Fischer v. United States, Case No. 1:19-cv-13020
| Docket Number | Case No. 1:19-cv-13020 |
| Decision Date | 04 January 2022 |
| Citation | 591 F.Supp.3d 222 |
| Parties | Jack FISCHER, Plaintiffs, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Eastern District of Michigan |
Michael E. Freifeld, Johnson Law, PLC, Flint, MI, Vernon R. Johnson, Johnson Law, PLC, Detroit, MI, Thomas W. Waun, Grand Blanc, MI, for Plaintiffs.
Benjamin A. Anchill, U.S. Attorney's Office, Detroit, MI, Bradley Darling, U.S Department of Justice, Detroit, MI, for Defendant.
ORDER DENYING PLAINTIFF'S FIRST AND SECOND MOTIONS IN LIMINE AND DEFENDANT'S FIRST MOTION IN LIMINE, AND GRANTING DEFENDANT'S SECOND MOTION IN LIMINE
Plaintiff Jack Fischer and Defendant the United States (the "Government") have both filed motions in limine. ECF No. 35 (); ECF No. 36 (); ECF No. 37 ; ECF No. 38 (Def.’s Mot. in Lim. to Qualify Expert). For the reasons stated hereafter, Plaintiff's motions, ECF Nos. 35; 36, will be denied; the Government's first motion, ECF No. 37, will be denied; and the Government's second motion, ECF No. 38, will be granted.
This case arises from a relatively routine "approach-from-the-rear daylight collision" set of events: here, with the Government's postal truck being overtaken by Plaintiff's motorcycle.
The driver of the postal truck ("Patton") testified that he braked almost to a stop slightly over the center of the roadway to turn left while signaling and using his mirrors to watch behind his vehicle. Patton explains that he neither saw nor heard any automobile or warning signal from the rear but halted when something suddenly caught his eye in the side-view mirror. As Patton braked and turned left, Plaintiff accelerated to pass in the left lane, but the right pedal of his motorcycle hooked the back of the postal truck's front-left bumper.
Plaintiff lost control and crashed. Suffering life-threatening injuries, he was medevaced from the scene of the accident.
Eighteen days later, Plaintiff brought this case under the Federal Tort Claims Act (FTCA), which states, with exceptions not applicable here, that the Government is liable for:
personal injury ... caused by the negligent ... act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
28 U.S.C. § 1346(b)(1).
In April 2021, the Government filed a motion for summary judgment, which Judge Friedman denied on June 1, 2021. See ECF No. 30. Twenty-three days into the case, one of Judge Friedman's former law clerks, Assistant United States Attorney Benjamin A. Anchill, filed a notice of appearance to represent the Government. ECF No. 31. Judge Friedman recused himself the next day under 28 U.S.C. § 455(a), reassigning the case to this Court. ECF No. 32. On August 31, 2021, both parties filed two motions in limine. ECF Nos. 35; 36; 37; 38.
As Michigan is the loci delicti commissi , Michigan law determines the extent of the parties’ liabilities. 28 U.S.C. § 1346(b)(1) ; Premo v. United States , 599 F.3d 540, 545 (6th Cir. 2010) ; Young v. United States , 71 F.3d 1238, 1242 (6th Cir. 1995) ; see also Amie L. Medley, Note, A Sea of Confusion: The Shipowner's Limitation of Liability Act as an Independent Basis for Admiralty Jurisdiction , 108 MICH. L. REV . 229, 254 n.87 (2009) () (citing BLACK'S LAW DICTIONARY 930 (8th ed. 2004)).
Plaintiff contends that Patton's negligence caused his injuries; the Government contends that Plaintiff's own negligence caused his injuries. To that end, Plaintiff's first motion in limine argues that Michigan Compiled Laws § 257.636(1)(a) and 257.638(1) establish Plaintiff's duty and that Michigan Compiled Laws § 257.636(1)(b), 257.642(1)(a), and 257.648(1) establish Patton's duty. See ECF No. 35 at PageID.443–46. By contrast, the Government's first motion in limine argues that "[Patton] had the right of way" because Plaintiff violated Michigan Compiled Laws § 257.627, 257.643, and 257.638. ECF No. 37 at PageID.661, 672
The seven provisions identified by the parties read as follows:
A person operating a vehicle on a highway shall operate that vehicle at a careful and prudent speed not greater than nor less than is reasonable and proper, having due regard to the traffic, surface, and width of the highway and of any other condition existing at the time. A person shall not operate a vehicle upon a highway at a speed greater than that which will permit a stop within the assured, clear distance ahead. A violation of this subsection shall be known and may be referred to as a violation of the basic speed law or "VBSL".
The driver of a vehicle overtaking another vehicle proceeding in the same direction shall pass at a safe distance to the left of that vehicle, and when safely clear of the overtaken vehicle shall take up a position as near the right-hand edge of the main traveled portion of the highway as is practicable.
MICH. COMP. LAWS § 257.636(1)(a).
Except when overtaking and passing on the right is permitted, the driver of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle and shall not increase the speed of his or her vehicle until completely passed by the overtaking vehicle.
MICH. COMP. LAWS § 257.636(1)(b).
A vehicle shall not be driven to the left side of the center of a 2-lane highway or in the center lane of a 3-lane highway in overtaking and passing another vehicle proceeding in the same direction unless the left side or center lane is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit the overtaking and passing to be completely made without interfering with the safe operation of a vehicle approaching from the opposite direction or the vehicle overtaken.
MICH. COMP. LAWS § 257.638(1).
When a roadway has been divided into 2 or more clearly marked lanes for traffic ... [a] vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from the lane until the operator has first ascertained that the movement can be made with safety. Upon a roadway with 4 or more lanes that provides for 2-way movement of traffic, a vehicle shall be operated within the extreme right-hand lane except when overtaking and passing, but shall not cross the center line of the roadway except where making a left turn.
MICH. COMP. LAWS § 257.642(1)(a).
The operator of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of the vehicles and the traffic upon and the condition of the highway.
The operator of a vehicle or bicycle upon a highway, before stopping or turning from a direct line, shall first determine that the stopping or turning can be made in safety and shall give a signal as required in this section.... [A] signal required under this section shall be given either by means of the hand and arm in the manner specified in this section, or by a mechanical or electrical signal device that conveys an intelligible signal or warning to other highway traffic.
MICH. COMP. LAWS § 257.648(1) – (2).
All seven provisions apply, to some extent, to the factual predicament in this case. United States v. Dedman , 527 F.3d 577, 587 (6th Cir. 2008) (). They are all rules of the road that set forth standards of care for stopping, turning, changing lanes, following, passing, or some combination of them. See, e.g. , Gerardi v. Walters , No. 318233, 2015 WL 213240, at *5 (Mich. Ct. App. Jan. 15, 2015) ().
Although none of the seven statutes address their priority in relation to each other, the Michigan Supreme Court, sitting en banc, has addressed the issue as relevant in this case. See Hoffman v. Burkhead , 353 Mich. 47, 90 N.W.2d 498 (1958) (en banc); see also Carll v. Ware , No. 1:96-CV-173, 1997 WL 269489 (W.D. Mich. Apr. 14, 1997) (); People v. Hrlic , 277 Mich.App. 260, 744 N.W.2d 221 (2007) (per curiam) ().
In Hoffman , a trailing ambulance attempted to pass a car on the left and collided with the car as it slowly turned left into a driveway. 90 N.W.2d at 499–500. The only notable distinction between Hoffman and this case is that the roles were reversed: in Hoffman , the plaintiff drove the left-turning car in front, and the defendant drove the trailing ambulance and attempted to pass.
The Hoffman court focused on the forward vehicle's brake light. Interpreting Michigan Compiled Laws § 257.648, the Hoffman court sought to answer the question, "Did the plaintiff give an adequate signal?" Id. at 500. The Hoffman plaintiff testified that he activated his brake lights by depressing his brake pedal. Id. Like Plaintiff in this case, the plaintiff in Hoffman , "on his own testimony, did not first see that he could make the turn in safety." Id. at 501. Compare ECF No. 35 at PageID.441 (Pl.’s Mot. in Lim.) ("As Fischer was following Patton, Patton's mail truck slowed...
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