Michigan Court of Appeals; Docket #354872; Unpublished
Judges Borrello, Kelly, and Redford; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
STATUTORY INDEXING:
Children as Dependents [§3110(1)]
Applicability of Comparative Fault to Noneconomic Loss Claims [§3135(2)]
Causation Issues [§3135]
TOPICAL INDEXING:
Evidentiary Issues
Revised Judicature Act – Impairment Due to Alcohol and DRUGS (MCL 600.2955(a))
SUMMARY:
In this unanimous, unpublished, per curiam decision, the Court of Appeals affirmed the trial court’s summary disposition order dismissing Plaintiff Estate of Krystal Gayle Lawrence’s (“the Estate”) first- and third-party actions against Defendants Sarah Elizabeth Schauf, Austin Patrick Martin, Progressive Marathon Insurance Company (“Progressive”), and Fremont Insurance Company (“Fremont”). With respect to the Estate’s third-party claims against Defendants Shauf and Martin, the Court of Appeals held that the trial court did not err in ruling, as a matter of law, that Krystal Gayle was more than 50% at-fault for the subject pedestrian-versus-motor vehicle collision, and therefore barred from recovery by MCLs 600.2955a and MCL 500.3135. With respect to the Estate’s first-party claim against Progressive and Fremont seeking survivor’s loss benefits for Krystal Lawrence’s surviving daughter, JL, the Court of Appeals held that JL was not domiciled with Lawrence at the time of the collision and that Lawrence failed to present any evidence that JL was “regularly” receiving support from Lawrence at the time of the collision.
Krystle Lawrence attempted to cross a five-lane roadway as a pedestrian, at night and in the rain, with a blood-alcohol level of .296. Lawrence made it across the first four lanes of traffic, but upon reaching the far curb lane, she was struck by a vehicle driven by Austin Martin. The force of the collision with Martin’s vehicle threw her into the left passing lane adjacent to the curb lane, where she was then run over by a vehicle driven by Sarah Schauf. Lawrence died as a result of her injuries, and her Estate thereafter brought a third-party wrongful death action against Schauf and Martin, as well as a first-party action against Progressive and Fremont for survivor’s loss benefits for Lawrence’s daughter JL. All defendants moved for summary disposition: Austin and Schauf argued that Lawrence had an impaired ability to function due to her intoxication and that, because of her impaired ability to function, Lawrence was at least 50% the cause of the accident and therefore barred from recovery under MCL 600.2955a; Progressive and Fremont argued that JL was not a dependent of Lawrence at the time of Lawrence’s death.
With respect to Austin and Schauf, the Estate argued that a question of fact existed as to whether both were negligent. As for Austin, the Estate adduced the following evidence: Austin’s testimony that he believed he was driving three miles over the speed limit at the time of the crash; a report prepared by the Estate’s accident-reconstructionist, Timothy Robbins, in which Robbins opined that the streetlights would have sufficiently illuminated Lawrence’s person such that Austin should have seen her in time to avoid striking her; and a pamphlet issued by the Michigan Secretary of State, titled “What Every Driver Must Know,” which the Estate presented “as authority regarding the parties’ respective duties, for example, to determine whether Lawrence or Austin had the right-of-way . . . ” As for Schauf, the Estate adduced the following evidence: Schauf’s testimony regarding her speed at the time she struck Lawrence—which the Estate argued was contradictory and created a question of fact as to whether she was speeding—in which she said both that she was driving slower than the speed limit and that she “ ‘was going with traffic;’ ” the fact that Lawrence was traveling in the left, passing lane at the time of the collision, which the Estate argued further created a question of fact as to her speed; the fact that another vehicle behind Austin’s swerved after seeing Austin’s vehicle strike Lawrence; and Robbins’s report, in which he stated that Schauf’s headlights appeared to be cloudy or oxidized.
With respect to Fremont and Progressive, the Estate argued that because JL stayed with Lawrence on alternating weekends, JL “lived with” Lawrence for purposes of MCL 500.3110(1)(c). Notably, however, JL’s father, Timothy Engler, had sole physical custody of JL. Furthermore, the Estate argued that Lawrence provided regular support for JL, despite Engler’s testimony that he never asked Lawrence for child support, nor ever received any from her. Ultimately, the trial court granted summary disposition in favor of all defendants.
The Court of Appeals affirmed the trial court’s summary disposition order as to all defendants, holding, first, that Lawrence was more than 50% at-fault for the collision and that the Estate’s claim against Austin was barred both by MCL 600.2955a and MCL 500.3135. The Court of Appeals noted that Lawrence’s blood alcohol content was more than three-times the legal limit at the time of the crash, and that Lawrence was wearing dark clothing and attempting to jaywalk across a five-lane roadway in the rain and at night, in clear violation of the Kalamazoo City Traffic Code. Therefore, even if the Court were to conclude that Austin was exceeding the speed limit or driving negligently, his negligence “paled in comparison to Lawrence’s flagrant disregard for her own safety.”
“At the time of the accident that caused Lawrence’s death, MCL 257.625a(7)(b) set the relevant legal alcohol intoxication limit as 0.08 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine. The uncontroverted evidence established that toxicology test results following Lawrence’s death reported that she had a blood alcohol level of 0.296 per 100 milliliters of blood, more than three times the legal limit. Indeed, plaintiff concedes in his brief that Lawrence’s blood alcohol level ‘raises a presumption of her impairment.’ The Martin defendants were entitled to summary disposition if no reasonable person could find that Lawrence, who was presumptively impaired because of her high blood alcohol content, was 50% or more the cause of the accident or event that resulted in her death.
Plaintiff maintains that evidence was presented that Austin violated [MCL257.627](2)(h) by his admission that he believed that he drove 38 miles per hour in the 35 mile per hour zone located at the scene of the accident. Plaintiff also argues that Austin violated the basic speed law by failing to operate his car at a prudent speed or to keep a proper lookout for Lawrence. Plaintiff appears to also acknowledge, however, that Lawrence violated portions of the Kalamazoo City Traffic Code by jaywalking. Article X of the Kalamazoo City Traffic Code governs pedestrian conduct, and 36-282(A) states that ‘[n]o pedestrian shall cross or enter a public street in the City in a manner which endangers or is likely to endanger such pedestrian or others lawfully using the street.’ Further, 36-280(D) of the Traffic Code provides in part that ‘[e]very pedestrian or bicyclist crossing the roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way to oncoming vehicles upon the roadway.’ ‘In Michigan, a violation of a statute creates a rebuttable presumption of negligence while the violation of an ordinance or administrative regulation constitutes evidence of negligence.’ Candelaria v BC Gen Contractors, Inc, 236 Mich App 67, 82 n 5; 600 NW2d 348 (1999).
The undisputed record evidence established that Lawrence, while wearing dark clothing and legally intoxicated attempted to cross the street where no crosswalk existed, and ventured into the eastbound lanes which had oncoming traffic. Both drivers, Austin and Schauf, were unaware of her presence until too late. The undisputed evidence supported the trial court’s decision. In any event, a jury may not award damages in favor of a party who is more than fifty percent at fault. MCL 500.3135(2)(b).”
The Court of Appeals next rejected the Estate’s reliance both on the “What Every Driver Must Know” pamphlet and Robbins’s report. As for the former, the Court held that the pamphlet is “not an official source of Michigan’s constitutional, statutory, or common law,” and therefore “not authoritative for determining the relative rights and responsibilities of the parties in this case.” The Court noted that, “Historically, our Supreme Court has only endorsed the use of stopping-distance tables in the pamphlet, which are no longer contained in the pamphlet.” As for Robbins’s report, the Court of Appeals held that much of that report was inadmissible or insufficient to create a question of fact regarding negligence. The Court noted that Robbins relied on photos he took “1 ½ years later, under different weather conditions and without any other visible traffic.” The Court also noted that Robbins simply conjectured Lawrence’s walking speed as she crossed the road, and failed to explain how, even if Austin had seen her five seconds prior to the collision, he could have stopped before hitting her.
“In this case, Robbins’s report contains a number of conclusions that rely on facts or data created by Robbins, but unsupported by any evidence of the incident itself. As an example, plaintiff offers Robbins’s report as evidence that Austin would have experienced lighting conditions at the time of the accident on October 12, 2018, shortly after 10:00 p.m. According to witnesses, however, it was raining and dark that night. Robbins’s report states that he visited the accident scene on April 7, 2020, at approximately 10:30 p.m., when the area was wet and the skies were overcast. However, Robbins did not photograph the scene during rain, a factor that would affect visibility, as on the night of the accident. Moreover, Robbins specifically states that the photographs ‘are to help show the illumination pattern of the streetlights but are not intended to show what the human eye can see.’ Robbins presented another photograph that he took to demonstrate ‘how easily a pedestrian in dark clothing can be seen.’ The photograph is of a street in which a pedestrian can be seen, but the photograph is blurry and appears to have either been taken using magnification or from a much closer vantage point than the first picture. The items Robbins relied on to fashion his opinions did not replicate the actual accident conditions that record evidence established. . . .
Robbins’s photographs were taken 1 years later, under different weather conditions and without any other visible traffic. Robbins essentially created his own data, which he then used to justify his speculative opinion. To the extent that Robbins relied on the photographs to demonstrate that Lawrence would have been visible as she crossed the street, such reliance was misplaced because it failed to account for and could not rebut uncontroverted established facts. Moreover, because Robbins conceded that the photographs were not intended to show what the human eye could see, they could not establish a question of fact whether Austin could or should have seen Lawrence in time to avoid hitting her when she ventured into his car’s path.
In determining that Austin would have been able to see Lawrence as she crossed the other lanes of traffic, Robbins estimated that it would have taken five seconds for Lawrence to walk the 30 feet to the center lane if she walked at six feet per second, which he asserts is an above-average walking speed. Robbins based his assumptions about Lawrence’s walking speeds, however, solely on speculation, unsupported by any facts in evidence. Further, even assuming that data could lend support to Robbins’s assumptions, Robbins did not discuss how seeing Lawrence for five seconds before the accident would have permitted Austin to stop before hitting Lawrence. As defendants point out, Robbins did not opine that Austin’s speed served as a factor in the accident.”
The Court of Appeals next held that the Estate failed to rebut the presumption that Lawrence was impaired based on her .296 blood alcohol content. In attempting to rebut the presumption, the Estate argued that Lawrence’s history of substance abuse created a question of fact as to whether she had a higher tolerance than a casual drinker. The Court of Appeals characterized the Estate’s contention that Lawrence was not impaired, despite her .296 blood alcohol content, as pure speculation, and that, even if she was not impaired, she was still more than 50% at-fault for the collision.
“Plaintiff argues that although Lawrence’s 0.296 blood alcohol content raised a presumption of impairment under MCL 600.2955a(2)(b), that presumption is rebuttable. In an effort to rebut the presumption, plaintiff admits that Lawrence had a history of substance abuse, but contends that ‘[i]t is commonly understood that persons with chronic histories of excessive alcohol use have higher tolerances than casual drinkers’ and urges this Court to consider such anecdotal information applicable in this case to Lawrence and treat that as sufficient to establish the existence of a genuine issue of material fact. Even if such common understanding may be true, plaintiff presented no competent evidence to establish that Lawrence, despite her 0.296 blood alcohol content, was not impaired. Plaintiff did not provide any substantively admissible evidence to rebut the presumption of her impairment. Plaintiff proffered no evidence that Lawrence actually had a higher tolerance than an ‘average’ person who consumes alcohol, nor any expert testimony or other explanation for how such a ‘common understanding’ may be quantified into a workable framework for rebutting a presumption of impairment for a person with a blood alcohol content of 0.296. Thus, plaintiff’s contention that, given Lawrence’s history of substance abuse, a blood alcohol content of 0.296 would not have impaired her ability to function rests solely on mere speculation. Moreover, even if one were to agree that a person with such a high blood alcohol content theoretically might not be impaired, such would not alter the fact that Lawrence ventured out into a street on a dark rainy night into the path of oncoming traffic. Such conduct demonstrates serious impairment of decision-making ability.”
As for the Estate’s claim against Schauf, the Court of Appeals held that the Estate failed to present sufficient evidence to create a question of fact as to whether Schauf was exceeding the speed limit at the time of the crash, or as to whether Schauf was capable of avoiding striking Lawrence’s body after Austin’s vehicle struck her first. The Court rejected the Estate’s argument that Schauf’s testimony regarding her speed was contradictory or created a question of fact as to whether she was speeding at the time of the collision, because there was no evidence of how fast the vehicles she was maintaining pace with were going at the time. The Court of Appeals next rejected the Estate’s contention that the fact that Schauf was driving in the passing lane created a question of fact as to whether she was driving above the speed limit. The Court of Appeals next rejected the Estate’s argument that the fact that the vehicle behind Austin’s—in a different lane than Schauf’s—swerved upon seeing Austin strike Lawrence meant that Schrauf, too, should have swerved to avoid striking Lawrence. Lastly, the Court of Appeals held that Robbins’s report was insufficient to create a question of fact as to whether Schauf was negligent, despite the fact that he claimed Schauf’s headlights appeared to be “cloudy or oxidized.” The Court noted that Robbins did not opine on whether Schauf’s headlights rendered her vehicle noncompliant with MCL 25.699.
"Plaintiff argues that the ‘[e]vidence presents the reasonable inference that Schauf exceeded the speed limit.’ Plaintiff misstates the evidence. Plaintiff contends that Schauf’s testimony about her speed varied. He relies on the fact that Schauf testified that she drove ‘slightly under’ or ‘slower’ than the speed limit, but also claimed that she ‘was going with traffic.’ Plaintiff maintains that these statements establish inconsistencies that raise credibility issues which alone should preclude summary disposition. We disagree that these statements are inconsistent or present a question of fact precluding summary disposition. Schauf never testified that she drove over the speed limit, and her statement that she traveled at the speed of traffic cannot support an inference that she exceeded the speed limit, absent evidence that the vehicles she followed or with which she maintained pace exceeded the speed limit. No evidence in the record indicates such facts, and plaintiff does not identify any facts in evidence that permit such an inference. Instead, plaintiff seeks to rely on speculation.
Plaintiff states that Schauf traveled in the left lane of traffic, rather than the right lane as required under MCL 257.642(1)(a), and contends that ‘Schauf’s presence in the left ‘passing’ lane raises a fact question that she was not driving below the speed limit, but was trying to ‘overtake and pass’ other vehicles.’ This argument again relies on speculation regarding the speed at which Schauf drove. Schauf’s mere presence in a lane intended for passing does not establish that she exceeded the speed limit nor does it support an inference that she was speeding. Moreover, there are exceptions to the prohibition against traveling in the left lane, including when traffic exists in both lanes, see MCL 257.634(2), and the evidence indicated that vehicles traveled in both travel lanes at the time of the accident. Such evidence demonstrates further Lawrence’s impaired decision-making and negligent disregard for her own safety.
Plaintiff’s argument that the evidence supports a finding that Schauf had to have seen Lawrence lying in the road lacks merit because he relies on the fact that another vehicle behind Austin’s vehicle did not strike Lawrence after Austin hit her. Austin and the other driver both testified that they were driving in the curb lane, not the inner lane. The other vehicle could not have hit Lawrence because, after she stepped into Austin’s lane, the impact of the collision threw her from the curb lane into the inner lane. It is speculative to assume that Schauf would have known that Lawrence lay in her traffic lane because other cars, not in her lane, swerved.
Robbins’s report also does not support a finding that Schauf was negligent. First, Robbins relies in part on portions of ‘What Every Driver Must Know,’ which is not competent authority for determining comparative negligence. Further, although Robbins stated that Schauf’s headlights appeared to be cloudy or oxidized, he admitted that he did not actually inspect Schauf’s car. In any event, Robbins merely stated that oxidation ‘reduces the headlight projection and, thus, driver visibility from direct headlight illumination of objects on the roadway.’ He did not discuss how or to what extent headlight oxidation affects illumination compared to nonoxidized headlights, nor did he discuss whether the condition of Schauf’s headlights rendered her vehicle noncompliant with MCL 257.699, which establishes illumination requirements for headlights.”
Having disposed of the Estate’s arguments regarding its wrongful death claims against Austin and Schauf, the Court of Appeals next affirmed the trial court’s summary disposition order dismissing the Estate’s claim for survivor’s loss benefits against Fremont and Progressive on behalf of Lawrence’s daughter, JL. The Court of Appeals held, first, that JL was domiciled with her father, Timothy Engler, at the time of the crash, as he had sole physical custody of JL. The Court noted that a person can only have one domicile, and thus the fact that JL stayed with her mother at her grandmother’s house on weekends did not operate to change her domicile.
“Although MCL 500.3110 does not use the term ‘domicile,’ the phrase ‘dependent on the parent with whom he lives’ (emphasis added) is synonymous with the longstanding definition of domicile, of which JL could have only one. In May 2018, Lawrence and JL’s father, Timothy Engler, agreed that Engler would have sole physical custody of JL, with the two continuing to share legal custody, and the court entered an order awarding Engler sole physical custody of JL beginning June 15, 2018. Therefore, consistent with Grange, as a matter of law, JL did not ‘live with’ Lawrence at the time of the accident, but with Engler.”
The Court of Appeals further held that the Estate failed to establish that Lawrence provided regular financial support to JL at the time of the crash. The Court noted that Lawrence did not pay child support, and that there was simply no evidence that Lawrence provided regular financial support to JL at the time of the crash.
“Plaintiff also argues that Lawrence provided regular support for JL, thereby entitling JL to survivor’s benefits under MCL 500.3110(1)(c). The May 21, 2018 custody order provided that ‘[c]hild support is still an issue and shall be referred to a hearing with the Referee.’ However, Engler testified that he did not ask for child support, and Lawrence did not pay any. Lawrence did not provide transportation for JL, and Engler testified that neither Lawrence nor her mother owned a vehicle. Although JL stayed with Lawrence during alternate weeks in the summer of 2018, Engler testified that Lawrence lived with her mother. Engler was not aware whether Lawrence paid her mother rent. Engler provided somewhat inconsistent answers concerning any other support. When asked whether Lawrence had provided financial support to JL during the five months before the accident, Engler said he was not sure, but he also said that Lawrence had assisted with JL’s hair, nails, and occasionally clothing, and she had done what she could with what she had. Engler testified that Lawrence provided JL with food and clothing when JL stayed with Lawrence and her mother. However, Lawrence received food stamps and Engler did not know whether Lawrence’s mother also provided food for JL. Engler did not think that Lawrence’s mother also provided clothing for JL because it was mostly JL’s aunt or JL’s older sister who did. JL was covered under Engler’s health insurance and he provided her with school supplies.
Plaintiff, Lawrence’s brother, testified that Lawrence was employed part time as a housekeeper at a hotel but she did not have a bank account. Plaintiff was unaware whether Lawrence gave her mother any money for rent. Plaintiff also stated that in the six months before the accident, Lawrence resided at a shelter provided by a mission to help her qualify for housing assistance. Plaintiff stated that Lawrence bought clothes for JL. According to plaintiff, however, at the time of the accident, JL spent only occasional weekends at the home Lawrence shared with her mother.
Plaintiff also relies in part on testimony that Engler provided financial support to Lawrence’s mother after the accident to argue that Lawrence must have been providing that amount of support. However, Engler testified that he provided Lawrence’s mother money for food because JL stayed there because her summer school was located next to her grandmother’s home. This later voluntary contribution after Lawrence’s death, while JL resided with her grandmother full time, does not give rise to a reasonable inference that Lawrence provided such level of support when she was not financially responsible for JL.
The foregoing testimony, as well as Engler’s explanation that the custody arrangement and Lawrence’s lack of any child support obligation were designed to allow Lawrence to save money to afford her own place, support the trial court’s determination that JL was not entitled to survivor’s benefits. Although Lawrence may have provided some support for JL before the accident, no genuine issue of material fact existed that JL ‘regularly’ received support from Lawrence at the time of Lawrence’s death, as required under MCL 500.3110(1)(c). Ignoring the word ‘regular’ in MCL 500.3110 would render that term surplusage or nugatory, which this Court will not do. People v Pinkney, 501 Mich 259, 282; 912 NW2d 535 (2018).”
