MELISSA LYNN TOWNES V KOOL CHEVROLET INC
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STATE OF MICHIGAN
COURT OF APPEALS
MELISSA LYNN TOWNES,
UNPUBLISHED
February 18, 2000
Plaintiff-Appellant/Cross-Appellee,
v
No. 211829
Kent Circuit Court
LC No. 95-001378 NP
JASON MICHAEL PERKS and SUE ELLEN
PERKS,
Defendants-Appellees/CrossAppellees,
and
C & B TRANSPORT, BRIAN BRIESE, and
GENERAL CAR & TRUCK LEASING,
Defendants-Appellees/CrossAppellants.
Before: Zahra, P.J., and Kelly and McDonald, JJ.
PER CURIAM.
In this automobile negligence case, plaintiff appeals as of right, challenging the trial court’s order
granting a directed verdict in favor of defendants Brian Briese, C & B Transport and General Car &
Truck Leasing System, Inc. Plaintiff’s motion for a new trial was also denied. Plaintiff also challenges
the trial court’s pretrial ruling granting summary disposition in favor of defendant Freightliner of Chicago,
Inc., which was based on the court’s conclusion that Freightliner was not the “owner” of the semi-truck
vehicle driven by Briese at the time of the accident. Defendant General Car & Truck has filed a cross
appeal, also challenging the trial court’s determination that it, and not Freightliner, was the “owner” of
the semi-truck. Defendants Brian Briese and C & B Transport have also cross-appealed, challenging
the trial court’s rulings to allow Briese’s deposition to be used at trial. We affirm.
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I.
At around 3:00 p.m. on February 21, 1993, a snowy day which produced some slushy and
slippery road conditions, defendant Jason Michael Perks1 was driving a Ford Tempo on westbound M
57 when he lost control of the vehicle, and slid into the eastbound lane, colliding with a semi-truck cab
being driven by defendant Brian Briese. Perks’ passenger, fifteen-year-old plaintiff, Melissa Townes,
was thrown from the Tempo and sustained severe injuries, causing permanent paralysis from the waist
down.
At the time of the accident, Briese was an employee of defendant C & B Transport, which was
in the business of moving new and used trucks from dealerships to purchasers. Briese had picked up
the semi-truck from Freightliner, a dealer, and was driving it to the facility of defendant General Car &
Truck, which had purchased the semi-truck.
Plaintiff filed suit against Jason Perks and his mother, Sue Ellen Perks, who was the owner of
the Ford Tempo, as well as Ford Motor Company and Kool Chevrolet (the manufacturer of the Tempo
and the dealership from which it was purchased, respectively). Also named as defendants were Briese,
C & B Transport, Freightliner and General Car & Truck. Plaintiff settled with Ford Motor Company
and Kool Chevrolet prior to trial, and the trial court granted Freightliner’s pretrial motion for summary
disposition, concluding that, at the time of the accident, Freightliner was not the owner of the semi-truck
as a matter of law. The case proceeded to trial against the remaining defendants.
At trial, Perks testified that he did not remember anything about the accident. Plaintiff testified
that, while Perks was driving, he lost control of the Tempo, which fishtailed a couple of times and then
slid into the oncoming lane in front of the semi-truck. The fishtailing started at the bottom of a hill,
before a curve. The car then appeared to straighten, but Perks did not have complete control and
plaintiff felt some wobbling and slipping. Plaintiff testified that “it was not an actual fishtail to where the
tail end moved a great distance.” The semi-truck was a little over fifty yards away when the Tempo
began to slide across the centerline. According to plaintiff, Perks was traveling about forty miles an
hour at the top of the hill. Plaintiff claimed that, when the Tempo began to slide, the semi-truck did not
make any maneuvers to avoid the accident, however, she acknowledged that she was not looking just
prior to impact. Plaintiff believed that no more than five or six seconds passed between the time when
the Tempo first began fishtailing and the collision with the semi-truck.
At trial, Briese testified that, as he was driving eastbound on M-57, the pavement was visible in
the tire tracks on both sides of the road. The pavement was wet where the snow and slush had melted,
but not icy. There was no packed snow where he was driving, but there was slush between the tire
tracks and on both shoulders. The posted speed limit was fifty-five miles an hour. The police report
reflects that Briese had stated that he was traveling approximately forty-five miles an hour, although at
trial he estimated his speed at between thirty-five and forty-five miles an hour, a speed at which he felt
comfortable driving under the road conditions. Briese claimed that, at all times while driving during the
day of the accident, he adjusted his speed based on the road conditions. He agreed there were
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“slippery road conditions that day,” but contended that he had “quite a bit of traction.” At no time was
he driving on ice. There were places where he could see both the centerline and the outside fog line.
Briese explained that if he had felt the conditions were dangerous, he would have either gotten off the
road or slowed down “tremendously more than I had already.”
Briese testified that, as he was approaching the curve, he saw the Tempo fishtail twice before
reaching the curve. He testified that the Tempo was about an eighth of a mile, or somewhere between
600 and 690 feet ahead when it fishtailed. The Tempo then appeared to regain control as it started
around the curve. Briese claimed that the Tempo did not wobble and was proceeding normally after it
fishtailed. When he saw the Tempo fishtail, he “probably” lifted his foot off the gas, slowed down a
little and coasted until he saw the Tempo regain control. He then put his foot back on the gas. If he had
thought that the Tempo was out of control after it fishtailed, he would have left the road and stopped the
truck. After about five or six seconds, as the Tempo came around the curve, it lost control and started
to slide.
Briese stated, “When they lost control and shot across my lane I did not have 300 feet in which
to react.” According to Briese, when the Tempo crossed the centerline, he was between fifty and one
hundred yards west2. He stated there was “no reason” to slow down when he saw the Tempo fishtail,
because the driver did not lose control of the Tempo until after the vehicle came around the curve.
Briese disagreed with plaintiff’s testimony that he took no action, because he took his foot off the gas
and moved to the right, giving the Tempo “as much of the road as I could.”
Briese testified that when he saw the Tempo go out of control and start to slide across into his
lane, he did not have time to safely apply the brakes. Because the Tempo came across the road so fast,
if he had slammed on his brakes he probably would have “slid over the top of them.” He claimed that
the “last thing you would want to do” would be to lock your brakes up. He immediately moved over to
the right to give the Tempo as much of the road as possible. At impact, his right tires were off of the
shoulder in the snow. Briese stated that if he had not been faced with the sudden emergency of the
Tempo coming into his lane, he would have been able to stop his truck within the distance that he could
see ahead in his own lane.
In his deposition, Briese had stated, “I might have hit the gas right before they hit me.” He
explained how that jibed with his statement that he took his foot off the gas:
When I first seen ‘em, I took my foot off the gas. When I realized that they
were still gonna hit me, even though I had given them the entire road, I may have hit the
gas to try to get a little farther up so that they would maybe hit tires instead of gas tanks
and things like that.
Dirk Finkbeiner, an Oakfield Township firefighter, investigated the accident scene. He stated
that the two lane highway had been recently plowed and salted. He found the truck on the shoulder of
the road. He did not render an opinion as to the cause of the accident.
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Greg Gendregske, a Michigan State Police Officer trained in advanced accident investigation,
testified that he observed the semi-truck approximately 5-1/2 feet off the road and on the shoulder,
which he believed demonstrated an attempt to avoid the accident. Gendregske opined that Perks’ loss
of control of his vehicle was the cause of the accident, and that the driver of the truck did nothing to
cause the accident and was not at fault in any way. No citation was issued to either driver.
Gary Oliver, another state trooper who was at the scene, concluded that Perks, an
inexperienced driver, lost control of his vehicle and that Briese did not make any errors in judgment or
driving and was not at fault in any way. Oliver explained that he did not issue a citation to Perks out of
compassion because he was a new driver, he had received a scar, and the injured passenger was his
girlfriend.
Because of discovery violations, the trial court ruled before trial that plaintiff would not be
permitted to present expert testimony on issues of negligence, including the standard of care and breach
of the standard of care. The court did allow plaintiff to present expert testimony from Donald Holmes
on the subject of accident reconstruction. Holmes concluded that the total distance between the two
vehicles at the time the Tempo began fishtailing was 1,388 feet. According to Holmes, assuming the
two vehicles were 100 yards apart when the Tempo began to slide, with the Tempo traveling at 40
miles per hour and the semi-truck at 45 miles per hour, the vehicles would impact in about 4.8 seconds.
The truck would travel 97 feet. Accepting plaintiff’s testimony that the distance was 50 yards, not 100
yards, then the time before impact would be cut in half. Holmes believed that the point of impact may
have been 50 feet further west. It would take the truck less than a second to travel 50 feet. Holmes
explained the inconsistency between Briese’s statement and plaintiff’s testimony regarding the distance
between the two vehicles when the Tempo began to slide over the center line as having to do with the
viewer’s reference point in relation to the center of the road.
At the close of plaintiff’s proofs, the trial court granted a directed verdict in favor of defendants
Briese, C & B Transport, and General Car & Truck. The court concluded that, while the police
officer’s statements were “not a determining factor,” there was no evidence presented by anyone who
investigated the accident scene that Briese “was in any way responsible for this accident.” The court
stated, “I do not find . . . that Mr. Briese did anything in this case which caused in any way an injury” or
was a proximate cause for the injuries. The court denied a request for directed verdict by defendants
Jason and Sue Ellen Perks. Plaintiff subsequently agreed to dismiss the Perks without prejudice, thus
concluding this litigation.
II.
On appeal, plaintiff contends that sufficient evidence was presented to cause reasonable jurors
to disagree on whether Briese met the standard of due care in light of the appreciated danger and
whether he was a proximate cause of her injuries and that, therefore, the trial court erred in granting a
directed verdict in favor of Briese, C & B Transport, and General Car & Truck. We disagree.
"This Court reviews de novo the trial court's decision on a motion for a directed verdict."
Kubisz v Cadillac Gage Textron, Inc, 236 Mich App 629, 634; 601 NW2d 160 (1999), quoting
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Braun v York Properties, Inc, 230 Mich App 138, 141; 583 NW2d 503 (1998). "When evaluating a
motion for a directed verdict, a court must consider the evidence in the light most favorable to the
nonmoving party, making all reasonable inferences in favor of the nonmoving party. Directed verdicts
are appropriate only when no factual question exists upon which reasonable minds may differ." Kubisz,
supra at 634-635, quoting Meagher v Wayne State University, 222 Mich App 700, 708; 565
NW2d 401 (1997) (citations omitted). Directed verdicts are disfavored in most negligence cases.
Vsetula v Whitmyer, 187 Mich App 675, 679; 468 NW2d 53 (1991).
To establish a prima facie case of negligence, a plaintiff must demonstrate that (1) the defendant
owed a duty to the plaintiff, (2) the defendant breached that duty, (3) the defendant’s breach of its duty
was the proximate cause of the plaintiff’s injuries, and (4) the plaintiff suffered damages. MacDonald v
PKT, Inc, 233 Mich App 395, 399; 593 NW2d 176 (1999).
Duty is the obligation that the defendant has to the plaintiff to avoid negligent conduct. Whether
a duty exists is a question of law for the court. Terry v Detroit, 226 Mich App 418, 424; 573 NW2d
348 (1997). As our Supreme Court observed in McGuire v Rabaut, 354 Mich 230, 236; 92 NW2d
299 (1958), a driver has a duty to take steps to avoid a collision
at that point when his continuing observations . . . reveal, or should reveal to the
reasonably prudent man, an impending danger. It is at this time that his duty of care
with respect to the subordinate driver arises, and his post-observation negligence, or
lack thereof, is measured by his actions after this point.
To prove proximate cause, plaintiff had to prove two separate elements: (1) cause in fact and
(2) legal cause. Skinner v Square D Co, 445 Mich 153, 162-163; 516 NW2d 475 (1994). The
cause in fact element generally requires a showing that “but for” the defendant's actions, the plaintiff's
injury would not have occurred. Id., 163. "The plaintiff must introduce evidence which affords a
reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a
cause in fact of the result. A mere possibility of such causation is not enough; and when the matter
remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it
becomes the duty of the court to direct a verdict for the defendant." Id. at 164-165, quoting Prosser &
Keeton, Torts (5th ed), § 41, p 269.
On the other hand, legal cause normally involves examining the foreseeability of consequences,
and whether a defendant should be held legally responsible for such consequences. A plaintiff must
adequately establish cause in fact in order for legal cause or "proximate cause" to become a relevant
issue. Skinner, supra at 163. The plaintiff must show that it was foreseeable that the defendant's
conduct "may create a risk of harm to the victim, and . . . [that] the result of that conduct and intervening
causes were foreseeable." Moning v Alfono, 400 Mich 425, 439; 254 NW2d 759 (1977).
Ordinarily, the determination of proximate cause is left to the trier of fact. Babula v Robertson,
212 Mich App 45, 54; 536 NW2d 834 (1995). However, if reasonable minds could not differ
regarding the proximate cause of the plaintiff's injury, the court should decide the issue as a matter of
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law. Vsetula, supra at 682. In this case, we conclude that the trial court did not err in directing a
verdict in favor of defendants with respect to plaintiff’s claim that Briese was negligent.
We believe the facts presented up to the time of defendants’ motion for directed verdict showed
that the Tempo appeared to have regained control until just seconds before it crossed the centerline,
and that Briese took reasonable steps to avoid the accident. When it became clear to him that the
Tempo was going to cross the centerline into his path, Briese’s duty to attempt to avoid the impending
collision began. Noyce v Ross, 360 Mich 668, 678; 104 NW2d 736 (1960). The evidence showed
that Briese attempted to avoid the collision and moved the truck off the road onto the snow-covered
shoulder. As our Supreme Court has stated, “one who suddenly finds himself in peril without time to
consider the best means to avoid impending danger is not guilty of negligence if he fails to adopt what
subsequently may appear to have been the better method, unless the emergency is brought about by his
own negligence.” Schow v Paugh, 350 Mich 304, 308; 86 NW2d 261 (1957). We agree with the
trial court that there was no evidence that Briese’s actions were a proximate cause of plaintiff’s injuries.
In light of our ruling, we find it unnecessary to address the additional issues raised on appeal and
on cross-appeal.
Affirmed.
/s/ Brian K. Zahra
/s/ Michael J. Kelly
/s/ Gary G. McDonald
1
Perks was sixteen at the time of the accident and had received his driver’s license only three months
earlier.
2
In his deposition, Briese stated that, when the Tempo began to slide, the distance between the semi
trick and the Tempo was 100 yards. Plaintiff had testified that the distance was 50 yards. At trial, after
hearing plaintiff’s testimony, Briese stated: “Actually, I don't believe it was 100 yards. When you were
all asking me questions in my deposition I said about 100 yards. I didn't have a tape measure. I don't
know that it was 100 yards so to assume that is, I don't feel is right. I believe Missy testified 50 yards.
So 50 to 100 yards. In that area.”
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