United States District Court for the Southern District of Alabama, Southern Division

June 13, 2022, Decided; June 14, 2022, Filed

CIVIL ACTION 21-0062-WS-M

Reporter

2022 U.S. Dist. LEXIS 105753 *

JEFFREY H. HUNTER, Plaintiff, v. MATHESON TRI-GAS, INC., et al., Defendants.

Prior History: Hunter v. Matheson Tri-Gas, Inc., 2022 U.S. Dist. LEXIS 98456 (S.D. Ala., June 2, 2022)

Core Terms

blowout, non-movant, defendants’, summary judgment, Tire, entitled to summary judgment, summary judgment motion, accelerate, rig

Counsel:  [*1] For Jeffrey H. Hunter, Plaintiff: William Bradford Kittrell, LEAD ATTORNEY, WBK, P.C., Daphne, AL; Alexander Randall Kirkland, Satterwhite Law Firm LLC, Mobile, AL.

For Matheson Tri-Gas, Inc, John K. Dougherty, Defendants: Blake T. Richardson, Jannea S. Rogers, LEAD ATTORNEYS, Adams and Reese LLP, Mobile, AL.

Judges: WILLIAM H. STEELE, UNITED STATES DISTRICT JUDGE.

Opinion by: WILLIAM H. STEELE

Opinion

ORDER

This matter is before the Court on the defendants’ motion for summary judgment. (Doc. 50). The parties have filed briefs and evidentiary materials in support of their respective positions, (Docs. 51, 56, 57),¹ and the motion is ripe for resolution. After careful consideration, the Court concludes the motion is due to be granted in part and denied in part.

BACKGROUND

According to the complaint, (Doc. 1-1), supplemented by the parties’ agreed facts, (Doc. 49), on the night of January 2, 2019, the plaintiff was driving a Toyota Tundra in the left lane of Interstate 10 in Mobile County. The individual defendant (“Dougherty”) was driving a tractor-trailer combo in the right lane. As the plaintiff was traveling alongside the rig, a driver’s side steer tire (“the Tire”) experienced a blowout, and the rig entered the left [*2]  lane of travel. The vehicles did not collide, but both came to rest in the median. The plaintiff suffered physical injuries, for which he seeks recovery in this lawsuit. The rig was owned by a nonparty (“Penske”) and was leased to another non-party (“Carbonic”). Dougherty was employed by Carbonic, which is a wholly owned subsidiary of the entity defendant (“Matheson”).

The complaint asserts claims of negligence and wantonness against both Dougherty and Matheson. By agreement, however, the plaintiff “will not pursue any previously stated claims of wantonness against either Defendant.” (Doc. 49 at 2).² The complaint alleges negligence in a myriad of ways, but the plaintiff has streamlined his allegations to the following: (1) that Dougherty, on or before the day of the blowout, negligently failed to discover and/or disclose a visible defect in the Tire and/or failed to have the Tire replaced; (2) that Dougherty, when the blowout occurred, allowed and/or failed to prevent the rig from leaving its lane of travel; (3) that Matheson is vicariously liable for Dougherty’s negligence; and (4) that Matheson failed to establish and/or implement adequate policies, standards, and procedures regarding [*3]  the inspection and maintenance of its vehicles. (Id. at 1-2).

DISCUSSION

Summary judgment should be granted only if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).³ The party seeking summary judgment bears “the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The moving party may meet its burden in either of two ways: (1) by “negating an element of the non-moving party’s claim”; or (2) by “point[ing] to materials on file that demonstrate that the party bearing the burden of proof at trial will not be able to meet that burden.” Id. “Even after Celotex it is never enough simply to state that the non-moving party cannot meet its burden at trial.” Id.; accord Mullins v. Crowell, 228 F.3d 1305, 1313 (11th Cir. 2000); Sammons v. Taylor, 967 F.2d 1533, 1538 (11th Cir. 1992).

“If the party moving for summary judgment fails to discharge the initial burden, then the motion must be denied and the court need not consider what, if any, showing the non-movant has made.” Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (11th Cir. 1993); accord Mullins, 228 F.3d at 1313; Clark, 929 F.2d at 608.

“If, however, the movant carries the initial summary judgment burden …, the responsibility then devolves upon the non-movant to show the existence of [*4]  a genuine issue of material fact.” Fitzpatrick, 2 F.3d at 1116. “If the nonmoving party fails to make ‘a sufficient showing on an essential element of her case with respect to which she has the burden of proof,’ the moving party is entitled to summary judgment.” Clark, 929 F.2d at 608 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)) (footnote omitted); see also Fed. R. Civ. P. 56(e)(2) (“If a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c), the court may … consider the fact undisputed for purposes of the motion ….”).

In deciding a motion for summary judgment, “[t]he evidence, and all reasonable inferences, must be viewed in the light most favorable to the nonmovant ….” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003). “Therefore, the [non-movant’s] version of the facts (to the extent supported by the record) controls, though that version can be supplemented by additional material cited by the [movants] and not in tension with the [nonmovant’s] version.” Rachel v. City of Mobile, 112 F. Supp. 3d 1263, 1274 (S.D. Ala. 2015), aff’d, 633 Fed. Appx. 784 (11th Cir. 2016).

“There is no burden upon the district court to distill every potential argument that could be made based upon the materials before it on summary judgment.” Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995); accord Gennusa v. Canova, 748 F.3d 1103, 1116 (11th Cir. 2014). The Court accordingly limits its review to those arguments the parties have expressly advanced.

“The elements of a negligence [*5]  claim are a duty, a breach of that duty, causation, and damage.” Armstrong Business Services, Inc. v. AmSouth Bank, 817 So. 2d 665, 679 (Ala. 2001).⁴

The defendants argue that the plaintiff cannot establish that any negligence by them caused the blowout. (Doc. 51 at 14-15). In their “joint statement regarding plaintiff’s claims and agreed facts,” (Doc. 49), “[t]he parties … agreed to the following facts” for purposes of the instant motion, including: “There is no evidence on record regarding the specific cause of the blowout on January 2, 2019.” (Doc. 49 at 3). The defendants construe this statement as meaning that the parties agree “there is no evidence whatsoever as to the cause of the blowout.” (Doc. 51 at 14). The plaintiff in his brief does not address the joint statement or the defendant’s construction of it; indeed, he does not address causation at all. The plaintiff has therefore acquiesced in the defendant’s construction, which the Court adopts as both reasonable and agreed. Because the plaintiff has admitted there is no evidence that the blowout was caused by any negligence of either defendant, he has admitted he cannot establish an essential element of these claims, and the defendants are thus entitled to summary judgment as to them.

The defendants list [*6]  a number of things they say Dougherty did right when the blowout occurred, including that he “let off the accelerator.” (Doc. 51 at 6, 18). The plaintiff, however, offers two pieces of evidence that the standard of care in the event of a blowout is to accelerate. The first is an excerpt from a tractor-trailer driver training manual issued by J. J. Keller & Associates, Inc., which states that, in the event of tire failure, the driver should “[a]ccelerate to overcome drag.” (Doc. 56-5 at 3). The second is an instructor guide for motorcoach operators released by the Federal Motor Carrier Safety Administration, which states that, “[i]f you are having serious trouble controlling the coach with a steer tire blowout, accelerate slightly to try to stabilize the position and heading of the blown-out wheel.” (Doc. 56-6 at 23).

The defendants complain that the plaintiff’s materials do not “provide any insight as to the actual standard of care for a commercial driver under Dougherty’s specific circumstances.” (Doc. 57 at 10). The training manual does not identify any circumstances under which acceleration would be an inappropriate response to a blowout, and the only circumstance the instructor [*7]  guide identifies is difficulty controlling the vehicle, which Dougherty admittedly was experiencing. The defendants’ opaque objection furnishes no grounds for concluding that the plaintiff’s evidence does not apply under Dougherty’s “specific circumstances,” whatever that might mean.

The defendants object that the plaintiff will be unable to present at trial any witness to testify to the appropriate standard of care. (Doc. 57 at 10-11). The defendants, however, have not attempted to show that Alabama law requires the plaintiff to produce such a witness.⁵

The defendants next argue that the Court should “rely instead on the opinions of the Defendants’ industry standards expert.” (Doc. 57 at 10). The Court cannot on motion for summary judgment pick and choose which admissible evidence to consider. The defendants having failed to show that the plaintiff’s evidence is inadmissible or inconsequential, the Court on the instant motion must not only consider it but must accept it even in the face of contrary evidence from the defendants.

Finally, the defendants urge the Court to apply the “sudden emergency” doctrine. (Doc. 51 at 16-17). The defendants concede that it is rarely appropriate [*8]  to employ this doctrine on motion for summary judgment, and they have not persuaded the Court that this is that rare case. Even were the Court to analyze the defendants’ motion under that doctrine, it would not advance their position. A high-speed blowout is by its very nature a sudden emergency, and yet the plaintiff’s evidence is that the standard of care in such an emergency is to accelerate. The defendants present no argument to the contrary.

Matheson’s only argument regarding its respondeat superior liability is that, if Dougherty is entitled to summary judgment, Matheson is as well. (Doc. 51 at 19-20). Because Dougherty is not entitled to summary judgment on the plaintiff’s claim that he negligently allowed his rig to leave the right lane or failed to prevent it from happening, Matheson is not entitled to summary judgment on the corresponding respondeat superior claim.

CONCLUSION

For the reasons set forth above, the defendants’ motion for summary judgment is granted with respect to the defendants’ alleged negligence before the blowout and denied with respect to their alleged negligence after the blowout. The defendants’ deemed motion for summary judgment as to the plaintiffs’ wantonness [*9]  claims is granted by consent.⁶

DONE and ORDERED 13th day of June, 2022.

/s/ WILLIAM H. STEELE

UNITED STATES DISTRICT JUDGE

End of Document

---

¹ The defendants’ briefs do not comply with the format requirements of General Local Rule 5(a)(1)-(2).

² The parties appear to believe this filing effected a dismissal of the wantonness claims, but it did not. Dismissal by stipulation under Rule 41(a)(1)(A)(ii) applies only to dismissal of all claims against a defendant, not to a dismissal of only some claims. Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1106 (11th Cir. 2004).

³ The defendants cite the Alabama analog to Rule 56, and to state cases decided thereunder, (Doc. 51 at 8-9), but in this diversity action it is the federal rule that controls.

⁴ The parties agree that Alabama law governs the plaintiff’s claims. (Doc. 51 at 9; Doc. 56 at 9-12).

⁵ The defendants argue that the plaintiff’s evidence does not establish that an “acceleration response to a blowout is a matter of common knowledge.” (Doc. 57 at 9 (internal quotes omitted)). Common knowledge is an exception to the general Alabama rule that legal or medical malpractice must be established by expert testimony as to the standard of care. E.g., Valentine v. Watters, 896 So. 2d 385, 392-93 (Ala. 2004). The defendants, however, have cited no authority extending the requirement of expert testimony to a driver’s conduct.

⁶ In their reply brief, the defendants argue that certain evidence should be stricken. (Doc. 57 at 11-13). Because the Court has not relied on any of the evidence at issue, the request, construed as a motion to strike, is denied as moot.

Court of Appeals of Michigan

May 26, 2022, Decided

No. 355602

Reporter

2022 Mich. App. LEXIS 3067 *; 2022 WL 1711700

MONTEZ HILL, Plaintiff-Appellee, v NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Defendant, and WILLIAM RICHARD CRISMAN, CAPACITY TRANSPORT, LLC, and LAM LEASING, LLC, Defendants-Appellants.

Notice: THIS IS AN UNPUBLISHED OPINION. IN ACCORDANCE WITH MICHIGAN COURT OF APPEALS RULES, UNPUBLISHED OPINIONS ARE NOT PRECEDENTIALLY BINDING UNDER THE RULES OF STARE DECISIS.

Subsequent History: Modified by Hill v. Nationwide Mut. Fire Ins. Co., 2022 Mich. App. LEXIS 3429 (Mich. Ct. App., June 13, 2022)

Prior History:  [*1] Wayne Circuit Court. LC No. 19-003617-NI.

Hill v. Nationwide Mut. Fire Ins. Co., 2021 Mich. App. LEXIS 2886 (Mich. Ct. App., May 6, 2021)

Core Terms

summary disposition, sudden emergency, fault, lose control, driver, travel, defendants’, service brake, sudden-emergency, hazard, question of fact, circumstances, conditions, barrier, speed, concrete, driving, highway, roadway, hiring, truck

Counsel: For MONTEZ HILL, Plaintiff-Appellee: RACINE M. MILLER.

For NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Defendant: ROBERT D. STEFFES.

For WILLIAM RICHARD CRISMAN, CAPACITY TRANSPORT LLC, LAM LEASING LLC, Defendants-Appellants: THOMAS NATHAN LURIE, JR.

Judges: Before: BORRELLO, P.J., and SHAPIRO and HOOD, JJ.

Opinion

Per Curiam.

In this third-party no-fault action, defendants, William Crisman (Crisman), Capacity Transportation, LLC (Capacity), and LAM Leasing, LLC (LAM), appeal by leave granted¹ the trial court’s order denying in part their motions for summary disposition. We reverse and remand for entry of an order granting defendants’ motions for summary disposition in their entirety.

I. BACKGROUND

The underlying facts are not largely in dispute. The deposition testimony of plaintiff, Montez Hill, and Crisman is generally consistent. Video from Crisman’s dashboard camera captured the entire accident as it unfolded and corroborates Hill and Crisman’s deposition testimony.

This case arises out of an automobile accident that occurred on January 9, 2019, at approximately 9:45 a.m. On that morning, Hill and Crisman were traveling westbound on [*2]  I-96 in Wayne County, during a snowstorm. Hill was driving a Mercury Marquis, and Crisman was operating a loaded semi-tractor trailer in the course of his employment with Capacity. Crisman was traveling in the far right lane of the three-lane highway. Hill, driving in the middle lane, approached and passed Crisman on the left. Then, as both vehicles approached a slight curve in the highway, and the distance between them grew, Hill lost control of his vehicle and spun out. Hill’s vehicle spun into the far left lane where it struck the concrete center barrier. During this time, Crisman continued to travel in the far right lane. After Hill’s vehicle struck the center barrier, it briefly disappeared from view in a cloud of snow, then became visible as it was propelled, in reverse, across the three-lane highway, perpendicular to the direction of travel. Two seconds later, Crisman’s truck collided with the driver’s side of Hill’s vehicle when it entered Crisman’s lane. The total time between the start of Hill’s spinout and the collision was 11 seconds.

On March 14, 2019, Hill filed this action against defendants, alleging negligence by Crisman in the operation of the semi-tractor trailer, [*3]  negligent hiring, and liability under the owner’s liability statute, MCL 257.401, contained within the Michigan Vehicle Code, MCL 257.1 et seq. At the close of discovery, defendants moved for summary disposition, under MCR 2.116(C)(10), as to all of Hill’s claims.

On November 9, 2020, the trial court granted in part and denied in part defendants’ motions. The theories of liability were narrowed by the court and the parties to: Crisman’s comparative negligence, negligent hiring and retention, and owner’s liability. The court found that questions of fact existed with respect to the comparative fault of each of the drivers. Regarding negligent hiring and retention, the court found that because LAM did not hire Crisman or entrust the vehicle to him, it was entitled to summary disposition of this claim. Regarding Capacity, however, the court denied summary disposition, finding that a question of fact existed with respect to whether Capacity negligently hired and retained Crisman. On the theory of ownership liability, the court granted summary disposition to Capacity because it was not the owner of the semi-truck. After the court concluded as a matter of law that LAM was the owner of the truck, it considered LAM’s separate motion for [*4]  summary disposition based on application of the federal Graves Amendment, 49 USC 30106. The court then found that a question of fact existed regarding whether LAM was in the business of leasing motor vehicles. The court found that any discussion regarding piercing the corporate veil would be premature absent a judgment, but did query whether LAM was a leasing company or simply set up for Capacity’s tax and liability purposes. Accordingly, the court entered an order granting in part and denying in part defendants’ motions for summary disposition consistent with its oral rulings.

This Court granted defendants’ application for leave to appeal the trial court’s order.

II. STANDARD OF REVIEW

This Court reviews de novo a trial court’s decision regarding a motion for summary disposition. Wurtz v Beecher Metro Dist, 495 Mich 242, 249; 848 NW2d 121 (2014). A motion under MCR 2.116(C)(10) tests the factual sufficiency of a claim. Johnson v VanderKooi, 502 Mich 751, 761; 918 NW2d 785 (2018). A motion under MCR 2.116(C)(10) should be granted only 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 [*5]  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 leaves open an issue upon which reasonable minds might differ.” Johnson, 502 Mich at 761 (quotation marks, citation, and brackets omitted).

III. LAW AND ANALYSIS

Defendants contest the trial court’s ruling that a question of fact existed regarding the comparative fault of Hill and Crisman. We agree. Because no reasonable juror could find that Hill was less than 50% at fault, the trial court erred when it denied defendants’ motion for summary disposition. The submitted evidence indicates that Hill’s actions were the primary, if not sole, cause of the accident and that Crisman bears little fault, if any. This is particularly true when the Court considers the sudden-emergency doctrine.

A. COMPARATIVE FAULT

The no-fault insurance act, MCL 500.3101 et seq., places certain limits on tort liability for injuries sustained in motor vehicle accidents. [*6]  McCormick v Carrier, 487 Mich 180, 189; 795 NW2d 517 (2010). Pursuant to MCL 500.3135(1), a person remains subject to tort liability for noneconomic loss caused by the ownership, maintenance, or use of a motor vehicle if the injured person has suffered death, serious impairment of body function, or permanent serious disfigurement. However, a party is not allowed to recover damages if they are found to be more than 50% at fault. Specifically, MCL 500.3135(2)(b) provides: “Damages must be assessed on the basis of comparative fault, except damages must not be assessed in favor of a party who is more than 50% at fault.”

It is undisputed that Hill was an inexperienced driver. Although 30 years old, he had only had a driver’s license for a few years, he did not own a car, and he typically used the bus, friends and family, or private transportation services for his transportation needs. On January 9, 2019, Hill either borrowed or took without permission an acquaintance’s vehicle.

In addition to being an inexperienced driver, the record also demonstrates that on January 9, 2019, Hill was an irresponsible driver. Hill admitted that when he entered the highway on January 9, 2019, the road conditions “seemed icy.” Despite the obviously hazardous conditions, Hill drove above the posted [*7]  speed limit. Hill’s expert accident reconstructionist, Marc Edgcombe, concluded that Hill was operating his vehicle between 73 and 76 mph prior to spinning out. Shortly after passing Crisman on the left, Hill lost control of his vehicle. The undisputed evidence established that after encountering admittedly icy conditions, Hill’s vehicle first swerved to the left, then to the right, and then back to the left. Edgcombe testified that these maneuvers were the result of Hill over-correcting, a response the expert explained was typical of an average driver. Then, according to Hill’s expert, after Hill’s vehicle rotated 180 degrees and “side-slapped” the center concrete barrier, it was propelled in reverse. Edgcombe testified that Hill’s resultant course of travel, which was across all three lanes perpendicular to the direction of travel and into Crisman’s lane, was again the result of “driver input.”

Edgcombe conceded that Hill’s inexperience, his driving in excess of the posted speed limit, driving too fast for the conditions, and over-correcting when he initially lost control of his vehicle all contributed to the accident. Edgcombe testified that he would not have taken issue with a police [*8]  officer citing Hill for driving too fast for the conditions. Ultimately, Edgcombe agreed that had Hill maintained control of his vehicle, the accident would not have occurred.

By contrast, the unrefuted evidence established that Crisman was operating his vehicle at approximately 55 mph, well below the posted speed limit, when Hill approached him on the left. The testimony further established that at the point at which Hill began to lose control of his vehicle, Crisman promptly reacted. Hill’s expert concluded that Crisman engaged the engine brake “very soon after” Hill began to lose control of his vehicle. According to Hill’s expert, this resulted in Crisman further reducing his speed to 40 mph. Crisman maintained his course of travel in the far right lane, which was the lane at the greatest distance from Hill. Then, when Hill’s vehicle unexpectedly reversed into Crisman’s lane of travel, Crisman engaged the service brake. Hill’s expert agreed that this was a reasonable action under the circumstances.

Notwithstanding the foregoing, Hill argues that had Crisman reacted differently, the accident could have been avoided. Hill’s expert opined that when Crisman initially observed Hill begin [*9]  to lose control of his vehicle, had he used the service brake instead of engine breaking, he could have brought his semi-tractor trailer to a stop four feet short of where the impact ultimately occurred. Even assuming that this opinion is credible, in order to survive defendants’ motion for summary disposition, Hill was required to present evidence indicating that Crisman was more at fault than Hill as required by MCL 500.3101(2)(b). The evidence did not give rise to a question of fact in this regard. Because no reasonable juror could conclude that Hill was less than 50% at fault for the accident, defendants were entitled to summary disposition.

B. SUDDEN-EMERGENCY DOCTRINE

Any negligence attributable to Crisman would be excused by application of the sudden-emergency doctrine. 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.” Vander Laan v Miedema, 385 Mich 226, 231; 188 NW2d 564 (1971); see also White v Taylor Distrib Co, Inc, 275 Mich App 615, 622-623; 739 NW2d 132 (2007). The sudden emergency must be totally unexpected. See Vander Laan, 385 Mich at 231-232. “[I]t is essential that the potential peril had not been in clear view for any significant length of time . . . .” Id. at 232. The doctrine is a judicially-created principle which provides:

One who suddenly finds himself [*10]  in a place of danger, and is required to act without time to consider the best means that may be adopted to avoid the impending danger is not guilty of negligence if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence. [Vsetula v Whitmyer, 187 Mich App 675, 680-681; 468 NW2d 53 (1991), quoting Socony Vacuum Oil Co v Marvin, 313 Mich 528, 546; 21 NW2d 841 (1946).]

The sudden-emergency doctrine is essentially an extension of the “reasonably prudent person” standard, with the question being whether the defendant acted as a reasonably prudent person when facing the emergency, considering the circumstances of the accident. White, 275 Mich App at 622-623.

Here, Crisman was faced with a sudden emergency not of his own making. Hill lost control of his vehicle and then exacerbated the circumstances by over-correcting. Crisman responded immediately by reducing his speed through engine breaking and maintaining his course of travel. When Hill’s vehicle struck the center concrete barrier, Crisman was in the farthest lane away from the hazard that Hill created. But two seconds before the collision, Hill’s vehicle propelled across three lanes, into Crisman’s lane of travel. At that point, Crisman activated the service brake, but [*11]  was unable to avoid impact. None of these facts are in dispute. No reasonable juror could fail to conclude that Crisman was faced with a sudden emergency.

Hill accepts the proposition that when he suddenly entered Crisman’s lane, Crisman was presented with a sudden emergency. However, he asserts that the sudden emergency was of Crisman’s own making because he failed to engage the service brake and, instead, elected to engine break, when he first saw Hill losing control of his vehicle. According to Hill, the sudden emergency presented two seconds before impact was created by Crisman’s own actions. Hill argues that under these circumstances, the sudden-emergency doctrine does not apply. We disagree.

Hill’s argument is based on a misunderstanding of the circumstances that give rise to a sudden emergency. “To come within the purview of [the sudden-emergency doctrine] the circumstances attending the accident must present a situation that is unusual or unsuspected.” Vander Laan, 385 Mich at 231 (quotation marks omitted). The unusual or unsuspected events that created a sudden emergency were Hill’s sudden loss of control of his vehicle, which caused the vehicle to strike the center concrete barrier and then travel across [*12]  three lanes of traffic into Crisman’s lane. Hill faults Crisman for failing to engage the service brake when he first saw Hill lose control of his vehicle, but that decision involved Crisman’s response to the emergent situation suddenly created by Hill’s loss of control, and a person faced with a sudden emergency “is not guilty of negligence if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence.” Vsetula, 187 Mich App at 680-681. There is no evidence that Crisman did anything to cause Hill to lose control of his vehicle, or did anything that contributed to Hill’s vehicle striking the center concrete barrier and then being propelled across three lanes of traffic into Crisman’s lane. On the contrary, t

Hill’s position is premised on the assumption that when he initially lost control of his vehicle, Crisman was not faced with a sudden emergency. This position is contrary to the opinion of Hill’s own expert witness. Edgcombe testified:

Q. Going off of that, when the Mercury first loses control, what makes it a hazard at that point?

A. Well, we have a, we have, obviously, diminished weather [*13]  conditions on the roadway. We have a vehicle that’s lost control on the roadway. It wasn’t hit by another vehicle. There wasn’t any massive wind gust that we know of that would have caused that, so there’s not really external force that caused that. So the assumption can be easily and quickly made by the average driver, that the roadway must be slippery. That’s going to be your normal assumption. So in that, the driver, the truck driver, Mr. Crisman, is now breaking, because he sees this loss of control. It’s a hazard. I would consider it more of an indirect hazard. The vehicle is not coming at his truck It’s not approaching his truck. It’s still a general roadway hazard, because he doesn’t know what this car is going to do. He doesn’t know where it’s going to go. He doesn’t know if it will, in fact, hit a wall and come back in the roadway, you know. . . .

Earlier in his testimony, Edgcombe again acknowledged that when Hill began to lose control of his vehicle, this created a sudden hazardous situation for Crisman:

As a tractor trailer driver when you see the vehicle losing control, I mean, just the understanding that vehicles can, for lack of a better term, do anything in a crash situation. [*14]  They can go anywhere, just from a layman’s terms. The best thing to do in that case is give that vehicle space, and the only way to do that is, steer away from it. If you’re on a limited access road, that’s not a very good option. Or you can brake, decrease your speed to give that vehicle that’s still traveling ahead of [you], you know, more distance, more space, so that whatever happens—basically, you arrive at that location later. And then, whatever happens, you can, you can, then give yourself more time to assess that situation and how it’s progressing and make your own judgments as to how you’re going to avoid that crash.

Further, Edgcombe’s opinion that Crisman should have engaged the service brake when he first saw Hill out of control is a tacit acknowledgment that a sudden emergency existed. Hill’s expert asserts that had the service brake been engaged, Crisman would have brought the vehicle to a stop 4 feet from the ultimate point of impact. That Hill would advocate for a semi-tractor to come abruptly to a complete stop, on an expressway, during a winter snow storm, if there was not a sudden and emergent need to do so, supports the conclusion that there was a sudden emergency. [*15]  The undisputed and unbroken chain of events established that Crisman was faced with a sudden emergency. Viewing the evidence in the light most favorable to Hill, reasonable minds could not differ in this regard. Hill’s suggestion to the contrary is not supported by the evidence. Whether the Court views the onset of the sudden emergency as 11 seconds before impact, when Hill first began to spin out, or 2 seconds before impact, when Hill jolted backward across the highway into Crisman’s lane, the conclusion is the same: a sudden emergency existed, and Crisman acted prudently.

In sum, considering the undisputed evidence, no reasonable juror could find that Crisman was more at fault than Hill, a showing that is required by MCL 500.3135(2)(b) for Hill to prevail. To the extent that Crisman bore any fault for the accident, there is no basis for concluding that he was more than 50% at fault. Moreover, any fault attributable to Crisman would be excused by the fact that he was faced with a sudden emergency not of his own making. Because there are no material questions of fact in this regard, the trial court erred when it denied defendants’ motion for summary disposition with respect to Hill’s negligence claim. [*16] 

Finally, by extension, summary disposition related to Capacity and LAM is also appropriate. All of Hill’s theories of liability against Capacity and LAM require a showing that Crisman negligently operated his motor vehicle.² We have concluded that no negligence can be attributable to Crisman. Therefore, summary disposition on all of Hill’s claims against defendants is appropriate.

IV. CONCLUSION

We reverse and remand for entry of an order consistent with this opinion. We do not retain jurisdiction.

/s/ Stephen L. Borrello

/s/ Douglas B. Shapiro

/s/ Noah P. Hood

End of Document

---

¹ Hill v Nationwide Mut Fire Ins Co, unpublished order of the Court of Appeals, entered May 6, 2021 (Docket No. 355602).

² Under a theory of negligent hiring and retention, an employer may be held directly liable for its employee’s tortious or illegal conduct when it knew or should have known of the employee’s propensities. Millross v Plum Hollow Golf Club, 429 Mich 178, 196-197; 413 NW2d 17 (1987). Inherent in this theory of liability is a finding of tortious or illegal conduct on the part of the employee. Likewise, the owner’s liability statute, MCL 257.401, imposes liability on the owner of a vehicle for its negligent operation.