Michigan Court of Appeals; Docket #355106; Unpublished
Judges Murray, Kelly, and O’Brien; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
In this unanimous unpublished per curiam decision, the Court of Appeals affirmed the trial court’s summary disposition order dismissing Plaintiff Estate of Mark Ballentine’s third-party lawsuit against Defendants Robert Salvaggio, National Mini Storage-KL Avenue, and U-Haul Company of Michigan (“Salvaggio,” “National,” and “U-Haul, individually; “defendants,” collectively). Salvaggio, an employee of National, arrived to work and attempted to park a U-Haul vehicle that had been left outside the gate to the parking lot. In the process, he accidentally ran over Ballentine, who was intoxicated and laying underneath the vehicle. The Court of Appeals held that Salvaggio did not breach his duty to exercise ordinary care in his operation of the U-Haul by not looking underneath the vehicle before moving it.
Ballentine was severely intoxicated and trespassing in the National parking lot when he inexplicably decided to crawl underneath a U-Haul truck parked outside the gate to the parking lot. Salvaggio showed up to work at National shortly thereafter and got in the U-Haul truck to move it to a parking spot. He did not look under the vehicle before moving it, however, and thus ran over Ballentine’s body, which resulted in Ballentine’s death. Ballentine’s Estate filed the underlying third-party action against the defendants, but the trial court granted summary disposition in the defendants’ favor, ruling that the Estate failed to present sufficient evidence to create a question of fact as to whether Salvaggio breached his duty to exercise ordinary care in his operation of the truck.
The Court of Appeals affirmed the trial court’s summary disposition order, first rejecting the Estate’s argument that the defendants’ motion was premature because discovery had not concluded. The Court of Appeals noted that all fact witnesses had been deposed and that the entire incident was caught on the parking lot’s surveillance cameras. The Estate argued nonetheless that it should be afforded an opportunity “to obtain ‘expert analysis of what Salvaggio could see, whether Ballentine’s body was visible, and other key facts in the negligence analysis.’ ” The Court of Appeals disagreed, holding that there was no independent evidence to suggest that Salvaggio could see Ballentine’s body or whether Ballentine’s body was visible, and that the Estate’s “apparent speculation that unspecified experts” would create a dispute as to these issues was not sufficient to survive the defendants’ motion for summary disposition.
The Court of Appeals next rejected the Estate’s argument that Salvaggio failed to exercise ordinary care in his operation of the truck. The Court of Appeals held that ordinary care required that Salvaggio have a clear view of the area behind him before reversing the truck and that Salvaggio look behind the truck before reversing. Ordinary care did not require that he look underneath the truck before reversing. Furthermore, the Court of Appeals rejected the Estate’s argument that ordinary care required that Salvaggio “ ‘use the horn to audibly warn that he was starting the engine in preparation for moving the previously stationary truck,’ ” because the Estate failed to present any authority for that argument. Lastly, the Court of Appeals rejected the Estate’s argument that Salvaggio breached his duty by failing to walk around the truck and complete the U-Haul inspection checklist before moving it. The Court of Appeals held that, “ ‘[I]t is well established . . . that ‘an institution’s internal rules and regulations do not add to its obligations to the public or establish a standard of care.’ ”
"Plaintiff argues that Salvaggio breached his duty to exercise ordinary care in his operation of the motor vehicle because the reason he did not see Ballentine was 'the result of his failure to look at the area he was planning to drive over in reverse.' Plaintiff asserts that this was contrary to Jenkins, in which our Supreme Court explained that a driver who operates a motor vehicle in reverse 'must exercise ordinary care in backing his machine, so as not to injure others by the operation, and this duty requires that he adopt sufficient means to ascertain whether others are in the vicinity who may be injured.' Jenkins, 277 Mich at 84 (quotation marks and citation omitted). According to plaintiff, Salvaggio’s 'failure to look at the area he was planning to drive over in reverse' was a failure to 'adopt sufficient means to ascertain whether others are in the vicinity who may be injured.' Yet plaintiff ignores the second part of that quote from Jenkins, which gives context to the sentence on which plaintiff relies: 'And he must not only look backward when he commences his operation, but he must continue to look backward in order that he may not collide with or injure those lawfully using such street or highway.' Id. (quotation marks and citation omitted). Clearly, the portion of Jenkins on which plaintiff relies stands for the unremarkable proposition that a driver reversing a motor vehicle must make sure he has a clear view of the area where he is reversing to. The second sentence then clarifies that the driver must actually look at the area to make ensure that it is clear, and continue looking while reversing to ensure that the area stays clear. Here, the evidence is undisputed that Salvaggio had a clear view of the area behind him before reversing and in fact looked behind him before reversing. No one was visible to Salvaggio, however, because Ballentine was underneath, not behind, the truck. Nothing in Jenkins supports plaintiff’s assertion that a driver must check 'the area he was planning to drive over.'
Plaintiff also argues that Salvaggio failed to exercise ordinary care when he 'failed to use the horn to audibly warn that he was starting the engine in preparation for moving the previously stationary truck.' Plaintiff cites no authority to support her assertion that using a 'horn to audibly warn that [a driver] was starting the engine in preparation for moving [a] previously stationary' motor vehicle is part of the duty to exercise ordinary and reasonable care in the operation of a motor vehicle, thereby abandoning that claim. See Mitcham v City of Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959) ('It is not enough for an appellant in his brief simply to announce a position or assert an error and then leave it up to this Court to discover and rationalize the basis for his claims, or unravel and elaborate for him his arguments, and then search for authority either to sustain or reject his position.').
Plaintiff also briefly seems to argue that Salvaggio breached his duty to operate the motor vehicle with ordinary care because he failed to 'walk around the vehicle and complete a checklist' like U-Haul required, which included inspecting the truck’s tires. It is well established, however, that 'an institution’s internal rules and regulations do not add to its obligations to the public or establish a standard of care . . . .' Gallagher v Detroit-Macomb Hosp Ass’n, 171 Mich App 761, 764-765; 431 NW2d 90 (1988). This has been the law in Michigan for well over a century. See McKernan v Detroit Citizens’ St Ry Co, 138 Mich 519, 530; 101 NW 812 (1904) (explaining that 'a person cannot, by the adoption of private rules, fix the standard of his duty to others' because that duty 'is fixed by law, either statutory or common'). Accordingly, that Salvaggio did not complete the checklist provided by U-Haul has no bearing on whether Salvaggio breached a duty owed Ballentine."