ROBERT MILLER V DOUGLAS MCARTHUR KING JR
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STATE OF MICHIGAN
COURT OF APPEALS
ROBERT MILLER, Personal Representative of the
Estate of VAN LEE HOCH,
UNPUBLISHED
March 1, 2007
Plaintiff-Appellant,
v
No. 272115
Wayne Circuit Court
LC No. 05-518076-CZ
DOUGLAS MCARTHUR KING, JR., and
FOURTEENTH AVENUE CARTAGE
COMPANY, INC.,
Defendants-Appellees.
Before: Hoekstra, P.J., and Markey and Wilder, JJ.
PER CURIAM.
Plaintiff appeals as of right from an order granting defendants’ motion for summary
disposition in this wrongful death negligence action. We affirm. This case is being decided
without oral argument pursuant to MCR 7.214(E).
This case arises out of an accident in which plaintiff’s decedent, Van Lee Hoch, died as a
result of injuries suffered when he was run over by a tractor-trailer or “truck” owned by
defendant Fourteenth Avenue Cartage Company, Inc., and driven by defendant Douglas King.
Plaintiff argues that the trial court erred in granting summary disposition in favor of
defendants because there was evidence from which a jury could reasonably infer that King’s
negligence was a proximate cause of Hoch’s death. Plaintiff argues that there was substantial
evidence that King acted negligently, particularly by failing to look at the rear of the truck before
driving. We disagree.
A grant of summary disposition under MCR 2.116(C)(10) is reviewed de novo. Greene v
A.P. Products, Ltd, 475 Mich 502, 507; 717 NW2d 855 (2006). The documentary evidence
submitted by the parties is viewed in the light most favorable to the party opposing the motion.
Id. Summary disposition under MCR 2.116(C)(10) is appropriate only if there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter of law. Id.
The elements of a prima facie case of negligence are that: (1) the defendant owed a duty
to the plaintiff, (2) the defendant breached the duty, (3) the breach of duty proximately caused
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the plaintiff’s damages, and (4) the plaintiff actually suffered damages. Brown v Brown, 270
Mich App 689, 693; 716 NW2d 626 (2006).
Critical to this case is the extent of King’s duty under negligence law in operating the
truck. The general reasonable or ordinary standard of care applicable to negligence cases is “the
care that a reasonably careful person would use under the circumstances.” Case v Consumers
Power Co, 463 Mich 1, 6-7; 615 NW2d 17 (2000). This standard does not require a person to
exercise “extraordinary care.” Campbell v Kovich, ___ Mich App ___; ___ NW2d ___ (Docket
No. 269876, pub’d December 14, 2006 at 9:00 a.m.), slip op at 3. While it is ordinarily for a jury
to determine whether a defendant’s conduct fell below the general standard of care, a court may
decide the issue where all reasonable persons would agree. Case, supra at 7.
In our view, there is no basis to conclude that King breached his duty of ordinary care in
operating the truck by failing to look at the rear of the truck before operating it at the time of the
incident as claimed by plaintiff. It is undisputed that King was driving the truck forward from
the office. Thus, he would have had no reason to be concerned about backing up over another
person. There is no evidence that King saw Hoch before King entered the truck. It is unclear
exactly how this accident happened. One can surmise that Hoch had begun some type of
inspection of the container on the truck while it was parked there, and unfortunately was
positioned in some location on or near the truck where he was susceptible to being run over.
However, from the undisputed evidence, it is manifest that the truck was not parked in an area
where one would reasonably expect or anticipate such inspections being conducted. There was
simply no reason for King to have reasonably foreseen that another person would have been in
an unusual location where that person could have been run over by the truck at the time of the
incident. In this regard, to expect King to have checked the rear of the truck under these
circumstances before driving forward to the area where containers were routinely removed and
inspected would clearly be to inappropriately hold him to a standard of extraordinary care rather
than only reasonable or ordinary care. Thus, plaintiff has not established that the trial court erred
in granting summary disposition to defendants.
Affirmed.
/s/ Joel P. Hoekstra
/s/ Jane E. Markey
/s/ Kurtis T. Wilder
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