White v. Taylor Distributing Co.

• Citation: 739 N.W.2d 132,275 Mich. App. 615
• Decision Date: 24 May 2007
• Docket Number: Docket No. 272114.
• Parties: Sherita WHITE and Derrick White, Plaintiffs-Appellants, v. TAYLOR DISTRIBUTING COMPANY, INC., Penske Truck Leasing Company, L.P., and James J. Birkenheuer, Defendants-Appellees.
• Court: Court of Appeal of Michigan (US)

739 N.W.2d 132

275 Mich. App. 615

Sherita WHITE and Derrick White, Plaintiffs-Appellants, v. TAYLOR DISTRIBUTING COMPANY, INC., Penske Truck Leasing Company, L.P., and James J. Birkenheuer, Defendants-Appellees.

Docket No. 272114.

Court of Appeals of Michigan.

Submitted March 7, 2007, at Detroit.

Decided May 24, 2007, at 9:00 a.m.

Released for Publication September 28, 2007.

Mark Granzotto, P.C. (by Mark Granzotto), and Gursten, Koltonow, Gursten, Christensen & Raitt, P.C. (by Steven M. Gursten), Royal Oak, Southfield, for the plaintiffs.

Kopka, Pinkus, Dolin & Eads, P.L.C. (by John T. Eads, III and John M. Callahan), Farmington Hills, for the defendants.

Before: MARKEY, P.J., and MURPHY and KELLY, JJ.

MURPHY, J.

Plaintiffs appeal as of right the trial court's order granting defendants' motion for summary disposition under MCR 2.116(C)(10) on the basis of the sudden-emergency doctrine. This is a negligence action arising from a motor vehicle accident in which a van driven by plaintiff Sherita White (White) was struck from behind by a tractor-trailer operated by defendant James Birkenheuer after Birkenheuer allegedly blacked out. We reverse, concluding that crucial credibility issues, relative to whether Birkenheuer was negligent and truly faced a sudden emergency, require adjudication by the trier of fact at trial, thereby making entry of the summary disposition order "inappropriate" under MCR 2.116(G)(4). Consistent with MCR 2.116(G)(4), we reach this conclusion regardless of plaintiffs' failure to submit sufficient documentary evidence to counter Birkenheuer's version of events, which was primarily within his exclusive knowledge.

I. Documentary Evidence Presented at Summary Disposition

On March 15, 2004, White was stopped in her van at the intersection of I-96 and Novi Road in Novi, Michigan, when Birkenheuer, who was driving a tractor-trailer owned by defendant Penske Truck Leasing Company, L.P., in the course of his employment with defendant Taylor Distributing Company, Inc., collided with the rear of White's vehicle, allegedly causing serious injury. Birkenheuer testified at his deposition that on the day of the accident he was driving from Cincinnati to Novi. He indicated that while he was on I-275 he stopped at a rest area around Canton, Michigan, because he suddenly had to use the restroom "big time" to have a bowel movement. Birkenheuer stated that after experiencing an episode of severe diarrhea he hung around the rest area for a while, walked around the area to make sure he was finished using the restroom, and then left because he felt fine and his destination was not far away. He estimated that he was at the rest area for "maybe 20 minutes." According to Birkenheuer, he had never previously been treated for gastrointestinal issues.

Birkenheuer proceeded traveling and subsequently, when driving on westbound I-96, he drove his truck onto the exit ramp for the Novi Road exit. Ten to fifteen seconds after getting on that ramp he "just broke out into a sweat and got dizzy." Birkenheuer indicated that the very next thing he did when he felt the sudden sweating and dizziness was to "[h]it the brakes." He did not slam the brakes, but he did "[m]ore than a normal stop" because he wanted to stop quickly. Birkenheuer asserted that he had slowed the truck down to between 5 and 10 miles an hour just before he blacked out. When asked why he hit his brakes, Birkenheuer stated, "Because I was dizzy and I told myself — you know, I'm stopping. I don't care if I'm in the middle of this thing and sit here, I'm stopping." He did not apply the emergency brake, nor did he consider driving the truck onto the shoulder. Birkenheuer saw White's van "way up there," at least 250 to 300 yards ahead, at the point where he started to sweat and become dizzy. He remembered applying the brakes with plenty of room to stop before blacking out. He regained consciousness soon afterward by the jarring of his truck as it hit White's van. Birkenheuer indicated that he had no recall between the point of applying the brakes and the collision.

Birkenheuer described his actions after the collision as follows:

[I] [s]et the brake and hit the flashers, and I wanted to get out and see if [White] was all right. I got out of the car, walked to the front of the truck and passed out again in the street. And the next thing I remember is trying to get up again, and some guys that were already there ... said just stay where you are, so I never saw her.

Birkenheuer also expressed that after he passed out again on the pavement in front of his truck, he involuntarily urinated and defecated; he had more diarrhea. He claimed that he had never felt dizzy while driving other than during the incident involved in this case and as described above.

Birkenheuer was treated in the local hospital's emergency room (ER) and left against medical advice after a few hours. The medical diagnosis by the ER physician regarding what had occurred to Birkenheuer around the time of the accident was "acute syncopal episode." The ER physician testified that a "syncopal episode" means, in layman's terms, that Birkenheuer "passed out." The ER physician indicated that there were numerous possible causes for a syncopal episode. She further stated that severe bouts of diarrhea could cause dehydration, which in turn could result in a syncopal episode. The ER physician opined, however, that one episode of diarrhea typically would not cause one to pass out, but severe abdominal cramps and pain could cause a syncopal episode. The day after the accident Birkenheuer saw another physician who diagnosed "viral enteritis with syncopal spell secondary to hypovolemia from diarrhea." This suggested a connection between the severe bout of diarrhea suffered by Birkenheuer and his passing out.

Defendants moved for summary disposition under MCR 2.116(C)(10) on the grounds that Birkenheuer was not negligent with regard to the accident under the sudden-emergency doctrine because the accident resulted from an unexpected medical emergency not of his making and, alternatively, that White did not suffer a serious impairment of body function as a result of the accident. Thereafter, defendants additionally contended that they were entitled to summary disposition under MCR 2.116(C)(7) on the basis of a release that White had signed in connection with her claim for first-party, no-fault benefits with an insurer who is not a party to this action.

The trial court granted summary disposition in favor of defendants on the basis of the sudden-emergency doctrine without addressing the serious impairment of body function or release issues.¹ The trial court essentially accepted Birkenheuer's version of events, which necessarily reflected a conclusion that he was credible. Plaintiffs appeal as of right.

II. Analysis

A. Standard of Review

This Court reviews de novo a trial court's decision on a motion for summary disposition. Kreiner v. Fischer, 471 Mich. 109, 129, 683 N.W.2d 611 (2004).² We similarly review de novo the interpretation of statutes and court rules. Associated Builders & Contractors v. Dep't of Consumer & Industry Services Director, 472 Mich. 117, 123-124, 693 N.W.2d 374 (2005).

B. Rear-End Collisions and the Statutory Rebuttable Presumption

MCL 257.402(a) provides:

In any action, in any court in this state when it is shown by competent evidence, that a vehicle traveling in a certain direction, overtook and struck the rear end of another vehicle proceeding in the same direction, or lawfully standing upon any highway within this state, the driver or operator of such first mentioned vehicle shall be deemed prima facie guilty of negligence. This section shall apply, in appropriate cases, to the owner of such first mentioned vehicle and to the employer of its driver or operator.

"Under the rear-end collision statute a rebuttable presumption arises that the offending driver is prima facie guilty of negligence." Vander Laan v. Miedema, 385 Mich. 226, 231, 188 N.W.2d 564 (1971), citing Petrosky v. Dziurman, 367 Mich. 539, 543, 116 N.W.2d 748 (1962), and Garrigan v. LaSalle Coca-Cola Bottling Co., 362 Mich. 262, 263, 106 N.W.2d 807 (1961); see also Szymborski v. Slatina, 386 Mich. 339, 340, 192 N.W.2d 213 (1971).³ Accordingly, because Birkenheuer's truck undisputedly struck the rear of White's vehicle, a rebuttable presumption arose that he was negligent with regard to the collision. A presumption of negligence "may be rebutted with a showing of an adequate excuse or justification under the circumstances[.]" Farmer v. Christensen, 229 Mich.App. 417, 420, 581 N.W.2d 807 (1998). When the trial court undertakes to eliminate from the jury's consideration a statutory presumption as a matter of law, at the very least there must be clear, positive, and credible evidence opposing the presumption. Petrosky, supra at 544, 116 N.W.2d 748; see also Szymborski, supra at 341, 192 N.W.2d 213 (where evidence is less than clear, positive, and credible, the issue of overcoming the rear-end presumption should be settled in the jury room).

C. The Sudden-Emergency Doctrine

The sudden-emergency doctrine was explained by our Supreme Court in Socony Vacuum Oil Co. v. Marvin, 313 Mich. 528, 546, 21 N.W.2d 841 (1946):

"One who suddenly finds himself in a place of danger, and is required to act without time to consider the best means that may be adopted to avoid the impending danger is not guilty of negligence if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence." [Quoting Huddy on Automobiles (8th ed), p. 359.]

To come within the purview of the sudden-emergency doctrine, the circumstances surrounding the accident must present a situation that is unusual or unsuspected. Vander Laan, supra at 232, 188 N.W.2d 564, citing Barringer v. Arnold, 358 Mich. 594, 599, 101 N.W.2d 365 (1960)....