The “51%” Rule
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Court: Michigan Court of Appeals ( Unpublished Opinion )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.