Poplawski v. Huron Clinton Metropolitan Authority, Docket No. 30470

• Decision Date: 21 September 1977
• Docket Number: Docket No. 30470
• Citation: 260 N.W.2d 890,78 Mich.App. 644
• Parties: Terry POPLAWSKI, Plaintiff-Appellee, v. HURON CLINTON METROPOLITAN AUTHORITY, a Public Corporation, and Dale Melvin Coulston, jointly and severally, Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

Page 890

260 N.W.2d 890

78 Mich.App. 644

Terry POPLAWSKI, Plaintiff-Appellee, v. HURON CLINTON METROPOLITAN AUTHORITY, a Public Corporation, and Dale Melvin Coulston, jointly and severally,

Defendants-Appellants.

Docket No. 30470.

Court of Appeals of Michigan.

Sept. 21, 1977.

Released for Publication Jan. 12, 1978.

Wilson, Portnoy, Basso & Leader by Bernard N. Portnoy, Bloomfield Hills, for defendants-appellants.

Donald A. Turner, Southfield, for plaintiff-appellee.

Before MAHER, P. J., and KAUFMAN and BORCHARD, JJ.

PER CURIAM.

Defendants appeal as of right a $340,741.40 judgment entered against them pursuant to a September 1, 1976 jury verdict. Defendants also appeal an order entered by the trial court denying their motion for a judgment notwithstanding the verdict or for a new trial.

This case arose out of a 1973 pedestrian-motorcycle accident which occurred at Metropolitan Beach, a recreational facility operated by defendant Huron Clinton Metropolitan Authority. The driver of the motorcycle, a three-wheeled vehicle owned by the Authority, was defendant Dale Coulston. Coulston was employed by the Authority as a harbor master at Metropolitan Beach and was working in that capacity at the time of the accident.

At trial, plaintiff testified that she and her fiance at the time, William Tomashitis, went to Metropolitan Beach to play golf. However, upon their arrival, the couple found the course too crowded and decided to go home. They walked down a sidewalk toward the parking lot where Tomashitis had parked his car. When they got to a road that separated the golf course from the parking lot, they stopped. Plaintiff testified that before stepping out into this road she looked both ways for oncoming traffic. Seeing no traffic, she and Tomashitis proceeded to the center line. Once there she paused again and looked to her right because that was where the traffic "was supposed to be coming from". No vehicles were approaching from that direction so she began to cross the last half of the highway. As she did, she was struck by Coulston's vehicle.

According to plaintiff's former fiance, the road where the accident occurred was 24 feet wide with a center line at 12 feet. He testified that after crossing to the center line, he too looked to the right for traffic but saw none. Plaintiff was on his right and two or three feet behind him as they continued across the balance of the road. He testified that when he was about three feet from the curb, plaintiff yelled out to him. He turned in time to see her rolling on the ground and Coulston's vehicle skidding down the road. In his estimation, from the crosswalk where the accident occurred there was a clear, unobstructed view of about 300 feet up the road in the direction from which the harbor master had come.

Defendant Coulston testified that shortly before the accident he received a radio call directing him to the park's roller rink where a fight was occurring. He got on his three-wheeled vehicle and drove down the road, in the righthand lane, at 25 to 30 miles per hour. When he got to the area where the highway separated the golf course from the parking lot, he saw plaintiff and her fiance first at the curb, then (when he was approximately 30 to 40 feet from them) at the center line. According to Coulston, when he saw Tomashitis looking at him, he went into the lefthand lane "because I felt I could keep myself in their sight by going that way rather than backwards".

Coulston admitted that plaintiff was in the crosswalk of the left lane where she was struck by the handlebar and right rear fender of his vehicle. He said that he did not apply his brakes prior to impact and added that although his motorcycle had a horn, it was inoperable on the day of the accident.

In his request to charge, defense counsel asked that the following jury instruction be given in the event that the jury was advised of a motorist's statutory duty to drive on the right half of a roadway: ¹

"In applying the statute I have just given to you to this case, while it is true as plaintiff claims the defendant was on the wrong side of the road at the time of the collision, the mere fact he was on the wrong side of the road at the time of the collision does not by itself make him guilty of negligence as a matter of law. The statute requiring a vehicle to be driven on the righthand side of the roadway must be applied in a reasonable manner, taking into consideration all of the facts and surrounding circumstances, including how the driver came to be on the wrong side of the roadway and his purpose in doing so."

The trial court refused to give this instruction, explaining that it was "merely a different way of saying that if the negligence as a matter of law is not a proximate cause of the occurrence then they obviously should not take it into consideration, because they have already been charged that it must be a proximate cause of the injury and damage".

The trial court advised the jury of the statute requiring an individual to drive on the right side and then instructed:

"If you find that the plaintiff or the defendant violated any of these rules of law before or at the time of the occurrence, then the plaintiff or the defendant, as the case may be, was negligent as a matter of law. You must decide whether such negligence was a proximate cause of the occurrence.

"If you find that the defendant was confronted with a sudden emergency not of his own making, and if you find that he used ordinary care and was still unable to avoid the violation of a rule of law because of such emergency, then his violation is excused."

It should be noted that the instructions are virtually identical to SJI 12.01 and 12.01(A). Standard Jury Instructions are required to be given in civil cases when applicable, accurate, and requested. Javis v. Board of Education of School District of Ypsilanti, 393 Mich. 689, 697, 227 N.W.2d 543 (1975). The issue before this Court is whether SJI 12.01 and 12.01(A) are accurate and applicable to this factual situation.

An analysis of that issue must begin with the Supreme Court's holding in Zeni v. Anderson, 397 Mich. 117, 243 N.W.2d 270 (1976), involving a pedestrian-automobile accident. As in this case, a dispute arose over the legal effect to be given to statutory violations (if so found by the jury). The Supreme Court held:

"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 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." (Footnote omitted.) 397 Mich. at 128-129, 243 N.W.2d at 276.

As noted above, the precise statute alleged to have been violated in this case is M.C.L.A. § 257.634; M.S.A. § 9.2334. In its discussion of the violation of a statute as a rebuttable presumption, the Supreme Court in Zeni had occasion to examine that statutory provision. The Supreme Court noted:

"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." (Footnote omitted.) 397 Mich. at 130, 243 N.W.2d at 276.

After an examination of pertinent cases, the Supreme Court then concluded that "the only question * * * (is) not whether an excuse would be acceptable, but what an acceptable excuse would be". (Footnote omitted.) 397 Mich. at 131, 243 N.W.2d at 277.

A superficial interpretation of the Zeni holding cited above would seem to require reversal in this case. However, a more thorough analysis of Zeni convinces us that there are additional factors which preclude reversal.

In Zeni the Supreme Court bolstered its conclusion as to M.C.L.A. § 257.634; M.S.A. § 9.2334, in a footnote citing Hackley Union National Bank & Trust Co. v. Warren Radio Co., 5 Mich.App. 64, 145 N.W.2d 831 (1966). In that case, plaintiff contended that as a matter of law defendant's own testimony proved negligence when the defendant admitted driving on the wrong side of the highway. Defendant argued that application of the sudden emergency doctrine created a question of fact for the jury to decide. This Court concluded:

"Now it is true, as plaintiff claims, defendant was on the wrong side of the highway at the time of the collision. However, our Supreme Court has ruled in Martiniano v. Booth, 359 Mich. 680, 103 N.W.2d 502 (1960) that the mere fact that a car is on the wrong side of the road at the time of the collision does not by itself make the driver guilty of negligence as a matter of law. The issue as to how the driver got on the wrong side of the road is factual and for the jury. In any event the violation of the statute must be the proximate cause of the injury.

"We conclude that the statute requiring a vehicle to be driven on the right side of the highway, should be applied in a reasonable manner taking into consideration all of the facts and surrounding circumstances i. e., how the driver got on the wrong side of the road and whether it was caused by an emergency situation. The question of such negligence under the evidence in this case presented a fact question for the jury to determine." (Emphasis added.) 5 Mich.App. at 73, 145 N.W.2d at 835.

To further strengthen its position that a violation of a statute constitutes a rebuttable presumption of negligence in a civil case, the Supreme Court quoted with approval Justice (then Judge) Fitzgerald's opinion in Lucas v. Carson, 38 Mich.App. 552, 196 N.W.2d 819 (1972). There, in spite of defendant's precautions, her car...