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Estate of Conforti v. Cornell, et al. (COA – UNP 10/29/2020; RB #4171)

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 Michigan Court of Appeals; Docket # 348745; Unpublished
Judges Fort Hood, Jansen, and Tukel; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion; Link to Dissent


STATUTORY INDEXING:
Applicability of Comparative Fault to Noneconomic Loss Claims [§3135(2)]

TOPICAL INDEXING:
Not Applicable


SUMMARY:
In this majority unpublished per curiam decision (Tukel, dissenting), the Court of Appeals reversed the trial court’s summary disposition order in favor of the defendants, Stanley Webster Cornell and Metro Controls, Inc., in which the trial court ruled that the plaintiff’s decedent, John Conforti, was more than 50% at fault for the subject pedestrian versus motor vehicle collision and therefore barred from recovering in his third-party automobile negligence action.  The Court of Appeals held that a genuine issue of material fact existed as to whether Conforti was, in fact, more than 50% at fault for the collision, and thus remanded for further proceedings.

John Conforti was crossing a seven-lane highway in the early part of the afternoon, outside of a marked crosswalk, when he was struck by a vehicle being driven by Stanley Webster Cornell.  Traffic was moderate to heavy at the time of the collision, and Cornell had just crossed over six lanes to get into the far-right lane when the collision occurred.  Conforti died as a result of the collision, and his Estate filed the underlying third-party action against Conforti and his employer, Metro Controls, Inc.  The defendants moved for summary disposition, arguing that no reasonable juror could conclude that Conforti was less than 50% at fault, considering he was crossing a seven-lane highway, outside of a crosswalk, at a time when there was moderate to heavy traffic.  Moreover, the defendants presented evidence that Cornell was driving under the speed limit when the collision occurred, and noted that Cornell was not only not criminally charged for the collision, but that the officers who responded to the collision believed there was nothing Cornell could have done to prevent it from occurring.  In response, the Estate presented an affidavit from a collision reconstructionist who averred that Conforti would have been visible to Cornell long enough in advance of the collision for Cornell to have either braked or swerved out of the way.  The Estate also noted that Cornell testified at his deposition that he was not looking straight ahead at the roadway immediately prior to the collision, but was rather looking to the lanes to his right to make sure he could safely get over to the far-right lane.  Ultimately, the trial court agreed with the defendants that no reasonable juror could conclude that Conforti was less than 50% at fault for the collision, and granted summary disposition in their favor.

The Court of Appeals reversed the trial court’s summary disposition order, and held that a question of fact did exist as to who was more at fault for the collision.  The Court of Appeals relied heavily on the evidence that Cornell would have had sufficient time to stop or take evasive action if he had been looking straight ahead at the roadway, and that the fact that Conforti was negligently attempting to cross the highway outside of a crosswalk was not dispositive of the comparative negligence analysis.

Even though Conforti was negligently attempting to cross Van Dyke Avenue outside of a marked crosswalk, Conforti did not suddenly step off the curb in front of Cornell’s vehicle. Rather, he had been visible in the roadway for a sufficient amount of time to be seen and avoided. Cornell’s front seat passenger clearly saw Conforti before the collision, and Cornell’s own deposition testimony established that he was not looking straight ahead at the roadway. Indeed, Cornell testified that he was looking at the driveways on the right side of the road to see if any vehicles were pulling out, and Conforti was coming into Cornell’s lane of traffic from the left. Accordingly, we conclude that the Estate presented sufficient evidence in response to defendants’ motion for summary disposition to create a genuine question of material fact regarding not only whether Conforti was more than 50% at fault for the collision, but also whether Cornell was negligently operating his vehicle at the time of the collision.

Justice Tukel dissented from the majority, arguing that the trial court did not err by granting summary disposition in the defendants’ favor, “because there was no evidence showing that Cornell was negligent, nor was there evidence showing that if Cornell was negligent that Conforti was less than 50% negligent.”

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