Martin Cousineau v. Janet Cousineau ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
MARTIN COUSINEAU, UNPUBLISHED
May 26, 2022
Plaintiff-Appellant,
V No. 356952
Genesee Circuit Court
JANET COUSINEAU, BETTY LC No. 19-113253-NI
KNICKERBOCKER, and PROGRESSIVE
MICHIGAN INSURANCE COMPANY,
Defendants-Appellees.
Before: LETICA, P.J., and REDFORD and RICK, JJ.
PER CURIAM.
In this automobile negligence action, plaintiff appeals as of right following the trial court’s
entry of a stipulated order of dismissal of plaintiff’s claim for first-party benefits against defendant
Progressive Michigan Insurance Company (Progressive). Plaintiff challenges the trial court’s
earlier grant of summary disposition in favor of his wife, defendant Janet Cousineau, which
resulted in the dismissal of plaintiff’s claims against her and her mother, defendant Betty
Knickerbocker, as well as, plaintiff’s claim for underinsured motorist benefits against Progressive.
We affirm.
I. FACTUAL BACKGROUND
On a sunny morning in January 2018, plaintiff rode as a passenger, while Janet drove her
mother’s car. While exiting the northbound I-475 ramp onto southbound I-75 in Genesee County,
Janet lost control of the car and struck a guardrail injuring plaintiff. At his deposition, plaintiff
testified that Janet was driving 40 to 45 miles per hour when she “hit some black ice” and lost
control of the car. Janet asserted by affidavit that, on the day of the accident, she “unexpectedly
encountered black ice on the roadway, which caused the accident.”
Plaintiff’s complaint asserted four claims: (1) negligence against Janet, (2) negligence and
owner’s-liability against Knickerbocker, (3) an underinsured motorist claim against Progressive,
and (4) a first-party benefits claim against Progressive. Janet moved for summary disposition of
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the negligence claim against her on the ground that the sudden-emergency doctrine excused her
negligence, if any, because unexpected black ice caused the accident.
The trial court granted Janet’s motion, and dismissed plaintiff’s claims against her and
Knickerbocker, and plaintiff’s underinsured motorist benefits claim against Progressive. The trial
court later entered a stipulated order dismissing plaintiff’s claim for first-party benefits against
Progressive. Plaintiff appeals the trial court’s grant of Janet’s motion for summary disposition.
II. STANDARD OF REVIEW
We review de novo a trial court’s decision on a motion for summary disposition. Zaher v
Miotke, 300 Mich App 132, 139; 832 NW2d 266 (2013). “A motion for summary disposition
under MCR 2.116(C)(10) tests the factual support of the plaintiff’s claim and should be granted,
as a matter of law, if no genuine issue of any material fact exists to warrant a trial.” Doe v Henry
Ford Health Sys, 308 Mich App 592, 596-597; 865 NW2d 915 (2014). “When evaluating a motion
for summary disposition under MCR 2.116(C)(10), ‘a trial court considers affidavits, pleadings,
depositions, admissions, and other evidence submitted by the parties . . . in the light most favorable
to the party opposing the motion. Where the proffered evidence fails to establish a genuine issue
regarding any material fact, the moving party is entitled to judgment as a matter of law.’ ”
Innovation Ventures v Liquid Mfg, 499 Mich 491, 507; 885 NW2d 861 (2016), quoting Maiden v
Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999).
“[C]ourts may not resolve factual disputes or determine credibility in ruling on a summary
disposition motion.” White v Taylor Distrib Co, Inc, 275 Mich App 615, 625; 739 NW2d 132
(2007) (White I) (quotation marks and citation omitted). “[P]arties opposing a motion for summary
disposition must present more than conjecture and speculation to meet their burden of providing
evidentiary proof establishing a genuine issue of material fact.” Libralter Plastics, Inc v Chubb
Group of Ins Cos, 199 Mich App 482, 486; 502 NW2d 742 (1993). “Admissions are statements
made by or on behalf of a party to the suit in which they are offered which contradict some position
assumed by that party in that suit.” Elliotte v Lavier, 299 Mich 353, 357; 300 NW 116 (1941).
“They are substantive evidence for the adverse party, but never for the party by whom or on whose
behalf they are supposed to have been made.” Id.III. ANALYSIS
Plaintiff argues that the trial court erred by ruling that Janet encountered a sudden
emergency that excused her negligence because a genuine issue of material fact existed whether
Janet encountered black ice or her actions were reasonable. We disagree.
“To establish a prima facie case of negligence, a plaintiff must prove the following
elements: (1) the defendant owed the plaintiff a legal duty, (2) the defendant breached the legal
duty, (3) the plaintiff suffered damages, and (4) the defendant’s breach was a proximate cause of
the plaintiff’s damages.” Loweke v Ann Arbor Ceiling & Partition Co, LLC, 489 Mich 157, 162;
809 NW2d 553 (2011). “In a negligence case, the standard of conduct is reasonable or due care[,]”
i.e., the manner in which a reasonable person would act in similar circumstances. Moning v Alfono,
400 Mich 425, 443; 254 NW2d 759 (1977).
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“In the absence of statutory requirements, it is the motorist’s duty in the use and operation
of his automobile to exercise ordinary and reasonable care and caution, that is, that degree of care
and caution which an ordinarily careful and prudent person would exercise under the same or
similar circumstances.” Zarzecki v Hatch, 347 Mich 138, 141; 79 NW2d 605 (1956) (citation
omitted). A driver “must make reasonable allowance for traffic conditions, for fog, snow, or other
adverse weather conditions, and for curves and road conditions.” DePriest v Kooiman, 379 Mich
44, 46; 149 NW2d 449 (1967). But a driver is not obliged “to guard against every conceivable
result, to take extravagant precautions, to exercise undue care . . . .” Hale v Cooper, 271 Mich
348, 354; 261 NW 54 (1935). “One is not negligent merely because he fails to make provision
against an accident which he could not reasonably be expected to foresee.” Id.“[T]he jury usually decides the specific standard of care that should have been exercised
by a defendant in a given case,” but “the court sometimes decides the specific standard of care if
it is of the opinion ‘that all reasonable persons would agree or there is an overriding legislatively
or judicially declared public policy . . . .’ ” Case v Consumers Power Co, 463 Mich 1, 7; 615
NW2d 17 (2000), quoting Moning, 400 Mich at 438. “[W]hen the moving party can show either
that an essential element of the nonmoving party’s case is missing, or that the nonmoving party’s
evidence is insufficient to establish an element of its claim, summary disposition is properly
granted[.]” Latham v Nat’l Car Rental Sys, Inc, 239 Mich App 330, 340; 608 NW2d 66 (2000).
“In a negligence action, a plaintiff must establish both factual causation, i.e., the
defendant’s conduct in fact caused harm to the plaintiff, and legal causation, i.e., the harm caused
to the plaintiff was the general kind of harm the defendant negligently risked.” Ray v Swager, 501
Mich 52, 64; 903 NW2d 366 (2017) (quotation marks and citation omitted). Proximate cause
“involves examining the foreseeability of consequences, and whether a defendant should be held
legally responsible for such consequences.” Id. at 63.
When an accident occurs as a result of a sudden emergency that the defendant did not
create, the sudden-emergency doctrine will apply. White v Taylor Distrib Co, Inc, 482 Mich 136,
140; 753 NW2d 591 (2008) (White II). Our Supreme Court explained the sudden-emergency
doctrine as follows:
One who suddenly finds himself 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. [Socony Vacuum Oil Co
v Marvin, 313 Mich 528, 546; 21 NW2d 841 (1946) (quotation marks and citation
omitted.]
This principle applies “when the person chooses one reasonable, non-negligent course of
action over another reasonable, non-negligent course of action that would have resulted in a more
favorable outcome when viewed in hindsight.” White I, 275 Mich App at 623. The sudden-
emergency doctrine does “not apply if the peril was caused by negligence on the part of plaintiff’s
driver or if his negligence contributed to such result.” Socony Vacuum Oil Co, 313 Mich at 546.
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“The doctrine of sudden emergency is a logical extension of the reasonably prudent person
rule . . . .” Szymborski v Slatina, 386 Mich 339, 341; 192 NW2d 213 (1971) (quotation marks and
citation omitted). Thus, “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.” Id. (quotation
marks and citation omitted); see also 1 Restatement Torts, 3d, § 9 (2010) (explaining that if a
person “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”). The sudden-emergency doctrine may be invoked to rebut a
statutory presumption of negligence, White II, 482 Mich at 139, and may also be considered in
cases where there is no such presumption, Murner v Thorpe, 284 Mich 331, 335; 279 NW 849(1938) (rejecting the defendant’s invocation of the doctrine to excuse his driving at high speeds
without headlights because the emergency was of the defendant’s own making).
“To come within the purview of the sudden-emergency doctrine, the circumstances sur-
rounding the accident must present a situation that is unusual or unsuspected.” White I, 275 Mich
App at 622. “The term ‘unusual’ is employed here in the sense that the factual background of the
case varies from the everyday traffic routine confronting the motorist,” and that kind of “event is
typically associated with a phenomenon of nature.” Vander Laan v Miedema, 385 Mich 226, 232;
188 NW2d 564 (1971). “ ‘Unsuspected’ on the other hand connotes a potential peril within the
everyday movement of traffic,” and “[t]o come within the narrow confines of the emergency
doctrine as ‘unsuspected’ it is essential that the potential peril had not been in clearview for any
significant length of time, and was totally unexpected.” Id.In this case, plaintiff testified that Janet drove on the morning of the accident, “a beautiful
sunny winter morning, about 30 degrees,” with “a few piles of snow” that “had been pushed or
drifted,” but “there was no snow on the roads.” Plaintiff described the accident as follows: “[Janet]
was driving and hit some black ice and fought for control for quite a period of time, and then lost
control and went head-on into a guardrail.” Plaintiff estimated that Janet drove 40 to 45 miles per
hour at the time. Plaintiff admitted that black ice existed and confirmed that he did not encourage
Janet to slow down before the accident. When asked if the encounter of the black ice was
unexpected, he replied, “Completely, yes.”
According to Janet’s affidavit testimony, the black ice was “not in clear view” for her “for
any significant length of time” before she drove over it. She attested that, before she encountered
the black ice that caused the accident, she “had not encountered any black ice or icy road
conditions” that affected her ability to operate Knickerbocker’s car. Janet stated that she operated
the car “at a reasonable speed under the conditions that existed at the time of the accident,” that
plaintiff did not ask her to reduce her speed or otherwise alter her driving before the accident, and
that the sole cause of the accident was a sudden and unexpected encounter with black ice.
Plaintiff argues that the sudden-emergency doctrine did not apply because encountering
icy conditions while driving during a Michigan winter is neither unusual nor reasonably
unsuspected. This Court, however, has held that, although “it is not unusual for Michigan roads
to be icy in the winter, this does not mean that icy patches cannot be unsuspected.” Young v Flood,
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182 Mich App 538, 543; 452 NW2d 869 (1990).1 Indeed, “Michigan roads are not ice-covered
and dangerously slippery all winter long.” Id.; see also Vsetula v Whitmyer, 187 Mich App 675,
681; 468 NW2d 53 (1991) (citation omitted) (“Icy patches on Michigan roads in winter can be
unsuspected.”).2
Both plaintiff’s deposition and Janet’s affidavit testimonies establish that no material
factual dispute exists regarding whether Janet encountered unsuspected black ice. The record
reflects no evidence indicating otherwise.3 Because plaintiff failed to establish the existence of a
1
Cases decided before November 1, 1990, are not binding precedent, MCR 7.215(J)(1), but they
may be considered as persuasive authority. Aroma Wines & Equip, Inc v Columbian Distribution
Servs, Inc, 303 Mich App 441, 453 n 4; 844 NW2d 727 (2013). Such opinions, nevertheless, are
“entitled to significantly greater deference than are unpublished cases.” Woodring v Phoenix Ins
Co, 325 Mich App 108, 114-115; 923 NW2d 607 (2018).
2
In Slaughter v Blarney Castle Oil Co, 281 Mich App 474, 482-483; 760 NW2d 287 (2008), a slip
and fall case, this Court considered a similar argument that, because of Michigan’s winter weather,
“black ice” should be deemed open and obvious. This Court explained:
Perhaps the best way to ascertain whether black ice is open and obvious is
to examine the characteristics of black ice. Webster's New World College
Dictionary (4th ed.), p. 151, describes black ice as “a thin, nearly invisible layer of
ice on a paved road.” Merriam-Webster's Collegiate Dictionary (11th ed.), p. 129,
defines black ice as “a nearly transparent film of ice on a dark surface (as a paved
road or a body of water) that is difficult to see.” The American Heritage Dictionary
of the English Language (4th ed.), p. 191, defines black ice as “[a] thin, nearly
invisible coating of ice that forms on paved surfaces.” The New Oxford American
Dictionary (2nd ed.), p. 172, describes it as “a transparent coating of ice, found esp.
on a road or other paved surface.” The American Century Dictionary (2005), p. 60,
defines it as a “thin layer of invisible ice on a road, etc.”
The overriding principle behind the many definitions of black ice is that it
is either invisible or nearly invisible, transparent, or nearly transparent.
3
This case significantly differs from Price v Austin, ___ Mich ___; ___ NW2d ___ (2022), in
which our Supreme Court held that this Court erred by affirming the trial court’s grant of the
defendants’ motion for summary disposition based on the defendant-driver’s testimony that he
experienced a sudden medical emergency, because “[a]though some evidence supported the
defendant-driver’s testimony, only he could know what happened inside his truck that day or
whether he had any reason to suspect that an imminent syncopal episode might warrant certain
conduct.” Our Supreme Court explained that “[b]ecause the defendant-driver’s credibility was
crucial to the success of his sudden-emergency defense, summary disposition should not have been
granted.”
In this case, by contrast, plaintiff himself admitted in his deposition testimony that Janet
encountered a completely unexpected patch of black ice that caused her to lose control of the
vehicle. This case does not feature a defendant-driver’s independent claim of having encountered
a sudden emergency. Plaintiff’s testimony corroborated her affidavit.
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genuine issue of material fact concerning whether Janet unexpectedly encountered black ice, the
trial court properly concluded that the sudden-emergency doctrine applied.
Plaintiff contends that the trial court erred by disregarding multiple genuine issues of
material fact. First, plaintiff asserts that a question of fact existed regarding whether Janet
encountered black ice. Plaintiff argues that Janet’s affidavit, which asserted that she encountered
black ice, should have been disregarded because she filed the self-serving affidavit after the close
of discovery and did not establish how she determined that black ice existed. Plaintiff also
contends that Janet’s affidavit should be discounted entirely as legally insufficient.
Plaintiff takes umbrage with the filing of Janet’s affidavit after the close of discovery, but
the record indicates that plaintiff had an opportunity to question Janet during her deposition
regarding the circumstances of the accident but declined to do so. Moreover, plaintiff’s
characterization of Janet’s affidavit as self-serving is not persuasive, because Janet’s statement
regarding black ice comported with plaintiff’s unequivocal testimony that Janet unexpectedly
encountered black ice before her collision with the guardrail.
Plaintiff contends that Janet’s affidavit lacked legal sufficiency because she did not indicate
how she determined the presence of black ice on the road at the time of the accident. But plaintiff
does not explain how this purported defect rendered Janet’s affidavit legally insufficient.
Michigan courts “are not the research assistants of the litigants; the parties have a duty to fully
present their legal arguments to the court for its resolution of their dispute.” Walters v Nadell, 481
Mich 377, 388; 751 NW2d 431 (2008). “If a party fails to adequately brief a position, or support
a claim with authority, it is abandoned.” MOSES, Inc v SEMCOG, 270 Mich App 401, 417; 716
NW2d 278 (2006). Thus, plaintiff has abandoned this assertion by failing to adequately brief it.
Regardless, plaintiff’s contention lacks merit.
A motion for summary disposition under MCR 2.116(C)(10) must be supported by
substantively admissible evidence admissible in content, but “it does not have to be in admissible
form.” Barnard Mfg Co, Inc v Gates Performance Engineering, Inc, 285 Mich App 362, 373; 775
NW2d 618 (2009). “Although the trial court may only consider substantively admissible evidence,
a party does ‘not have to lay the foundation for the admission’ for evidence submitted in support
of or in opposition to a motion for summary disposition under MCR 2.116(C)(10) ‘as long as there
[is] a plausible basis for the admission’ of the evidence.” Airgas Specialty Prod v Mich
Occupational Safety & Health Admin, ___ Mich App ___, ___; ___ NW2d ___ (2021) (Docket
No. 351105) (alteration in original); slip op at 18, quoting Barnard Mfg, 285 Mich App at 373.
Janet could have testified regarding how she determined the presence of black ice, but
plaintiff chose not to inquire regarding that fact during her deposition. Plaintiff deposed Janet
approximately five months after plaintiff testified during his deposition that Janet unexpectedly
encountered black ice. The trial court could reasonably conclude that a plausible basis existed for
the admission of the substance of Janet’s affidavit.
Plaintiff contends that his own deposition testimony regarding black ice also should be
disregarded because he offered his mere belief or impression in that regard, and that his beliefs or
impressions are not dispositive of factual matters. But plaintiff unequivocally admitted that black
ice existed. Plaintiff’s contention that a question of fact exists regarding the presence of black ice
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is unavailing. Further, although plaintiff generally contends that a question of fact whether Janet
encountered black ice before the collision remains, plaintiff failed to present any evidence to the
contrary. A party opposing a motion for summary disposition “must present more than conjecture
and speculation to meet their burden of providing evidentiary proof establishing a genuine issue
of material fact.” Libralter Plastics, Inc, 199 Mich App at 486. Plaintiff, therefore, has failed to
establish that the trial court erred by ruling that Janet’s unexpected contact with black ice created
a sudden emergency.
Nonetheless, plaintiff argues further that, in the context of summary disposition, it was
nearly impossible for him to submit documentary evidence to counter Janet’s subjective claims
regarding the presence of black ice. Plaintiff, however, testified unequivocally that Janet
encountered black ice. Plaintiff cannot argue now that in fact no black ice existed.
Plaintiff also argues that, even if the trial court properly concluded that the unrebutted
evidence showed that black ice existed, then the trial court still erred by granting summary
disposition because a question of fact remained regarding whether Janet’s own negligence
contributed to the accident. Plaintiff contends that the trial court should not have disregarded the
police crash report which stated “Speed too Fast” in the hazardous action section, because the
report was substantively admissible. In essence, he asserts that the statement made by an officer
who attended the scene after the accident established a question of fact regarding whether Janet
drove at a reckless speed at the relevant time. “This Court has admitted lay opinion testimony
from investigating police officers regarding fault in traffic accidents when the testimony was the
result of direct observations and analysis of the accident scene.” Miller v Hensley, 244 Mich App
528, 531; 624 NW2d 582 (2001). In the context of summary disposition, a party may rely on
police reports to the extent that the reports contain a police officer’s “personal observations,”
because the officer could testify “at trial to the substance of the material in the reports.” Latits v
Phillips, 298 Mich App 109, 113-114; 826 NW2d 190 (2012). However, during a civil trial,
evidence of the issuance or nonissuance of a traffic citation is irrelevant, and thus inadmissible.
Brownell v Brown, 114 Mich App 760, 767; 319 NW2d 664 (1982).
In this case, plaintiff was asked during his deposition if he knew who called the police to
report the accident, and plaintiff replied that he did not, other than that it was “[s]omebody who
stopped.” The trial court stated that the only evidence in the record that contradicted plaintiff’s
testimony and Janet’s affidavit regarding the cause of the accident was the crash report, but
explained that the report was “inadmissible” because the police officer who authored it “wasn’t a
witness,” and there was “no affidavit from anybody” stating that Janet was speeding at the time of
the accident, and thus there was only “a mere allegation that she was.”
Plaintiff argues that the crash report was substantively admissible because the police officer
who authored the report could be called to testify regarding its substance. But the crash report
identifies two police officers, one as the investigating officer, and another as having reviewed it,
and the report itself does not indicate which officer entered the phrase “Speed too Fast” in the
hazardous action section. Further, there is no indication that either officer personally observed the
accident. Plaintiff’s deposition testimony indicated that an unknown person called the police after
the accident. No evidence in the record establishes that an officer was present when the accident
occurred and made the report based on the police officer’s personal observations. Accordingly,
the crash report statement lacked admissibility. The trial court did not err in this regard.
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Plaintiff also argues that a question of fact exists regarding whether a Michigan driver
should be aware of freezing conditions in freezing weather which he claims challenges whether
Janet’s actions were those of a reasonable person under the wintery circumstances. We disagree.
As discussed above, icy patches on a Michigan roadway during the winter can be un-
suspected. Vsetula, 187 Mich App at 681. At his deposition, plaintiff testified that Janet
unexpectedly encountered black ice, that Janet drove between 40 to 45 miles per hour when she
lost control of the car, and that he did not encourage her to slow down before the accident. His
testimony indicates that he felt that Janet drove in a reasonable manner under the circumstances.
Similarly, in her affidavit Janet attested that she unexpectedly encountered black ice while driving
at a reasonable speed. Plaintiff offers no substantively admissible evidence that shows that Janet’s
speed was unreasonable, or that her actions otherwise proximately contributed to the accident.
Moreover, plaintiff’s own testimony established that Janet drove in a reasonably prudent manner
before unexpectedly encountering the black ice and responded reasonably to the situation.
Plaintiff contends that the application of the sudden-emergency doctrine is necessarily a
jury question not properly determined in the context of summary disposition. Plaintiff relies on
Young, 182 Mich App 538, first contending that Young did not hold that the hazards of black ice
are always manifest by way of a sudden emergency. Young concerned whether a jury instruction
on the sudden-emergency doctrine was proper where the evidence showed that the defendant drove
reasonably when she unexpectedly encountered a patch of ice, when the instruction would permit
the jury to determine whether a sudden emergency excused the defendant’s violation of a statute
requiring her to drive on the right side of the road, and thus avoid an inference of negligence based
on her violation of that statutory duty. Young, 182 Mich App at 540-542. This Court held the
instruction proper because icy patches on the road can be unsuspected even in winter. Id. at 543.
This Court further explained that to hold otherwise would require Michigan drivers to “drive at all
times from November through April as if the roads were constantly covered with glare ice,” and
that “[s]uch a requirement would be unreasonable.” Id. at 544.
Plaintiff is correct to the extent that he contends that the Young panel did not hold that
black ice always created a sudden emergency, but instead held only that an unsuspected icy patch
in winter could create a sudden emergency. In this case, plaintiff’s testimony and Janet’s affidavit
testimony, both of which were uncontroverted in this particular, indicated that Janet unexpectedly
encountered a patch of black ice before losing control of the car. Plaintiff’s reliance on Young is
misplaced because no genuine issue of material fact existed regarding whether Janet encountered
unexpected black ice.
Plaintiff also contends that Young’s concern over the propriety of jury instructions thus
indicated that the application of the sudden-emergency doctrine should be always determined by
a jury. Young, however, did not address the sudden-emergency doctrine in the context of a motion
for summary disposition. Young, therefore, is inapposite to this case.
Plaintiff also seeks to rely upon Orzechowski v Orzechowski, unpublished per curiam
opinion of the Court of Appeals, issued September 20, 2018 (Docket No. 340085), to support his
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contention that the application of the sudden-emergency doctrine is always a question for the jury.4
Orzechowski, however, is inapposite, because, unlike in this case, substantively admissible
evidence in that case established a genuine issue of material fact. Unpub op pp 4-5.
As discussed previously, application of the sudden-emergency doctrine requires two
determinations: first, whether the driver encountered a sudden emergency, and, if so, then, second,
whether the driver’s actions caused the sudden emergency or otherwise contributed to the accident.
Socony Vacuum Oil Co, 313 Mich at 546. That the doctrine requires that second determination
shows that it does not relieve a driver from his or her own negligent acts that cause a sudden
emergency or otherwise contribute to an ensuing accident. Instead, the purpose of the doctrine is
to ensure that a driver is not held negligent for failing to prevent an accident that was not reasonably
foreseeable. See Hale, 271 Mich at 354.
While a jury typically decides whether a defendant satisfied the pertinent standard of care,
a court may do so “if it is of the opinion that all reasonable persons would agree . . . .” Case, 463
Mich at 7. If a plaintiff does not offer evidence showing that a defendant’s actions were not
reasonable in response to a sudden emergency, summary disposition in favor of the defendant is
proper. See Latham, 239 Mich App at 340.
Here, plaintiff’s testimony and Janet’s affidavit testimony established that Janet
encountered unsuspected black ice while driving at a reasonable speed, and that she lost control of
the car because of the sudden emergency caused by the black ice. Plaintiff failed to submit
substantively admissible evidence to the contrary. Accordingly, the trial court properly granted
defendants summary disposition and dismissed this case.
Affirmed.
/s/ Anica Letica
/s/ James Robert Redford
/s/ Michelle M. Rick
4
Under MCR 7.215(C)(1), unpublished opinions are “not precedentially binding under the rule of
stare decisis.” Nonetheless, an unpublished opinion may “be considered instructive or persuasive.”
Paris Meadows, LLC v Kentwood, 287 Mich App 136, 145 n 3; 783 NW2d 133 (2010).
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