Case: Cecile v. Wang
Court: Michigan Court of Appeals ( Unpublished Opinion )
Judges: Per Curiam – Sawyer, Cavanagh, and Fort Hood

In an automobile negligence action such as this, “damages shall not be assessed in favor of a party who is more than 50% at fault.” MCL 500.3135(2)(b). The relative negligence of the parties is ordinarily a question for the trier of fact. However, if no reasonable juror could find that the defendant was more at fault than the plaintiff in an accident, then a plaintiff’s comparative negligence may be considered at the summary disposition stage.

In this case, no reasonable trier of fact could conclude that defendant was negligent and that she was more at fault for the accident than plaintiff.3 The accident occurred on Michigan Avenue, a busy five-lane road, during evening rush hour traffic on December 18, 2014. Plaintiff, who was employed by two car dealerships across the street from each other on Michigan Avenue, was attempting to cross the road from one dealership to the other. The traffic was heavily congested and moving at only 10 to 15 miles an hour. Plaintiff did not use the crosswalk that was available at the nearby intersection with Oakwood Boulevard. He was standing in the center turn lane when he was struck by defendant’s vehicle. The only independent witness, Joanne Hofner, testified that it was dark, rainy, and sleety. Hofner, who believes she was two vehicles ahead of defendant’s vehicle in the inner eastbound lane closest to the center lane, did not see plaintiff until she passed him. Hofner felt distraught and scared when she passed plaintiff because it was so dark and rainy and she wondered what he was doing standing in the middle of the turn lane. After she passed plaintiff, Hofner saw headlights that she assumed were from defendant’s vehicle pull into the center lane and then heard but did not see the accident. Hofner did not think there was anything defendant could have done to avoid the accident.

Plaintiff testified that he had no memory of the accident itself. He remembered approaching the street and that the traffic was bumper to bumper, but that was the last thing he could recall. Plaintiff indicated in his deposition that he did not recall the weather conditions or whether it was light or dark out. Plaintiff admitted that he regularly crossed the road at this location and that he never used the crosswalk when going back and forth between the dealerships. In an affidavit appended to his response to the summary disposition motion, plaintiff averred that the location where he crossed the street was well lighted by the car dealerships and the headlights of the vehicles on the road.

It is clear from this evidence that no reasonable juror could find that defendant was more at fault for the accident than plaintiff. Plaintiff chose not to use the nearby crosswalk, which is relevant to the issue of comparative negligence. He instead crossed away from the crosswalk on a five-lane road that was by his own admission congested with rush-hour traffic. Hofner’s testimony established that it was dark, rainy, and sleety. Hofner did not see plaintiff in the center lane until he was right next to her vehicle, which startled her, and she indicated that there was nothing defendant could have done to avoid striking plaintiff. Summary Disposition in favor of Defendant was granted.

Case: Estate of Kenneth Gene Owens v. Mantha Mgmt. Group, Inc.
Court: Michigan Court of Appeals ( Unpublished Opinion )
Judges: Per Curiam – Murphy and Jansen; Concurrence – Ronayne Krause

Establishing causation entails proving two separate elements: (1) cause in fact, and (2) legal cause, also known as “proximate cause.” .  The cause in fact element generally requires showing that “but for” the defendant’s actions, the plaintiff’s injury would not have occurred. On the other hand, legal cause or “proximate cause” normally involves examining the foreseeability of consequences, and whether a defendant should be held legally responsible for such consequences. A plaintiff must adequately establish cause in fact in order for legal cause or “proximate cause” to become a relevant issue. Circumstantial evidence and reasonable inferences arising from the evidence can be utilized to establish causation. But it is not sufficient to proffer a causation theory that, while factually supported, is, at best, just as possible as another theory.  A plaintiff must present substantial evidence from which a jury may conclude that more likely than not, but for the defendant’s conduct, the plaintiff’s injuries would not have occurred. Litigants do not have any right to submit an evidentiary record to the jury that would allow the jury to do nothing more than guess.

Case: Orwig v. Farm Bureau Gen. Ins. Co. of MI

Court: Michigan Court of Appeals ( Unpublished Opinion )

Judges: Per Curiam Murray, Fort Hood, and Gleicher

A serious impairment of body function is defined as “an objectively manifested impairment of an important body function that affects the person’s general ability to lead his or her normal life.”  MCL 500.3135(5).4  In McCormick v Carrier, 487 Mich 180, 195; 795 NW2d 517 (2010), the Michigan Supreme Court held that “three prongs . . . are necessary to establish a ‘serious impairment of body function’: (1) an objectively manifested impairment (2) of an important body function that (3) affects the person’s general ability to lead his or her normal life.”  “[A]n ‘objectively manifested’ impairment is commonly understood as one observable or perceivable from actual symptoms or conditions.” Id  “[W]hen considering an ‘impairment,’ the focus ‘is not on the injuries themselves, but how the injuries affected a particular body function.’ ”  Id. at 197 (citation omitted).  With regard to the second prong, a body function will be considered “important” depending on its “value,” “significance,” or “consequence” to the injured person.  Id. at 19.  The third prong requires that the impairment of an important body function “affect[ ] the person’s general ability to lead his or her normal life.”  Id. at 200.  This is a subjective inquiry and “requires a comparison of the plaintiff’s life before and after the accident.”  Id. at 202.

In this case, plaintiff has presented evidence to satisfy the first prong of the McCormick analysis.  Specifically, the record evidence reflects that following the accident, plaintiff suffered several “objectively manifested impairment[s] of body function[s]” MCL 500.3135(5), including a posterior left hip dislocation, a left acetabular (hip socket) fracture, left knee injury, a right ankle sprain, a laceration of his head, a closed head injury, a left rib strain, and a variety of contusions and abrasions.

Plaintiff testified that he has experienced impaired body functions that are important to him. Specifically, following the accident, plaintiff’s ability to engage in athletic races and competitions, a key part of his life, was greatly impacted, and he was no longer able to participate in recreational activities of bowling and riding his motorcycle.  Accordingly, plaintiff presented evidence to meet the second prong of MCL 500.3135(5).

The record evidence also supports plaintiff’s contention that his ability to lead his normal life was affected by the objectively manifested impairment of an important body function.  MCL 500.3135(5).  Before the accident, plaintiff and his wife would participate in a bi-monthly bowling league, but he has had to refrain from this activity because he is unsure of whether his hip will withstand the activity.  Plaintiff gave this same testimony with regard to riding his motorcycle, because he is concerned that his hip will not “hold up” while riding his 700 pound motorcycle.  Additionally, before the accident, plaintiff would participate in 10 athletic races in a year, but after the accident he has only participated in “maybe a couple a year.”  Also, plaintiff now uses ice packs regularly and takes over-the-counter pain relievers after his physical activity.

Therefore, the record evidence, viewed in the light most favorable to plaintiff, establishes that plaintiff’s individual “capacity to live his pre-incident manner of living was affected, and the third prong of [MCL 500.3135(5)] is satisfied.”