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### STATE OF MICHIGAN

COURT OF APPEALS

DENISE CARREKER, Plaintiff-Appellant, UNPUBLISHED October 27, 2016

v No. 328276 Oakland Circuit Court SETH BERRY GOLD AND ERICA TONYA BANKS, LC No. 2014-138798-NI

Defendants-Appellees.

Before: F ORT H OOD , P.J., and G LEICHER and O’B RIEN , JJ.
O’B RIEN , J. ( dissenting ). I respectfully dissent. My colleagues reverse the circuit cou rt’s determination that there was no genuine issue of material with respect to causation, con cluding that “plain tiff . . . testified that she witnessed defendant dri ving recklessly” “in contrast t o defendant’s claim.” To justify this conclusion, my colleagues explain that “it can be inferred from plaintiff’s collective statements that defendant did not realize that traffic had slow ed and was traveling too fast for the conditions” as well as that defendant failed to “l[eave] suffic ient space between his and plaintiff’s vehicle.” In my opi nion, even when I view the evid ence in a light most favorable to plaintiff, Maiden v Rozwood , 461 Mich 109, 120; 597 NW2d 817 (1999), I cannot agree that t he record supports the conclusion reached by my colleagues. On appeal, plaintiff claims tha t she testified “that she obser ved the Defendant Gold changing lanes and paying scant heed to traffic conditions” in direct contradiction to defendant’s “own self-serving testimony that his vehicle only collided with the Plaintiff’s because he was himself struck from behind.” Pla intiff elaborates, arguing tha t “Gold did not realize that traffic had slowed and continued travelling at regular speed up until t he moment that he struck the Plaintiff,” that “Defendant v iolated MCL 257.627 by operating h is vehicle in a manner that did not vouchsafe stoppage within ‘the assured, clear distance ahea d,’ ” that “[h]e equally violated MCL 257.402(a) by rear-ending the Pl aintiff’s vehicle,” and tha t “Defendant Gold violated MCL 257.626b by operating his vehicle in a careless manner, as evid enced by his violation of the two former statutes.” As indicated a bove, my colleagues adopt thes e arguments, concluding that “plaintiff . . . testified that s he witnessed defendant driving recklessly” “in contrast to defendant’s claim,” that “it can be inferred from plaintiff’s c ollective statements that defendant did not realize that traffic had slowed and was traveling too f ast for the conditions,” and that defendant did not “l[eave] sufficient space between his and pla intiff’s vehicle.”-2- In my view, defendant’s argument and my colleagues’ conclusion do not accurately reflect plaintiff’s deposition te stimony. Specifically, plaint iff testified as follows with respect to defendant’s allegedly r eckless driving: Q . Do you recall the January 2012 car accident?
A . Yes. * * * Q . Do you recall what lane of travel you were in?
A . I wasn’t in a lane. Q . Okay. Where were you?
A . I was up against the wa ll on the left-hand side.
* * * Q . Are you able to estimate or approximate how much time you sp ent on the shoulder?
A . Yeah, I was there for about -- well, because I was pulled an d I stopped and my foot was still on the brake. I’d say I stood there for maybe ten seconds, you know, five, ten seconds or so, just sitting there waiting f or traffic to clear up, because it was all -- nothing but red lights up there. And I d on’t like to be in traffic like that. So I would prefer to wait till traffic clea red. And to be up in the mix of a bunch of traffi c, I don’t like that. Q . Okay. So while you were on the shoulder for 10 or 15 second s, what happens next?
* * *
A . What happened was, I was sitti ng -- traffic was real bad up front, so I said, “Well, I’m going to go over on the shoulder until traffic clears up a little bit.” I was sitting on the shoulder waiting for traffic, and I just happened to look in my rearview mirror and I seen traffic still going fast, and they’re not realizing that traffic has slowed up up front there. And the next thing I now Mr. Gold ran into the back of my car.
* * *
A . Yes. I never -- the only person -- like I said, the only th ing I ever saw was Seth Gold in my rearview mirro r, that’s it. That’s all I k now. * * *-3- Q . Okay. Well, do you recall, f rom your experience, since you were there and nobody else in the room here wa s, any other vehicles being involved in the crash?
A

. The only car that I know of being in volved is the one behind me, Seth Gold. 1 Q . Mr. Gold’s vehicle.
A

. That’s it. That’s all I know. Anything past his car I cannot see. I don’t know of anything else. I don’t know. Q . Okay. Well, while you were at the scene and you spoke with -- well, you had some contact with Mr . Gold and you wrote down his licen se plate. While you were out of your vehicle on the scene, did you see an y other vehicles that appeared t o have been involved in a crash?
A . I seen a young lady and she was sitting in her car. And she got out of the car to come talk to Mr. Gold. He didn’t want to be bothere d with her either. And then she went back to her car. Because, like I say, along the freeway, I guess by him being whoever he is, people were stopping, slowing down, shaking his hand. So I don’t know whose car was in nothing. I don’t know. All I know is him, because I don’t know if these other people was there. Act ually, they could have been stopping just, “Hey M r.” -- I don’t know who they wer e. But I seen a young lady get out of her car and I’m assuming he r name is Erica. Q . Okay. Why do you assume that?
A . Because through all of these depositions and everything, he’ s saying she hit him and made him hit me. That’s what they’re saying. I don’t know what happened. All I know is he hit me. Q

. Okay. But from your personal kn owledge, just so we understand your testimony correctly, you don’ t recall anyone being involv ed in this impact aside from Mr. Gold?

1 To avoid confusion, I feel it is necessary to point out that, despite her testimony that defendant’s car was “[t]he only car that [she] kn[e]w of being involved,” plaintiff also sued and eventually settled with Erica Tonya Banks, who was the driver o f the vehicle that rear-ended defendant. Specifically, Banks t estified as follows: “I just remember getting hit from behind and then my car rear-ended the car that was in front of me, and then that car hit the car in front of them.”-4- A

. Yes.
* * * Q . Okay. At the time of the accident, you said you just happen ed to be looking in your review mi rror; is that right?
A . Yes. Q . And you saw Mr. Gold’s vehicle coming and collide with your vehicle.
A . Yes. Mr. Gold was in the middle lane, then he got over to t he third lane, then he got over to the wall. Q . So you saw him --
A . Yes. Q . -- do all of this.
A . Yes. Yes. I was looking out my rearview mirror, because I was sitting against up the walk and I was alr eady afraid they had accidents up here and I was looking back to make sure there’s no accidents coming in behind me, and I seen him getting over. I was like, “ I hope he don’t hit me,” and he ran right into the back of me. Because the lane -- the third lane had slowed down, so when he was getting over here to the third lane, they had slowed down, so he had to get over or he was going to run int o the back of somebody else.
* * * Q . Other than Mr. Gold’s vehic le hitting yours, did you hear an y other sounds that would indicate there were any other collisions?
A . No. 2 It is this testimony that plain tiff and my colleagues rely on to support a conclusion that there is a genuine issue of material fact as to whether defenda nt was driving recklessly, as to whether defendant was speeding, a s to whether defendant did not leave sufficient distance between his and plaintiff’s vehicle, and as to whether another vehicle struck defendant’s vehicle. I cannot agree with this conclusi on based on the record before me. Plaintiff’s testimony is clear—she does not know whether anyone else was involved in the accident at issue. As the circuit court correctly recognize d, plaintiff has not presented any evidence, including her own

2 Emphasis added.-5- deposition testimony, refuting defendant’s testimony that defen dant’s vehicle struck plaintiff’s vehicle as a result of being struck by a third vehicle. Furthe rmore, she never testified that defendant was driving recklessly, that defendant was speeding, that defendant did not leave sufficient distance between his and plaintiff’s vehicle, or tha t no other vehicles struck defendant’s vehicle. Thus, while I agree that plaintiff’s test imony must be viewed in a light most favorable to her, Maiden , 461 Mich at 120, I do not agree that this favorable light all ows us to infer testimony that simply does not exist. Accordingly, I wou ld affirm the circuit court’s order granting defendant’s motion for summary disposition.

/s/ Colleen A. O’Brien