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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

ESTATE OF ERIC JOHNSON, by ANGELA 

JOHNSON-JONES, Personal Representative,

Plaintiff-Appellant,

UNPUBLISHED

October 19, 2017

v No. 332855

Oakland Circuit Court

JASON CHARLES UGLJESA HASS and 

EDWARD NICHOLAS HASS,

LC No. 2015-145442-NI

Defendants-Appellees.

Before: BORRELLO, P.J., and MURPHY and KRAUSE, JJ.

PER CURIAM.

In this negligence action plaintiff appeals by right an April 28, 2016, trial court order 

granting summary disposition in favor of defendants pursuant to MCR 2.116(C)(10). For the 

reasons set forth in this opinion, we affirm. 

I. FACTS

This case arises from an accident that occurred on the evening of February 20, 2014, 

when defendant Jason Hass hit the decedent Eric Johnson with his vehicle while Johnson was 

running in all dark clothing near the center of the lane of oncoming traffic on Opdyke Road on a 

dark rainy night in Pontiac. At approximately 7:15 p.m. on that evening, Eddie Turner was 

driving a Ford Explorer southbound on Opdyke Road towards Auburn Road. At that portion of 

Opdyke Road, there are two traffic lanes and another lane for left turns. On that evening, the 

weather “was like a drizzly rain mix,” but the weather did not interfere with Turner’s ability to 

see. Turner stopped at the stoplight at the intersection of Opdyke Road and Auburn Road. He 

was in the rightmost traffic lane, the lane that was closest to the edge of the road. 

Turner testified that he saw a truck in front of him that proceeded through the stoplight, 

and he observed that the truck “veered off to the left real fast” after it “got probably about fifty 

yards up the road[.]” Turner thought he saw something, possibly a shadow or an animal, in the 

road ahead. Turner proceeded through the intersection after the stoplight changed, and as he 

went further down the road, he approached “what [he] thought was a shadow,” but he could

“now see that this [was] actually a person that’s running in the actual lane, the right lane.” 

Turner was either 50 or 100 yards away when he could decipher that there was a person on the 

roadway. 
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The decedent Johnson was the person running in the road that evening. He was wearing 

dark clothing without any reflective material on it. Additionally, according to Turner, Johnson 

was “running straight down the middle” of the right lane. Turner testified that as he reached the 

“posted speed, about forty-five,” he then noticed that Johnson was not “really like getting out of 

the right lane that [Turner was] driving in.” Turner went “ahead and [he] started to get over into 

the left lane.” At that point, Turner looked into his rearview mirror, and he saw that there was 

another driver, Hass, driving a vehicle behind him. The two vehicles were approximately 50 

yards from Johnson, who was still “running in the middle of [the] right lane.” The distance 

between Turner’s Ford Explorer and Hass’s Chevrolet Impala was approximately “two car 

lengths apart,” however, after Turner moved into the left lane, Hass “only had a car length to --

before he would have been where that pedestrian was.” Turner testified that there was no way 

that Hass could have seen Johnson until Turner moved his vehicle into the left lane. 

Hass tried to swerve to avoid Johnson, but he ultimately collided with him. Turner did 

not see Johnson “make any move to get away” from Hass’ automobile. He confirmed that he 

thought that Johnson would “get out of the lane as traffic approached,” however, Johnson 

continued to “run straight towards the car coming [sic].” He also confirmed that his “lights”

were on at that time, and that “there would be no reason for the runner not to see [his] vehicle as 

[he] approached[.]” 

After Hass hit Johnson, Hass went back into the right lane, and Turner stopped his 

vehicle in “the turning lane.” He and Hass exited their vehicles, and Hass headed towards 

Johnson. Turner asked Hass to “put his flashers on” to alert oncoming traffic to the incident, and 

Turner used the light on his iPhone to “flag and flash” oncoming traffic. Another motorist, Kim 

Garrison, stopped her vehicle, and she “left her lights on and turned her flashers on her car, so 

now [they] actually [had] lights actually flashing onto the young man [that was] laying on the 

ground that was in the accident.” Turner saw that Johnson was wearing “a dark hoodie,” “dark 

sweatpants,” “[d]ark shoes,” and an article of clothing that Turner described as “like a dark puffy 

jacket.” He stated that Johnson’s clothing made it difficult, “if not impossible,” to see Johnson 

until Turner’s lights were placed on Johnson. 

Turner speculated that if Johnson had “jumped over onto the curb or ran towards the 

curb, then it could have been avoided, but he ran straight towards the car. He was -- he 

continued to run straight towards the car.” Hass appeared to be “a little shaken,” so Turner 

called 911. He told the 911 operator Johnson was breathing, but that he was “[n]ot really giving 

us any verbal words.” Johnson died four days later at a hospital. 

Oakland County Sherriff’s Deputy Robert Batzloff composed a report regarding the 

incident. According to Deputy Batzloff’s report, Hass stated that he was driving at 

approximately 35 to 40 miles per hour when he collided with Johnson. Hass stated that he did 

not see Johnson. The report listed the time of the incident as 7:14 p.m. Hass was not charged 

and the incident was closed. 

Plaintiff commenced this suit on February 11, 2015, alleging negligence. The complaint 

alleged that Hass’ “careless and reckless” operation of his vehicle resulted in the death of 

Johnson. Hass’ father, Edward, was also named as a defendant under MCL 257.401 because he 

was the registered owner of the vehicle that Hass was driving. 
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On February 17, 2016, defendants moved for summary disposition under MCR 

2.116(C)(8) and MCR 2.116(C)(10), arguing that Johnson was more than 50-percent at fault for 

the collision because he was “a proximate and sole cause of the accident” due to his violation of 

MCL 257.655, and because Johnson “was running in all black at night making it impossible for 

him to be seen by oncoming traffic until it was too late.” In their supporting brief, defendants 

relied on Turner’s testimony that Johnson had been wearing dark clothing while he was running 

towards oncoming traffic in the right southbound lane of Opdyke Road. Defendants also cited 

Turner’s testimony that Johnson did not move to evade oncoming traffic, and that Hass had no 

time to evade Johnson after Turner went into the left lane. Defendants argued that Johnson’s 

negligence was the proximate cause of his injury and there was no evidence that Hass “failed to 

drive his vehicle in a prudent manner” resulting in the accident. 

Defendants also attached an affidavit signed by Hass to their motion. In the affidavit, 

Hass stated that he was driving his vehicle at a speed of 35 to 40 miles per hour at the time of 

incident. He stated that it was “dark outside and it was raining with patches of fog. Visibility 

was poor.” According to Hass, he did not see Johnson because it was dark outside until he “was 

close to him,” and while Hass swerved to the left, he was unable to avoid Johnson because 

Johnson “was in the middle of the lane of traffic[.]” After the collision, Hass saw that Johnson 

was “dressed entirely in black clothing with no reflective materials.” 

Plaintiff responded, arguing that Johnson did not cause the accident and instead argued 

that Hass was negligent by “tailgating” Turner, resulting in the collision with Johnson. Plaintiff 

attached an affidavit of a purported expert witness named Sammie Hall. Hall opined that Hass 

was unable to see Johnson because Hass was traveling too close to Turner’s vehicle. Hall based 

his conclusions on various case reports composed by law enforcement, “the witness statement of 

this incident offered by Mr. Eddie Turner . . .” Turner’s deposition, and Hall’s personal 

examination of the accident site. 

Additionally, plaintiff argued that there was a genuine issue of material fact with regard 

to comparative negligence because even if Johnson was negligent in part due to “jogging in dark 

clothes in the evening, his negligence did not cause the first car to hit him,” nor did it cause 

Turner “to hit him.” Rather, plaintiff asserted that only Hass hit Johnson, and that Turner saw 

Johnson from “100 yards away.” 

On April 6, 2016, defendants filed a reply, arguing that the trial court should reject Hall’s 

affidavit as “untimely,” and “improper, based wholly on speculation and conjecture and grant 

their motion [for summary disposition].” Defendants asserted that the period of discovery closed 

on February 2, 2016, which was the date that a case evaluation was conducted, and therefore, 

plaintiff failed to provide Hall’s affidavit, or identify Hall as an expert witness prior to the close 

of discovery. Defendants also noted that Hall did not inspect the scene of the incident until after 

defendants’ motion for summary disposition—nearly two years after the accident. 

On April 20, 2016, the trial court held a hearing on the motion for summary disposition. 

Plaintiff’s counsel failed to appear. The trial court granted defendants’ motion for summary 

disposition pursuant to MCR 2.116(C)(10). The court explained that Johnson was “running the 

middle of the lane on a dark rainy evening, wearing all dark clothing,” and that Turner testified 

that he was able to see Johnson from his “high profile SUV, but that the Defendant, Jason Hass’s 
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vehicle was lower, and would not have been able to see [Johnson].” Additionally, the trial court 

said, “MCL 257.655 states that where there are no sidewalks, pedestrians shall, when practical --

practicable, walk on the left side of the highway facing traffic which passes nearest.” The trial 

court concluded that Johnson “was running the middle of the lane, not on the left side, and his 

own negligence was the proximate cause of his injures.” 

The trial court then considered plaintiff’s response to defendants’ motion, and Hall’s 

accompanying affidavit. It incorrectly observed that “[p]laintiff did not name Mr. Hall, or 

anyone else as a witness, having failed to file any witness list, or respond to discovery requests,” 

and noted that “[t]he discovery has closed.” The trial court then held that Hall’s conclusions 

were “based solely on the police report and witness statements, which are hearsay.” 

Additionally, the trial court stated that, “just on that point of having failed to respond to 

discovery, the Court is not going to condone a blatant disregard of the orders of this Court and 

the orderly administration of justice to allow any late filings.” The trial court entered an order 

granting defendants’ motion for summary disposition. This appeal ensued. 

II. STANDARD OF REVIEW

We review a trial court’s decision on a motion for summary disposition de novo. Zaher v 

Miotke, 300 Mich App 132, 139; 832 NW2d 266 (2013). The court considered evidence outside 

the pleadings, therefore, we review the motion as having been granted under MCR 2.116(C)(10). 

Innovation Ventures, LLC v Liquid Mfg, LLC, 499 Mich 491, 506-507; 885 NW2d 861 (2016). 

“A motion for summary disposition under MCR 2.116(C)(10) tests the factual support of the 

plaintiff’s claim and should be granted, as a matter of law, if no genuine issue of any material 

fact exists to warrant a trial.” Doe v Henry Ford Health Sys, 308 Mich App 592, 596-597; 865 

NW2d 915 (2014). “When evaluating a motion for summary disposition under MCR 

2.116(C)(10), a trial court considers affidavits, pleadings, depositions, admissions, and other 

evidence submitted by the parties . . . in the light most favorable to the party opposing the 

motion.” Innovation, 499 Mich at 507 (quotation marks and citations omitted). “Where the 

proffered evidence fails to establish a genuine issue regarding any material fact, the moving 

party is entitled to judgment as a matter of law.” Id. (quotation marks and citations omitted). 

III. ANALYSIS

Plaintiff argues that the trial court erred in granting summary disposition; plaintiff 

contends that there was a genuine issue of material fact as to whether Hass’ negligent operation 

of the motion vehicle was the proximate cause of Johnson’s death and that there was an issue of 

fact regarding comparative negligence. 

The elements of a prima facie case of negligence are: “(1) the defendant owed the 

plaintiff a legal duty, (2) the defendant breached the legal duty, (3) the plaintiff suffered 

damages, and (4) the defendant’s breach was a proximate cause of the plaintiff’s damages.” 

Loweke v Ann Arbor Ceiling & Partition Co, LLC, 489 Mich 157, 162; 809 NW2d 553 (2011). 

MCL 500.3135 provides, in relevant part: 

(1) A person remains subject to tort liability for noneconomic loss caused by his 

or her ownership, maintenance, or use of a motor vehicle only if the injured 
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person has suffered death, serious impairment of body function, or permanent 

serious disfigurement.

(2) For a cause of action for damages pursuant to subsection (1) filed on or after 

July 26, 1996, all of the following apply:

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(b) Damages shall be assessed on the basis of comparative fault, except that 

damages shall not be assessed in favor of a party who is more than 50% at fault.

Normally the question of a plaintiff’s comparative negligence is a question for the trier of 

fact. See Poch v Anderson, 229 Mich App 40, 51; 580 NW2d 456 (1998). However, when “no 

reasonable juror could find that defendant was more at fault than the decedent in the accident,”

then a plaintiff’s comparative negligence may be considered during summary disposition. 

Huggins v Scripter, 469 Mich 898; 669 NW2d 813 (2003).1

In this case, no reasonable juror could conclude that Hass breached a duty of care in the 

operation of his vehicle, or that such breach was the proximate cause of Johnson’s injuries, or 

that Johnson was less than 51-percent responsible for his own injuries. 

There was no evidence in the record to support that Hass breached a duty of care while he 

was operating his vehicle. Turner was the sole witness deposed in this case. He testified that 

while he was waiting at a stoplight in the right southbound lane of Opdyke Road at the 

intersection of Auburn Road, he saw a truck that had proceeded past the stoplight veer “off to the 

left real fast” after it “got probably about fifty yards up the road[.]” This caused Turner to be 

“more attentive to what was up ahead.” Turner saw “something shadow-ish,” but he was not 

sure what was in the road ahead because it was too dark to see. 

Turner testified that he was probably 100 yards away when he first saw that there was a 

person, Johnson, running in the right southbound lane of Opdyke Road; however, Turner also 

testified that he first realized that Johnson was in the road when he “was probably less than fifty 

yards away from [Johnson].” Regardless, Turner unequivocally testified that Johnson was 

“running straight down the middle” of the traffic lane, and that Johnson was wearing “all dark 

clothing” that lacked reflective materials. At the time, Hass’s vehicle was approximately two car 

lengths behind Turner’s Ford Explorer. Turner was driving at the “posted speed” of 

approximately 45 miles per hour when he noticed that Johnson was not “really like getting out of 

the right lane that [Turner was] driving in.” Thus, Turner went “ahead and [he] started to get 

over into the left lane.” 

 1 An order of the Michigan Supreme Court is binding precedent on this Court if “it constitutes a 

final disposition of an application and contains a concise statement of the applicable facts and 

reasons for the decision.” DeFrain v State Farm Mut Auto Ins Co, 491 Mich 359, 369; 817 

NW2d 504 (2012). 
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According to Turner, after he moved into the left lane, Hass “only had a car length to --

before he would have been where that pedestrian was.” Turner believed that Hass was going to 

hit Johnson at approximately the same time that he noticed Hass “jerk his car over to the left to 

get into the left lane as well.” Turner confirmed that there was no way that Hass could have seen 

Johnson until Turner moved his vehicle out of the way. Hass had “turned to avoid hitting the 

runner, but because they had gotten so close, the front right end of his car had made contact with 

the runner.” Turner did not see Johnson “make any move to get away” from Hass’s automobile. 

Ultimately, Hass collided with Johnson. Additionally, Hass asserted in an affidavit that he was 

driving 35 to 40 miles per hour during the incident, and that he did not see Johnson prior to the 

collision because it was dark. 

On this record, a rational trier of fact could not conclude that Hass breached a duty of 

care to operate his vehicle in a safe manner. There was no evidence that Hass was driving 

negligently, and it is undisputed that Hass was unable to see Johnson prior to Turner 

maneuvering his Ford Explorer into the left lane. Nor was there any evidence that Hass should 

have foreseen that Johnson would be running in the middle of a lane of traffic on a dark and 

rainy night while wearing all dark clothing without reflective materials. Additionally, Hass 

could not have foreseen that Johnson would fail to take evasive action to avoid both Turner’s and 

Hass’ oncoming vehicles. 

Plaintiff contends that “the police investigation plus the accident reconstruction evidence 

created an issue of fact.” However, in its brief on appeal, plaintiff only relies on the “accident 

reconstruction evidence”—i.e. Hall’s affidavit. Hall’s conclusory assertions did not create a 

genuine issue of material fact. Hall’s assertions in his affidavit were based on various case 

reports composed by law enforcement officers, Turner’s “witness statement” to law enforcement, 

the deposition of Turner, and Hall’s personal examination of the accident site, which occurred 

just over two years after the accident took place. Notably, Hall concluded that Hass’s driving 

“was negligent in that he failed to maintain proper following distance which caused him to 

carelessly drive in an unsafe manner whereby he struck a pedestrian, Mr. Johnson, who was there 

to be seen prior to impact.” 

However, the only explanation Hall provided as to how he reached this conclusion was

mathematical suppositions solely based on Turner’s testimony that he first saw Johnson from 

100 yards away, but Hall completely failed to address Turner’s testimony that Turner was less 

than 50 yards away from Johnson when he first noticed him. Additionally, Hall provided no 

legal authority in support of his conclusion that Hass violated MCL 257.643, or how he was 

qualified to make such a determination. In addition to being inadmissible opinion testimony 

under MRE 702, an affidavit that is devoid of detail and that consists of mere conclusory 

assertions is insufficient to satisfy the burden of a party opposing summary disposition. See 

Quinto v Cross & Peters Co, 451 Mich 358, 371-372; 547 NW2d 314 (1996); Skinner v Square 

D Co, 445 Mich 153, 173; 516 NW2d 475 (1994), quoting Mulholland v DEC Int’l Corp, 432 

Mich 395, 411; 443 NW2d 340 (1989) (explaining that “‘there must be facts in evidence to 

support the opinion testimony of an expert’”). Hall’s conclusory opinions in his affidavit were 

insufficient to establish a genuine issue of material fact with regards to Hass’ purported 

negligence and would have been inadmissible opinion testimony. 
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Plaintiff also contends that a jury could have properly determined that Hass was at least 

50-percent responsible for the collision even when considering Johnson’s own negligence. 

Plaintiff argues that a jury could have found Hass more negligent than Johnson due to Johnson’s 

location “in the curb,” and because Johnson’s “dark clothing” did not make Johnson 

“unavoidable” to the other drivers, as Turner saw Johnson from “100 yards away,” and “the 

other driver saw [Johnson] in plenty of time to change lanes.” This argument lacks merit. The 

undisputed testimony in the record established that Johnson was running in all dark clothing into 

oncoming traffic in the center of the southbound lane of Opdyke Road on a dark rainy February 

evening. Moreover, while Turner testified that he initially saw Johnson from 100 yards away, he 

also testified that he first realized that Johnson was in the road when he “was probably less than

fifty yards away from [Johnson].” Additionally, Turner testified that Johnson’s clothing made it 

difficult, “if not impossible,” to see Johnson until Turner’s lights were placed on Johnson. This 

is not a close question. No reasonable person could conclude that Johnson was less than 51-

percent responsible for his injuries. MCL 500.3135(2)(b). 

In sum, there was no genuine issue of material fact regarding whether Hass was negligent 

in the operation of his vehicle or whether Johnson’s was more than 50-percent responsible for his 

own injuries. Accordingly, summary disposition was proper under MCR 2.116(C)(10).2

Affirmed. No costs are awarded. MCR 7.219(A). 

/s/ Stephen L. Borrello 

/s/ William B. Murphy 

/s/ Amy Ronayne Krause

 2 Given our resolution of this issue, we need not address plaintiff’s argument that the trial court 

erred in dismissing the complaint as a “discovery sanction” for failing to disclose Hall.