                            STATE OF MICHIGAN

                            COURT OF APPEALS



HASEM SALEM,                                                      UNPUBLISHED
                                                                  October 14, 2014
              Plaintiff-Appellant,

v                                                                 No. 316464
                                                                  Wayne Circuit Court
SALEH SALEH,                                                      LC No. 11-012076-NI

              Defendant-Appellee.


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

OWENS, P.J. (dissenting).

       I respectfully dissent from the majority opinion and would affirm the trial court’s order
granting defendant’s motion for summary disposition.

        While the question whether a particular defendant acted reasonably when faced with a
sudden emergency may be a question of fact for the jury, where a defendant moves for summary
disposition pursuant to MCR 2.116(C)(10), this is only true where there is a genuine issue of
material fact. See, e.g., White v Taylor Distributing Co, Inc, 482 Mich 136, 143, 140-141; 753
NW2d 591 (2008). In this case, even when viewing the evidence in the light most favorable to
plaintiff, the nonmoving party, Joseph v Auto Club Ins Ass’n, 491 Mich 200, 206; 815 NW2d
412 (2012), I would conclude that there was no genuine issue of material fact whether defendant
acted reasonably under the circumstances of the particular sudden emergency. After he learned
decedent had been shot, defendant found his passenger “in danger,” and was required to act in
the chaotic moments that ensued—with the encouragement of his companions, including
plaintiff—without time to consider what, in hindsight, might have been better means to avoid the
impending danger. The evidence supported a finding that defendant acted reasonably when
confronted with a sudden emergency. Therefore, I would conclude that the trial court correctly
applied the sudden-emergency doctrine to grant defendant summary disposition.



                                                           /s/ Donald S. Owens




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