Young v. Flood

• Decision Date: 10 April 1990
• Docket Number: Docket No. 107700
• Citation: Young v. Flood, 452 N.W.2d 869, 182 Mich.App. 538 (Mich. App. 1990)
• Parties: John K. YOUNG, Plaintiff-Appellant, v. Kenneth L. FLOOD and Kimberly Marie Flood, Defendants-Appellees.
• Court: Court of Appeal of Michigan

Page 869

452 N.W.2d 869

182 Mich.App. 538

John K. YOUNG, Plaintiff-Appellant, v.Kenneth L. FLOOD and Kimberly Marie Flood, Defendants-Appellees.

Docket No. 107700.

Court of Appeals of Michigan.

Submitted Dec. 12, 1989.

Decided March 6, 1990.

Released for Publication April 10, 1990.

Feikens, Foster, Vander Male & De Nardis, P.C. by Dennis J. Mendis, Detroit, for plaintiff-appellant.

Bailey & Rossi, P.C. by Gary A. Rossi, Bloomfield Hills, for defendants-appellees.

Before GRIFFIN, P.J., and GILLIS and SAWYER, JJ.

PER CURIAM.

Plaintiff appeals from a judgment of no cause of action entered upon a jury verdict finding that defendants were not negligent.We affirm.

Plaintiff's action arises from a December 28, 1983, automobile accident in which the vehicle driven by defendantKimberly Flood, and owned by her father, defendantKenneth Flood, skidded on ice, crossed the center line, and collided with plaintiff's pickup truck.Kimberly testified that she was returning home from work, recognized that the roads were slippery and snow-covered, and was traveling about thirty miles per hour when she hit an icy patch and lost control of the car.She does not remember the details of the accident after that point.Plaintiff also testified that it was snowing and that the road surface was icy and that he was driving at approximately twenty-five miles per hour when he saw defendant's car cross the center line.Plaintiff then braked and veered to the right, unsuccessfully attempting to avoid the accident.

Plaintiff argues that the trial court erred in instructing the jury on the use of the sudden emergency doctrine as an excuse for defendant's violating the statestatutes requiring her to drive on the right side of the road.The trial court instructed the jury on the relevant portions of M.C.L. Sec. 257.634;M.S.A. Sec. 9.2334andM.C.L. Sec. 257.635;M.S.A. Sec. 9.2335 which, in essence, require a driver to drive upon the right half of the roadway.The court then instructed the jury that if they determined that the statutes were violated they could infer negligence, giving an instruction which substantially conforms to the current version of SJI2d 12.01.The court then instructed the jury on an excused violation of a statute with an instruction substantially similar to the current version of SJI2d 12.02, specifically:

However, if you find that the defendant used ordinary care and was still unable to avoid the violation because of the unsuspected conditions, whatever the case may be, then her violation is excused.

If you find that the defendant violated this statute and that the violation was not excused, then you must decide whether such violation was a proximate cause of the occurrence.

Plaintiff argues that the trial court erred in giving this instruction.We disagree.

In Zeni v. Anderson, 397 Mich. 117, 122, 243 N.W.2d 270(1976), the Supreme Court held that violation of a statute by a defendant creates a prima facie case from which a jury may draw an inference of negligence.The jury may also consider whether a legally sufficient excuse has been presented to refute this inference.Id.The Zeni Court noted that there was a line of cases developed over sixty-five years which consistently followed a rebuttable-presumption approach to violations of the statute requiring vehicles to keep to the right side of the road.Id. at 130-131, 243 N.W.2d 270.The Court concluded at 131, 243 N.W.2d 270:

This is still the approach under the successor statute, MCLA 257.634;MSA 9.2334, with the only question being not whether an excuse would be acceptable, but what an acceptable excuse would be.

At issue in this case is whether defendant had an acceptable excuse and if there was evidence for that excuse.

Skidding on a snowy road was found to be a sufficient excuse for violation of this statute in Martiniano v. Booth, 359 Mich. 680, 103 N.W.2d 502(1960).The defendant driver in Martiniano was steering back onto the highway after his car had slipped off the pavement into a rut, when his car skidded on the slippery pavement, crossed the center line and collided with the plaintiff's car.The Supreme Court stated that skidding across the highway through no fault of the driver as a result of striking a patch of ice had been previously held to excuse violation of the statute.Id. at 687, 103 N.W.2d 502, citing, inter alia, Leonard v. Hey, 269 Mich. 491, 257 N.W. 733(1934), andCosgrove v. Thomas, 257 Mich. 376, 241 N.W. 168(1932).The defendant in Martiniano had known the road was slippery, but there was no showing that his speed was unreasonable or that he was on the wrong side of the road intentionally.Thus the question of his negligence in sliding into the rut was properly submitted to the jury.Martiniano, supra359 Mich. at 686-687, 103 N.W.2d 502.

Here the excuse of skidding unintentionally on ice was presented to the jury in the sudden emergency jury instruction.In Vander Laan v. Miedema, 385 Mich. 226, 232-233, 188 N.W.2d 564(1971), the Supreme Court held that the sudden emergency jury instruction is appropriate where a party is confronted with a situation that is "unusual," meaning varying from the everyday traffic routine confronting a motorist, or "unsuspected," meaning appearing so suddenly that the normal expectations of due and ordinary care are modified.See alsoAmick v. Baller, 102 Mich.App. 339, 341-342, 301 N.W.2d 530(1980).Plaintiff argues here that, judged by the Vander Laan sudden emergency analysis, defendant's skidding on ice was not an acceptable excuse because it is not unusual for Michigan roads to be icy in the winter, nor is a patch of ice unsuspected.

The cases that plaintiff cites in support of his position that icy roads cannot excuse crossing the center line can be distinguished from the line of cases holding that excuse justified.The cases that have held slipping on ice not to be an excuse all dealt with Michigan's "assured clear distance"statute, M.C.L. Sec. 257.627;M.S.A. Sec. 9.2327;Moore v. Spangler, 401 Mich. 360, 258 N.W.2d 34(1977);Morrison v. Demogala, 336 Mich. 298, 57 N.W.2d 893(1953);Jackson v. Coeling, 133 Mich.App. 394, 349 N.W.2d 517(1984);Hughes v. Polk, 40 Mich.App. 634, 199 N.W.2d 224(1972).In Jackson, this Court held that icy conditions could not be an excuse for a violation of the "assured clear distance"statute which instructs a driver to take such conditions into account.Id.133 Mich.App. at 399-400, 349 N.W.2d 517.The statutes regarding keeping to the right do not have such a provision.The Courts in Moore, Morrison, and Hughes held that failure to stop in the assured clear distance was not excused by hitting any icy spot because the drivers had reasons to suspect icy spots and adjust their speed to be...