Baumann v. Potts

• Decision Date: 03 April 1978
• Docket Number: Docket No. 30006
• Citation: 266 N.W.2d 766,82 Mich.App. 225
• Parties: Lee R. BAUMANN and Jeanne Ellen Baumann, Plaintiffs-Appellants, v. Donald Clyde POTTS, Defendant-Appellee. 82 Mich.App. 225, 266 N.W.2d 766
• Court: Court of Appeal of Michigan — District of US

Page 766

266 N.W.2d 766

Lee R. BAUMANN and Jeanne Ellen Baumann Plaintiffs-Appellants, v. Donald Clyde POTTS, Defendant-Appellee.

Docket No. 30006.

82 Mich.App. 225, 266 N.W.2d 766

Court of Appeals of Michigan.

April 3, 1978.

Released for Publication June 27, 1978.

[82 MICHAPP 227] Moore, Barr & Kerwin by Charles J. Barr, Detroit, for plaintiffs-appellants.

[82 MICHAPP 228] A. T. Lippert, Jr., Saginaw, for defendant-appellee.

Before D. E. HOLBROOK, Jr., P. J., ALLEN and FREEMAN, ^* JJ.

D. E. HOLBROOK, Jr., Presiding Judge.

This rear-end collision case resulted in a jury verdict of no cause of action. During the course of trial plaintiffs moved for a directed verdict, which motion was denied. Subsequent to the jury verdict plaintiffs moved for a new trial, which motion was also denied, and plaintiffs appeal. The facts necessary to resolve this dispute will be hereafter set forth where necessary and applicable.

On appeal plaintiffs claim first, that the sudden emergency defense should not be extended to excuse violation of the brake equipment statute, M.C.L.A. § 257.705; M.S.A. § 9.2405; second, that, if we do allow the sudden emergency defense to be available in brake failure cases, we should limit same to such situations where the defendant has presented clear and convincing evidence corroborating his claim; and, third, that the verdict of the jury was contrary to the great weight of the evidence. In answering appellant's contentions, although not necessarily seriatim, we find ourselves compelled to turn to three Michigan cases.

In Zeni v. Anderson, 397 Mich. 117, at 129 and 130, 243 N.W.2d 270, at 276 (1976), the Supreme Court, speaking through Mr. Justice Williams, stated:

"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 by a showing on the part of the [82 MICHAPP 229] party violating the statute of an adequate excuse 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." (Emphasis supplied.)

At 143, 243 N.W.2d at 283 Justice Williams continued:

"We have seen, therefore, that while some of our Michigan cases seem to present negligence per se as an unqualified rule, the fact of the matter is that there are a number of qualifications which make application of this rule not really a per se approach at all. Not only must the statutory purpose doctrine and the requirement of proximate cause be satisfied, but the alleged wrongdoer has an opportunity to come forward with evidence rebutting the presumption of negligence.

"An accurate statement of our law is that when a court adopts a penal statute as the standard of care in an action for negligence, violation of that statute establishes a prima facie case of negligence, with the determination to be made by the finder of fact whether the party accused of violating the statute has established a legally sufficient excuse. If the finder of fact determines such an excuse exists, the appropriate standard of care then becomes that established by the common law. Such excuses shall include, but shall not be limited to, those suggested by the Second Restatement of Torts, (2d,) § 228A, and shall be determined by the circumstances of each case." (Emphasis supplied.)

In Szymborski v. Slatina, 386 Mich. 339, 192 N.W.2d 213 (1971), which was also a rear-end collision case, plaintiff claimed, among other things, that the trial court erred in its charge to the jury by failing to instruct them that the statutory [82 MICHAPP 230] presumption of negligence arising from a rear-end collision could only be overcome by clear, positive and credible evidence and further by failing to instruct the jury that the defendant had the burden of proof upon the question of "sudden emergency". In resolving these claims of error the Court stated at 340 and 341, 192 N.W.2d at 214:

"On the statutory presumption:

" 'Where, however, we are dealing with the rear-end presumption, it appears that the standard urged by the plaintiff is pertinent only to the issue of whether the presumption has been rebutted as a matter of law. Petrosky v. Dziurman (1962), 367 Mich. 539, 547, 116 N.W.2d 748. This standard is one for the judge. If the evidence is less than clear, positive and credible, "the question whether such presumption has been overcome should be settled on proper instruction of course in the jury room." Petrosky v. Dziurman, supra, 544, 545, 116 N.W.2d (748,) 750, citing Garrigan v. LaSalle Coca-Cola Bottling Co. (1961), 362 Mich. 262, 106 N.W.2d 807. The trial court did not err in refusing to instruct that the jury could find that the presumption was rebutted only upon clear, positive and credible evidence.'

"On sudden emergency:

" ' "The doctrine of sudden emergency is a 'logical extension of the "reasonably prudent person" rule,' and as such is not an affirmative defense. Baker v. Alt (1965), 374 Mich. 492, 496, 132 N.W.2d 614. As it was said in Baker, at p. 496, 132 N.W.2d (614), at 616, 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.' " (Emphasis supplied.) Since the "sudden emergency " rule is not an affirmative defense, it was not incumbent upon the defendant to establish by a preponderance of the evidence that an emergency existed nor was it error for the judge to refuse to so charge. ' " (Emphasis supplied.)

In Lucas v. Carson, 38 Mich.App. 552, 557, 196 N.W.2d 819, 822 (1972), then Judge now Justice Fitzgerald, speaking for the Court, in addressing the [82 MICHAPP 231] issue of what evidence is necessary to rebut the presumption of negligence arising from violation of a penal statute wrote as follows:

"The general rule appears to be that evidence required to rebut this presumption as a matter of law should be positive, unequivocal, strong, and credible. Krisher v. Duff, 331 Mich. 699, 50 N.W.2d 332 (1951); Petrosky v. Dziurman, 367 Mich. 539, 116 N.W.2d 748 (1962). In the case at bar, defendant driver contended that she was at all times driving in a reasonable and prudent manner.

"Although the issue presented here is a close one, the trial court was correct in its decision that there was sufficient evidence on the issue of reasonable care to present a factual consideration for the jury and to preclude a directed verdict for plaintiff as a matter of law. Although the statutory presumption of negligence was certainly not rebutted by defendants' evidence as a matter of law, the trial court decided that there was sufficient evidence at least to generate a jury question regarding rebutting of the presumption."

The foregoing standard was cited and adopted by the Supreme Court in Zeni v. Anderson, supra, 397 Mich. at 133, 134, 135, 243 N.W.2d 270.

From the above cited cases we conclude that (1) a violation of a penal statute creates a prima facie case of negligence, a presumption which can be rebutted by affording the alleged wrongdoer an opportunity to come forward with evidence showing an adequate or legally sufficient excuse under the facts and circumstances of the case; (2) whether the party accused of violating the statute has established an adequate or legally sufficient excuse is a determination to be made by the finder of fact on proper instruction; (3) the test to be applied by the finder of fact is what a reasonable prudent person would have done under all the circumstances of the accident; (4) the clear, positive[82 MICHAPP 232] and credible test set forth in Szymborski, supra, the positive, unequivocal, strong and credible test adopted by Lucas, supra, and, as previously stated, approved of by the Supreme Court in Zeni v. Anderson, supra at 133, 134, 135, 243 N.W.2d 270, and the clear and convincing test urged upon us by the plaintiffs in the instant case apply only to the question of whether the presumption of negligence for violation of a penal statute has been rebutted as a matter of law and do not control the issue of whether the facts in a particular case should be submitted for jury determination; (5) the "sudden emergency" doctrine is not an affirmative defense; and (6) it is not incumbent upon the defendant to establish by a preponderance of the evidence that an emergency existed and therefore as to...