2020 WL 2095993

UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.
UNPUBLISHED
Court of Appeals of Michigan.
ARTHUR ORMONDE PRICE, JR., Plaintiff-Appellant,
v.
SAMUEL ONEAL AUSTIN and L & B CARTAGE, INC., doing business as OMNI QUALITY INSPECTION SERVICES, Defendants-Appellees.
No. 346145
|
April 30, 2020
Saginaw Circuit Court LC No. 17-032666-NI
Before: O’BRIEN, P.J., and JANSEN and GLEICHER, JJ.
Opinion

PER CURIAM.

*1 In this third-party no-fault action, plaintiff appeals by delayed leave granted1 the order granting summary disposition under MCR 2.116(C)(10) in favor of defendants on the basis of the sudden emergency doctrine. We affirm.

I. FACTUAL BACKGROUND
This case arises out of an automobile accident that occurred on April 1, 2014, at approximately 8:00 p.m. in Richland Township, Michigan. Defendant-driver, Samuel O’Neal Austin, was driving a tractor-trailer in the eastbound lanes of M-46, a two-lane roadway with no median, in the scope and course of his employment with defendant L & B Cartage, Inc., doing business as Omni Quality Inspection Services. Suddenly, defendant-driver experienced a severe coughing fit and blacked out, causing the semi to cross over into the westbound lanes of M-46. The semi had made it almost to the westbound shoulder when it collided with plaintiff’s vehicle. The semi came to its final resting place in a corn field several feet from the highway. Both drivers sustained injuries in the accident: defendant-driver was taken by ambulance to Covenant HealthCare Hospital in Saginaw, Michigan, and plaintiff was airlifted to Ascension St. Mary’s Hospital in Saginaw, Michigan.

Plaintiff filed suit against defendants, alleging negligence and gross negligence, and seeking non-economic and excess economic damages. Following oral and written discovery, defendants moved for summary disposition under MCR 2.116(C)(10), arguing that the sudden emergency doctrine relieved them of liability. The trial court agreed, and in a written opinion and order, granted summary disposition in defendants’ favor.

Plaintiff filed a delayed application for leave to appeal the trial court’s decision in this court. This Court granted plaintiff’s delayed application but limited the appeal “to the issues raised in the application and supporting brief.” Price v L & B Cartage, Inc, unpublished order of the Court of Appeals, entered March 27, 2019.

II. STANDARD OF REVIEW
We review a trial court’s decision regarding a motion for summary disposition de novo. Lowrey v LMPS & LMPJ, Inc., 500 Mich 1, 5-6, 890 NW2d 344 (2016). A motion for summary disposition brought under MCR 2.116(C)(10) “tests the factual sufficiency of the complaint,” Shinn v Mich Assigned Claims Facility, 314 Mich App 765, 768, 887 NW2d 635 (2016), and should be granted when “there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law,” West v Gen Motors Corp, 469 Mich 177, 183, 665 NW2d 468 (2003).

“The moving party has the initial burden to support its claim for summary disposition by affidavits, depositions, admissions, or other documentary evidence.” McCoig Materials, LLC v Galui Constr, Inc, 295 Mich App 684, 693, 818 NW2d 410 (2012). The court must consider all of the admissible evidence in a light most favorable to the nonmoving party. Liparoto Constr, Inc v Gen Shale Brick, Inc, 284 Mich App 25, 29, 772 NW2d 801 (2009). However, the party opposing summary disposition under MCR 2.116(C)(10) “may not rely on mere allegations or denials in pleadings, but must go beyond the pleadings to set forth specific facts showing that a genuine issue of material fact exists.” Oliver v Smith, 269 Mich App 560, 564, 715 NW2d 314 (2006) (quotation marks and citation omitted). “A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ.” Bahri v IDS Prop Cas Ins Co., 308 Mich App 420, 423, 864 NW2d 609 (2014) (quotation marks and citation omitted). [Lockwood v Twp of Ellington, 323 Mich App 392, 400-401; 917 NW2d 413 (2018).]

III. ANALYSIS
*2 On appeal, plaintiff generally contests the trial court’s determination that defendants were entitled to summary disposition on the basis of the sudden emergency doctrine. More specifically, plaintiff argues that in the trial court, defendants failed to present clear, positive, and credible evidence sufficient to overcome the presumption of negligence that arises out of defendant-driver crossing the centerline and colliding head-on with plaintiff’s vehicle. We disagree.
[A] statutory presumption of negligence … may be rebutted by showing the existence of a sudden emergency. Vander Laan v Miedema, 385 Mich 226, 231; 188 NW2d 564 (1971). The sudden-emergency doctrine applies “when a collision is shown to have occurred as the result of a sudden emergency not of the defendants’ own making.” Id., citing McKinney v Anderson, 373 Mich 414, 419; 129 NW2d 851 (1964). [White v Taylor Distribution Co, Inc., 482 Mich 136, 139-140; 753 NW2d 591 (2008) (White II).]
“[A] sudden emergency sufficient to remove the statutory presumption must be ‘totally unexpected.’ ” Id. at 140, quoting Vander Laan, 385 Mich at 232. “[I]t is essential that the potential peril had not been in clear view for any significant length of time[.]” Vander Laan, 385 Mich at 232. Essentially, the sudden emergency doctrine is “a logical extension of the ‘reasonably prudent person’ standard, with the question being whether the defendant acted as a reasonably prudent person when facing the emergency, giving consideration to all circumstances surrounding the accident.” White v Taylor Distributing Co, Inc, 275 Mich App 615, 622; 739 NW2d 132 (2007) (White I), citing Szymborski v Slatina, 386 Mich 339, 341; 192 NW2d 213 (1971).

“When the trial court undertakes to eliminate from the jury’s consideration a statutory presumption as a matter of law, at the very least there must be clear, positive, and credible evidence opposing the presumption.” White I, 275 Mich app at 621-622, citing Petrosky v Dziurman, 367 Mich 539; 116 NW2d 748 (1962), and Szymborski, 386 Mich at 341, where our Supreme Court concluded that where evidence is less than clear, positive, and credible, the question of whether a statutory presumption can be overcome should be settled by a jury. Indeed, that defendant-driver, who was traveling eastbound crossed the centerline into the westbound lane of travel and struck plaintiff’s vehicle as it was rightfully traveling westbound, creates a presumption of negligence. Thus, to be entitled to summary disposition as a matter of law, it is defendants’ burden to present clear, positive, and credible evidence that defendant-driver suffered a sudden emergency, totally unexpected and not of his own making, and that he “acted as a reasonably prudent person when facing the emergency, giving consideration to all circumstances surrounding the accident.” White I, 275 Mich App at 622.

Plaintiff uses the majority of his brief on appeal to highlight what he perceives to be inconsistencies in defendant-driver’s statements relating to the symptoms he experienced immediately before blacking out. Indeed, defendant-driver reported slightly different symptoms in the days following the accident. Defendant-driver reported to officers at the scene, and testified in his deposition, that he experienced a violent coughing fit before blacking out. Comparatively, defendant-driver reported to his treating physicians that he felt a twinge in his chest, or crushing chest pain, and then blacked out.

*3 However, what plaintiff fails to appreciate is that defendant-driver consistently maintained that all of his symptoms came on suddenly and with no advanced warning before defendant-driver was rendered unconscious. Moreover, the physical evidence in this case is clear that defendant-driver never applied the brakes: there were no pre-collision skid marks at the scene, and the satellite GPS log from the semi, indicated that defendant-driver never braked. The physical evidence supports defendant-driver’s position that he experienced a sudden medical emergency.

Plaintiff also argues that a reasonably prudent person with defendant-driver’s cardiac history would not have been driving a semi. However, defendant-driver had undergone rigorous testing as recently as 2013 in order to recertify his Class A driving endorsement. Additionally, there is no evidence in the record to even suggest defendant-driver had experienced any cardiac symptoms contemporaneously to the accident, or that defendant-driver had ever experienced an episode of sudden unconsciousness.

In sum, defendant-driver presented ample evidence that he experienced some type of syncopal episode while driving without any advance notice, and that he was entitled to rebut the presumption of negligence as a matter of law. In response, plaintiff failed to identify anything in the existing record, or to offer any new evidence, to show that defendant-driver could have done anything differently to avoid the accident that occurred here, or that any genuine issue of material fact remained to submit to a jury. Thus, we conclude that the trial court properly granted summary disposition in favor of defendants on the basis of the sudden emergency doctrine.

Affirmed.

Colleen A. O’Brien

Kathleen Jansen

GLEICHER, J. (dissenting).

This automobile negligence case arises from a head-on collision between a semi-truck driven by defendant Samuel Austin and plaintiff Arthur Price’s Buick. Austin claims that while driving down a straight stretch of two-lane highway, he suddenly began coughing, blacked out, crossed the center line, and struck Price’s car. The investigating officer observed no preaccident skid marks attributable to Austin’s truck.

The majority affirms summary disposition in favor of Austin on the basis of “the sudden emergency doctrine.” In so holding, the majority commits two grave legal errors: it decides that defendant’s testimony must be believed, and it misapprehends the function of the sudden emergency defense. I respectfully dissent.

I. GOVERNING LEGAL PRINCIPLES
In every automobile negligence case, the plaintiff must prove that the defendant was negligent. When a defendant’s violation of a statute causes an injury, the law bolsters the plaintiff’s case by supplying a rebuttable presumption that the defendant was negligent. The presumption relieves the plaintiff of the burden of presenting positive evidence of negligence beyond the statutory violation. The defendant is tasked with rebutting the legal conclusion (here, negligence) embedded within the presumption. See Widmayer v Leonard, 422 Mich 280, 289-290; 373 NW2d 538 (1985). “If rebuttal evidence is introduced, the presumption dissolves, but the underlying inferences remain to be considered by the jury[.]” Ward v Consol Rail Corp, 472 Mich 77, 84; 693 NW2d 366 (2005). In other words, the inference (here, an inference of negligence arising from Austin’s crossing of the center line) maintains evidentiary power. What was once a presumption of negligence becomes an inference of common-law negligence. “[E]ven though facts might be introduced tending to controvert the presumed fact, the presumed fact nonetheless remains as at least a permissible inference for the trier of fact.” Kirilloff v Glinisty, 375 Mich 586, 588; 134 NW2d 707 (1965).

*4 MCL 257.634(1) requires drivers to operate their vehicles on the right side of the road. A violation of this statute creates a rebuttable presumption of negligence. Accordingly, Price could establish Austin’s negligence based solely on the fact that Austin’s truck crossed the center line. Austin was entitled to rebut this presumption of his negligence with evidence of an excuse for his negligence; he did so with his sudden emergency claim. White v Taylor Distrib Co, 275 Mich App 615, 621; 739 NW2d 132 (2007) (White I). Austin alleged that while driving down the road, he had “a really bad coughing spell,” “tr[ied] to hit the brakes and … get over to the right,” but “passed out.” He additionally asserted that he unsuccessfully “tried to slow down.” This testimony would suffice to rebut the presumption of negligence accompanying Austin’s crossing of the center line—if and only if the jury believes it. And contrary to the majority’s analysis, even if the presumption is successfully rebutted, an inference of negligence remains to be considered by the trier of fact.

II. A JURY MAY DISBELIEVE ANY WITNESS’S TESTIMONY
A critical error permeates the majority opinion. In considering a motion brought under MCR 2.116(C)(10), neither we nor the circuit court may weigh evidence or find facts. The majority does both. By deciding that Austin’s coughing story is credible, the majority usurps the province of the jury, substituting two judges in the jury’s place.

A bedrock legal principle instructs that “the jury is free to credit or discredit any testimony.” Kelly v Builders Square, Inc, 465 Mich 29, 39; 632 NW2d 912 (2001) (emphasis added). This is a very old rule. More than a century ago, the United States Supreme Court explained the underlying concept:
The jury were the judges of the credibility of the witnesses …, and in weighing their testimony had the right to determine how much dependence was to be placed upon it. There are many things sometimes in the conduct of a witness upon the stand, and sometimes in the mode in which his answers are drawn from him through the questioning of counsel, by which a jury are to be guided in determining the weight and credibility of his testimony. That part of every case … belongs to the jury, who are presumed to be fitted for it by their natural intelligence and their practical knowledge of men and the ways of men; and so long as we have jury trials they should not be disturbed in their possession of it, except in a case of manifest and extreme abuse of their function. [Aetna Life Ins Co v Ward, 140 US 76, 88; 11 S Ct 720; 35 L Ed 371 (1891).]

Michigan’s jurisprudence hews to the same legal philosophy. Indeed, a decade before the United States Supreme decided the above-quoted case, our own Justice COOLEY articulated the identical rule. In Woodin v Durfee, 46 Mich 424, 427; 9 NW 457 (1881), the Supreme Court reversed a directed verdict resting on “undisputed” evidence that “probably ought to have satisfied any one ….” Justice COOLEY explained that a jury “may disbelieve the most positive evidence, even when it stands uncontradicted; and the judge cannot take from them their right of judgment.” Id.

Our Supreme Court reiterated this point in Yonkus v McKay, 186 Mich 203, 210-211, 152 NW 1031 (1915):
To hold that in all cases when a witness swears to a certain fact the court must instruct the jury to accept that statement as proven, would be to establish a dangerous rule. Witnesses sometimes are mistaken and sometimes unfortunately are wilfully mendacious. The administration of justice does not require the establishment of a rule which compels the jury to accept as absolute verity every uncontradicted statement a witness may make.
In Cuttle v Concordia Mut Fire Ins Co, 295 Mich 514, 519; 295 NW 246 (1940), the Supreme Court again acknowledged that “[u]ncontradicted testimony may be disentitled to conclusiveness because, from lapse of time or other circumstances, it may be inferred that the memory of the witness is imperfect as to the facts to which he testified, or that he recollects what he professes to have forgotten.” Id.

*5 These principles apply equally to defense witnesses. For example, in Strach v St John Hosp Corp, 160 Mich App 251, 271; 408 NW2d 441 (1987) (citation omitted), a medical malpractice case, this Court declared that a jury could disregard a physician’s unrebutted testimony, reasoning that “a jury may disbelieve the most positive evidence even when it stands uncontradicted, and the judge cannot take from them their right of judgment.” Two additional medical malpractice cases make the same point. In Ykimoff v WA Foote Mem Hosp, 285 Mich App 80, 89-90; 776 NW2d 114 (2009), and Martin v Ledingham, 488 Mich 987, 987-988; 791 NW2d 122 (2010), the defendant physicians testified that they would have acted in a certain manner if provided with information about a patient’s condition. Both appellate courts held that a jury was entitled to disbelieve the physicians’ testimony, even though it was unrebutted by other evidence. The Supreme Court stated in Martin, 488 Mich at 988: “the treating physician’s averment that he would have acted in a manner contrary to this standard of care presents a question of fact and an issue of credibility for the jury to resolve.” See also Debano-Griffin v Lake Co, 493 Mich 167; 828 NW2d 634 (2013); Soule v Grimshaw 266 Mich 117; 253 NW 237 (1934); Ricketts v Froehlich, 218 Mich 459; 188 NW 426 (1922).

Even the credibility of eyewitness testimony presents a question of fact. Estate of Taylor by Taylor v Univ Physician Group, ___ Mich App ___; ___ NW2d ___ (2019) (Docket No. 338801), slip op at 6. See also Arndt v Grayewski, 279 Mich 224, 231; 271 NW 740 (1937) (holding that eyewitness testimony “is not conclusive upon the court or a jury if the facts and circumstances of the case are such as irresistibly lead the mind to a different conclusion”).

Several of the cases discussed above arose in the summary disposition context. The same rule applies: when the resolution of a case depends solely on a witness’s credibility, summary disposition is inappropriate because a jury question necessarily exists. An appellate court may not assess credibility or make factual findings when reviewing the propriety of summary disposition. White v Taylor Distrib Co, 482 Mich 136, 142-143; 753 NW2d 591 (2008) (White II). Furthermore, summary disposition is improper when a trier of fact could reasonably draw an inference in the plaintiff’s favor:
It is a basic proposition of law that determination of disputed issues of fact is peculiarly the jury’s province. Even where the evidentiary facts are undisputed, it is improper to decide the matter as one of law if a jury could draw conflicting inferences from the evidentiary facts and thereby reach differing conclusions as to ultimate facts. [Nichol v Billot, 406 Mich 284, 301-302; 279 NW2d 761 (1979) (citations omitted).]

In this case, the majority’s holding rests entirely on its determination that Austin’s account of what happened is credible, despite that there were no confirming witnesses. Austin’s claim that he coughed, became light-headed, and almost instantly passed out is contradicted by the accident report, which notes that Austin informed the officer that the coughing “may have caused him to pass out.” Austin claimed at his deposition that when he began coughing he “tr[ied] to hit the brakes and … get over to the right,” but none of the physical evidence described by the officer supports that he did either of those things. Austin’s medical records contain yet another description of what happened; a physician noted that he experienced “twinging of chest, feeling like he needed to cough. He was bearing down and had a syncopal episode.” This recounting did not include the violent coughing that Austin testified to at his deposition. Such inconsistencies matter; in White II, 482 Mich at 142, the Supreme Court highlighted that “[d]efendant’s inconsistent statements about the cause of his illness create issues of material fact precluding summary disposition.”

Are the discrepancies in this case relatively minor? Yes. But they demonstrate that Austin’s deposition version of what happened may well have been exaggerated, the coughing magnified, and the efforts to avoid the crash over stated.1 As the Supreme Court pointed out in White II, “if defendant felt ill even a few minutes before he collided with plaintiff, then the emergency may well have been of his own making.” Id. Ultimately, it is the jury’s job to assess whether Austin’s story rings true, not this Court’s. As this Court has said time and time again, the jury sees, hears, and observes witnesses as they testify, determining whom to believe and who is unworthy of belief. On this ground alone, I would reverse the trial court’s grant of summary disposition.

III. THE SUDDEN EMERGENCY
*6 The majority’s next error arises from its interpretation and application of the sudden emergency doctrine. Simply by testifying that he suffered a syncopal episode, the majority holds, Austin “was entitled to rebut the presumption of negligence as a matter of law.” The majority reasons that Austin is entitled to avoid a trial based on Price’s failure to “identify anything in the existing record, or to offer any new evidence,” to show that Austin “could have done anything differently to avoid the accident.” The majority misapprehends the function and purpose of the sudden emergency doctrine.

The doctrine of sudden emergency is merely one application of the reasonably prudent person standard; it is not an affirmative defense. Szymborski v Slatina, 386 Mich 339, 341; 192 NW2d 213 (1971); Baker v Alt, 374 Mich 492, 496; 132 NW2d 614 (1965). An affirmative defense accepts that the plaintiff has established a prima facie case, but seeks to foreclose relief for reasons unrelated to the plaintiff’s proofs. See Campbell v St John Hosp, 434 Mich 608, 616; 455 NW2d 695 (1990). Most affirmative defenses offer the defendant the possibility of a full victory, even if everything the plaintiff claims is true—think of the statute of limitations, release, and immunity granted by law. See MCR 2.111(F)(3).

I repeat and emphasize: sudden emergency is not an affirmative defense. It is merely a denial of negligence that, if believed by a jury, operates to rebut a presumption of negligence or to provide an excuse for what would otherwise be negligent conduct. Not every case involving the sudden emergency doctrine implicates a presumption of negligence. When there is no presumption to rebut, the sudden emergency doctrine merely offers a garden-variety defense. As with every defense to a negligence claim, the jury applies an objective standard: did the defendant behave reasonably under the circumstances? The defendant’s opinion that he behaved reasonably is not determinative, nor is a judge’s concurring view. A jury may find a defendant negligent notwithstanding the defendant’s sudden emergency claim.

Similarly, when invoked to rebut a presumption of negligence, the sudden emergency doctrine is not a free ticket to summary disposition. Rather, it continues to serve as a factual circumstance relevant to determining whether the defendant acted reasonably. In other words, when a presumption of negligence falls away, the jury must still determine whether the defendant’s acts were consistent with the standard of care expected under the circumstances. See Baker, 374 Mich at 496 (“In actuality, the doctrine of ‘sudden emergency’ is nothing but a logical extension of the ‘reasonably prudent person’ rule. The jury is instructed, as was done here, that the test to be applied is what that hypothetical, reasonably prudent person would have done under all the circumstances of the accident, whatever they were.”); Martin v City of New Orleans, 678 F2d 1321, 1325 (CA 5, 1982) (“The doctrine of sudden emergency does not invoke a different standard of care than that applied in any other negligence case. The conduct required is still that of a reasonable person under the circumstances. The emergency is merely a circumstance to be considered in assessing the actor’s conduct.”).2

Restatement Torts, 3d, § 9, summarizes the sudden emergency doctrine as follows: “If an actor is confronted with an unexpected emergency requiring rapid response, this is a circumstance to be taken into account in determining whether the actor’s resulting conduct is that of the reasonably careful person.” Michigan law is entirely consistent with this approach. Despite that Austin claims to have experienced a sudden emergency, he crossed the center line and failed to apply his brakes. Did he really have a coughing fit that caused him to pass out? If so, did he act prudently when he began coughing? I don’t know, and neither does the majority. I do know that Austin’s negligence under the circumstances remains a salient question, and that only a jury is empowered to answer it. Contrary to the majority’s view, evidence that Austin was confronted with a sudden emergency does not entitle him to a legal determination that he lacked any fault for the accident. I would reverse the lower court and remand for a jury trial.

All Citations
Not Reported in N.W. Rptr., 2020 WL 2095993

Footnotes

1
See Price v L & B Cartage, Inc, unpublished order of the Court of Appeals, entered March 27, 2019 (Docket No. 346145).

1
The majority construes the physical evidence as supporting Austin’s story. The majority ignores that the physical evidence would also support that Austin fell asleep at the wheel or was distracted and lost control of his truck. Both of these potential accident causes are far more common than an unexpected coughing fit leading to a black-out.

2
A number of courts have eliminated the sudden emergency doctrine from their common-law toolbox precisely because it is frequently misused. See Bedor v Johnson, 292 P3d 924 (Colo, 2013), and the cases collected in footnote 2.