Gamet v. Jenks

• Decision Date: 25 February 1972
• Docket Number: No. 2,Docket No. 11617,2
• Parties: Terry GAMET, by his Next Friend Santos Gamet, and Santos Gamet, individually, Plaintiffs-Appellants, v. Cecil JENKS et al., Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 160

197 N.W.2d 160

38 Mich.App. 719

Terry GAMET, by his Next Friend Santos Gamet, and Santos

Gamet, individually, Plaintiffs-Appellants, v. Cecil JENKS et al., Defendants-Appellees.

Docket No. 11617.

Court of Appeals of Michigan, Division No. 2.

Feb. 25, 1972.

Released for Publication May 12, 1972.

William E. Rheaume, Abood, Abood & Abood, Lansing, for plaintiffs-appellants.

Raymond J. Foresman, Jr., Willingham & Cote, E. Lansing, for Tuttle and Converse.

Robert W. Townsend, Fraser, Trebilcock, Davis & Foster, Lansing, for jenks.

Before McGREGOR, P.J., and BRONSON and TARGONSKI, ^* JJ.

BRONSON, Judge.

Plaintiff Terry Gamet is a 15-year-old schoolboy. On October 13, 1969, he and a group of his friends attempted to cross Jolly Road in the City of Lansing on their way from their school to a McDonald's Hamburger stand five to six blocks northeast of the school. Jolly Road is a two-way street, two lanes east and two lanes west. At the time it was slightly raining. Plaintiff crossed the two eastbound lanes between intersections and stopped at the double yellow center line. Defendant Jenks was stopped in the inside westbound lane of Jolly Road. In response to a wave by defendant Jenks, plaintiff proceeded at a pace somewhere between a walk and a run across the inside westbound lane into the outside westbound lane; there plaintiff was struck by a vehicle driven by defendant Converse and owned by defendant Tuttle. The point of impact was at least six inches into the outside westbound lane of Jolly Road.

Defendant Converse had been proceeding in a westerly direction on Jolly Road at about 25 miles per hour about two or three car lengths behind defendant Jenks. When defendant Converse saw defendant Jenks' brake lights go on he applied his own brakes and at the point of contact was going five miles per hour. He brought the car to a standstill within a one-half car length of the point of impact. Plaintiff rolled up onto the car's hood and against the windshield prior to falling to the pavement.

On the basis of testimony elicited at the adverse examination of plaintiff and interrogatories of defendant Converse, defendants moved for summary judgment under GCR 1963, 117.3. The trial court granted summary judgment in favor of defendants, stating,

'Plaintiff's cause of action against the pick-up driver, Jenks, is based upon the alleged hand signal by Jenks waving the plaintiff across the street. The plaintiff has admitted in his deposition that he did not rely upon the hand signal of Mr. Jenks in proceeding into the lane of traffic where he was struck by a car.

'There is no other evidence, either contested or otherwise, which would support plaintiff's cause of action. Therefore, the court is of the opinion that the motion for summary judgment should be, and the same hereby is, granted, to defendant, Jenks.

'The plaintiff, in a motion for summary judgment alleging no genuine issue of fact, must establish a Prima facie case with supporting affidavits. (See 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed.), p. 363.) In the case against Tuttle and Converse, there is nothing in the file showing any negligence on their part except the complaint. There is the affidavit of Justin Converse saying that he was without negligence in driving his car and his answer to interrogatories which said that his car was moving five (5) m.p.h. at the time of the accident. There are no material facts, either contested or uncontested, which would support plaintiff's case. Therefore, the court is of the opinion that the motion for summary judgment should be, and the same hereby is, granted, as to Tuttle and Converse.'

The only issue raised on appeal is whether the trial judge erred as a matter of law in granting summary judgment to these defendants. At the outset we note that as a general rule summary judgment is inappropriate in negligence actions. This is because conformance to or violation of a standard of behavior is peculiarly within the province of a jury. Miller v. Miller, (1964), 373 Mich. 519, 129 N.W.2d 885. Only in rare instances will it be found that no 'genuine issue of fact' exists so that a judge may determine negligence as a matter of law.

In determining whether summary judgment is appropriate, we make all inferences in favor of the party opposing the motion. Beardsley v. R. J. Manning Co. (1966), 2 Mich.App. 172, 139 N.W.2d 129. The Court is required to consider affidavits filed for and against summary judgment, together with the pleadings, depositions, admissions, and documentary evidence submitted by the parties. GCR 1963, 117.3; Green v. Lundquist Agency, Inc. (1966), 2 Mich.App. 488, 140 N.W.2d 575. With these general principles in mind, we proceed to a consideration of the instant case.

Defendants Converse and Tuttle

Plaintiff contends that the evidence presented to the trial court raised clear issues of fact as to defendant Converse's negligence. He argues that Converse did not exercise reasonable care under the existing conditions to enable him to stop his car in time to avoid hitting plaintiff. This is the essence of the pleadings against defendants Converse and Tuttle. In response to plaintiff's interrogatories, defendant Converse described his version of the accident. Following an adverse deposition of plaintiff, these defendant moved for summary judgment. This motion was accompanied by defendant Converse's affidavit and a memorandum in support of the motion.

The affidavit denied liability and affirmatively stated that plaintiff failed to make a meaningful observation in crossing Jolly Road and that he failed to cross at a designated crosswalk. The memorandum went into greater detail as to what facts would be proved to support the denial of liability and plaintiff's contributory negligence.

Affidavits in support of and opposing summary judgment must set forth with particularity facts which would be admissible as evidence at a trial. Durant v. Stahlin (1965), 375 Mich. 628, 135 N.W.2d 392. On the whole, we believe the affidavit and memorandum filed by defendants Converse and Tuttle were sufficient. They state facts which could be personally testified to.

The plaintiff, having been challenged as to how he would build his case against these defendants, was bound to respond with a particularized statement of facts. Durant v. Stahlin, supra; Christy v. Detroit Edison Co. (1966), 2 Mich.App. 730, 141 N.W.2d 368. Plaintiff responded with the same allegations he had made in his pleadings and an affidavit which reiterated the same position he had taken in his deposition as to defendant Converse's actions.

The trial judge, faced with this set of proofs, had to take defendant Converse's allegations as true. The only difference as to how the accident occurred was whether plaintiff ran into or was hit by defendant's car. On the facts stated, we agree that plaintiff has failed to state a Prima facie case against defendant Converse. The evidence indicates that he was driving in a lane of traffic he had a right to be in. He slowed to five miles per hour on seeing defendant Jenks' brake lights go on and stopped almost immediately after the impact. There is no supporting evidence to indicate that he should have been aware of plaintiff's presence in the street. On seeing defendant Jenks' brake lights go on, he proceeded with caution. He is not however, bound to anticipate that a minor will come loping...