            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



ESTATE OF EVANIA BARBARA                                           UNPUBLISHED
SCHOBLOHER, by KIMBERLY M. LUBINSKI,                               June 13, 2019
Personal Representative,

               Plaintiff-Appellant,

v                                                                  No. 342820
                                                                   Macomb Circuit Court
CHRISTOPHER JOHN CIESLAK and                                       LC No. 2016-003266-NI
CHRISTOPHERS COMPLETE
MAINTENANCE, INC.,

               Defendants-Appellees.


Before: GADOLA, P.J., and BOONSTRA and SWARTZLE, JJ.

PER CURIAM.

       Plaintiff appeals by right the trial court’s order granting summary disposition in favor of
defendants Christopher John Cieslak (Cieslak) and Christopher’s Complete Maintenance, Inc.
(CCM) under MCR 2.116(C)(10). We affirm in part and reverse in part, and remand for further
proceedings.

                   I. PERTINENT FACTS AND PROCEDURAL HISTORY

       On the afternoon of April 21, 2016, as Cieslak was driving a vehicle owned by CCM
northbound on Hayes Road in Eastpointe, Michigan, he saw plaintiff’s decedent, Evania
Schobloher (Schobloher) and her daughter begin to cross Hayes Road.1 They were not using a
crosswalk. Cieslak testified at his deposition that he believed Schobloher and her daughter
would wait for him to pass before completing their crossing. He further testified that Schobloher



1
 Schobloher and her daughter lived on Hayes Road, and apparently were returning home from a
nearby store.



                                               -1-
walked in front of his vehicle and that he was unable to avoid her. In the ensuing collision,
Schobloher was killed.

        Cieslak denied ever crossing the centerline of Hayes Road. At his deposition, he testified
that he was driving somewhere between 15 and 25 miles per hour (mph) when he hit Schobloher;
however, Officer Alex Mikulec of the Eastpointe Police Department testified at his deposition
that Cieslak told him that he was driving between 15 and 20 mph, while Officer Joshua Ignace of
the Eastpointe Police Department testified at his deposition that Cieslak told him that he was
driving between 25 and 30 mph. Cieslak testified that he had prescription glasses, but that he
was not required by the State of Michigan to wear them while driving; Cieslak was not wearing
them on the day of the accident.

         Bretton Hudson was driving southbound on Hayes Road when the accident occurred. He
testified at his deposition that he saw through his passenger side mirror that Schobloher and her
daughter had begun to cross Hayes Road, and that they stopped while in the road; Hudson
assumed they stopped because they saw Cieslak’s vehicle approaching. Hudson testified that
Schobloher raised her hand in a motion that Hudson assumed was meant to alert Cieslak to her
presence. Hudson further testified that Cieslak struck Schobloher with his vehicle while she was
standing in “the exact middle” of the road. However, Hudson also stated that he did not observe
anything that led him to believe that Cieslak was driving recklessly.

         Officer Ignace noted that Cieslak’s vehicle was dented “just above” the headlight on the
driver side of the vehicle, and that the vehicle was otherwise in good condition. Officer Ignace
testified at his deposition that Cieslak had informed him that he had had several drunk driving
convictions and had been issued a restricted license that permitted him only to drive to and from
work. Office Joseph Schoof of the Warren Police Department performed field sobriety tests and
a preliminary breath test on Cieslak, and found no evidence of intoxication. Cieslak testified at
his deposition that all of his drunk driving offenses had occurred more than 10 years before the
deposition date, and that he had chosen voluntarily to continue possessing a restricted license to
ensure that he will “never [ ] be able to drink and drive again.” Officer Ignace testified to his
opinion that Schobloher was solely at fault for the accident, and testified that the prosecutor’s
office had decided not to charge Cieslak criminally.

       Plaintiff filed a complaint against defendants in September 2016, alleging that Cieslak
had operated his vehicle in a negligent, careless, and reckless manner causing Schobloher’s
death, and that CCM was vicariously liable for the actions of its employee. Plaintiff later
amended its complaint to add a claim of negligent entrustment against CCM. After discovery,
defendants filed a motion for summary disposition under MCR 2.116(C)(10), arguing that there
was no genuine issue of material fact that Schobloher was more than 50% at fault for the
accident, that plaintiff had failed to show that a genuine issue of material fact existed regarding
Cieslak’s negligence, and that plaintiff had failed to show that Cieslak was an incompetent driver
to support its negligent entrustment claim. After a hearing, the trial court granted defendants’
motion for summary disposition, stating that the only eyewitness saw the accident through his
side mirror and “indicate[d] that there was no inappropriate action on the part of [ ] defendant
[Cieslak] in this case.” The trial court stated that although Hudson testified that Schobloher
“began to raise her hand and tried to stop,” Schobloher nonetheless “appears to have been [sic]
walked in front of the vehicle, and for a jury to consider anything else would be total

                                                -2-
speculation . . . .” The court also stated that it was “total speculation whether [Schobloher]
entered [Cieslak’s] lane or was somewhere else” and that there was “nothing to indicate that
[Cieslak] violated any of the rules of the road.” The trial court stated that it was granting
defendants’ motion for summary disposition and that “there is no factual basis that can be
presented other than speculation under these circumstances that would warrant a determination
that [Cieslak] in any way violated the rules of the road or was negligent.”

        The trial court entered an order granting defendants’ motion for summary disposition for
the reasons stated on the record. This appeal followed.

                                 II. STANDARD OF REVIEW

         This Court reviews de novo a trial court’s decision on a motion for summary disposition.
Auto-Owners Ins Co v Campbell-Durocher Group Painting & Gen Contracting, LLC, 322 Mich
App 218, 224; 911 NW2d 493 (2017).                 “Summary disposition is appropriate under
MCR 2.116(C)(10) if there is no genuine issue regarding any material fact and the moving party
is entitled to judgment as a matter of law.” Id. (citation omitted). 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.” Id. (citation omitted). The trial court may not
“weigh the evidence or make determinations of credibility when deciding a motion for summary
disposition.” Innovative Adult Foster Care, Inc v Ragin, 285 Mich App 466, 480; 776 NW2d
398 (2009). We consider the affidavits, pleadings, depositions, admissions, and other
documentary evidence in the light most favorable to the nonmoving party. Liparoto Constr, Inc
v Gen Shale Brick, Inc, 284 Mich App 25, 29; 772 NW2d 801 (2009). All reasonable inferences
are to be drawn in favor of the nonmovant. Dextrom v Wexford County, 287 Mich App 406, 415;
789 NW2d 211 (2010).

                                        III. ANALYSIS

        Plaintiff argues that the trial court erred by granting defendants’ motion for summary
disposition under MCR 2.116(C)(10), because there were genuine issues of material fact
regarding whether Cieslak was driving negligently when he hit and killed Schobloher while she
was crossing Hayes Road outside of the designated crosswalk. We agree.

        “Michigan law imposes on all motorists a general duty to operate their vehicles in a
reasonably prudent manner.” Sponkowski v Ingham Co Road Com’n, 152 Mich App 123, 128;
393 NW2d 579 (1986). Even though a motorist does not have to guard against all conceivable
results of his actions, the motorist must exercise reasonable care to avoid the foreseeable results
of his actions. Id. “In addition, the determination of whether a particular harm is foreseeable is
an issue for the trier of fact in deciding if the defendant has been negligent.” Id.

       In addition to the general duty imposed by Michigan law, MCL 257.627(1),
MCL 257.627(16), and MCL 257.628(9) impose statutory duties on drivers. MCL 256.627(1)
provides:

               A person operating a vehicle on a highway shall operate that vehicle at a
       careful and prudent speed not greater than nor less than is reasonable and proper,

                                                -3-
       having due regard to the traffic, surface, and width of the highway and of any
       other condition existing at the time. A person shall not operate a vehicle upon a
       highway at a speed greater than that which will permit a stop within the assured,
       clear distance ahead. A violation of this subsection shall be known and may be
       referred to as a violation of the basic speed law or “VBSL”.

This duty has been referred to as the “assured clear distance ahead rule.” Cole v Barber, 353
Mich 427, 431; 91 NW2d 848 (1958). Essentially, this rule provides that “a driver shall not
operate his vehicle so fast that he cannot bring it to a complete stop within that distance ahead of
him in which he can clearly perceive any object that might appear in his path.” Id.

       If a motorist drives faster than his perception and braking ability safely permit
       him to do, and an accident results because of it, he is negligent as a matter of law.
       Conversely, a motorist is not necessarily negligent as a matter of law if another
       vehicle or other moving object suddenly intersects his lane of travel or line of
       vision at some intermediate point within his assured clear distance ahead. In such
       a case his negligence or lack of it are properly questions of fact for the jury to
       determine. [Id.]

Further, MCL 257.627(16) and MCL 257.628 state that a driver who violates an established
speed limit “is responsible for a civil infraction.” Evidence that a party violated a motor vehicle
statute is evidence on which a jury may infer negligence. See Gould v Atwell, 205 Mich App
154, 160; 17 NW2d 283 (1994).

       Officer Ignace testified that Cieslak told him at the scene of the accident that he had been
driving between 25 and 30 mph when the accident occurred, which is in excess of the 25 mph
speed limit for Hayes Road. Although Cieslak told Officer Mikulec a lower numerical range,
and testified to a lower range at his own deposition, we must at this juncture consider the
evidence in the light most favorable to the nonmoving party, Auto-Owners Ins Co, 322 Mich
App at 224. Officer Ignace’s testimony at least creates a material question of fact regarding
whether Cieslak was speeding at the time of the accident, and thus was in violation of
MCL 257.627(16) and MCL 257.628, which would permit the jury to infer that he was driving
negligently. See Gould, 205 Mich App at 160.2

        Further, although Cieslak argues that Schobloher’s act of walking       in front of his car
constituted a sudden emergency, the “sudden emergency” doctrine obviates        the presumption of
negligence that arises when a vehicle “rear ends” another vehicle headed in     the same direction.
See MCL 257.402(1); see also White v Taylor Distrib Co, Inc, 482 Mich           136, 139-140; 753



2
  A material issue of fact also exists regarding whether Cieslak committed a civil infraction by
violating Mich. Admin. Code, R 28.716 (“[E]very driver of a vehicle shall exercise due care to
avoid colliding with any pedestrian on any roadway, shall give warning by sounding the horn
when necessary, and shall exercise proper precaution upon observing any child or any confused
or incapacitated person on a roadway.”).


                                                -4-
NW2d 591 (2008). Here, Cieslak struck a pedestrian in the roadway; there is no equivalent
statute to MCL 257.402 that provides that a presumption of negligence (against the pedestrian)
arises in that circumstance.

        Moreover, Cieslak testified that he saw Schobloher and her daughter walking across
Hayes Road before he hit Schobloher, but assumed that Schobloher and her daughter would wait
for him to pass before they continued to walk across the road. Hudson described Schobloher as
standing still in the “exact middle” of the road, and did not testify that she stepped into Cieslak’s
lane. Even if Schobloher did step in front of Cieslak’s vehicle, and even if the sudden
emergency doctrine applied, we cannot say as a matter of law that the resulting emergency was
“totally unexpected.” See White, 482 Mich at 139-140; see also Vander Laan v Miedema, 385
Mich 226, 232; 188 NW2d 564 (1971) (stating that “it is essential that the potential peril had not
been in clearview for any significant length of time, and was totally unexpected”). We conclude
that the sudden emergency doctrine has no applicability to this case.

        Plaintiff also argues that the jury could find Cieslak negligent for failing to wear his
glasses while driving. Cieslak testified that while he does wear glasses to improve his distance
vision, he is not required to wear them while driving. On the day of the accident, Cieslak was
not wearing his glasses. Although the State of Michigan, at the time Cieslak last renewed his
license, did not determine that he was required to wear his glasses to operate his vehicle, the
mere fact that Cieslak’s license was issued without a corrective lens restriction under Mich
Admin Code R 257.2 does not by necessity mean that a reasonably prudent person would have
felt free not to wear his or her glasses on that particular day. Nonetheless, we agree with
defendants that plaintiff has not provided any documentary evidence in support of the conclusion
either that Cieslak was negligent by not wearing his glasses, or that his lack of vision correction
contributed to the accident; in fact, Cieslak testified to having seen Schobloher and her daughter
with sufficient time for him to decide that she was granting him the right of way, not that he did
not see her in the road until it was too late. We conclude that these are factors that the jury
should be free to consider in evaluating whether Cieslak was negligent.

        Plaintiff further argues that the jury could infer from Hudson’s testimony and the
physical evidence that Cieslak’s vehicle crossed the centerline when it hit Schobloher. We agree
that a genuine issue of material fact exists on this point. Hudson testified that Schobloher was
standing in the “exact middle” of the road when she was struck. A jury could infer from
Hudson’s statement that Schobloher was standing on the centerline of the road when she was hit,
meaning that Cieslak’s vehicle must have crossed over the centerline in order to hit Schobloher.
Police reports showed that Cieslak’s vehicle was dented after the impact with Schobloher just
above the driver side headlight. A jury could infer that the vehicle would have had to at least
partially cross the centerline in order to strike Schobloher with that area of its front end.

        Cieslak denied crossing the centerline, but a jury could determine that Cieslak’s
testimony is not credible and that Hudson’s testimony is credible. Of course, the jury could also
determine the opposite. It is for this reason that questions of credibility are for the jury to decide,
and a court may not make credibility determinations when deciding a motion for summary
disposition. Innovative Foster Care, Inc, 285 Mich App at 480.



                                                 -5-
       In sum, we conclude that the trial court erred by concluding that there were no genuine
issues of material fact concerning whether Cieslak acted negligently and whether any such
negligence caused or contributed to the collision with Schobloher.

       Defendants further argue, however, that even if there are genuine issues of material fact
concerning Cieslak’s negligence, this Court should nonetheless affirm the trial court’s order
granting summary disposition in favor of defendants, because plaintiff’s recovery is barred as a
matter of law under MCL 500.3135(2)(b) because Schobloher was more that 50% at fault for the
accident. We disagree.

       MCL 500.3135(2)(b) provides that “damages shall not be assessed in favor of a party
who is more than 50% at fault.”

       The standards for determining the comparative negligence of a plaintiff are the
       same as those of a defendant—the jury must consider the nature of the conduct
       and its causal relationship to the damages—and the question is one for the jury
       unless all reasonable minds could not differ or because of some ascertainable
       public policy consideration. [Laier v Kitchen, 266 Mich App 482, 496; 702
       NW2d 199 (2005).]

        Defendants argue that Schobloher violated MCL 257.655 and MCL 257.613 when she
crossed Hayes Road outside of the marked crosswalk. MCL 257.655(1) states: “Where
sidewalks are provided, a pedestrian shall not walk upon the main traveled portion of the
highway. Where sidewalks are not provided, pedestrians shall, when practicable, walk on the
left side of the highway facing traffic which passes nearest.” MCL 257.613 describes the
circumstances under which a pedestrian may cross the road in accordance with regular traffic-
control signals or special pedestrian control signals.          Individuals who violate either
MCL 257.655 or MCL 257.613 are “responsible for a civil infraction.” As stated earlier, a jury
may infer negligence from the violation of a motor vehicle statute.

        It is undisputed that on the day of the accident Schobloher and her daughter were not
using a crosswalk, despite the presence of one relatively near where they crossed. Thus, there
arguably is evidence that Schobloher may have violated MCL 257.655(1) when she “walk[ed]
upon the main traveled portion of the highway,” even though a crosswalk was available for her
use. However, because there was no evidence that Schobloher was crossing a portion of the road
where either regular traffic-control signals or special pedestrian control signals were located,
MCL 257.613 is not applicable.3 Nonetheless, if the jury found that Schobloher violated
MCL 257.655, then it could infer that she was negligent, and conceivably could even conclude
that she was more than 50% at fault for the accident. We, however, cannot make that conclusion
as a matter of law.



3
  For the same reason, Mich. Admin. Code, R 28.709 (“Where traffic-control signals are in
operation, pedestrians shall not cross the roadway except in a marked crosswalk.”) is not
applicable.


                                              -6-
        We do not believe under the circumstances presented that the fault for the accident can be
so clearly attributed to one party or the other that reasonable minds could not differ. Laier, 266
Mich App at 496. In cases like this, where there is evidence that both parties may have acted
negligently, it is for the jury to apportion fault. Id. Therefore, we decline to affirm the trial
court’s order on the ground that Schobloher was precluded, as a matter of law, from recovery
under MCL 500.3135(2)(b).

        Defendants also argue that plaintiff failed to establish the requisite elements to support its
claim of negligent entrustment. Plaintiff does not argue on appeal that the court erroneously
granted summary disposition in favor of CCM on the negligent entrustment claim. This Court
will not consider the issue because “[a] party who fails to brief the merits of an alleged error has
abandoned the issue on appeal.” Villadsen v Mason Co Road Comm’n, 268 Mich App 287, 303;
706 NW2d 897 (2005), aff’d on other grounds 475 Mich 857 (2006). We therefore affirm the
trial court’s grant of summary disposition on plaintiff’s negligent entrustment claim.

        Affirmed in part, reversed in part, and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction.



                                                              /s/ Michael F. Gadola
                                                              /s/ Mark T. Boonstra
                                                              /s/ Brock A. Swartzle




                                                 -7-
