EST OF MAJED HAMDALLAH V SMART
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STATE OF MICHIGAN
COURT OF APPEALS
LAWRENCE S. PEPPER as Personal Representative
of the ESTATE OF MAJED HAMDALLAH,
SALEM HAMDALLAH, SHAMMA
HAMDALLAH,
UNPUBLISHED
February 13, 1998
Plaintiffs-Appellants,
v
SUBURBAN MOBILITY AUTHORITY FOR
REGIONAL TRANSPORTATION a/k/a SMART,
No. 195900
Wayne Circuit Court
LC No. 93-334213-NI
Defendant-Appellee,
and
WESTIN RENAISSANCE COMPANY, WESTIN
HOTEL, RENAISSANCE CENTER
PARTNERSHIP, RENAISSANCE CENTER and
CITY OF DETROIT,
Defendants.
Before: Markman, P.J., and McDonald and Cavanagh, JJ.
PER CURIAM.
Plaintiffs appeal by leave granted an order denying reconsideration of summary disposition
pursuant to MCR 2.116(C)(10) in favor of defendant SMART. We reverse and remand.
On August 21, 1992, near the entrance of the Westin Hotel, Majed Hamdallah died from
injuries sustained when he was struck by a SMART bus. Decedent was crossing Renaissance Drive
West from the hotel to his taxi, which was parked across the street, when the accident occurred. At the
time of the accident there was a bus parked in front of the hotel. Decedent was struck by the SMART
bus while entering the street in front of the parked bus. Plaintiffs filed suit against multiple defendants
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including SMART following the accident. Plaintiffs’ claim against SMART is that the bus was operated
negligently when it stuck decedent. Specifically, they claim that the SMART bus was traveling above
the posted speed limit of fifteen miles per hour. The trial court granted SMART’s motion for summary
disposition, ruling that there were no genuine issues of material fact and that SMART was entitled to
judgment as a matter of law because plaintiffs failed to produce evidence that the bus was operated
negligently.
On appeal, plaintiffs contend that the trial court erred in granting summary disposition because
plaintiffs submitted evidence from which an inference could be drawn that the bus was exceeding the
speed limit or otherwise operating negligently. A trial court’s grant or denial of summary disposition is
reviewed de novo on appeal. Pickney Community Schools v Continental Casualty Co, 213 Mich
App 521, 525; 540 NW2d 748 (1995). This Court reviews the record in the same manner as the trial
court to determine if the movant is entitled to judgment as a matter of law. Philips v Deihm, 213 Mich
App 389, 398; 541 NW2d 566 (1995). A motion for summary disposition pursuant to MCR
2.116(C)(10) may be granted where there is no genuine issue as to any material fact and the moving
party is entitled to judgment as a matter of law. Once SMART supported its motion for summary
disposition with deposition testimony from several witnesses who indicated that the bus was not
speeding or driving erratically, the burden shifted to plaintiffs to show by evidentiary materials that a
genuine issue of disputed fact existed regarding whether the bus was being operated negligently at the
time decedent was struck by the bus. See Skinner v Square D Co, 445 Mich 153, 160-161; 516
NW2d 475 (1994). The existence of a disputed fact must by established by admissible evidence. Cox
v Dearborn Hts, 210 Mich App 389, 398; 534 NW2d 135 (1995).
Here, plaintiff presented the testimony of Anwar Krajah who testified that he saw the bus come
around the corner and, although he did not watch the bus the entire time that it traveled from the corner
to the front of the hotel where the accident occurred, he saw how fast the bus was traveling initially and
estimated the speed to be twenty-five to thirty miles per hour. The trial court discounted this testimony
based on its conclusion that Krajah contradicted himself mid-sentence. A review of Krajah’s testimony,
however, indicates that while he conceded that he did not know the exact speed of the bus, he did not
contradict his assertion that the bus was traveling twenty-five to thirty miles per hour. Accordingly, the
trial court erred in finding that Krajah contradicted himself. The reliability of Krajah’s testimony that the
bus was traveling at an excessive speed turns on Krajah’s ability to assess the speed of the bus and on
his credibility as a witness. Similarly, the timeliness-- or untimeliness-- of his statement to authorities
would weigh only on his credibility as a witness. A trial court may not make findings of fact or weigh
credibility in deciding a summary disposition motion. Skinner, supra at 161. A trial court is to draw all
legitimate inferences in favor of the non-movant. Id. at 162. Therefore, Krajah’s testimony raises a
genuine issue of material fact. The trial court accordingly erred in granting SMART’s motion for
summary disposition.
For these reasons, we reverse the trial court’s order granting SMART’s motion for summary
disposition and remand for further proceedings.
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/s/ Stephen J. Markman
/s/ Gary R. McDonald
/s/ Mark J. Cavanagh
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