                           STATE OF MICHIGAN

                           COURT OF APPEALS



PHILLIP PETER ORZECHOWSKI,                                         UNPUBLISHED
                                                                   September 20, 2018
              Plaintiff-Appellant,

v                                                                  No. 340085
                                                                   Oakland Circuit Court
YOLANDA ORZECHOWSKI,                                               LC No. 2016-153952-NI

              Defendant-Appellee,

and

DANIELLE LENNA DUNLAP,

              Defendant.


Before: M. J. KELLY, P.J., and MARKEY and FORT HOOD, JJ.

PER CURIAM.

       In this third-party vehicle negligence case, plaintiff, Phillip Orzechowski, appeals as of
right the trial court order granting summary disposition in favor of defendant, Yolanda
Orzechowski, under MCR 2.116(C)(10), and denying Phillip’s motion for reconsideration and
his motion for relief from judgment. For the reasons stated in this opinion, we reverse and
remand.

                                       I. BASIC FACTS

        On December 18, 2014, Phillip was injured in a multi-vehicle accident caused in part by
black ice and poor weather conditions. Just before the accident, Phillip was travelling from a
restaurant to a car dealership. His wife, Yolanda, was following him in a separate vehicle.
According to Phillip, he was driving between 38 and 44 miles per hour along Haggerty Road,
and although it was misty, dark, and cold, he did not have any trouble controlling his vehicle
until he reached the top of an overpass on Haggerty. At the peak of the overpass, he observed




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that there were vehicles stopped in his lane. He also saw defendant Danielle Dunlap’s1 vehicle
sliding from her northbound lane into his southbound lane. Phillip testified that he immediately
applied the brakes. He also noted that he thought he might be able to get through a gap in the
vehicles, but he was unable to avoid colliding with Dunlap’s vehicle. A few seconds after Phillip
collided with Dunlap’s vehicle, Yolanda crested the hill, saw the accident, and applied her
brakes. Because there was black ice on the road, she was unable to stop before rear ending
Phillip’s vehicle. She estimated that she was travelling approximately 40 miles per hour when
she struck his vehicle. In July 2016, Phillip brought a negligence claim against Dunlap and
Yolanda.

                                 II. SUMMARY DISPOSITION

                                  A. STANDARD OF REVIEW

        Phillip first argues that the trial court erred by granting summary disposition to Yolanda
because there was a question of fact regarding the applicability of the sudden emergency
doctrine. “This Court reviews de novo whether a trial court properly granted a motion for
summary disposition.” Barnard Mfg Co, Inc v Gates Performance Engineering, Inc, 285 Mich
App 362, 369; 775 NW2d 618 (2009). Motions under MCR 2.116(C)(10) test “the factual
support for a claim and should be granted if there is no genuine issue as to any material fact and
the moving party is entitled to judgment as a matter of law.” MEEMIC Ins Co v DTE Energy
Co, 292 Mich App 278, 280; 807 NW2d 407 (2011). “There is a genuine issue of material fact
when reasonable minds could differ on an issue after viewing the record in the light most
favorable to the nonmoving party.” Allison v AEW Capital Mgt, LLP, 481 Mich 419, 425; 751
NW2d 8 (2008). Thus, the trial court “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).

                                          B. ANALYSIS

       In order to establish a prima facie case of negligence, a plaintiff must prove (1) that the
defendant owed a duty to the plaintiff, (2) a breach of that duty, (3) causation, and (4) damages.
Schultz v Consumers Power Co, 443 Mich 445, 449; 506 NW2d 175 (1993). Here, because
Yolanda struck Phillip’s vehicle from the rear, she is presumed to be negligent under MCL
257.402(a).2 Yet, “[t]he statutory presumption of negligence under MCL 257.402(a) may be


1
 In her deposition, Dunlap explained that she had married in June 2013, and her legal name is
now Danielle Dunlap-Barnes. However, for ease of reference, we will refer to her as Dunlap.
2
    MCL 257.402(a) provides:
                (a) 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


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rebutted by showing the existence of a sudden emergency.” White v Taylor Dist Co, Inc, 482
Mich 136, 139; 753 NW2d 591 (2008). “The sudden-emergency doctrine applies ‘when a
collision is shown to have occurred as the result of a sudden emergency not of the defendants’
own making.’ ” Id. at 139-140, quoting McKinney v Anderson, 373 Mich 414, 419; 129 NW2d
851 (1964).

        Yolanda asserts that she experienced a sudden emergency when she was abruptly
confronted with a combination of black ice on a bridge and a roadway blocked by vehicles that
had just been in a crash. She contends that the black ice was a hazardous and unknown
condition. We agree that the presence of ice on a roadway can constitute a sudden emergency,
even in Michigan where it is not unusual for the roads to be icy in the winter. See Young v
Flood, 182 Mich App 538, 543-544; 452 NW2d 869 (1990). In Young, this Court held that the
jury was properly instructed on the sudden-emergency doctrine when the roads were slippery,
there was no evidence that the defendant was driving at an unreasonable speed for the conditions,
and the defendant testified that she hit a patch of ice that caused her to skid. Id. at 544. Further,
in Vsetsula v Whitmyer, 187 Mich App 675, 677, 681; 468 NW2d 53 (1991), the trial court erred
by not instructing the jury on the sudden-emergency doctrine when the defendant testified that
she was driving two to three miles per hour as she approached the end of her driveway when she
hit a patch of ice that caused her to lose control of her vehicle.

        Yolanda recognizes that in both Young and Vsetsula, this Court held that whether the ice
constituted a sudden emergency was a question for the jury, not a question for the court to decide
as a matter of law. Nevertheless, she attempts to distinguish those cases by asserting that in this
case there is unrebutted evidence showing that the black ice on the overpass was unexpected and
that she was driving a reasonable speed for the conditions. We disagree.

        Here, there was evidence suggesting that, unlike the defendant in Young, Yolanda was
driving too fast for the road conditions. Yolanda and Phillip both testified that it was dark, cold,
and that the roads were wet. Phillip described the temperatures as “hovering” around the
freezing mark. Additionally, Dunlap testified that leading up to the overpass, the road was icy,
there were intermittent snow flurries, and both she and the vehicles ahead of her were only
travelling approximately 15 miles per hour. Despite the cold and wet conditions, Yolanda
estimated that she was driving 40 miles per hour, and Phillip believed he was between 38 and 44
miles per hour. Both Phillip and Yolanda were heading toward an 8:30 p.m. appointment at a car
dealership and had just left a restaurant. The accident was about three or four miles away from
the restaurant. Phillip left first and Yolanda testified that “he was long gone before I was,
because I’m pokey.” She also testified that she got caught at a red light. Despite leaving later
and getting caught at the light, Yolanda was driving fast enough to catch up with Phillip, who
was either driving slightly faster or slower than her. Dunlap testified that when she saw Phillip’s
vehicle, she could see the lights from Yolanda’s vehicle just behind him. She opined that, based



       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.



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on the road conditions, Yolanda was following too closely. Additionally, Yolanda’s vehicle
struck Phillip’s vehicle within seconds after he collided with Dunlap’s vehicle, which also allows
for an inference that she had driven quickly to catch up with Phillip and was too close behind.

        Yolanda contends that this Court should not consider Dunlap’s testimony that Yolanda
was too close to Phillip’s vehicle. She asserts that such testimony amounts to mere speculation.
Evidence in support of or in opposition to a motion for summary disposition needs to be
substantively admissible; however, that does not mean that a reviewing court should exclude
evidence when there is a plausible basis for the admission of the evidence. Barnard Mfg, 285
Mich App at 373. In this case, it is possible that, at trial, Phillip can lay the proper foundation to
admit Dunlap’s testimony as a lay opinion. MRE 701 permits the admission of lay opinion
testimony, provided that the opinions or inferences “are (a) rationally based on the perception of
the witness and (b) helpful to a clear understanding of the witness’ testimony or the
determination of a fact in issue.” Thus, although the foundation for a lay opinion was not laid in
Dunlap’s deposition testimony, there is a plausible basis for the admission of the evidence so the
trial court can rely on it in reaching its decision. Barnard Mfg, 285 Mich App at 373.

        Moreover, Young and Vsetsula make clear that the application of the sudden-emergency
doctrine is a jury question, even in situations where the defendant was apparently driving at a
reasonable speed when he or she hit a patch of ice and lost control of his or her vehicle. Thus,
even without evidence that Yolanda was driving too fast for conditions, there would still be a
jury question. See Young, 182 Mich App at 544; Vsetsula, 187 Mich App at 677. Accordingly,
on this record, the trial court erred by granting summary disposition in Yolanda’s favor because
there is a material question of fact with regard to whether Yolanda encountered a sudden
emergency or whether she was driving negligently when she rear-ended Phillip’s vehicle.3




3
  Phillip also argues that the trial court abused its discretion by denying his motion to set aside
the summary disposition judgment under MCR 2.612(C). Phillip contends that relief from
judgment was warranted because he was never served with the briefing scheduling order, which
caused him to fail to file a response to Yolanda’s motion for summary disposition. In this case,
the parties were operating under Oakland County’s mandatory e-filing system. Under that
system, the trial court “may exercise its discretion to grant necessary relief to avoid the
consequences of error so as not to affect the substantial rights of the parties.” Administrative
Order No. 2007-3, 482 Mich cxiii, cxiv (2016) (emphasis added). Moreover, under, § 11,

               (a) A party experiencing a technical malfunction with the party’s
       equipment (such as Portable Document Format [PDF] conversions problems or
       inability to access the project sites), another party’s equipment (such as an
       inoperable e-mail address), or an apparent technical malfunction of the court’s
       equipment, software, or server shall use reasonable efforts to timely file or receive
       service by traditional methods and shall provide prompt notice to the court and
       the parties of any such malfunction.



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       Reversed and remanded for further proceedings. Phillip may tax costs as the prevailing
party. MCR 7.219(A). We do not retain jurisdiction.

                                                            /s/ Michael J. Kelly
                                                            /s/ Jane E. Markey
                                                            /s/ Karen M. Fort Hood




               (b) If a technical malfunction has prevented a party from timely filing,
       responding to, or otherwise perfecting or receiving service of an e-filing, the
       affected party may petition the Sixth Circuit Court for relief. Such petition shall
       contain an adequate proof of the technical malfunction and set forth good cause
       for failure to use nonelectronic means to timely file or serve a document. The
       court shall liberally consider proof of the technical malfunction and use its
       discretion in determining whether such relief is warranted. [AO 2007-3, § 11
       (emphasis added.]

        In this case, although not styled as a petition for relief from a technical malfunction,
Phillip’s motion for relief from judgment contained the necessary proof. In an affidavit
submitted with the motion for relief from judgment, Phillip’s lawyer averred that he did not
receive e-service of the court’s May 3, 2017 briefing scheduling order, nor did his assistant
receive e-service of the order. He stated that he intended to file a response in opposition to
Yolanda’s motion for summary disposition on or before June 14, 2017, as permitted by the
Michigan Court Rules.

         Given that proof of a technical malfunction should be liberally construed, AO 2007-3, §
11(b), we are troubled by the trial court’s apparent lack of concern for Phillip’s contention that
he did not receive the e-filed court order. Further, we are unpersuaded by Yolanda’s argument
that the failure to receive the scheduling order was, essentially, harmless because Phillip should
have expected such an order and should have suspected that one was issued when he received e-
filed documents from Yolanda that were filed pursuant to that order. Although the trial court
may evaluate that evidence when faced with a claim that there was a technical malfunction, the
court in this case did not actually determine whether Phillip’s failure to file a timely response
was the result of a technical malfunction so as to justify an extension of the deadline.
Consequently, on this record, even if there were not a material question of fact preventing
summary disposition on the question of the sudden-emergency doctrine, we would nevertheless
conclude that, by not addressing whether there was a technical malfunction, the trial court abused
its discretion in denying the motion for relief from judgment. See Rieth v Keeler, 230 Mich App
346, 348; 583 NW2d 552 (1998) (stating that it is an abuse of discretion to fail to exercise
discretion when called to do so).



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