                          STATE OF MICHIGAN

                            COURT OF APPEALS


MANUSHAQE PASHO, also known as                                       UNPUBLISHED
MANUSHAQ PASHO, a Disabled Person, by                                July 24, 2018
ASIE PASHO, also known as ASHIE PASHO, and
by SEBAHAT PASHO, as Guardians,

               Plaintiffs-Appellants,

v                                                                    No. 338231
                                                                     Monroe Circuit Court
DAVID LEE MCCOWAN and U.S. CARGO                                     LC No. 16-138616-NI
EXPRESS, LLC,

               Defendants-Appellees.


Before: CAMERON, P.J., and JANSEN and O’CONNELL, JJ.

PER CURIAM.

       In this negligence action arising out of a fatal traffic accident, plaintiffs Asie Pasho and
Sebahat Pasho, acting as guardians for their disabled daughter, Manushaqe Pasho (Pasho), appeal
as of right the trial court’s order granting defendants David Lee McCowan and U.S. Cargo
Express, LLC (U.S. Cargo) summary disposition under MCR 2.116(C)(10). We affirm.

        This case arises out of a fatal traffic accident on March 5, 2014, at the intersection of a
“trunk line” highway, US-24 (Telegraph Road), and Sigler Road in Ash Township. The accident
involved a loaded tractor-trailer driven by McCowan, and an SUV driven by the then-teenaged
Pasho. The road conditions on the date of the accident were normal, with dry road surfaces and
no weather conditions that would have called for slowed travel.

         According to an investigating officer, the intersection is a two-way stop, with stops signs
posted for both directions of travel on Sigler Road. In other words, drivers on Sigler Road were
required to stop at the intersection and yield the right of way to motorists on Telegraph Road, the
latter of whom had no traffic controls at that intersection.

       On the date in question, McCowan was hauling property for U.S. Cargo. He was driving
northbound on Telegraph Road, traveling in the far right lane of that four-lane highway at speeds
which, at all pertinent times for purposes of this case, did not exceed 54 miles per hour. The
posted speed limit was 55 miles per hour. As McCowan proceeded toward the intersection, he
“caught a glimpse” of Pasho’s vehicle, which was headed eastbound on Sigler Road toward the

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stop sign at the intersection. But there was “shrubbery or something . . . that blocked the view,”
so McCowan was unable to see whether Pasho actually stopped.1 Knowing that he had the right
of way, McCowan assumed that Pasho would stop at the stop sign and wait until it was safe for
her to enter the intersection before doing so. Accordingly, he continued driving north without
slowing. An eyewitness recounted that Pasho did stop—initially—but then she proceeded out
into the intersection, driving directly into McCowan’s path. Either before or at impact,
McCowan braked and veered to the right (he was fearful of hitting oncoming traffic if he veered
to the left), but he was unable to stop in time. Indeed, plaintiffs’ own proposed expert, Jonathan
R. Crane, acknowledged that after braking, veering, and impacting Pasho’s SUV, it took the
semi-truck a full four seconds to come to a complete stop. Tragically, Pasho’s teenaged
passenger, Chelsea Klocek, died as a result of the injuries she sustained in the accident, and it is
undisputed here that Pasho also suffered severe injuries.

       Plaintiffs subsequently brought this action against defendants, alleging negligence on
McCowan’s part and asserting vicarious liability against U.S. Cargo. Following discovery,
defendants moved for summary disposition under MCR 2.116(C)(10), arguing that there was no
genuine issue of material fact that Pasho had suddenly darted out into the intersection,
unlawfully impeding McCowan’s right of way, and that until she did so, McCowan owed her no
duty. Defendants further argued that plaintiffs had failed to present any evidence to create a
genuine issue of material fact whether McCowan breached his duty of care, failing to present any
evidence that McCowan’s actions of slamming on his brakes and veering to the right were
unreasonable under the emergent circumstances. After considering the matter, the trial court
granted defendants summary disposition, relying principally on Arnold v Krug, 279 Mich 702;
273 NW 322 (1937). On appeal, plaintiffs argue that the trial court erred by so ruling. We
disagree.

      We review de novo a trial court’s decision regarding a motion for summary disposition.
Heaton v Benton Constr Co, 286 Mich App 528, 531; 780 NW2d 618 (2009).

       A motion under MCR 2.116(C)(10) tests the factual support of a plaintiff's claim.
       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. 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. 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. [Zaher v Miotke, 300 Mich App 132, 139-140;
       832 NW2d 266 (2013) (quotations marks and citations omitted).]



1
 Several witnesses, including police officers and an eyewitness who lives near the intersection,
confirmed that there was poor visibility at the intersection due to nearby pine trees.


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“Only the substantively admissible evidence actually proffered may be considered.” 1300
LaFayette East Coop, Inc v Savoy, 284 Mich App 522, 525; 773 NW2d 57 (2009) (quotation
marks and citation omitted). “Circumstantial evidence can be sufficient to establish a genuine
issue of material fact, but mere conjecture or speculation is insufficient.” McNeill-Marks v
Midmichigan Med Ctr-Gratiot, 316 Mich App 1, 16; 891 NW2d 528 (2016). “This Court is
liberal in finding genuine issues of material fact.” Jimkoski v Shupe, 282 Mich App 1, 5; 763
NW2d 1 (2008).

        “It is usually held that in order to state a negligence claim on which relief may be
granted, plaintiffs must prove (1) that defendant owed them a duty of care, (2) that defendant
breached that duty, (3) that plaintiffs were injured, and (4) that defendant’s breach caused
plaintiffs’ injuries.” Henry v Dow Chem Co, 473 Mich 63, 71-72; 701 NW2d 684 (2005). That
fourth element, proximate causation, actually incorporates two distinct legal concepts: (1) factual
(or “but for”) causation (i.e., “that the harmful result would not have come about but for the
defendant’s negligent conduct”), and (2) “legal” causation (i.e., an analysis that “normally
involves examining the foreseeability of consequences, and whether a defendant should be held
legally responsible for such consequences”). Haliw v City of Sterling Hts, 464 Mich 297, 310;
627 NW2d 581 (2001).

       “The threshold issue of the duty of care in negligence actions must be decided by the trial
court as a matter of law. In other words, the court determines the circumstances that must exist
in order for a defendant’s duty to arise.” Riddle v McLouth Steel Prod Corp, 440 Mich 85, 95;
485 NW2d 676 (1992).

       Duty may be established specifically by mandate of statute, or it may arise
       generally by operation of law under application of the basic rule of the common
       law, which imposes on every person engaged in the prosecution of any
       undertaking an obligation to use due care, or to so govern his actions as not to
       unreasonably endanger the person or property of others. [Id. (quotation marks
       and citation omitted).]

“Once a defendant’s legal duty is established, the reasonableness of the defendant’s conduct
under that standard is generally a question for the jury.” Id. at 96. In other words, ordinarily
“[t]he jury must decide whether the defendant breached the legal duty owed to the plaintiff, that
the defendant’s breach was the proximate cause of the plaintiff’s injuries, and thus, that the
defendant is negligent.” Id. “What constitutes reasonable care under the circumstances must be
determined from the facts of the case.” Id. at 97. However, “[i]f reasonable minds could not
differ regarding the proximate cause of a plaintiff’s injury, courts should decide the issue as a
matter of law.” Black v Shafer, 499 Mich 950, 951 (2016), citing Mich Dep’t of Transp v
Christensen, 229 Mich App 417, 424; 581 NW2d 807 (1998).

       In this case, the trial court relied on Arnold, a case with remarkably similar facts. In
Arnold, 17-year-old Alice Arnold was riding as a passenger in a car driven by Leslie Doerr.
Arnold, 279 Mich at 705. The two were traveling on a dirt road that intersected M-81, which is a
paved trunk line highway. Id. at 704-705. Because of a nearby embankment, the intersection of
the dirt road and M-81 had poor visibility in certain directions, making it “so travelers
approaching from the south and the west cannot see each other until within 30 or 35 feet of the

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center of the intersection.” Id. at 704. The defendant truck driver “was familiar with the
intersection.” Id. at 705. As he approached it, he drove on the right side of the road, “with his
truck under control,” at 45 miles per hour. Id. at 705, 708. He did not slow down as he
approached the intersection. Id. at 705. As the vehicles neared one another, Doerr did not stop
or survey traffic, instead proceeding out into the intersection at 15 miles per hour. Id. The truck
driver was unable to “see the Doerr car until it darted out upon the pavement,” at which point the
truck driver “applied his brakes when 20 to 25 feet from the Doerr car, and swung to the left to
avoid it, but struck the car on the left side between the wheels.” Id. Arnold subsequently died
from her injuries, and her estate sued. Id. Our Supreme Court held that, “as a matter of fact and
law, [the truck driver] was not guilty of actionable negligence.” Id. at 709. In pertinent part, the
Court reasoned as follows:

               Defendant, being on a trunk line highway, had the right of way.

                                              * * *

               The right of way accorded to a driver upon a trunk line highway is
       something more than the privilege of going through the intersection in advance of
       a car which reaches it at the same time. Drivers approaching the trunk line are
       required to stop before entering the intersection whether any one is at or near the
       crossing or in sight on the trunk highway. It is an improved road—usually hard
       surfaced. Its purpose is to afford rapid transit. The driver is entitled to assume
       that those approaching it will obey the law and stop. He is not obliged to have his
       car under such control at each intersecting road that he may stop at once and
       avoid collision with persons who may illegally come into his path.

              On the other hand, he must keep such lookout ahead and to the sides and
       down intersecting highways as a reasonably prudent person would do in order to
       discover possible danger and must act carefully upon the existing conditions.

                A driver cannot be convicted of negligence on a general charge that he did
       not exercise the care a prudent person would have used under the circumstances.
       It is necessary to charge and prove the specific act he did or did not do. [The
       truck driver] was driving on the right side of the road at a very reasonable rate of
       speed and with his truck under control. The only claim of fault which could be
       made against him . . . is that he failed to reduce his speed as he neared the
       intersection. But to what rate should he have reduced the speed? It is evident
       that, to have avoided the collision, he would have had to so slacken his speed that
       he could have stopped well within 30 feet. To impose such a duty on drivers
       upon trunk line highways would seriously impair their purpose, be foreign to the
       general conception of careful drivers of their rights and duties upon them, in large
       measure destroy the preferential right of way, and offer inducement to drivers
       approaching on intersection roads to violate their legal duties. It is not the rule as
       a matter of law.

              Nor as a matter of fact was such duty to slacken speed imposed on [the
       truck driver]. He was obliged to anticipate such possible danger in the

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       intersection and do such acts to avoid it as a reasonably prudent person would
       have anticipated and done, if such person had the knowledge of the situation
       which [the truck driver] possessed, and had the right to assume that one about to
       enter the trunk highway at the intersection would perform his legal duty to stop
       and look for traffic.

              It is hardly reasonable to say that a prudent person, driving on a through
       highway and familiar with the conditions, would have anticipated such
       progressively remote possibilities as that—

               (1) A car might come from the south on the rough and infrequently
       traveled road, where travel is necessarily slow and the duty to stop at the through
       highway thereby emphasized;

               (2) Its driver would not look for approaching cars on the through highway;

              (3) He would fail to observe a very common rule of law, and of even less
       than ordinary care, by neglecting to stop before entering the intersection; and

              (4) To cap the climax of a total want of common prudence—he would
       make a short turn to the left into a part of the intersection where he had no right to
       be.

                Reduced to its essentials, [the truck driver] was driving at a reasonable
       rate of speed and without duty or reason to anticipate the possibility of such
       extraordinary conditions as Doerr brought about, the danger did not appear until it
       was too late for [the truck driver] to avoid an accident, and the proximate cause of
       the collision was the negligence of Doerr and not the conduct of [the truck driver].
       [Id. at 707-709.2]

In a later decision, McGuire v Rabaut, 354 Mich 230, 236; 92 NW2d 299 (1958), our Supreme
Court reiterated that a driver proceeding on a trunk line highway has no “duty of care with
respect to the subordinate driver” on the intersecting road until “that point when . . . continuing


2
  We are cognizant that Arnold was decided before Placek v City of Sterling Hts, 405 Mich 638;
275 NW2d 511 (1979), in which our Supreme Court rejected the contributory negligence rule
and replaced it with a comparative negligence approach. Arnold was also decided before
Petrove v Grand Trunk W R Co, 437 Mich 31; 464 NW2d 711 (1991), in which our Supreme
Court repudiated the “last clear chance” doctrine. However, because Arnold did not explicitly
rely on either of those now defunct legal doctrines, we conclude that Arnold remains
authoritative under the doctrine of stare decisis, never having been overruled by our Supreme
Court. See Paige v City of Sterling Hts, 476 Mich 495, 524; 720 NW2d 219 (2006) (noting that
“only” our Supreme “Court has the authority to overrule one of its prior decisions,” and that until
it “does so, all lower courts . . . are bound by that prior decision and must follow it even if they
believe that it was wrongly decided or has become obsolete”).


                                                -5-
observations . . . reveal, or should reveal to the reasonably prudent [person], an impending
danger. It is at this time that [a] duty of care with respect to the subordinate driver arises, and . . .
post-observation negligence, or lack thereof, is measured by . . . actions after this point.”

         As an initial consideration, as recently emphasized in Ray v Swager, 501 Mich 52, 97-98;
903 NW2d 366 (2017) (WILDER, J., dissenting), the phrase “ ‘legal cause’ is a misnomer
insomuch as it has nothing at all to do with causation; instead, it involves examining the
foreseeability of consequences, and whether a defendant should be held legally responsible for
such consequences.” (Quotation marks and citation omitted.) See also id. at 88 n 5, citing 1
Restatement Torts 3d: Liability for Physical & Emotional Harm, Special Note on Proximate
Cause, ch 6, pp 492-493 (noting that the use of the word “cause” “contributes to the misleading
impression that limitations on liability somehow are about factual cause”). As a frequently cited
treatise on the subject puts it, “[s]cope of liability, formerly termed proximate cause, is not about
causation at all but about the significance of the defendant’s conduct or the appropriate scope of
liability in light of moral and policy judgments about the very particular facts of the case.” 1
Dobbs, Hayden & Bublick, Torts, § 185, p 622.3

         As the interplay between the majority and dissent in Ray suggests, legal causation is a
decidedly complex concept, which “encompasses a number of distinct problems including the
limits of liability for foreseeable consequences.” Moning v Alfono, 400 Mich 425, 439; 254
NW2d 759 (1977). The converse problem—“[t]he problem of liability for unforeseeable
consequences”—is also part of the legal causation calculus. Id. at 440 n 13 (quotation marks and
citation omitted; emphasis added). At root, “[a] proper legal causation inquiry considers whether
an actor should be held legally responsible for his or her conduct,” Ray, 501 Mich at 65
(emphasis added), “seek[ing] to determine the appropriate scope of a negligent defendant’s
liability,” id. at 65 n 24. Part of that inquiry—i.e., who should be held liable—consists of
examining the “policy judgments” that underlie this state’s common-law negligence
jurisprudence, as enunciated in caselaw such as Arnold. See Dobbs, § 185, p 622; see also
Moning, 400 Mich at 436 (“The law of negligence was created by common law judges and,
therefore, it is unavoidably the Court’s responsibility to continue to develop or limit the
development of that body of law absent legislative directive.”).

        In light of the policy considerations discussed in Arnold, it was appropriate for the trial
court to conclude, as a matter of law, that McCowan’s actions did not fall within the proper
scope of liability. In one sense, it was reasonably foreseeable that McCowan’s act of driving
down Telegraph Road at a lawful rate of speed might result in injuries to someone at some point.
As has been recognized in the context of negligence actions in the realm of premises liability,
“[b]ecause criminal activity is irrational and unpredictable, it is . . . invariably foreseeable
everywhere.” MacDonald v PKT, Inc, 464 Mich 322, 335; 628 NW2d 33 (2001) (emphasis
added). The same is true of reckless driving, particularly when teenage drivers are involved. It


3
 Between the majority and dissenting opinions in Ray, the Dobbs treatise was cited more than a
dozen times. Accordingly, it seems that our Supreme Court has taken such a favorable view of
Dobbs that it may be regarded as persuasive secondary authority.


                                                  -6-
is certainly “foreseeable”—in an abstract sense—that some motorists will drive in a dangerous or
reckless manner.

         Such abstract foreseeability does not, however, justify holding motorists on trunk line
highways “effectively vicariously liable for the criminal acts of third parties.” See id. Although
it is reasonably foreseeable that some driver at some intersection with a high-speed, trunk line
highway will, at some point, suddenly drive into the path of an oncoming semi-truck that has the
right of way, at any given intersection that outcome is not reasonably foreseeable. As Arnold
recognized, it is simply not reasonable to expect drivers on trunk line highways to constantly
anticipate such behavior from other motorists. See Arnold, 279 Mich at 707-709. And from a
policy standpoint, doing so would fundamentally undermine the purpose of the trunk line system
(i.e., rapid transit), would “be foreign to the general conception of careful drivers of their rights
and duties upon” roadways, would “in large measure destroy the preferential right of way,” and
would “offer inducement to drivers approaching on intersection roads to violate their legal
duties.” Id. at 707-708.

        In this case, there is no genuine factual dispute regarding the essential facts. Pasho
suddenly impeded McCowan’s lawful right of way. Her conduct in doing so was unlawful, and
as evidenced by her own severe injuries and her passenger’s death, it was so unexpected as to be
inherently unforeseeable. Under the doctrine of legal causation, this state’s common-law
negligence jurisprudence, as announced in Arnold, will not attribute liability for Pasho’s injuries
to McCowan, who was simply traveling on a trunk line highway lawfully and in control of his
vehicle. See id. at 707-709. Summary disposition was appropriately granted.

       Affirmed.


                                                              /s/ Thomas C. Cameron
                                                              /s/ Kathleen Jansen
                                                              /s/ Peter D. O’Connell




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