                          STATE OF MICHIGAN

                             COURT OF APPEALS



ESTATE OF AVA CAMERON TAYLOR, by                                     UNPUBLISHED
AMY TAYLOR, Personal Representative,                                 April 13, 2017

               Plaintiff-Appellant,

v                                                                    No. 331198
                                                                     Genesee Circuit Court
DARIN LEE COOLE and AMY COOLE,                                       LC No. 14-104044-NI

               Defendants-Appellees.


Before: O’CONNELL, P.J., and GLEICHER and BOONSTRA, JJ.

GLEICHER, J. (concurring).

       The majority reaches the right result, but for the wrong reasons. The majority recites that
“there was a question of fact regarding whether Coole’s speed was excessive under the
circumstances[,]” but concludes that “there was [not a] genuine issue of material fact regarding
whether Taylor was more than 50% at fault for . . . [the] accident.” I respectfully disagree with
both propositions.

        Although a driver must adjust his speed to account for the conditions around him, Taylor
has failed to offer any fact that would have required Coole to drive at a speed less than the posted
limit. Taylor’s expert was unable to determine whether Coole was driving at more than 45 miles
an hour at the time this tragedy occurred. Not a single fact in the record supports that a
reasonably prudent person would have been traveling at a slower speed. There were no
obstructions to Coole’s vision, and no warning that a child would dart into the road. I am unable
to discern any basis on which to find a material question of fact supporting Coole’s negligence,
and would affirm summary disposition on that ground.

        The majority errs, in my view, by deciding this case on comparative negligence grounds.
Because Coole was not negligent, comparative negligence has no role to play. But if Coole had
been speeding or otherwise negligent, I would hold that a jury should weigh the parties’ relative
fault contributions to the outcome. A determination of comparative negligence requires a
comparison of the reasonableness of the conduct of two actors, and inherently resides with the
finder of fact. See Lowe v Estate Motors Ltd, 428 Mich 439, 461-462; 410 NW2d 706 (1987).




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This Court is not a fact-weighing or credibility-discerning body. Where both sides advance
credible claims of negligence, I would let the jury consider the evidence and apportion the fault
as it sees fit.



                                                           /s/ Elizabeth L. Gleicher




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