Zeni v. Anderson

• Decision Date: 08 July 1976
• Docket Number: No. 8,8
• Citation: 397 Mich. 117,243 N.W.2d 270
• Parties: Eleanor K. ZENI, Plaintiff-Appellant and Cross-Appellee, v. Karen ANDERSON and Donald Anderson, Defendants-Appellees and Cross-Appellants. 397 Mich. 117, 243 N.W.2d 270
• Court: Michigan Supreme Court

Page 270

243 N.W.2d 270

Eleanor K. ZENI, Plaintiff-Appellant and Cross-Appellee, v. Karen ANDERSON and Donald Anderson, Defendants-Appellees and Cross-Appellants.

No. 8.

397 Mich. 117, 243 N.W.2d 270

Supreme Court of Michigan July 8, 1976.

Kendricks, Bordeau, Casselman & Adamini, P.C., Marquette, by George T. Kendricks, Marquette, for plaintiff-appellant and cross-appellee.

McDonald & McDonald by John E. McDonald, Marquette, for defendants-appellees and cross-appellants.

WILLIAMS, Justice.

Two issues confront us in this negligence case. The first is the effect of an alleged violation of statute by plaintiff. The second is the sufficiency of Michigan Standard Jury Instruction 14.01 on last clear chance. We hold that violation of a statute by plaintiff or defendant creates a prima facie case from which a jury may draw an inference of negligence. The jury may also consider whether a legally sufficient excuse has been presented to refute this inference. As for the second question, we find that the approach of the American Law Institute in the second Restatement of Torts gives a clear and decisive statement of the law of last clear chance and that Michigan case law basically supports the Restatement. However, because of the specific facts of this case a new trial is not necessary, and we therefore reverse the Court of Appeals and affirm the trial court.

I--FACTS

The accident which precipitated this action occurred one snowy morning, March 7, 1969, when the temperature was 11 F, the sky was clear and the average snow depth was 21 inches. Plaintiff Eleanor Zeni, then a 56-year-old registered nurse, was walking to her work at the Northern Michigan University Health Center in Marquette. Instead of using the snow-covered sidewalk, which in any event would have required her to walk across the street twice to get to her job, she traveled along a well-used pedestrian snowpath, with her back to oncoming traffic.

Defendant Karen Anderson, a college student, was driving within the speed limit in a steady stream of traffic on the same street. Ms. Anderson testified that she had turned on the defroster in the car and her passenger said she had scraped the windshield. An eyewitness whose deposition was read at trial, however, testified that defendant's windshield was clouded and he doubted that the occupants could see out. He also testified that the car was traveling too close to the curb and that he could tell plaintiff was going to be hit.

Defendant's car struck the plaintiff on the driver's right side. Ms. Anderson testified she first saw the plaintiff between a car parked on the right-hand side of the road and defendant's car, and that she did not hear nor feel her car strike Ms. Zeni. The eyewitness reported seeing plaintiff flip over the fender and hood. He said when he went over to help her his knees were on or inside the white line delineating a parking space. A security officer observed blood stains on the pavement approximately 13 feet from the curb.

Ms. Zeni's injuries were serious and included an intra-cerebral subdural hematoma which required neurosurgery. She has retrograde amnesia and therefore, because she does not remember anything from the time she began walking that morning until sometime after the impact, there is no way to determine whether she knew defendant was behind her. Following an extended period of convalescence, plaintiff, still suffering permanent disability, could return to work on only a part-time basis.

Testimony at trial indicated that it was common for nurses to use the roadway to reach the Health Center, and a security officer testified that in the wintertime it was safer to walk there than on the one sidewalk. Apparently, several days before the accident, Ms. Zeni had indeed fallen on the sidewalk. Although she was not hurt when she fell, the Director of University Security was hospitalized when he fell on the walk.

Defendant, however, maintained that plaintiff's failure to use that sidewalk constituted contributory negligence because, she said, it violated M.C.L.A. § 257.655; M.S.A. § 9.2355, which requires:

'Where sidewalks are provided, it shall be unlawful for pedestrians to walk upon the main traveled portion of the highway. Where sidewalks are not provided, pedestrians shall, when practicable, walk on the left side of the highway facing traffic which passes nearest.'

The trial court instructed the jury on this point:

'Now, it is for you to decide whether on the evidence presented in this case, sidewalks were provided for the plaintiff, Mrs. Zeni, to go from parking lot 'X' (where she parked her car before beginning her walk) to her place of work. Then, as to this statute, you shall then decide whether or not it was practicable for her to walk on the left side of the highway facing traffic which passes nearest. If you find that the plaintiff, Mrs. Zeni, violated this statute before or at the time of the occurrence, then Mrs. Zeni was negligent as a matter of law, which, of course, would bar her claim under Count I, providing that her negligence was a proximate contributing cause of the occurrence.'

The trial court also instructed the jury, over defendant's objection, that even if they found plaintiff was negligent, and that her negligence was a proximate cause of her injuries, a verdict for plaintiff was still possible if defendant was subsequently negligent for failing to use ordinary care with the means at hand after she knew or should have known of plaintiff's danger. ¹ Defendant objected to the court instructing the jury on subsequent negligence, or last clear chance, claiming that, since plaintiff's negligence in walking in the street had not come to rest prior to the time she was struck by the defendant, the instruction was inapplicable. ² The trial court held that the question of whether negligence was concurrent was for the jury, and gave the Michigan Standard Jury Instruction 14.01:

'Even though you find Mrs. Zeni by her own negligence placed herself in a position of danger, that will not defeat her claim for damages if defendant * * * failed to use ordinary care with the means at hand after the defendant knew or should have known of Mrs. Zeni's danger.'

He also instructed on burden of proof, ³ as recommended by the Note on Use, SJI 14.01, as well as on proximate cause. ⁴

The jury found defendant 'guilty of subsequent negligence' and awarded plaintiff damages of $30,000.

The Court of Appeals, in a thorough opinion, Zeni v. Anderson, 56 Mich.App. 283, 224 N.W.2d 310 (1974), found first it was a question of fact whether M.C.L.A. § 257.655; M.S.A. § 9.2355 relating to failure to use a sidewalk applied to the case, ⁵ 56 Mich.App. 283, 296, 224 N.W.2d 310, and whether if Ms. Zeni were found to be negligent, such negligence was a proximate cause of her injuries. 56 Mich.App. 283, 297--298, 224 N.W.2d 310. Further, it was not incorrect to instruct on last clear chance. However, the Court of Appeals found that the instruction given was incorrect. Holding that the doctrine of last clear chance 'does not apply where the negligence of both parties is concurrent and proximately causes plaintiff's injury,' 56 Mich.App. 283, 301, 224 N.W.2d 310, 320, the court found that 'SJI 14.01 is in its wording deficient without further explanation,' 56 Mich.App. 283, 302, 224 N.W.2d 310, 321; inasmuch as it does not advise the jury that plaintiff's negligence must cease to operate as a proximate cause of the ensuing injury. The Court of Appeals therefore reversed and remanded for a new trial.

We granted leave to appeal January 29, 1975. 393 Mich. 804.

II--EFFECT OF VIOLATION OF STATUTE

An analysis of the Michigan cases indicates that the real Michigan rule as to the effect of violation of a penal statute in a negligence action ⁶ is that such violation creates only a prima facie case from which the jury may draw an inference of negligence. It is true that a number of passages in cases speak of negligence per se almost in terms of strict liability, but closer examination of the application of the rule reveals that Michigan does not subscribe to such a harsh dogma.

A. Violation of Statute as Rebuttable Presumption

In a growing number of states, the rule concerning the proper role of a penal statute in a civil action for damages is that violation of the statute which has been found to apply to a particular set of facts establishes only a prima facie case of negligence, a presumption which may be rebutted ⁷ by a showing on the part of the party violating the statute of an adequate excuse ⁸ under the facts and circumstances of the case. The excuses may not necessarily be applicable in a criminal action, since, in the absence of legislatively-mandated civil penalties, acceptance of the criminal statute itself as a standard of care in a civil action is purely discretionary. See Comment and Illustrations, 2 Restatement Torts, 2d, § 288A, pp. 33--37.

Michigan cases have in effect followed this rule. For example, over a 65 year period, cases concerning the effect in a negligence action of violation of the statute requiring vehicles to keep to the right side of the road have almost consistently adopted a rebuttable presumption approach, even though the language of the statute is not written in terms of a presumption. ⁹

Thus, in Tyler v. Nelson, 109 Mich. 37, 41, 66 N.W. 671, 673 (1896), we approved a charge to the jury that even though the 'law of the road' required driving to the right,

'if, Under all the circumstances, it was apparently safer for him to turn to the left, and he did only what a man of ordinary prudence would have done under similar circumstances, then he had a right to disregard the law of the road in that particular, and his turning to the left would not in itself be negligence.' (Emphasis added.)

Again, in Buxton v. Ainsworth, 138 Mich. 532, 536, 101 N.W. 817, 818 (1904), although the statute was not specifically mentioned, we said:

'As an abstract pro...