FRANCYE ELAINE LOEPKE V MEAD GROUP INC
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STATE OF MICHIGAN
COURT OF APPEALS
FRANCYE ELAINE LOEPKE and GREGORY
JOHN LOEPKE,
UNPUBLISHED
March 20, 1998
Plaintiffs-Appellees,
v
MEAD GROUP, INC., d/b/a LEXUS OF
LAKESIDE, and REINHOLD OTTO OPPERMAN,
No. 193295
Ingham Circuit Court
LC No. 94-076549 NI
Defendants-Appellants.
Before: Fitzgerald, P.J., and Hood and Sawyer, JJ.
MEMORANDUM.
Defendants appeal by leave granted an order of the circuit court granting judgment
notwithstanding the verdict in favor of plaintiffs on the issue of negligence and granting plaintiffs a new
trial as to the remaining issues. We reverse and remand for reinstatement of the jury verdict.
The trial court erroneously determined that a violation of MCL 257.652(1); MSA 9.2352(1),
constituted negligence per se. The violation of a penal statute creates only a prima facie case from
which the jury may draw an inference of negligence. Zeni v Anderson, 397 Mich 117, 128-129, 143;
243 NW2d 270 (1976); Gould v Atwell, 205 Mich App 154, 158; 517 NW2d 283 (1994). Viewing
the evidence and all legitimate inferences drawn therefrom in a light most favorable to the nonmoving
party, the record contains evidence from which the jury could conclude that defendant Opperman was
operating his vehicle in a reasonable and prudent m
anner immediately preceding the collision with
plaintiffs’ vehicle. Orzel v Scott Drug Co, 449 Mich 550, 557-558; 537 NW2d 208 (1995). Under
such circumstances, a factual question to be resolved by the trier of fact existed with regard to whether
defendant Opperman violated MCL 257.652(1); MSA 9.2352(1). Zeni, supra, 135.
Even assuming, but without deciding, that defendant Opperman violated MCL 257.652(1);
MSA 9.2352(1), it would still be for the trier of fact to determine whether Opperman had a legally
sufficient excuse under the circumstances of this case for operating his vehicle in the manner he did.
Zeni, supra, 143; see also Cebulak v Lewis, 320 Mich 710, 718-720; 32 NW2d 21 (1948).
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Finally, although plaintiff Francye Loepke may have had the right-of-way, she nevertheless was
still required to exercise that degree of care and caution that a reasonably prudent and careful person
would exercise under the same or similar circumstances. Rhoades v Finn, 288 Mich 262, 265; 284
NW 720 (1939). Whether a party’s conduct was reasonable is a question for the jury, barring
overriding concerns of public policy that are not present in this case. Scott v Harper Recreation, Inc,
444 Mich 441, 448; 506 NW2d 857 (1993). Viewed in a light most favorable to defendants, the
evidence at trial created a factual question with regard to whether plaintiff was operating her vehicle in a
reasonably prudent and careful manner immediately preceding the accident.
In sum, viewing the evidence in a light most favorable to defendants, there was evidence from
which the jury could reasonably conclude that it was plaintiff Francye Loepke, and not defendant
Opperman, who was negligently operating a motor vehicle at the time of the collision and, therefore, the
evidence certainly created enough doubt as to defendant’s negligence for the jury to find that plaintiff
failed to prove actionable negligence by a preponderance of the evidence. Accordingly, because the
record does not support a conclusion as a matter of law that defendant Opperman’s negligence caused
the collision, the trial court erroneously granted the judgment notwithstanding the verdict and the partial
new trial.
Reversed and remanded for entry of judgment in accordance with the jury’s verdict. We do not
retain jurisdiction.
/s/ E. Thomas Fitzgerald
/s/ Harold Hood
/s/ David H. Sawyer
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