] within ahead, assured clear distance violently striking thereby colliding with seriously [White] and injuring her.”
Birkenheuer testified deposition at his that on the accident, day he was from driving Cincinnati He indicated 1-275, Novi. that while he was on he at a stopped rest area in the Canton area because he suddenly had use “big the restroom time.” theAt rest stop, he experienced severe diarrhea. Birkenheuer using restroom, stated that after he “hung around a while, walked around to make I sure was finished fine I felt so continued on to I go where had to because away.” it wasn’t far He estimated that he at the rest for “maybe area 20 minutes.” Birkenheuer indicated he had not previously been treated for gastrointestinal issues. further he testified that thereafter re- traveling on
sumed 1-96 and westbound later took the Road Ten Novi exit. to fifteen seconds after getting “just ramp, he broke out into a and got sweat very next dizzy.” thing he did when he felt *15 White Dissenting by Opinion J. Kelly, to the and dizziness was sweating “[h]it sudden brakes, the but he did “[m]ore He did not slam brakes.” stopped hurry.” I get a normal wanted to stop. than said, brakes, hit his Birkenheuer why asked he When know, I’m I and I dizzy myself you told “Because was — thing I if I’m in middle of this care the stopping. don’t here, indicated that he did stopping.” I’m He and sit had he emergency plenty brake because apply put don’t to an emer- stop “you room to want brake cause emergency brake will gency because sweating he and be- you jackknife.” to When started there,” at dizzy, “way up came he saw White’s vehicle 250 to ahead. Birkenheuer testified yards least plenty the brakes with of room applying he remembered He suddenly passed and that he out. was awoken stop had He that he no recall by the collision. indicated the brakes and the point applying between his actions after collision. Birkenheuer described as collision follows: flashers, get hit the and I wanted to
Set the brake and car, right. got all I out of the out and see if she was walked passed again in front out the street. to the of the truck trying get again, thing up And the I remember is next already just stay guys were there and said and some are, you I saw where so never her. passed he that after expressed
Birkenheuer also truck front of his he involun- again pavement Birkenheuer testified tarily urinated and defecated. dizzy driving. had felt while that he never before demonstrate that Birkenheuer was Medical records he Hospital where taken from the scene Providence Sooch, Dr. Ruby report M.D. Sooch’s was examined he he believed reported indicates that he could not recall what occurred out and that dizzy impact. he felt time between [May- Dissenting Opinion Kelly, report also indicates that while medical *16 (EMS) assisting scene, service was Birkenheuer at the [sweaty] dizzy he “became with de- diaphoretic level of In her deposition, creased consciousness.” Dr. Sooch testified that cardiac monitor strips demon- EMS strated while attended Birkenheuer at the scene, he a heart experienced rate, low which was consistent with the decreased level of consciousness. Dr. еxperienced Sooch called what “a Birkenheuer true In episode.” layman’s terms, syncopal that means he out.” “passed given Dr. Sooch also testified that history provided for the of care purposes treatment, say she would episode happened Birkenheuer’s seconds, over “several That’s couple pretty minutes. sudden.” summary
Defendants moved for disposition under 2.116(0(10) on grounds MCR that Birkenheuer negligent was not regard to the accident under the sudden-emergency or, doctrine alternatively, White did not suffer a impairment serious function body as result argued accident. Defendants also they were entitled to summary disposition under MCR 2.116(C)(7) on the basis of a release that White had signed connection with claim her for first-party no-fault a non-party benefits with insurer. trial summary
The court granted disposition de- fendants’ favor on basis of the sudden-emergency doctrine without addressing the issues of serious im- pairment body function and release. trial court provided the following explanation for its decision:
The evidence establishes that Mr. Birkenheuer driving out while semi prior his truck. He had no similar episodes, pain symptom just had no other before the He attempted stop began feeling accident. soon as he as Distributing Taylor v White Dissenting Opinion Kelly, oc- finds the collision dizzy lightheaded. The court the result of a sudden curred as making. own defendants’ appeal ruling.
Plaintiffs
II. ANALYSIS by granting trial court erred contend that the Plaintiffs of a deter- the basis disposition defendants fact of material that there no mination as a negligent was not concerning whether I doctrine. sudden-emergency of law under the matter err. the trial court did not believe trial reviews novo a court’s decision This Court de Ameribank, summary disposition. Dressel motion 561; Summary 664 NW2d *17 2.116(0(10) docu- MCR if the is under disposition proper in the by the viewed parties, evidence submitted mentary nonmoving party, favorable shows light most to any fact and regarding material there is no a matter of judgment is to as moving party entitled Club, 466 Mich Country law. v Washtenaw Veenstra (2002). to 643 “If the fails 164; opposing party 645 NW2d the existence documentary establishing present evidence is dispute, properly of a material factual motion Co, 358, 363; Quinto v & Peters 451 Mich granted.” Cross (1996). Recently, recognized 314 Court 547 NW2d deny parties is disposition of not to purpose day to their in the chance have apparently weak cases rather, case; right present their their court wasting by send- pointlessly resources purpose is avoid dispute to there is no ing matter to trial actual when resolve....
636 Mich [May- 275 615 Opinion by Dissenting Kelly, effect, summary In disposition is intended to facilitate important Michigan public policies: two resolution of dis merits, putes unnecessary expen on their and avoidance of dispute only ditures where there or is no actual where the point dispute [Minter material is of over a law. v Grand Rapids, App 220, 230;_NW2d_(2007).] 257.402(a) regard accidents, In to automobile MCL provides a presumption negligence rebuttable of specified circumstances. It states: action, any
In in court this state when it is shown evidence, competent traveling that vehicle in a certain direction, overtook and struck the rearend of another direction, proceeding vehicle lawfully the same or stand- ing upon any highway state, within this the driver or operator shall prima guilty negligence. be deemed facie cases, apply, appropriate This section shall to the owner of such first employer mentioned vehicle and to the of its operator. driver
Accordingly, because the truck Birkenheuer driving indisputably struck the rear of vehicle, White’s there is a rebuttable presumption negli- Birkenheuer was Wilson, the collision. Hill v gent with regard (1995). App 356, 359; Mich NW2d However, the statutory presumption attending a rear-end may collision overcome Szymborski v evidence of a “sudden-emergency.” Slatina, 339, 340-341; The sudden-emergency doctrine provides as follows: “ suddenly ‘One who a place danger, finds himself in required to act without time to consider the best *18 may means be adopted danger that to avoid impending the guilty negligence is not adopt of if he fails to what subse- quently upon may appear reflection to have a been method, emergency
better unless the in which he finds ” brought himself is about negligence.’ his own [Vsetula 675, Whitmyer, 681; v Mich App (1991), 187 637 v White Dissenting Opinion Kelly, J. 528, Marvin, Mich v 313 quoting Socony Vacuum Oil Co (1946), Huddy 546; on Automobiles quoting 21 841 NW2d (8th ed), p 359.] the purview the of this rule circum-
“To come within a must situation attending present the accident stances Laan v unsuspected’.” is or Vander ‘unusual (1971), Miedema, 232; 564 226, Mich 188 NW2d 385 Arnold, 594, 599; 101 v Barringer quoting (1960). term is employed 365 “The ‘unusual’ NW2d the background the factual of here the sense confront- the traffic routine everyday case varies from “ the ‘Unsuspected’ Id. other ing the motorist.” everyday within the potential peril hand connotes a come the narrow traffic.” Id. “To within movement of it is ‘unsuspected’ of doctrine as confines the in clear the had not been potential peril essential that time, totally and was length of any significant view Id. unexpected.” “ of a ‘test to be emergency,
In context sudden reasonably prudent that hypothetical, what applied all the circumstances of would have done under person ” accident, they were.’ Szymborski, supra whatever 492, 341, Alt, 496; Baker 374 132 quoting at v principle 614 accords with the NW2d This of a duty care establishes statutory a violation of presump- negligence, facie but that such prima case of an “may showing adequate rebutted with tion Dep’t circumstances.” justification excuse Christensen, Mich App Transportation (1998).1 may it 420; though Even serve NW2d plaintiffs rely “assured, Accordingly, clear distance” 257.627(1) plain statutory requirement in addition to the of MCL attending a rear-end collision under MCL presumption of 257.402(a) applicability potential sudden- not affect the does emergency doctrine. *19 by Dissenting Oрinion Kelly, J. rebut a statutory presumption negligence,
to of how- ever, the sudden-emergency doctrine is not an affirma- tive it is an defense because extension of “reason- ably prudent rule. person” Szymborski, supra at 341. As such, a asserting defendant the existence of a sudden is emergency to establish the of required existence a emergency preponderance of the Id. evidence. The question appeal whether there any is regarding issue material fact whether there sudden and whether Birkenheuer acted reasonably under the circumstances. In my opin- ion, plaintiffs failed to demonstrate genuine issue regard. material fact in this Birkenheuer testified that immediately becoming dizzy lightheaded, after he began downshift, firmly, hit his brakes and then suddenly lost consciousness. The police state automo- bile accident report made at the scene corroborates this testimony, indicating reported Birkenheuer at the police scene that he possibly “blacked out” from being ill and remembered slowing for traffic at intersection. Medical records demonstrate that Birken- heuer was taken from the scene Providence Hospital where he was examined by Ruby Sooch, M.D. Dr. report Sooch’s indicates that reported Birkenheuer he he passed believed out. report also indicates while was assisting scene, EMS Birkenheuer at he diaphoretic “became dizzy decreased level In deposition, consciousness.” her Dr. Sooch testified that cardiac strips monitor demonstrated that while EMS attended to scene, Birkenheuer at the he experi- rate, enced a heart low which was consistent with the decreased level of Dr. consciousness. Sooch called what experienced “a true syncopal episode.” In layman’s terms, “passed that means he out.” She also indicated that Birkenheuer, when EMS found he was “alert, drowsy but little and diaphoretic.” He was White v Dissenting Opinion Kelly, and stool. Dr. Sooch and incontinent of urine sweating for the that, given history provided also testified treatment, say would of care and she purposes seconds, “several happened over episode Birkenheuer’s pretty minutes. That’s sudden.” couple plain- at the time of Thus, presented the evidence Birkenheuer’s deposition tiffs’ corroborates motion he just that he before struck testimony *20 It further demonstrates that this White’s vehicle. sudden, unusual, not caused by episode at the Birkenheuer waited though Birkenheuer. Even “finished,” i.e., that he stop rest make sure he was diarrhea, is no experience would not additional there or he dizzy passed that he felt before evidence if driving. And even the circumstantial resumed or have indicates that he was aware should evidence again, he diarrhea may experience been aware that his he there is no evidence that condition before or аlerted driving resumed alerted him should have dizzy him he soon and lose con- that would become is no evidence that Birken- sciousness. There also episodes of dizziness or experienced heuer had ever Therefore, loss before this incident. of consciousness nothing I conclude that there is the evidence would regard- that of material fact genuine creates issue the incident falls within ing purview whether sudden-emergency doctrine. contend, majority agrees, and the Plaintiffs fact Birken issue of material because there is at credibil motive and intent are issue his heuer’s Foreman, ity rely is crucial. Plaintiffs Foreman 132, 135-136; (2005), in which App Mich suspect “[s]ummary disposition this is Court noted at or intent are where the where motive and crucial,” the truth of a and “where credibility witness is Dissenting Opinion Kelly, of a material factual assertion of a is moving party contingent upon credibility, disposition granted.” should not be case, however, calling
In this
there is no evidence
into
question
stating
Birkenheuer’s
motive
intent
it
may
person
he
out. While
be convenient for a
in Birkenheuer’s
situation to falsely assert
that he
passed out, plaintiffs have failed to bring
forth
evidence whatsoever to demonstrate that Birkenheuer
made false assertions. On the
all the
contrary,
evidence
assertion,
corroborates his
By
as discussed earlier.
con-
cluding that Birkenheuer may have made
asser-
false
just
collision,
tions about
before
happened
what
majority
recognizing
that,
an explanation
while con-
conditions,
sistent with known facts and
is not deduc-
from
inference, which,
ible
them as a reasonable
as a
law,
matter of
is an insufficient
for denying
basis
summary disposition
motion for
genu-
when there
nois
Minter,
ine issue of material fact.
at
supra
230.
Further, by concluding is a there
record,
issue on
majority
is essentially adjudg-
ing
testimony
Birkenheuer’s
as possibly suspect rather
*21
determining,
than
testimony
refuted,
when his
is not
simply
genuine
that there is
no
issue of material fact.
And this Court
not
“may
resolve factual disputes or
determine
ruling
disposi-
tion motion.” Burkhardt v Bailey,
260 Mich App
646-647;
I also majority’s with the assertion Birkenheuer’s “claims are virtually impossible to con- tradict with . On documentary evidence. . .” the contrary, might Birkenheuer have stated thing one to at police doctor, the to scene and another his skid marks on the might road have been inconsistent with Birken- story, might heuer’s cardiac monitor strips have been White Opinion by Dissenting Kelly, employ- or story, Birkenheuer’s EMS inconsistent physical Birkenheuer’s have testified that might ees If story. his these facts was inconsistent with condition record, there in the would similar facts were or testimony and Birkenheuer’s evidence to contradict fact. But issue of material genuine there be a would record, I the On this would are not in record. such facts in applying correct that the trial court was conclude doctrine. sudden-emergency doctrine were sudden-emergency applied,
If the any genuine be whether there was next would question whether Birkenheuer regarding material fact issue of under the circum- reasonably prudent person acted as a I conclude that emergency. of the sudden would stances regard. material fact this there no issue of is Birkenheuer demonstrates when evidence bring feel he to brake to began dizzy, began to sweat and He on the orderly stop. to an did slam the vehicle brake White’s emergency or use the because brakes “plenty he had of room “way up was there” and vehicle brake, However, began to he to as Birkenheuer stop.” out, point at which suddenly unforeseeably passed assert complete the Plaintiffs stop. he was unable to opined reconstructionist their accident had, collision if he have avoided the could evident,” “aggres- became problem “when the medical brakes,” to the sively “pull[ed] side applied in combina- ramp,” “applied brakes However, opinion brakes.” tion with service when he foreknowledge that Birkenheuer had presumes would going pass he began to brake that had initiated. But complete stop he be unable Birkenheuer had no evidence whatsoever that there is as he did. foreknowledge stop when he decided such Furthermore, claims, inquiry the relevant care, exercised reasonable whether the “defendant *22 Dissenting Opinion Kelly,
not whether the procedures used [the] defendant W R, could have been Boyt made safer.” v Grand Trunk App 179, 186; Accord ingly, question is not whether Birkenheuer could have stopped safely, more but whether he exercised reasonable care in what he did when he became dizzy. Certainly once Birkenheuer consciousness, lost he could do nothing more to avoid the collision. I would conclude plaintiffs failed to a genuine establish issue of material fact regarding whether acted as a reasonably prudent person under the circumstances.
For I reasons, these would affirm.