Leon v. Norman et al

Filing 43

OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF MICHIGAN S O U T H E R N DIVISION

E D U A R D O A. LEON, P l a in tif f , F ile No. 1:08-CV-1202 v. Hon. Robert Holmes Bell J A M E S MICHAEL NORMAN, and J A M E S ELDON BELCHER, D e f e n d a n ts . / OPINION T h is diversity automobile negligence action is before the Court on Defendant James E ldo n Belcher's motion for summary judgment, or, in the alternative, for partial summary ju d g m e n t.1 For the reasons that follow, Defendant Belcher's motion for summary judgment w ill be granted. I. A t approximately 4:30 a.m. on July 19, 2006, Plaintiff Eduardo A. Leon was in a v e h ic le in the northbound lane of Highway U.S. 131 when he was struck from behind by a

Defendant Belcher has also requested partial summary judgment on Plaintiff's claim f o r wage loss beyond the three-year period of no-fault immunity. Plaintiff is not opposed to D e f e n d a n t's request for summary judgment on this issue. (Dkt. No. 38, Pl.'s Resp. Br. 8 n .2 .) In any event, Belcher's request for partial summary judgment is mooted by the Court's d e te rm in a tio n that Belcher is entitled to summary judgment.

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v e h ic le driven by Defendant James Michael Norman. After the collision, Norman pulled o v e r onto the left-hand shoulder of the highway. Plaintiff's vehicle was stopped in the right la n e of the highway, approximately two car lengths ahead of Norman's vehicle. Soon after th e first collision, Plaintiff's vehicle was struck from behind a second time by a vehicle driven by Defendant Belcher. Plaintiff's car burst into flames and Plaintiff sustained injuries. P la in tif f filed this automobile negligence action against Defendants Norman and B e lch e r. Plaintiff's negligence claim against Defendant Norman has been dismissed with p rejud ice. (Dkt. No. 32, Order for Dismissal.) The only remaining claim is Plaintiff's n e g lig e n c e claim against Defendant Belcher. Defendant Belcher has filed a motion for s u m m a ry judgment. II. U n d e r Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is p ro p e r if there is no genuine issue as to any material fact and the moving party is entitled to ju d g m e n t as a matter of law. In evaluating a motion for summary judgment the Court must lo o k beyond the pleadings and assess the proof to determine whether there is a genuine need f o r trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). If D e f e n d a n t carries his burden of showing there is an absence of evidence to support a claim, th e n Plaintiff must demonstrate by affidavits, depositions, answers to interrogatories, and a d m is s io n s on file, that there is a genuine issue of material fact for trial. Celotex Corp. v. C a tre tt, 477 U.S. 317, 324-25 (1986).

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In considering a motion for summary judgment, the Court must construe the evidence a n d draw all reasonable inferences in favor of the nonmoving party. Minges Creek, L.L.C. v . Royal Ins. Co. of Am., 442 F.3d 953, 955-56 (6th Cir. 2006) (citing Matsushita, 475 U.S. a t 587). Nevertheless, the mere existence of a scintilla of evidence in support of Plaintiff's p o s itio n is not sufficient to create a genuine issue of material fact. Anderson v. Liberty L o b b y , Inc., 477 U.S. 242, 252 (1986). The proper inquiry is whether the evidence is such th a t a reasonable jury could return a verdict for Plaintiff. Id.; see generally Street v. J.C. B r a d fo r d & Co., 886 F.2d 1472, 1476-80 (6th Cir. 1989). I I I. D e f en d a n t Belcher contends that he is entitled to summary judgment because Plaintiff h a s presented no admissible evidence in support of the allegation that Defendant Belcher was n e g lig e n t in any respect. Plaintiff contends that Defendant's motion for summary judgment should be denied b e c a u se there is an issue of fact for trial as to whether Belcher was negligent in failing to n o tic e Norman's hazard flashers in time to avoid the impact, and because Belcher violated th e assured-clear-distance statute. "To establish a prima facie case of negligence, a plaintiff must prove four elements: (1 ) a duty owed by the defendant to the plaintiff, (2) a breach of that duty, (3) causation, and (4 ) damages." Case v. Consumers Power Co., 615 N.W.2d 17, 20 (Mich. 2000) (citing S c h u ltz v. Consumers Power Co., 506 N.W.2d 175 (Mich. 1993)). A driver owes a duty to

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o th e r motorists to exercise ordinary and reasonable care and caution in the operation of his v e h ic le . Zarecki v.Hatch, 79 N.W.2d 605, 607 (Mich. 1956). A driver also has a statutory d u ty to drive at a careful and prudent speed in light of existing conditions. Mich. Comp. L a w s § 257.627(1). A driver must not drive at a speed greater than that which will allow him o r her to stop within the assured, clear distance ahead. Id. The assured-clear-distance statute is inapplicable when a collision is shown to have occurred as the result of a sudden e m e rg e n c y not of the defendant driver's own making. VanderLaan v. Miedema, 188 N.W.2d 5 6 4 , 567 (Mich. 1971). (citing McKinney v. Anderson, 129 N.W.2d 851, 853 (Mich. 1964)). According to Defendant Belcher, there is no evidence from which a jury could re a so n a b l y find that he was not exercising ordinary and reasonable care and caution in the o p e ra tio n of his car at the time of the collision. In support of his motion, Belcher directs the C o u rt's attention to the uncontroverted evidence that at the time of the collision Defendant B e lc h e r was driving within the speed limit,2 it was dark,3 there were no lights on either P la in tif f 's or Norman's vehicle,4 and Plaintiff's vehicle was stopped in the right lane of the h ig h w a y. Belcher testified that he was faced with a sudden emergency:

Belcher testified that he had his cruise control set at 65 miles per hour. (Belcher Dep. 2 9 .) Kevin Frazier, who was driving in a vehicle behind Belcher, testified that he was tra v e lin g at 71 mph and was gaining on Belcher just prior to the collision. (Frazier Dep. 10.) F ra z ier testified that it was a "really dark" morning. darker than usual, and there is n o artificial lighting illuminating the area. (Frazier Dep. 10, 18-19.) Norman similarly testified that it was dark and there were no street lights. (Norman Dep. 11.)
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(Belcher Dep. 31-32; Frazier Dep. 11, 21, 28.) 4

I was cruising along and all of a sudden there's a stopped car right dead in f ro n t of me. I had no time to swerve, nothing. I noticed a car off on the left a n d a stopped car dead in the center of me. All I could do was slam on the brakes. (B e lc h e r Dep. 30.) Belcher saw Norman's car on the left "[j]ust nanoseconds before I seen th e one stopped in front of me." (Belcher Dep. 31.). Plaintiff does not suggest that Belcher was speeding.5 Plaintiff does not deny that it w a s dark, that his car was unlit, or that his car was stopped in the right lane of travel.6 N e v e r th e l e ss , Plaintiff contends that Belcher is not entitled to summary judgment because th e re is an issue of fact as to whether Norman's hazard lights were on. Plaintiff has hired an accident reconstructionist, Gary J. McDonald, who has opined th a t Belcher violated the basic speed law and Michigan Vehicle Code section 257.627 by f a ilin g to adjust his speed for conditions ahead. (McDonald Dep. 24-25; Pl. Br. in Opp'n, E x . 5, McDonald Report.) According to McDonald, the conditions that Belcher failed to a p p re c iate or adjust for were the flashing hazard lights of the Norman vehicle. (McDonald D e p . 24-25.) Under Michigan law, "warning lights shall be visible from a distance of not

Plaintiff's accident reconstructionist, Gary McDonald, did not perform a speed a n a lys is with respect to any of the three vehicles. He did not testify that Belcher was tra v e lin g above the posted speed limit or that he failed to maintain an assured clear distance ah ea d . (McDonald Dep. 24-25, 28-29.) Leon testified that it was dark, and that he had no knowledge of whether his car was s to p p e d or whether he had any running lights on his car at the time of the second collision. (L e o n Dep. 62, 67.) Norman testified that Leon's vehicle was stopped after Norman hit it. (N o rm an Dep. 19, 31.)
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le s s than 500 feet under normal atmospheric conditions at night." Mich. Comp. Laws § 257.698a. Because the road was straight and flat, Plaintiff contends there is an issue of fact a s to whether the hazard lights should have given Belcher sufficient time to avoid the c o llis io n with Leon's vehicle. McDonald testified that whether or not Belcher did something w ro n g that contributed to the accident "would depend if Norman's lights were on, the f la sh e rs were on." (McDonald Dep. 35.) If Norman's flashers were not on, then

M c D o n a ld 's opinion would be that Belcher did not do anything wrong. (McDonald Dep. 353 6 .) Plaintiff's theory of liability accordingly depends on whether Norman's hazard lights w ere flashing after the accident. Both Belcher and Frazier testified at length that there were n o lights on Norman's vehicle. Belcher testified that "There was no lights whatsoever on e ith e r vehicle." (Belcher Dep. 31.) "They were both sitting there in the dark." (Belcher D e p . 32.) Frazier was driving behind Belcher, but he could see in front of Belcher because there were no hills or other obstructions. (Frazier Dep. 28.) Frazier testified that before B e lc h e r hit Leon, there were no warning lights or any indication that there was something a h e ad . (Frazier Dep. 21.) Frazier did not see Norman's car until after the accident had o c c u rre d and a fire was illuminating the area. (Frazier Dep. 21.) In fact, Frazier thought B e lch e r must have hit a deer "because we seen no lights in front of him or nothing to indicate there was any -- there was no cars in front of him for a long ways." (Frazier Dep. 11.) Plaintiff has presented no testimony from any witness that the hazard lights on

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N o rm a n 's car were flashing. Neither has Plaintiff offered any evidence to suggest that B e lc h e r's or Frazier's statements were not credible. The only evidence Plaintiff has p rese n ted in opposition to Belcher's direct and substantial evidence that there were no hazard lig h ts on Norman's vehicle, is Norman's passing reference to having "turned on" his flashers a n d gotten out of his vehicle before witnessing the second collision. (Norman Dep. 14, 17.) T h e material issue, however, is not whether Norman turned the lights on, but whether the lig h ts in fact went on. For purposes of this summary judgment motion the Court must d e t e rm in e whether Norman's statement that he "turned on my flashers" is sufficient to raise a reasonable inference that the lights were in fact activated by his action. The Court finds th a t it is not. A lth o u g h Norman testified that his vehicle was mechanically sound before the a c c id e n t, the evidence is unrefuted that he had been traveling at 70 miles per hour moments b e f o re he collided into the rear end of end of Leon's vehicle, and that as a result of the c o llisio n , the air bag exploded, Norman was injured, and the front end of Norman's vehicle w a s damaged and pushed back toward the driver's compartment. (Normand Dep. 9, 14, 22, 3 0 .) Although Norman testified that turned on his flashers after the accident, (Norman Dep. 1 4 ), he gave no testimony as to whether the lamping system was functional after the collision, o r whether his hazard lights began flashing. Norman's vehicle was towed to a shop in P la in w e ll. (Norman Dep. 30.) Plaintiff has not presented any evidence from the body shop th a t the hazard lights were operational after the accident. Norman is not aware of the

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ex isten ce of any photos of his vehicle after the accident. (Norman Dep. 29.) Plaintiff's e x p e rt did not examine any of the three vehicles involved in the accident and gave no te stim o n y about whether the lamping system in Norman's vehicle was, or would have been, o p e ra tio n a l after the accident. (McDonald Dep. 29, 34.) V ie w in g the facts in the light most favorable to Plaintiff, the Court concludes that P lain tiff 's evidence that Norman "turned on" his flashers does not raise a reasonable in f e re n c e that Norman's hazard lights were in fact activated, and does not create an issue of f a c t as to whether Norman's hazard lights were flashing before Belcher collided with P la in tif f 's vehicle. Plaintiff has failed to sustain his burden of demonstrating that there is an is s u e of fact for trial as to Defendant Belcher's negligence. Accordingly, Defendant Belcher is entitled to judgment as a matter of law. An order and judgment consistent with this opinion will be entered.

Dated: January 7, 2010

/s/ Robert Holmes Bell ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE

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