Price v. Austin

CourtSupreme Court of Michigan
Citation972 N.W.2d 246 (Mem)
Docket NumberSC: 161655,COA: 346145
Parties Arthur Ormonde PRICE, Jr., Plaintiff-Appellant, v. Samuel Oneal AUSTIN and L & B Cartage, Inc., d/b/a Omni Quality Inspection Services, Defendants-Appellees.
Decision Date22 April 2022

On November 10, 2021, the Court heard oral argument on the application for leave to appeal the April 30, 2020 judgment of the Court of Appeals. On order of the Court, the application for leave to appeal is again considered. MCR 7.305(H)(1). In lieu of granting leave to appeal, we REVERSE the judgment of the Court of Appeals, and we REMAND this case to the Saginaw Circuit Court for entry of an order denying the defendantsmotion for summary disposition, except on the grounds conceded by the plaintiff, and for further proceedings consistent with this order. The panel majority erred by determining that the defendant-driver's testimony was credible. Although some evidence supported the defendant-driver's testimony, only he could know what happened inside his truck that day or whether he had any reason to suspect that an imminent syncopal episode might warrant certain conduct.1 When "the credibility of a witness or deponent is crucial, summary judgment should not be granted." Arber v. Stahlin , 382 Mich. 300, 309, 170 N.W.2d 45 (1969) ;2 accord Brown v. Pointer , 390 Mich. 346, 354, 212 N.W.2d 201 (1973). Because the defendant-driver's credibility was crucial to the success of his sudden-emergency defense, summary disposition should not have been granted. The dissent emphasizes that the defendant-driver's testimony leaves no question of fact for trial, see post at 12, but as Judge GLEICHER correctly recognized, the fact-finder may determine whether the defendant-driver acted as a "reasonably prudent person would have done under all the circumstances of the accident ...." Szymborski v. Slatina , 386 Mich. 339, 341, 192 N.W.2d 213 (1971) (quotation marks and citations omitted; see also Moning v. Alfono , 400 Mich. 425, 435-436, 254 N.W.2d 759 (1977) ).

We do not retain jurisdiction.

Viviano, J. (dissenting).

There are two related questions in this case. First, has defendant rebutted the presumption of negligence that attaches due to the fact that the accident at issue occurred when his car crossed over the centerline of the road? Second, if the presumption has been rebutted, is defendant also entitled to summary disposition? The Court of Appeals majority answered both questions in the affirmative, upholding the trial court's grant of summary disposition to defendant. A majority of this Court disagrees on the basis that the jury might disbelieve defendant's testimony, making it inappropriate to find that the presumption has been rebutted and, by extension, to grant summary disposition. While it is true that we must not decide credibility questions at the summary-disposition stage, there is no categorical bar to finding a presumption rebutted or deciding a case as a matter of law in these circumstances. In fact, our caselaw holds that not only can an evidentiary presumption like the present one be overcome by a defendant's own testimony, but that the case can be decided as a matter of law on the very same evidence. Because I believe that defendant has sufficiently rebutted the presumption and that no question of material fact remains, I would affirm the Court of Appeals judgment.


This negligence action resulted from an automobile accident that occurred when defendant Samuel Austin, after experiencing a coughing fit, blacked out and drove his tractor-trailer into the other lane on a two-lane roadway. He had nearly made it to the shoulder of that lane when he hit the car driven by plaintiff, Arthur Price, Jr. Plaintiff filed suit against defendant and others, alleging negligence and gross negligence. Plaintiff offered as proof of negligence defendant's violation of MCL 257.634(1), which requires that "the driver of a vehicle ... drive the vehicle upon the right half of the roadway ...." This raised a rebuttable presumption that defendant was negligent. See Zeni v. Anderson , 397 Mich. 117, 130-131, 243 N.W.2d 270 (1976). To rebut the presumption, defendant argued that he experienced a sudden emergency. See White v. Taylor Distrib. Co., Inc. , 482 Mich. 136, 139-140, 753 N.W.2d 591 (2008) (discussing the sudden-emergency exception to presumptions of negligence). Specifically, he claimed that he passed out just before the accident. As proof, he presented testimony from himself, multiple treating physicians, and the responding police officer; GPS evidence; and the lack of skid marks on the road. Defendant further argued that rebutting the presumption meant there were no disputes of material fact, thus entitling him to summary disposition. Plaintiff disagreed that rebuttal would result in summary disposition but provided only bare accusations that defendant was lying about having passed out. The trial court granted defendant summary disposition, finding that plaintiff had failed to demonstrate that there was a genuine issue of material fact concerning whether defendant experienced a sudden emergency. The Court of Appeals affirmed in an unpublished decision, with Judge GLEICHER dissenting.

The party moving for summary disposition has the burden to demonstrate that there is no dispute regarding a fact material to one or more issues. Bank of America, NA v. First American Title Ins. Co. , 499 Mich. 74, 85, 878 N.W.2d 816 (2016). The movant meets this burden when the lack of dispute "negates an essential element of the nonmoving party's claim." Quinto v. Cross & Peters Co. , 451 Mich. 358, 362, 547 N.W.2d 314 (1996) (quotation marks and citation omitted). Once an essential element is negated, the nonmovant must then " ‘come forward with at least some evidentiary proof, some statement of specific fact upon which to base his case.’ " Skinner v. Square D. Co. , 445 Mich. 153, 161, 516 N.W.2d 475 (1994), quoting Durant v. Stahlin , 375 Mich. 628, 640, 135 N.W.2d 392 (1965) (emphasis omitted); see also MCR 2.116(G)(4) ("When a motion under [ MCR 2.116 ](C)(10) is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his or her pleading, but must, by affidavits or as otherwise provided in this rule, set forth specific facts showing that there is a genuine issue for trial."). When the nonmovant fails to meet this burden, the movant is entitled to summary disposition. Bank of America , 499 Mich. at 85, 878 N.W.2d 816.


The threshold question is whether defendant has rebutted the presumption of negligence that arose due to his violation of MCL 257.634(1). In answering this question, however, our caselaw also points to the answer for the second question: the evidence used to rebut the presumption can, in the absence of other evidence raising a genuine issue of material fact, be sufficient to decide the case as a matter of law.


In Michigan, a presumption is merely a procedural device that shifts the burden of producing evidence to the party against whom the presumption operates. Widmayer v. Leonard , 422 Mich. 280, 286, 373 N.W.2d 538 (1985). It dissolves when that party presents sufficient evidence. The presumption can be rebutted "by a showing on the part of the party violating the statute of an adequate excuse under the facts and circumstances of the case." Zeni , 397 Mich. at 129-130, 243 N.W.2d 270. One such excuse is a sudden emergency, which "applies ‘when a collision is shown to have occurred as a result of a sudden emergency not of the defendants’ own making.’ " White , 482 Mich. at 139-140, 753 N.W.2d 591, quoting Vander Laan v. Miedema , 385 Mich. 226, 231, 188 N.W.2d 564 (1971). A sudden emergency must be " ‘totally unexpected.’ " White , 482 Mich. at 140, 753 N.W.2d 591, quoting Vander Laan , 385 Mich. at 232, 188 N.W.2d 564. We have held that "a sudden, unexpected blackout could present a sudden emergency sufficient to rebut the statutory presumption." White , 482 Mich. at 140, 753 N.W.2d 591.3

In order to overcome presumptions analogous to the one in this case, we have required the evidence to be "clear, positive, and uncontradicted ...." Krisher v. Duff , 331 Mich. 699, 706, 50 N.W.2d 332 (1951). Krisher provides a thorough explanation of this rule and how it relates to whether a case can be decided as a matter of law. The defendants in Krisher were brothers, one of whom borrowed the other's car. Id. at 702, 50 N.W.2d 332. The law imposed a presumption that the borrowing was with the owner's consent and the question was whether the trial court properly instructed the jury on the standard for rebutting the presumption. Id. at 702, 704, 50 N.W.2d 332.

In explaining why a high level of proof was required for overcoming this presumption, we specifically noted that the defendant would often be the only one with relevant evidence. Id. at 706, 50 N.W.2d 332. "The presumption," we said, "is given more weight," i.e., is harder to overcome, "because of the dangerous instrumentality involved and the danger of permitting incompetent driving on the highway; and because the proof or disproof of consent or permission usually rests almost entirely with the defendants. " Id. (emphasis added). Continuing, we emphasized that "[t]he defendant owner frequently may be the only witness and not disinterested." Id. This factor "operate[d] to make this a stronger presumption," requiring a greater degree of evidence to rebut. Id. at 707, 50 N.W.2d 332, see also id. at 708, 50 N.W.2d 332 (" ‘The difficulty of showing the consent of the owner except by evidence of facts and circumstances, where the owner and the driver may be the only persons who can directly testify that no consent was given to drive the car, has a distinct bearing on the construction of the statutory presumption here involved.’ ") (citation omitted).

Despite the fact that the defendants might provide the only...

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