                            STATE OF MICHIGAN

                            COURT OF APPEALS



ALLAN CECILE,                                                      UNPUBLISHED
                                                                   June 14, 2018
               Plaintiff-Appellant,

v                                                                  No. 336881
                                                                   Wayne Circuit Court
XIAOLI WANG,                                                       LC No. 15-002018-NI

               Defendant-Appellee,

and

PROGRESSIVE MARATHON INSURANCE
COMPANY,

               Defendant.


Before: SAWYER, P.J., and CAVANAGH and FORT HOOD, JJ.

PER CURIAM.

        Plaintiff appeals as of right an order granting summary disposition in favor of defendant,
Xiaoli Wang, pursuant to MCR 2.116(C)(10) in this automobile negligence case.1 On appeal,
plaintiff argues that the trial court erred in granting summary disposition to defendant on the
ground that there was no genuine issue of material fact regarding whether defendant was more
than 50% at fault in causing the accident in which plaintiff was injured. We affirm.

        Plaintiff argues that the trial court erred in granting summary disposition to defendant.
We disagree. A trial court’s decision on a motion for summary disposition is reviewed de novo.
Bank of America, NA v Fidelity Nat’l Title Ins Co, 316 Mich App 480, 487; 892 NW2d 467
(2016).



1
  We will refer to Wang as “defendant” because the other defendant in this case, Progressive
Marathon Insurance Company (against whom plaintiff asserted a claim for uninsured or
underinsured motorist benefits) was dismissed by stipulation of the parties and is not involved in
this appeal.


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       In reviewing a motion under MCR 2.116(C)(10), this Court considers the
       pleadings, admissions, affidavits, and other relevant documentary evidence of
       record in the light most favorable to the nonmoving party to determine whether
       any genuine issue of material fact exists to warrant a trial. Summary disposition
       is appropriate if there is no genuine issue regarding any material fact and the
       moving party is entitled to judgment as a matter of law. A genuine issue of
       material fact exists when the record, giving the benefit of reasonable doubt to the
       opposing party, leaves open an issue upon which reasonable minds might differ.
       [Id. at 488 (quotation marks and citations omitted).]

        The elements of negligence are: “(1) the defendant owed the plaintiff a legal duty, (2) the
defendant breached the legal duty, (3) the plaintiff suffered damages, and (4) the defendant’s
breach was a proximate cause of the plaintiff’s damages.” Loweke v Ann Arbor Ceiling &
Partition Co, LLC, 489 Mich 157, 162; 809 NW2d 553 (2011). A motor vehicle operator owes a
duty to pedestrians to exercise due care. Poe v Detroit, 179 Mich App 564, 571; 446 NW2d 523
(1989). A motor vehicle operator may not operate a vehicle “at a speed greater than that which
will permit a stop within the assured, clear distance ahead.” MCL 257.627(1). By the same
token, a pedestrian “must take such care for his own safety as a reasonable, careful, prudent
person would do under similar circumstances.” Malone v Vining, 313 Mich 315, 321; 21 NW2d
144 (1946) (quotation marks and citation omitted). Before crossing a road, a pedestrian must
observe oncoming traffic and form a judgment concerning the distance and speed of approaching
vehicles, and the pedestrian must continue his observations while crossing the street. Id. The
fact that a pedestrian crosses a road outside of a crosswalk is pertinent to the issue of
comparative negligence. Mason v Wayne Co Bd of Comm’rs, 447 Mich 130, 136 n 5; 523 NW2d
791 (1994), amended on other grounds 451 Mich 1236 (1996).

        In an automobile negligence action such as this, “damages shall not be assessed in favor
of a party who is more than 50% at fault.” MCL 500.3135(2)(b). The relative negligence of the
parties is ordinarily a question for the trier of fact. Poch v Anderson, 229 Mich App 40, 51; 580
NW2d 456 (1998). However, if no reasonable juror could find that the defendant was more at
fault than the plaintiff in an accident, then a plaintiff’s comparative negligence may be
considered at the summary disposition stage. Huggins v Scripter, 469 Mich 898, 898-899; 669
NW2d 813 (2003). In Huggins, our Supreme Court held in a peremptory order that the
defendant was entitled to summary disposition in an automobile negligence case in light of the
comparative negligence of the plaintiff’s decedent. Id. at 898-899.2 The Court explained:
       Assuming arguendo defendant’s conduct of taking his eyes off the road to look at
       his watch while traveling under the posted speed limit was negligent, no
       reasonable juror could find that defendant was more at fault than the [plaintiff’s]
       decedent in the accident . . . . The evidence presented shows that [the plaintiff’s
       decedent] was crouching or kneeling in the middle of an unlit rural road in the



2
 An order of our Supreme Court is binding precedent if it can be understood. Evans & Luptak,
PLC v Lizza, 251 Mich App 187, 196; 650 NW2d 364 (2002).


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       middle of the night, just beyond the crest of a hill, wearing dark colored clothing
       at the time he was struck by defendant’s automobile. Tests performed by a police
       accident reconstruction expert revealed that no driver would have enough time to
       avoid the collision, given the decedent’s location just beyond the crest of the hill.
       There being no genuine issue as to any material fact, defendant is entitled to
       judgment as a matter of law. MCR 2.116(C)(10). [Id.]

        In this case, no reasonable trier of fact could conclude that defendant was negligent and
that she was more at fault for the accident than plaintiff.3 The accident occurred on Michigan
Avenue, a busy five-lane road, during evening rush hour traffic on December 18, 2014. Plaintiff,
who was employed by two car dealerships across the street from each other on Michigan
Avenue, was attempting to cross the road from one dealership to the other. The traffic was
heavily congested and moving at only 10 to 15 miles an hour. Plaintiff did not use the crosswalk
that was available at the nearby intersection with Oakwood Boulevard. He was standing in the
center turn lane when he was struck by defendant’s vehicle. The only independent witness,
Joanne Hofner, testified that it was dark, rainy, and sleety. Hofner, who believes she was two
vehicles ahead of defendant’s vehicle in the inner eastbound lane closest to the center lane, did
not see plaintiff until she passed him. Hofner felt distraught and scared when she passed plaintiff
because it was so dark and rainy and she wondered what he was doing standing in the middle of
the turn lane. After she passed plaintiff, Hofner saw headlights that she assumed were from
defendant’s vehicle pull into the center lane and then heard but did not see the accident. Hofner
did not think there was anything defendant could have done to avoid the accident.

        Plaintiff testified that he had no memory of the accident itself. He remembered
approaching the street and that the traffic was bumper to bumper, but that was the last thing he
could recall. Plaintiff indicated in his deposition that he did not recall the weather conditions or
whether it was light or dark out. Plaintiff admitted that he regularly crossed the road at this
location and that he never used the crosswalk when going back and forth between the
dealerships. In an affidavit appended to his response to the summary disposition motion,
plaintiff averred that the location where he crossed the street was well lighted by the car
dealerships and the headlights of the vehicles on the road.

        It is clear from this evidence that no reasonable juror could find that defendant was more
at fault for the accident than plaintiff. Plaintiff chose not to use the nearby crosswalk, which is
relevant to the issue of comparative negligence. See Mason, 447 Mich at 136 n 5. He instead
crossed away from the crosswalk on a five-lane road that was by his own admission congested
with rush-hour traffic. Hofner’s testimony established that it was dark, rainy, and sleety. Hofner
did not see plaintiff in the center lane until he was right next to her vehicle, which startled her,
and she indicated that there was nothing defendant could have done to avoid striking plaintiff.



3
  There is no claim that anyone other than plaintiff or defendant was negligent. Therefore, if
defendant is less than 50% at fault, it follows that plaintiff was more than 50% at fault such that
he is barred from recovering damages pursuant to MCL 500.3135(2)(b).


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        The trial court properly declined to consider plaintiff’s affidavit averring that the area
was well lighted because this contradicted plaintiff’s deposition testimony that he did not recall
whether it was light or dark out. A party may not contrive a factual issue merely by filing an
affidavit that contradicts that party’s damaging deposition testimony. Dykes v William Beaumont
Hosp, 246 Mich App 471, 480; 633 NW2d 440 (2001). Plaintiff suggests on appeal that his
affidavit did not contradict his deposition testimony because an area may be well lighted when it
is dark out. But plaintiff testified in his deposition that he could not remember whether it was
light or dark out; it thus makes no sense for him to assert in an affidavit that he remembered that
the area was well lighted by the car dealerships and the traffic because this implies that he
remembers it being dark out but nonetheless well lighted. In any event, the generalized assertion
regarding lighting in plaintiff’s affidavit fails to establish whether or when a motorist such as
defendant would have been able to see defendant standing in the center lane during rush hour on
a five-lane road with the headlights of oncoming traffic facing drivers along with rain and sleet.
There are simply no facts to establish that defendant did anything unreasonable such as speeding
or failing to watch the road. The evidence affords no basis to conclude that defendant should
have been able to see plaintiff in time to avoid hitting him. And to the extent that there is a
ground to find negligence on the part of defendant, any such negligence is unquestionably less
than that of plaintiff, who chose to jaywalk on a busy five-lane road rather than use a crosswalk
during rush hour on a rainy, sleety mid-December evening.

     Plaintiff’s reliance on the affidavit of his purported expert in accident reconstruction,
Sammie Hall, is misplaced. MRE 702 provides:
       If the court determines that scientific, technical, or other specialized knowledge
       will assist the trier of fact to understand the evidence or to determine a fact in
       issue, a witness qualified as an expert by knowledge, skill, experience, training, or
       education may testify thereto in the form of an opinion or otherwise if (1) the
       testimony is based on sufficient facts or data, (2) the testimony is the product of
       reliable principles and methods, and (3) the witness has applied the principles and
       methods reliably to the facts of the case.

See also MCL 600.2955(1) (requiring in an action for an injury to a person or property that the
trial court determine that an expert scientific opinion is reliable and will assist the trier of fact,
and setting forth various factors for the court to use in making its determination). MRE 702
requires a trial court to act as a gatekeeper to ensure that proposed expert testimony is reliable.
Gilbert v DaimlerChrysler Corp, 470 Mich 749, 782; 685 NW2d 391 (2004). The proponent of
expert testimony is required to show that the expert opinion rests on data viewed as legitimate in
a particular area of expertise and “that any opinion based on those data expresses conclusions
reached through reliable principles and methodology.” Id.

       “[T]here is no requirement that an expert’s qualifications and methods be incorporated
into an affidavit submitted in support of, or opposition to, a motion for summary disposition.
Rather, the content of the affidavits must be admissible in substance, not form.” Dextrom v
Wexford Co, 287 Mich App 406, 428; 789 NW2d 211 (2010). “[P]arties opposing a motion for
summary disposition must present more than conjecture and speculation to meet their burden of
providing evidentiary proof establishing a genuine issue of material fact.” Libralter Plastics, Inc
v Chubb Group of Ins Cos, 199 Mich App 482, 486; 502 NW2d 742 (1993). “Summary

                                                 -4-
disposition is not precluded simply because a party has produced an expert to support its
position. The expert’s opinion must be admissible. . . . The facts and data upon which the expert
relies in formulating an opinion must be reliable.” Amorello v Monsanto Corp, 186 Mich App
324, 331-332; 463 NW2d 487 (1990).

         Although Hall’s curriculum vitae purporting to establish his qualification as an expert in
accident reconstruction was not attached to his affidavit that was appended to plaintiff’s response
to the summary disposition motion, Dextrom arguably suggests this is not required. But even if
Hall is qualified to testify as an accident reconstruction expert, the trial court properly concluded
that the substance of Hall’s proposed testimony as set forth in his affidavit was inadmissible.
Hall’s opinion was speculative because it was premised on facts that have not been established.
Hall purported to apply certain principles regarding “[p]erception-reaction time” to this case in
order to conclude that defendant should have seen plaintiff in time to stop before striking him.
Hall asserted that a driver traveling at 15 miles an hour would need 44 feet to stop upon
encountering an unexpected obstacle in the roadway and that the headlights of a motor vehicle
will illuminate the roadway in front of the vehicle in excess of 44 feet. Therefore, Hall opined,
plaintiff would have been visible in the roadway for a sufficient period of time that a driver
traveling 15 miles an hour could have seen him and stopped before hitting him. From this Hall
deduced that defendant failed to pay full attention to her operation of the vehicle and was thus
negligent. Hall’s opinion is implicitly premised on the assumption that defendant’s vehicle was
traveling directly in front of plaintiff for the required distance without any obstruction in
defendant’s line of sight. But the facts in evidence afford no basis for this assumption. The
undisputed testimony is that it was a rainy, sleety evening with bumper to bumper traffic on this
five-lane road. There is no evidence that defendant entered the turn lane when she was more
than 44 feet away from plaintiff or that plaintiff was visible to defendant at a distance of 44 feet.
Hall’s opinion fails to account for the rainy and sleety conditions or the heavy rush-hour traffic
and oncoming headlights. Hall’s opinion is thus premised on speculation and fails to
demonstrate a genuine issue of material fact in support of plaintiff’s negligence claim. See
Libralter Plastics, Inc, 199 Mich App at 486; Amorello, 186 Mich App at 331-332.

       Affirmed. Defendant is entitled to costs as the prevailing party. MCR 7.219(A).



                                                              /s/ David H. Sawyer
                                                              /s/ Mark J. Cavanagh
                                                              /s/ Karen M. Fort Hood




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