                            STATE OF MICHIGAN

                            COURT OF APPEALS



DENISE CARREKER,                                                      UNPUBLISHED
                                                                      October 27, 2016
               Plaintiff-Appellant,

v                                                                     No. 328276
                                                                      Oakland Circuit Court
SETH BERRY GOLD AND ERICA TONYA                                       LC No. 2014-138798-NI
BANKS,

               Defendants-Appellees.


Before: FORT HOOD, P.J., and GLEICHER and O’BRIEN, JJ.

O’BRIEN, J. (dissenting).

        I respectfully dissent. My colleagues reverse the circuit court’s determination that there
was no genuine issue of material with respect to causation, concluding that “plaintiff . . . testified
that she witnessed defendant driving recklessly” “in contrast to defendant’s claim.” To justify
this conclusion, my colleagues explain that “it can be inferred from plaintiff’s collective
statements that defendant did not realize that traffic had slowed and was traveling too fast for the
conditions” as well as that defendant failed to “l[eave] sufficient space between his and
plaintiff’s vehicle.” In my opinion, even when I view the evidence in a light most favorable to
plaintiff, Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999), I cannot agree that the
record supports the conclusion reached by my colleagues.

        On appeal, plaintiff claims that she testified “that she observed the Defendant Gold
changing lanes and paying scant heed to traffic conditions” in direct contradiction to defendant’s
“own self-serving testimony that his vehicle only collided with the Plaintiff’s because he was
himself struck from behind.” Plaintiff elaborates, arguing that “Gold did not realize that traffic
had slowed and continued travelling at regular speed up until the moment that he struck the
Plaintiff,” that “Defendant violated MCL 257.627 by operating his vehicle in a manner that did
not vouchsafe stoppage within ‘the assured, clear distance ahead,’ ” that “[h]e equally violated
MCL 257.402(a) by rear-ending the Plaintiff’s vehicle,” and that “Defendant Gold violated MCL
257.626b by operating his vehicle in a careless manner, as evidenced by his violation of the two
former statutes.” As indicated above, my colleagues adopt these arguments, concluding that
“plaintiff . . . testified that she witnessed defendant driving recklessly” “in contrast to
defendant’s claim,” that “it can be inferred from plaintiff’s collective statements that defendant
did not realize that traffic had slowed and was traveling too fast for the conditions,” and that
defendant did not “l[eave] sufficient space between his and plaintiff’s vehicle.”

                                                 -1-
        In my view, defendant’s argument and my colleagues’ conclusion do not accurately
reflect plaintiff’s deposition testimony. Specifically, plaintiff testified as follows with respect to
defendant’s allegedly reckless driving:

               Q. Do you recall the January 2012 car accident?

               A. Yes.

                                                  * * *

               Q. Do you recall what lane of travel you were in?

               A. I wasn’t in a lane.

               Q. Okay. Where were you?

               A. I was up against the wall on the left-hand side.

                                                  * * *

              Q. Are you able to estimate or approximate how much time you spent on
       the shoulder?

                A. Yeah, I was there for about -- well, because I was pulled and I stopped
       and my foot was still on the brake. I’d say I stood there for maybe ten seconds,
       you know, five, ten seconds or so, just sitting there waiting for traffic to clear up,
       because it was all -- nothing but red lights up there. And I don’t like to be in
       traffic like that. So I would prefer to wait till traffic cleared. And to be up in the
       mix of a bunch of traffic, I don’t like that.

             Q. Okay. So while you were on the shoulder for 10 or 15 seconds, what
       happens next?

                                                  * * *

               A. What happened was, I was sitting -- traffic was real bad up front, so I
       said, “Well, I’m going to go over on the shoulder until traffic clears up a little
       bit.” I was sitting on the shoulder waiting for traffic, and I just happened to look
       in my rearview mirror and I seen traffic still going fast, and they’re not realizing
       that traffic has slowed up up front there. And the next thing I now Mr. Gold ran
       into the back of my car.

                                                  * * *

              A. Yes. I never -- the only person -- like I said, the only thing I ever saw
       was Seth Gold in my rearview mirror, that’s it. That’s all I know.

                                                  * * *


                                                 -2-
              Q. Okay. Well, do you recall, from your experience, since you were there
       and nobody else in the room here was, any other vehicles being involved in the
       crash?

                A. The only car that I know of being involved is the one behind me, Seth
       Gold.1

                Q. Mr. Gold’s vehicle.

              A. That’s it. That’s all I know. Anything past his car I cannot see. I
       don’t know of anything else. I don’t know.

              Q. Okay. Well, while you were at the scene and you spoke with -- well,
       you had some contact with Mr. Gold and you wrote down his license plate.

                       While you were out of your vehicle on the scene, did you see any
       other vehicles that appeared to have been involved in a crash?

               A. I seen a young lady and she was sitting in her car. And she got out of
       the car to come talk to Mr. Gold. He didn’t want to be bothered with her either.
       And then she went back to her car. Because, like I say, along the freeway, I guess
       by him being whoever he is, people were stopping, slowing down, shaking his
       hand. So I don’t know whose car was in nothing. I don’t know. All I know is
       him, because I don’t know if these other people was there. Actually, they could
       have been stopping just, “Hey Mr.” -- I don’t know who they were.

                        But I seen a young lady get out of her car and I’m assuming her
       name is Erica.

                Q. Okay. Why do you assume that?

               A. Because through all of these depositions and everything, he’s saying
       she hit him and made him hit me. That’s what they’re saying. I don’t know what
       happened. All I know is he hit me.

              Q. Okay. But from your personal knowledge, just so we understand your
       testimony correctly, you don’t recall anyone being involved in this impact aside
       from Mr. Gold?



1
  To avoid confusion, I feel it is necessary to point out that, despite her testimony that
defendant’s car was “[t]he only car that [she] kn[e]w of being involved,” plaintiff also sued and
eventually settled with Erica Tonya Banks, who was the driver of the vehicle that rear-ended
defendant. Specifically, Banks testified as follows: “I just remember getting hit from behind
and then my car rear-ended the car that was in front of me, and then that car hit the car in front of
them.”


                                                -3-
                A. Yes.

                                                 * * *

                Q. Okay. At the time of the accident, you said you just happened to be
         looking in your review mirror; is that right?

                A. Yes.

                Q. And you saw Mr. Gold’s vehicle coming and collide with your vehicle.

                 A. Yes. Mr. Gold was in the middle lane, then he got over to the third
         lane, then he got over to the wall.

                Q. So you saw him --

                A. Yes.

                Q. -- do all of this.

                 A. Yes. Yes. I was looking out my rearview mirror, because I was sitting
         against up the walk and I was already afraid they had accidents up here and I was
         looking back to make sure there’s no accidents coming in behind me, and I seen
         him getting over. I was like, “I hope he don’t hit me,” and he ran right into the
         back of me.

                        Because the lane -- the third lane had slowed down, so when he
         was getting over here to the third lane, they had slowed down, so he had to get
         over or he was going to run into the back of somebody else.

                                                 * * *

                Q. Other than Mr. Gold’s vehicle hitting yours, did you hear any other
         sounds that would indicate there were any other collisions?

                A. No.2

        It is this testimony that plaintiff and my colleagues rely on to support a conclusion that
there is a genuine issue of material fact as to whether defendant was driving recklessly, as to
whether defendant was speeding, as to whether defendant did not leave sufficient distance
between his and plaintiff’s vehicle, and as to whether another vehicle struck defendant’s vehicle.
I cannot agree with this conclusion based on the record before me. Plaintiff’s testimony is
clear—she does not know whether anyone else was involved in the accident at issue. As the
circuit court correctly recognized, plaintiff has not presented any evidence, including her own


2
    Emphasis added.


                                                -4-
deposition testimony, refuting defendant’s testimony that defendant’s vehicle struck plaintiff’s
vehicle as a result of being struck by a third vehicle. Furthermore, she never testified that
defendant was driving recklessly, that defendant was speeding, that defendant did not leave
sufficient distance between his and plaintiff’s vehicle, or that no other vehicles struck
defendant’s vehicle. Thus, while I agree that plaintiff’s testimony must be viewed in a light most
favorable to her, Maiden, 461 Mich at 120, I do not agree that this favorable light allows us to
infer testimony that simply does not exist. Accordingly, I would affirm the circuit court’s order
granting defendant’s motion for summary disposition.



                                                            /s/ Colleen A. O’Brien




                                               -5-
