Michigan Supreme Court Lansing, Michigan
Chief Justice: Justices: Clifford W. Taylor Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly 

# Opinion

Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

FILED JULY 23, 2008 SHERITA WHITE and DERRICK WHITE, Plaintiffs-Appellees,
v No. 134751
TAYLOR DISTRIBUTING COMPANY, INC, PENSKE TRUCK LE ASING COMPANY, LP, and JAMES J. BIRKENHEUER, Defendants-Appellants.

BEFORE THE ENTIRE BENCH MEMORANDUM OPINION. At issue is whether the trial court properly granted summary disposition to defendant on the basis of his claim that he experienced a sudden emergency. Defendant, 1 James Birkenheuer, rear-ended plain tiff, Sherita White, while she was stopped for a red light. By statute, the driver of a vehicle that strikes another from

1 Defendant Taylor Distributing Co mpany is defendant ’s employer. Defendant Penske Tr uck Leasing Company, L.P., wa s the owner of the tractor

trailer defendant was driving. Because th e liability of these two defendants arises from Birkenheuer’s conduct, the term “defendant” will be used to refer to Birkenheuer.behind is presumed negligent. 2 But defendant claims that, as a matter of law, the statutory presumption should not apply to him becau se he experienced a sudden emergency when he blacked out seconds before th e collision. We disagree. We conclude that there are genuine issues of material fact regarding defendant’s claim of a sudden emergency. Accordingly, we affirm the Court of Appeals reversal of the trial court’s grant of summa ry disposition to defendant. On March 15, 2004, defendant was dr iving from Cincinnati, Ohio, to Novi, Michigan. He stated that he stopped at a rest area in Canton , Michigan, because he experienced an urgent onset of severe diarrhea. Af ter the diarrhea episode, defendant stated that he waited about 20 mi nutes at the rest area to see how he felt. Not experiencing further illness, he continued his trip. Defendant stated that as he took th e Novi Road exit ramp some 30 minutes later, he began to feel dizzy and broke in to a sweat. He recalled seeing plaintiff’s car about 250 to 300 yards in front of him, stopped at a red light at the end of the ramp. Defendant applied hi s brakes, began gearing down, and then blacked out.

2 MCL 257.402(a) states: In any action, in any court in this state when it is shown by competent evidence, that a vehicle traveling in a certain direction, overtook and struck the rear end of another vehicle proceeding in the same direction, or lawfully standi ng upon any highway within this state, the driver or operator of such first mentioned vehicle shall be deemed prima facie guilty of negligen ce. This section shall apply, in appropriate cases, to the owner of such first mentioned vehicle and to the employer of its driver or operator.

2He has no recollection of ev ents that occurred before the impact with plaintiff’s vehicle jarred him to consciou sness. After the collision, he applied his emergency brake, set his emergency flas hers, and got out of his truck, but blacked out again in the road. He was assisted by other motorists and th en treated by emergency medical personnel at the scene. Defendant was taken to a hospital by ambulance. He was diagnosed as having experienced a “syncop al episode,” meaning that he blacked out. While at the hospital, he described the accident to a police officer and was ticketed for violating MCL 257.62 7(1)—failure to maintain an assured clear distance ahead. The next day, defendant visited his fam ily doctor, who diagnosed defendant as having experienced “viral enteritis with syncopal spell secondary to hypovolemia” (intestinal inflammation with secondary blackout). Plaintiff filed a suit alleging that defendant was presum ed negligent under MCL 257.402(a) because he had struck plaintiff’s vehicle from the rear. 3 Defendant moved for summary dispositio n under MCR 2.116( C)(10), asserting that he was not ne gligent under the ci rcumstances because his illness created a sudden emergency. Defenda nt submitted his depositi on testimony, the accident report, and related medical reports in supp ort of his motion. Plaintiff argued that questions of fact existed regarding whet her defendant had act ually blacked out

3 Plaintiff also alleged a violation of MCL 257.627(1), which requires a motorist to maintain an “assured, clear distance ahead.” Because the analysis of (continued...)

3before the accident and whet her defendant knew or shoul d have known that he was not in a condition to driv e when he left the rest a rea after experiencing severe diarrhea. The trial court granted defe ndant’s motion. Plaintiff appealed. The Court of Appeals reversed the trial court, holding that summary disposition was not appropriate because th e key evidence was wi thin defendant’s exclusive knowledge. White v Taylor Distributing Co, Inc , 275 Mich App 615, 630; 739 NW2d 132 (2007). We granted defendant’s application for leave to appeal. 480 Mich 961 (2007). “We review de novo decisions on summary disposition motions.” AFSCME v Detroit, 468 Mich 388, 398; 66 2 NW2d 695 (2003) (quota tion omitted). A court reviewing a motion under MCR 2.116(C )(10) “must consider the pleadings, affidavits, depositions, admissions, and any other evidence in fa vor of the party opposing the motion, and gran t the benefit of any reasonable doubt to the opposing party.” Radtke v Everett , 442 Mich 368, 374; 501 NW2d 155 (1993). The statutory presump tion of negligence under MCL 257.402(a) may be rebutted by showing the existence of a sudden emergency. Vander Laan v Miedema, 385 Mich 226, 231; 188 NW2d 564 (1971). The sudden-e mergency doctrine applies “when a collision is shown to have occurred as the res ult of a sudden emergency

(...continued) § 627(1) is virtually identical, we examin e plaintiff’s claim under § 402(a) only. Zeni v Anderson , 397 Mich 117, 134; 243 NW2d 270 (1976).

4not of the defendant s’ own making.” Id. , citing McKinney v Anderson , 373 Mich 414, 419; 129 NW2d 851 (1964). Defendant asserts that he experienced a sudden emergency when he became dizzy and blacked out on the exit ramp seconds before he collided with plaintiff’s vehicle; thus, the statutory presumption should not apply. We agree that a sudden, unexpected blackout could p resent a sudden emergency sufficient to rebut the statutory presumption. 4 But a sudden emergency suffi cient to remove the statutory presumption must be “t otally unexpected.” Vander Laan , supra at 232. There is evidence that defendant may have known or should have known that he was not feeling well when he continued driving after his urgent stop at the Canton rest area. This creates a genuine issue of mat erial fact regarding whether defendant’s emergency was to tally unexpected. 5

4 In Soule v Grimshaw , 266 Mich 117, 119; 253 NW 237 (1934), we recognized that a sudden loss of consci ousness while drivi ng could present a sudden emergency suffici ent to rebut the presum ption of negligence. 5 We note that there is also a ques tion of fact regarding whether defendant blacked out while driving or whether he only blacked out after the accident. Defendant was driving alone and no one witnessed his condition immediately before the collision. The evidence reveals inconsistenc ies between defendant’s condition immediately following his a lleged precollision blackout and his condition immediately following the undisp uted blackout after the collision. For instance, defendant experienced incontin ence following the undisputed blackout (after the collision), but not fo llowing the disputed blacko ut (before the collision). Further, although defenda nt experienced a lowered level of consciousness following the postaccident black out, there is evidence that he did not experience a lowered level of consciousness follo wing the alleged preaccident blackout; specifically, his testimony that when he was jarred awake from the latter he (continued...)

5Defendant testified that after experiencing a sev ere episode of diarrhea at the rest area, “I hung around a while, walked around to make sure I was finished and felt fine so I continue d on to where I had to go because it wasn’t far away .” This emphasized statement could impl y that defendant was aware he was not feeling well, but chose to continue drivin g his tractor-trailer because he felt he could make the short trip despite his condition. Defendant states that he “felt g reat” while driving some 30 minutes between the Canton rest area and the Novi Ro ad exit. But this statement is called into question by the medi cal records and deposition testimony submitted to the trial court. The emergency room (ER) phy sician who treated d efendant stated that “[a] couple of episodes of diarrhea would not typically cause a syncopal episode. Pain, abdominal cramping or severe cramp ing or any kind of pain can cause someone to have a syncopal episode, but a couple of episod es of diarrhea would not cause him to pass out.” Defendant’s family physician diagnosed defendant with viral enteritis severe enough to cause a blackout. Viral enteritis is an inflammation of the intestines with sympto ms including nausea, vom iting, diarrhea, cramps, and abdominal pain. So, the independent opinions of the two doctors treating defendant within 24 hours of the accident agree that defendant’s condition would

(...continued) immediately activated his emergency flas hers, applied his emergency brake, and got out of his cab to check on plaintiff’s condition.

6have caused ongoing sympto ms such as cramps and pain . Further, the officer who responded to the accident noted that defendant “states he ‘blacked out,’ possibly from being ill.” It is unclear from this statement whether d efendant was referring to his diarrhea at the rest area or to illness at some tim e more immediately before the accident. If defendant ex perienced ongoing symptoms or felt ill after his first onset of urgent illness at the rest stop, then any subs equent emergency was not totally unexpected an d, thus, not sudden. The ER physician also testified regarding how quickly defendant’s syncopal episode may have developed: “In my opinion, I would say that happened over, you know, several seconds, a couple of minutes, that’s p retty sudden.” If defendant felt dizzy “a couple of minutes” before blacking out, then perhaps his subsequent emergency was not clearly sudden under the circumstances. Further, for the sudden emergency do ctrine to apply, the em ergency must not be of defendant’s own making. Vander Laan , supra at 231. If defendant was aware that he was not feeling well when he left the rest area but continued driv ing anyway because he “did not have far to go,” or if defendant felt ill while driving from the rest area to the Novi Road ex it, or if defendant felt ill even a few minutes before he collided with plaintiff, then the em ergency may well have been of his own making. Additionally, defendant’s statements regarding the cause of his condition are inconsistent. The notes from defendant ’s visit to his family doctor the day after the accident state that defendant “black ed out while driving . . . feels like it

7was from eating a hardboiled egg 1 hour prio r.” This information was not given to the ER physician. When as ked at deposition about what he had to eat or drink before the accident, defendant did not mention the hardboile d egg. We think that information about the cause of defendant’s condition could have better established how defendant was feeling before the a ccident. Defendant’s inconsistent statements about the cause of his illness create issues of material fact precluding summary disposition. We do not assess defendant’s credib ility. But, under the legal and factual circumstances, “[w]e do no t ignore the inconsistencies in defendant’s
statements . . . .” Bridwell v Segel , 362 Mich 102, 106; 106 NW2d 386 (1960). The questions regarding whether defendant experienced a sudden emergency and whether defendant was negligent in drivin g under the facts pres ented in this case are proper questions for the jury. Soule v Grimshaw , 266 Mich 117, 120; 253 NW 237 (1934). We affirm the Court of Appeals decisi on to reverse and remand this case to the trial court for further proceedings. Un der the facts of this case, the trial court improperly granted summary disposition to defendant.

Clifford W. Taylor Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

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