                            STATE OF MICHIGAN

                            COURT OF APPEALS



GENINICE CHAMPION,                                                   UNPUBLISHED
                                                                     November 19, 2015
               Plaintiff-Appellant,

v                                                                    No. 322652
                                                                     Wayne Circuit Court
JAMES JENKINS and KENICE BASSETT,                                    LC No. 13-000643-NI

               Defendants-Appellees,

and

STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,

               Defendant.


Before: JANSEN, P.J., and MURPHY and RIORDAN, JJ.

PER CURIAM.

        Plaintiff Geninice Champion appeals as of right the trial court’s order granting summary
disposition in favor of defendants James Jenkins and Kenice Bassett,1 as well as appealing the
court’s ruling denying plaintiff’s motion for partial summary disposition on the issue of liability.
We hold that none of the parties were entitled to summary disposition given the existence of a
genuine issue of material fact relative to the question of negligence in regard to the deer-related
car accident that formed the basis of plaintiff’s lawsuit. Accordingly, we reverse the trial court’s
order granting defendants’ motion for summary disposition, and we affirm the court’s ruling
denying plaintiff’s motion for partial summary disposition.

       At the time of the accident, plaintiff was a passenger in a vehicle that was owned by
Bassett, who is plaintiff’s daughter, and being driven by Jenkins, who was plaintiff’s boyfriend.
According to plaintiff’s deposition testimony, as they were driving down Rouge Park near


1
  Pursuant to a stipulation, the trial court entered an order of dismissal without prejudice with
respect to defendant State Farm Mutual Automobile Insurance Company. For purposes of this
opinion, our reference to “defendants” pertains to Jenkins and Bassett and does not include State
Farm.

                                                -1-
Plymouth Road in Detroit, which is a wooded area, plaintiff spotted a deer and exclaimed,
“There’s a deer,” bringing the matter to Jenkins’s immediate attention. Jenkins testified
similarly in his deposition. Plaintiff and Jenkins both testified that the deer was ahead and to the
right of the vehicle. Jenkins stated that the deer was standing next to a tree, approximately 10 to
15 feet away from the car. Plaintiff indicated that the deer was standing approximately 15 to 20
feet away from the roadway. According to plaintiff, when Jenkins saw the deer, “he kind of
hesitated a little bit, but he was still driving.” When asked to explain what she meant by
“hesitated,” plaintiff responded that Jenkins may have taken his foot off of the gas pedal.
Jenkins, however, testified that he did not slow down when he first saw the deer standing in the
woods near the road. Jenkins stated that he continued driving at the same rate of speed,
believing that the deer would stay in place and not enter the roadway. Jenkins further testified
regarding his belief that had he applied the brakes when he first saw the deer, he would have
been able to avoid the ensuing accident, which we will describe momentarily. Jenkins observed
that when he now sees a deer close to the road, he slows down or stops his vehicle, given his
new-found appreciation of deer unpredictability in that situation. Plaintiff opined in her
testimony that Jenkins should have hit the brakes immediately upon seeing the standing deer,
considering that deer often start running when there is an approaching car. We note that the
documentary evidence was silent with respect to whether there was any traffic directly behind
the car.

        The deer, from its standing position, proceeded to dart into the roadway and in front of
the vehicle. Plaintiff testified that five seconds had elapsed between her first observance of the
deer standing on the side of the road and the point when the deer entered the road, whereas
Jenkins testified that it was about 15 to 20 seconds. Jenkins approximated that the deer was five
to seven feet away from the front of the car upon coming into the car’s pathway or line of travel.
Jenkins quickly turned the steering wheel, causing the vehicle to swerve to the right and miss the
deer, but the car then veered off the road and hit a tree, allegedly resulting in plaintiff’s injuries.
Jenkins believed that had he attempted to brake any time between when he first observed the
deer and when the deer was directly in front of the car (five to seven feet ahead of it), he would
have been able to stop the vehicle in time to avoid striking the deer, and thereby prevent the
accident with the tree, although he probably would have skidded a bit. Jenkins testified that his
“natural reflex[] was to swerve and avoid the deer” and that he lacked the time to evaluate the
situation and decide whether to swerve or hit the brakes.

        Jenkins testified that the speed limit in the area was “maybe 30, 35 miles an hour” and
that he was driving “[a]bout 30, 35 miles an hour,” including when he first saw the deer.
Plaintiff maintained that she did not know what the posted speed limit was in the area, and she
guessed that Jenkins was driving around 35 to 40 miles per hour.2 We note that Jenkins testified



2
  In a motion for reconsideration, plaintiff submitted documentary evidence in an effort to show
that Jenkins was exceeding the speeding limit at the time of the accident by anywhere from five
to fifteen miles per hour, but plaintiff had not made that argument or provided supporting
evidence on the issue when the motions for summary disposition were filed and argued. In light
of our ultimate ruling, it is unnecessary for us to entertain the parties’ arguments regarding the
alleged speeding and the propriety of considering any evidence on the matter.

                                                 -2-
that the accident happened during daylight hours, that it was a clear day weather-wise, and that
there were no visual obstructions.

        Plaintiff alleged in her complaint that Jenkins breached various common-law, statutory,
and ordinal duties “to operate the motor vehicle with due care and caution,” resulting in plaintiff
suffering serious impairment of bodily functions and serious permanent disfigurement.3
Defendants filed a motion for summary disposition under MCR 2.116(C)(8) and (10), arguing
that plaintiff had failed to adequately plead a negligence claim and that there was no genuine
issue of material fact that Jenkins was not guilty of any negligence, with defendants placing
heavy reliance on the sudden emergency doctrine. Plaintiff filed a response, along with her own
motion for partial summary disposition under MCR 2.116(C)(10), contending that there was no
genuine issue of material fact that Jenkins was negligent and that defendants were thus liable for
her damages. The trial court granted defendants’ motion for summary disposition and denied
plaintiff’s motion for partial summary disposition. Speaking from the bench, the trial court
summed up its position, stating:

               I think this is a classic sudden emergency. Deer is in front of the car, five
       seconds[,] the driver[] maneuvers the car trying to avoid the collision, . . . winds
       up hitting a tree. I think that’s [a] sudden emergency. That’s my ruling.

        The trial court earlier mentioned its view that the sudden emergency doctrine applies in a
situation “that occurs so quickly that a reasonably prudent person would not have an opportunity,
would not have sufficient time to avoid that hazard.” In the order granting defendants’ motion
for summary disposition and denying plaintiff’s motion, the trial court ruled that “the undisputed
facts make clear that a sudden emergency existed which caused the underlying accident” and,
“[a]ccordingly, Defendants cannot be at fault, and thus liable to Plaintiff, as a matter of law.”
Plaintiff appeals as of right.

       This Court reviews de novo a trial court's ruling on a motion for summary disposition.
Elba Twp v Gratiot Co Drain Comm’r, 493 Mich 265, 277; 831 NW2d 204 (2013). With respect
to the principles governing a motion for summary disposition brought pursuant to MCR
2.116(C)(10), this Court in Pioneer State Mut Ins Co v Dells, 301 Mich App 368, 377; 836
NW2d 257 (2013), stated:

               In general, MCR 2.116(C)(10) provides for summary disposition when
       there is no genuine issue regarding any material fact and the moving party is
       entitled to judgment or partial judgment as a matter of law. A motion brought
       under MCR 2.116(C)(10) tests the factual support for a party's claim. A trial court
       may grant a motion for summary disposition under MCR 2.116(C)(10) if the
       pleadings, affidavits, and other documentary evidence, when viewed in a light
       most favorable to the nonmovant, show that there is no genuine issue with respect
       to any material fact. A genuine issue of material fact exists when the record,
       giving the benefit of reasonable doubt to the opposing party, leaves open an issue


3
  Bassett’s alleged liability was predicated on Michigan’s owner liability statute, MCL
257.401(1).

                                                -3-
       upon which reasonable minds might differ. The trial court is not permitted to
       assess credibility, weigh the evidence, or resolve factual disputes, and if material
       evidence conflicts, it is not appropriate to grant a motion for summary disposition
       under MCR 2.116(C)(10). A court may only consider substantively admissible
       evidence actually proffered relative to a motion for summary disposition under
       MCR 2.116(C)(10). [Citations and quotation marks omitted.]

        In Kalamazoo v Priest, 331 Mich 43, 47; 49 NW2d 52 (1951), our Supreme Court made
the following observations:

               Many duties are imposed upon the drivers of motor vehicles upon public
       streets and highways. Some result from express statutory requirements to observe
       certain speed limits, to stop for certain traffic signals and signs, or, under certain
       circumstances, to yield the right-of-way . . . .[4] Other duties are inherent in the
       exercise of that due care which connotes freedom from negligence as defined by
       the courts. Among the latter are the duties to maintain a reasonable and proper
       lookout, to see what is plainly there to be seen and give it due heed, and, before
       proceeding, from a suitable observation of conditions then and there existing, to
       form a reasonable belief that it is safe to proceed. [Citation omitted; emphasis
       added.]

       Addressing the issue of a driver’s alleged negligence, the Michigan Supreme Court in
Baker v Alt, 374 Mich 492, 495; 132 NW2d 614 (1965), recognized the application of basic
negligence principles, asserting:

               “All will agree, of course, that negligence is conduct that fails to measure
       up to an acceptable standard. The standard now employed by the law is that of a
       reasonably prudent man acting under the same or similar circumstances. Whether
       or not the standard has been attained is, normally, a jury question. Only under the
       most extreme circumstances, those, in fact, where reasonable minds could not
       differ upon the facts, or the inferences to be drawn therefrom, can the case be
       taken from the jury. If honest differences of opinion between men of average
       intelligence might exist the issue should not be resolved by the court alone.”
       [Citation omitted.]

        “[T]he test to be applied is what [a] hypothetical, reasonably prudent person would have
done under all the circumstances of the accident, whatever they were.” Id. at 496; see also
Baumann v Potts, 82 Mich App 225, 230; 266 NW2d 766 (1978). In general, “[n]egligence is
the failure to use ordinary care,” meaning “the failure to do something that a reasonably careful
person would do, or the doing of something that a reasonably careful person would not do, under
the circumstances that . . . existed in th[e] case.” M Civ JI 10.02.


4
 “[V]iolation of a statute . . . creates a prima facie case from which a jury may draw an inference
of negligence,” and the “jury may also consider whether a legally sufficient excuse has been
presented to refute this inference.” Zeni v Anderson, 397 Mich 117, 122; 243 NW2d 270 (1976);
see also M Civ JIs 12.01 and 12.02.

                                                -4-
        With respect to the sudden emergency doctrine, it is applicable when a collision or
accident is shown to have occurred as the result of a sudden emergency that was not of a party’s
own making. White v Taylor Distrib Co, Inc, 482 Mich 136, 139-140; 753 NW2d 591 (2008);
Freed v Salas, 286 Mich App 300, 331; 780 NW2d 844 (2009).5 The doctrine is a judicially
crafted principle, which provides that a person who suddenly finds himself or herself in a place
of danger, and is required to act without the time to consider the best means to adopt in order to
avoid the impending danger, is not guilty of negligence for failing to adopt what upon
subsequent reflection may have been the better option or path. Vsetula v Whitmyer, 187 Mich
App 675, 680-681; 468 NW2d 53 (1991). “In actuality, the doctrine of ‘sudden emergency’ is
nothing but a logical extension of the ‘reasonably prudent person’ rule.” Baker, 374 Mich at
496; see also Baumann, 82 Mich App at 230. The sudden emergency doctrine is triggered in
cases involving unsuspected facts that take place so suddenly “ ‘that the normal expectations of
due and ordinary care are . . . modified by the attenuating factual conditions.’ ” Vsetula, 187
Mich App at 681, quoting Amick v Baller, 102 Mich App 339, 341-342; 301 NW2d 530 (1980).
As reflected in M Civ JI 12.02, Baker, Baumann, Amick, and Vsetula, the occurrence of a true
sudden emergency does not mean that any reaction to it by the person confronted by the
emergency situation is excused, precluding liability. Rather, the doctrine essentially provides
that when a person is faced with a sudden emergency, a jury must take that emergency into
consideration in assessing and evaluating whether the person acted like a reasonably prudent
person under the unexpected circumstances.

        Here, plaintiff, in answering defendants’ motion for summary disposition, framed the
crux of the issue and her argument on the issue as follows:

               Plaintiff admits both that Defendant Jenkins did not subjectively have time
       to evaluate the situation once the deer was in front of the vehicle and that this
       situation constituted an “emergency.” Regardless, the undisputed record
       evidences that Defendant Jenkins’[s] prior negligence created that emergency in
       that he failed to slow, stop, or take other precautionary measures upon spotting
       the deer, as any reasonably careful person would have done.

        At the hearing on the competing motions for summary disposition, counsel for plaintiff
reiterated the above-quoted theme and elaborated:

               [A]s far as a duty, defendant Jenkins clearly had the duty to operate as a
       reasonably careful person would . . . . Anybody living in Michigan knows that a
       deer on the side of the road may run in front of the car. I can turn around and ask
       this courtroom, everybody here would say, what would you do if you saw a deer
       on the side of the road – [the trial court interrupted and asked counsel whether he
       would stop in that situation]



5
  The doctrine’s application is reflected in M Civ JI 12.02, which informs jurors that “if you find
that [defendant / plaintiff] used ordinary care and was still unable to avoid the [statutory]
violation because of [State here the excuse claimed], then [his / her] violation is excused.” See
Freed, 286 Mich App at 330.

                                                -5-
              At a minimum I would slow down and see what the deer is going to do,
       honk the horn, see if it’s going to run away or [run] into the road, absolutely I
       would. . . . .

                                                ...

              Any reasonable person in Michigan, your Honor, I would think would
       understand that a deer on the side of the road is a possible potential peril. . . . .

        We generally agree with counsel’s observations. Taking into consideration all of the
documentary evidence in a light most favorable to plaintiff, we conclude that, minimally,
reasonable minds could differ regarding whether a reasonably prudent or careful person in
Jenkins’s shoes, acting with ordinary care and caution and seeing “what [was] plainly there to be
seen and giv[ing] it due heed,” Priest, 331 Mich at 47, would have braked, slowed down,
stopped, or taken some other precautionary measure upon seeing the deer standing near the side
of the road. A reasonable juror could conclude that Jenkins’s actions in continuing to drive,
absent any effort to brake, slow down, or stop, constituted negligence, i.e., breach of his duties as
a motorist.6 Even Jenkins himself indicated that he now takes such steps while driving if he sees
deer near the roadway. And, on an issue more related to causation, Jenkins testified that had he
braked when he saw the deer standing by the road, he would have been able to avoid the deer and
the accident.

       In regard to the sudden emergency doctrine, we accept the proposition that a deer bolting
into a roadway out of nowhere presents a sudden emergency, implicating the doctrine. See
Haltom v Burleson, 6 Mich App 89, 91-92; 148 NW2d 252 (1967) (concluding that trial court
had not clearly erred in finding that driver was faced with a sudden emergency that caused her to
brake after a deer jumped in front of her car). However, in this case, a sudden emergency had
not yet arisen when Jenkins first saw the deer merely standing nearby and decided to keep
driving normally. In Freed, 286 Mich App at 333, this Court observed:

              The sudden emergency doctrine provides a basis for a defendant to be
       excused of a statutory violation in regards to the events that occur after the
       defendant discovers the emergency. Here, plaintiff did not argue that [the garbage
       truck driver] failed to properly respond once he observed the ambulance in his
       path and plaintiff's experts did not criticize [his] reactions upon seeing the
       ambulance. Rather, plaintiff claimed that [the garbage truck driver’s] speed before
       discovery of the emergency is what prevented him from being able to stop when
       he applied his brakes. [Emphasis added.]

       Plaintiff here espouses a comparable theory. And, viewing the evidence in a light most
favorable to plaintiff, reasonable minds could differ concerning whether the emergency that
developed once the deer crossed the car’s path was of Jenkins’s own making, given his failure to


6
  We do acknowledge plaintiff’s deposition testimony that Jenkins may have slowed down
(“hesitated”) by perhaps removing his foot from the gas upon observing the deer. Any factual
dispute on the matter needs to be resolved by the jury.

                                                -6-
initially brake, slow down, or stop when he first saw the deer. Genuine issues of material fact
abound in this case, and summary disposition in favor of either plaintiff or defendants is
unwarranted.

       Affirmed in part, reversed in part, and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction. No party having fully prevailed on appeal, we
decline to award taxable costs under MCR 7.219.



                                                          /s/ Kathleen Jansen
                                                          /s/ William B. Murphy
                                                          /s/ Michael J. Riordan




                                              -7-
