Michigan Supreme Court 

Lansing, Michigan 

Chief Justice: Justices: 

Clifford W. Taylor Michael F. Cavanagh 

Elizabeth A. Weaver Opinion Marilyn Kelly 

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 LEASING 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 plaintiff, 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 Company is defendant’s employer. 

Defendant Penske Truck Leasing Company, L.P., was the owner of the tractortrailer defendant was driving. Because the 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 because he experienced a sudden 

emergency when he blacked out seconds before the 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 summary disposition to defendant. 

On March 15, 2004, defendant was driving 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. After the diarrhea episode, 

defendant stated that he waited about 20 minutes at the rest area to see how he felt. 

Not experiencing further illness, he continued his trip. 

Defendant stated that as he took the Novi Road exit ramp some 30 minutes 

later, he began to feel dizzy and broke into 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 his 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 standing upon any highway within this 

state, the driver or operator of such first mentioned vehicle shall be 

deemed prima facie guilty of negligence. This section shall apply, in 

appropriate cases, to the owner of such first mentioned vehicle and 

to the employer of its driver or operator. 

2
 
 

 

He has no recollection of events that occurred before the impact with plaintiff’s 

vehicle jarred him to consciousness. After the collision, he applied his emergency 

brake, set his emergency flashers, and got out of his truck, but blacked out again in 

the road. He was assisted by other motorists and then treated by emergency 

medical personnel at the scene. 

Defendant was taken to a hospital by ambulance. He was diagnosed as 

having experienced a “syncopal episode,” meaning that he blacked out. While at 

the hospital, he described the accident to a police officer and was ticketed for 

violating MCL 257.627(1)—failure to maintain an assured clear distance ahead. 

The next day, defendant visited his family 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 presumed negligent under 

MCL 257.402(a) because he had struck plaintiff’s vehicle from the rear.3 

Defendant moved for summary disposition under MCR 2.116(C)(10), asserting 

that he was not negligent under the circumstances because his illness created a 

sudden emergency. Defendant submitted his deposition testimony, the accident 

report, and related medical reports in support of his motion. Plaintiff argued that 

questions of fact existed regarding whether defendant had actually 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...) 

3
 
 

before the accident and whether defendant knew or should have known that he 

was not in a condition to drive when he left the rest area after experiencing severe 

diarrhea. The trial court granted defendant’s motion. Plaintiff appealed. 

The Court of Appeals reversed the trial court, holding that summary 

disposition was not appropriate because the key evidence was within 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; 662 NW2d 695 (2003) (quotation omitted). A court 

reviewing a motion under MCR 2.116(C)(10) “must consider the pleadings, 

affidavits, depositions, admissions, and any other evidence in favor of the party 

opposing the motion, and grant the benefit of any reasonable doubt to the opposing 

party.” Radtke v Everett, 442 Mich 368, 374; 501 NW2d 155 (1993). The 

statutory presumption 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-emergency doctrine applies 

“when a collision is shown to have occurred as the result of a sudden emergency 

(...continued) 

§ 627(1) is virtually identical, we examine plaintiff’s claim under § 402(a) only. 

Zeni v Anderson, 397 Mich 117, 134; 243 NW2d 270 (1976). 

4
 
 

not of the defendants’ 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 present a sudden emergency sufficient to rebut the 

statutory presumption.4

 But a sudden emergency sufficient to remove the statutory 

presumption must be “totally 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 material fact regarding whether defendant’s 

emergency was totally unexpected.5 

4

 In Soule v Grimshaw, 266 Mich 117, 119; 253 NW 237 (1934), we 

recognized that a sudden loss of consciousness while driving could present a 

sudden emergency sufficient to rebut the presumption of negligence. 

5

 We note that there is also a question 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 inconsistencies between defendant’s 

condition immediately following his alleged precollision blackout and his 

condition immediately following the undisputed blackout after the collision. For 

instance, defendant experienced incontinence following the undisputed blackout 

(after the collision), but not following the disputed blackout (before the collision). 

Further, although defendant experienced a lowered level of consciousness 

following the postaccident blackout, there is evidence that he did not experience a 

lowered level of consciousness following the alleged preaccident blackout; 

specifically, his testimony that when he was jarred awake from the latter he 

(continued...) 

5
 
 

Defendant testified that after experiencing a severe 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 continued on to where I had to go because it wasn’t far away.” 

This emphasized statement could imply that defendant was aware he was not 

feeling well, but chose to continue driving his tractor-trailer because he felt he 

could make the short trip despite his condition. 

Defendant states that he “felt great” while driving some 30 minutes 

between the Canton rest area and the Novi Road exit. But this statement is called 

into question by the medical records and deposition testimony submitted to the 

trial court. The emergency room (ER) physician who treated defendant stated that 

“[a] couple of episodes of diarrhea would not typically cause a syncopal episode. 

Pain, abdominal cramping or severe cramping or any kind of pain can cause 

someone to have a syncopal episode, but a couple of episodes 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 symptoms including nausea, vomiting, 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 flashers, applied his emergency brake, and 

got out of his cab to check on plaintiff’s condition. 

6
 
have caused ongoing symptoms 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 defendant was referring 

to his diarrhea at the rest area or to illness at some time more immediately before 

the accident. If defendant experienced ongoing symptoms or felt ill after his first 

onset of urgent illness at the rest stop, then any subsequent emergency was not 

totally unexpected and, 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 pretty 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 doctrine to apply, the emergency 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 driving anyway 

because he “did not have far to go,” or if defendant felt ill while driving from the 

rest area to the Novi Road exit, or if defendant felt ill even a few minutes before 

he collided with plaintiff, then the emergency 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 “blacked out while driving . . . feels like it 

7
 
was from eating a hardboiled egg 1 hour prior.” This information was not given to 

the ER physician. When asked at deposition about what he had to eat or drink 

before the accident, defendant did not mention the hardboiled egg. We think that 

information about the cause of defendant’s condition could have better established 

how defendant was feeling before the accident. Defendant’s inconsistent 

statements about the cause of his illness create issues of material fact precluding 

summary disposition. 

We do not assess defendant’s credibility. But, under the legal and factual 

circumstances, “[w]e do not 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 driving under the facts presented 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 decision to reverse and remand this case to 

the trial court for further proceedings. Under 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 

8