-1- 

### STATE OF MICHIGAN

COURT OF APPEALS

ESTATE OF AARON REID, by KENNETH REID, Personal Representative,

Plaintiff-Appellant, UNPUBLISHED February 7, 2017

v No. 328587 Livingston Circuit Court LC No. 14-028291-NI THOMAS WALKER, KIMBERLY WALKER, RAYMOND WILLIS, VAUGHN VOIGHT, and FRANCINE VOIGHT,

Defendants-Appellees,

and

FARM BUREAU GENERAL INSURANCE,

Defendant.

Before: R ONAYNE K RAUSE , P.J., and O’C ONNELL and G LEICHER , JJ.

O’C ONNELL , J ( dissenting ).

Plaintiff, the Estate of Aaron Reid, appeals as of right the t rial court’s order granting summary disposition to defendants Thomas Walker, Kimberly Walke r, Raymond Willis, Vaughn Voight, and Francine Voight und er MCR 2.116(C)(10). Thomas Wal ker, Raymond Willis, and Vaught Voight were each involved in the unfortunate accident th at killed Aaron Reid as he was riding his bicycle at night along the side of a road. The tria l court determined that no reasonable juror could conclude that Reid was less than 50% responsible fo r the accident. Because I agree with the learned trial court ’s ruling, I would affirm.

I. FACTUAL AND PROCED URAL BACKGROUND

In the early morning on November 3, 2011, 19-year-old Reid met with his friends Mark Thibodeau and Jordan Salmi to ride bicycles and drink alcohol. According to Salmi’s deposition testimony, from about 1:00 a.m. to 5:00 a.m., the teens shared a fifth of alcohol and rode their bikes on “state land,” after whic h they went to a McDonald’s re staurant. Thibodeau testified that the teens stayed at the McDonald s for between 40 minutes and an hour.-2- Salmi testified that when the teens left the McDonalds, they r ode their bicycles along Whitmore Lake Road, intending to return home. Reid was wearing blue jeans, a dark colored shirt, and a camouflaged coat. Salmi testified that he was on the southbound side of the road behind Thibodeau, and Reid was on the northbound side of the ro ad. Both Salmi and Thibodeau testified that they were not awar e that a vehicle was approachi ng until they heard a crash.

Thomas Walker testified that he was driving his girlfriend to work in his pickup truck that morning. The day before the accident, he had noticed that one of his low-beam bulbs was “finicky” and would shut off if he hit a bump too hard. Walker exited a roundabout at about 30 miles an hour, gradually accelerated to between 45 and 50 miles an hour, and turned on his highbeam headlights. As he did so, he immediately saw Reid traveli ng from left to right across the road, hit his brakes, and swerved to the left. He struck Reid’ s bicycle with the front right of his truck.

Walker testified that he immediately slammed on his brakes and pulled onto the southbound shoulder to call 911. As he got out of his truck, h e noticed that Reid was lying close to the yellow line in the opposite lane, and Salmi and Thibodea u were waving and screaming at oncoming cars to try to get them to stop. Salmi testified that he told Reid to get up and tried to grab him, but other vehicles were approaching Thibodeau testif ied that he was wearing a white coat while waving and screaming at vehicles to stop. He only g ot out of the way of the second vehicle at the last second.

Green Oak Township Police Officer Michael Jain indicated that he was operating a stationary radar on the southbound side of Whitmore Lake Road w hen he saw a vehicle that had been traveling northbound appear to stop on the southbound side of the road. After a second vehicle stopped, Officer Jain appr oached the scene, believing t hat an accident had occurred.

Raymond Willis testified that he was driving to work in his ca r that morning. He was traveling under the speed limit after passing a police car when he saw a truck’s headlights on the wrong side of the road. Willis slowed down because he thought that the truck was experiencing difficulty and merged into the southbound lane to avoid the tru ck. Willis then saw something in the roadway and swerved to the right, but he was unable to avoi d Reid and hit him with his car. He did not see anyone wearing a white jacket.

Vaughn Voight testified that he was driving his car about thre e car lengths behind Willis’s car. He noticed a vehicle with three bright lights on the wrong side of the highway, slowed down, and moved into the northbound lane to give the veh icle a clear lane. The lights from the vehicle bothered his eyes and he did not see anyone we aring a white jacket. Voight saw the vehicle in front of him slightly swerve, but he did not swe rve, hit something in the road and braked. After he stopped, young men were running and screaming . One of them said that his friend was under Voight’s vehicl e. Reid was pronounced dead at the scene.

Livingston County Sherriff Deputy Brad Neff conducted a crash scene investigation. According to Deputy Neff’s report, he determined that Reid caus ed the accident because Reid was wearing dark clothing and had no reflectors or lights on hi s bicycle. Reid’s blood alcohol content at the time of the accident was 0.07, and none of the v ehicle drivers had alcohol in their systems. Salmi also stated to Deputy Neff that Reid started to cross the road without looking or-3- signaling. At his deposition, Salmi testified that he was not sure whether Reid had tried to cross the road in front of the tru ck, but he had no reason to dispute what he told Deputy Neff.

Deputy Medical Examiner Michelle Elieff testified that she per formed an autopsy on Reid. Reid had impacts to both sides of his body, which was co nsistent with a turning motion or crossing from one side to the other when he was struck, and he did not show evidence of a rear impact. However, mechanical engineer John F. Wiechel indicated that the bicycle’s rear tire was crushed inward, indicating that it was hit from behind, and cra sh reconstructionist Timothy Robbins also concluded that the da mage to the bicycle indicated that it was struck in the rear.

Reid filed a six-count complaint against the defendants, asser ting claims of negligence and wrongful death. Walker, Willis, and Voight moved for summa ry disposition under MCR 2.116(C)(10), asserting that they could not be found liable for the accident because Reid was more than 50% at fault. Reid responded to the motion by presen ting Wiechel’s report, which indicated that he believed the v ehicles were each traveling too fast. Robbins also stated that the vehicles were traveling too fast for the conditions based on hi s review of the damage and police report, and he did not believe alcohol was a factor. Werner U. Spitz, an expert in forensic pathology and toxicology, also sta ted that he had reviewed the facts of the case and concluded that alcohol was not a factor. Reid alleged that a question of fact existed regarding the cause of the accident because Walker admitted he was speeding and had a nonfunctioning headlight, and that Willis and Voight were traveling too fast and did not act with proper caution when approaching the area.

The trial court granted summary disposition to the defendants, stating that it was impossible to conclude that Reid was not more responsible for t he crash. The trial court cited Reid’s dark clothing, lack of re flectors and lights, and lack o f sleep at the time of the accident. The trial court opined that even accepting that Walker was trav eling over the speed limit, neither Willis nor Voight were speeding when they passed Deputy Jain’s patrol vehicle, and there was no indication that they were tra veling too fast for the conditi ons. The trial court also found that Reid’s blood alcohol content was 0.07, and the conclusions of R eid’s experts that alcohol did not play a factor were not supported by facts. Finally, the trial court concluded that Reid had not established any evidence of neg ligence on the part of the defen dants.

II. STANDARDS OF REVIEW

This Court reviews de novo the trial court’s decision on a mot ion for summary disposition. Maiden v Rozwood , 461 Mich 109, 118; 597 NW2d 817 (1999). A party is entitled to summary disposition under MCR 2.116(C)(10) if “there is no g enuine issue as to any material fact, and the moving party is entitled to judgment . . . as a m atter of law.” The trial court must consider all the documentary evidence in the light most favorab le to the nonmoving party. Maiden , 461 Mich at 120. A genuine issu e of material fact exists if, when viewing the record in the light most favorable to the nonmoving party, reasonable min ds could differ on the issue. Gorman v American Honda Motor Co, Inc , 302 Mich App 113, 116; 839 NW2d 223 (2013).

To survive a motion for summary disposition, once the nonmovin g party has identified issues in which there are no dis puted issues of material fact, the burden is on the plaintiff to show that disputed issues exist. Quinto v Cross & Peters Co , 451 Mich 358, 362; 547 NW2d 314-4- (1996). The nonmoving party “must go beyond the pleadings to s et forth specific facts showing that a genuine issue of material fact exists.” Id . at 362. If the nonmoving party does not make such a showing, the trial court pr operly grants summary disposi tion. Id . at 363.

III. ANALYSIS

Reid contends that the trial court improperly granted summary disposition because there was a genuine issue of material fact regarding whether Reid was more than 50% at fault for the accident. I disagree.

Typically, whether a driver was negligent is a question of fac t for the jury. Cole v Barber , 353 Mich 427, 431; 91 NW2d 848 (1958). However, if no reason able juror could find that the defendant was more at fault for the accident than the decedent, summary disposition may be appropriate. Huggins v Scripter , 469 Mich 898, 898; 669 NW2d 813 (2003).

A person may also be subject to liability in an action arising out of a motor-vehicle accident if the injured person “s uffered death, serious impairm ent of body functi on, or permanent serious disfigurement.” MCL 500.3135(1). But MCL 500.3135(2)( b) limits this liability, providing that “damages shall not be assessed in favor of a par ty who is more than 50% at fault.” MCL 600.2955a(1) also precludes liability if an individual is i ntoxicated and 50% or more at fault for an accident. An individual under 21 years of age is intoxicated if he or she has a blood alcohol content of 0.02 to 0.08. MCL 257.625a(6)(a).

In this case, it is clear that Reid was 50% or more at fault f or the accident in this case. As the trial court noted, he was w earing dark clothing, his bicycl e had no reflectors, and he was bicycling while intoxicated. Wal ker also testified that when h e saw Reid, Reid was travelling from left to right across the road and passed in front of his t ruck. Salmi also stated at his deposition that he could not dis pute that he told Deputy Neff t hat Reid was trying to cross the road in front of the truck. While Reid contends that the physi cal evidence indicates that Reid’s crushed bicycle tire indicates he was struck from the rear, thi s does not mean that Reid was not crossing at an angle in front of the truck. Deputy Medical Exa miner Elieff testified that Reid’s physical injuries included no ev idence of a rear-type impact an d instead were consistent with crossing from one side to the other when he was struck. Deputy Neff, who was on the scene, determined that Reid’s actions caused the accident. The confli cting physical evidence might create a question of fact had two witnesses not also stated tha t Reid decided to cross in front of the truck, but given the testimony that Reid crossed in front o f the truck, I conclude that reasonable minds could not di ffer on this issue.

Also of note, Reid, who was belo w legal drinking age, was into xicated. See MCL 600.2955a; MCL 257.625a(6)(a). Salmi t estified that he, Reid, and Thibodeau had split a fifth of alcohol over the course of the evening. Reid also had not had any sleep that evening. Though Salmi testified that there were no indications that Reid was un able to handle his bike or was still feeling effects from the alcohol , Reid’s decision to cross in f ront of the truck contradicts that statement. Additionally, Deputy Medical Examiner Elieff testif ied that even at lower levels, alcohol can affect judgement, distance perception, and coordina tion. An adult is intoxicated at a blood alcohol level of 0.08 to the extent that he or she cannot drive. MCL 257.625(1)(b). Reid was intoxicated to the level of 0.07.-5- For these reasons, I would conclude that no rational juror cou ld conclude that Reid, who was intoxicated and wearing dark clothing without reflectors at the time of the accident, was not more than 50% responsible for the accident. Accordingly, I wou ld conclude that the trial court appropriately granted summary disposition.

I would affirm.

/s/ Peter D. O’Connell