                           STATE OF MICHIGAN

                              COURT OF APPEALS



LEONARD TANIKOWSKI,                                                  UNPUBLISHED
                                                                     August 9, 2016
               Plaintiff-Appellant,

v                                                                    No. 325672
                                                                     Macomb Circuit Court
THERESA JACISIN and CHRISTOPHER                                      LC No. 2013-004924-NI
SWITZER,

               Defendants-Appellees.


Before: JANSEN, P.J., and FORT HOOD and BOONSTRA, JJ.

Fort Hood, J. (dissenting).

       I respectfully dissent. I believe the trial court erred when it found that reasonable minds
could not differ as to whether defendant Theresa Jacisin’s negligent conduct was the proximate
cause of plaintiff’s injury.

        As the majority explained, proximate or legal cause, at issue in this case, is a cause that,
“in a natural and continuous sequence, unbroken by new and independent causes, produces [an]
injury.” Wiley v Henry Ford Cottage Hosp, 257 Mich App 488, 496; 668 NW2d 402 (2003),
citing McMillan v Vliet, 422 Mich 570, 576; 374 NW2d 679 (1985). I would hold that the events
could be found to be an uninterrupted sequence of events. Here, plaintiff was driving eastbound
in the center lane of I-696. It was early in the morning, dark, and the traffic was unusually
heavy. Plaintiff encountered Jacisin’s vehicle parked without any lights on in the center lane,
which blocked plaintiff’s mode of travel. Jacisin had been involved in a two-car collision that
occurred 30 seconds to two minutes before plaintiff came upon the scene. Vehicles in the left
lane were still traveling 70 miles per hour, and there was a long line of vehicles in the right lane
attempting to exit the interstate.

         Plaintiff testified that he felt the best way to react when he encountered Jacisin’s vehicle
was to slow down to 5 to 10 miles per hour, and swerve right to avoid striking Jacisin’s vehicle
and to avoid potentially getting rear-ended by vehicles rapidly approaching behind him. After
swerving right, plaintiff suddenly saw the second vehicle, which was an overturned black SUV,
without its lights on. Plaintiff testified that he changed direction to avoid hitting the overturned
SUV. Plaintiff then drove left between the two wrecked vehicles, but it was dark, and the SUV
was black. As plaintiff had his head turned to the left in an attempt to re-enter moving traffic in
the left lane, he struck the corner of the overturned SUV. Plaintiff presented additional evidence

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that supported his testimony. Natasha Emerson, who was an eyewitness at the accident scene,
testified that it was dark when the accident occurred, and that it appeared there was no way for
plaintiff to avoid the collision.

         Based on the evidence presented, I believe a factual dispute exists whether plaintiff’s
harm was “a natural and continuance sequence, unbroken by new and independent causes,” of
Jacisin’s negligence. Wiley, 257 Mich App at 496. Given the circumstances surrounding the
accidents—two vehicles immobilized on the highway, in the dark, without lights—it was
foreseeable that another vehicle would encounter the accident, especially with the amount of
traffic on the road. Further, only a small amount of time had passed and plaintiff’s accident was
directly caused by the first accident, as opposed to an intervening event or act. While the
majority concludes that plaintiff’s conduct constituted an intervening act, which broke the chain
of events, I believe a reasonable jury could also find that plaintiff’s conduct was reasonable,
particularly in light of the witness testimony he presented corroborating his position, as well as
the short lapse in time that occurred between accidents.

         Indeed, the trial court’s decision and the majority opinion focus on plaintiff’s fault or
reasonableness in how he reacted to the initial collision. While plaintiff’s decision to drive
through two wrecked vehicles was arguably questionable with respect to his reasonableness,
Jacisin’s negligent conduct remains a substantial factor in plaintiff’s resulting harm. O’Neal v St
John Hosp, 487 Mich 485, 496-497; 791 NW2d 853 (2010). Jacisin cannot avoid liability for
her negligence merely because plaintiff may have also been negligent in how he reacted to the
initial collision. While comparative fault does require that every actor exercise reasonable care,
Zaremba Equipment, Inc v Harco Nat’l Ins Co, 280 Mich App 16, 33; 761 NW2d 151 (2008),
reasonableness is not an element of proximate cause and as such, would not negate a finding of
proximate cause. Ultimately, though, even if plaintiff was more than 50% at fault, he may not be
denied the opportunity of the jury first deciding the issue of proximate cause. Therefore, I would
hold that the trial court erred when it granted defendants’ motion for summary disposition.

        I would also conclude that Derbeck v Ward, 178 Mich App 38, 42; 443 NW2d 812
(1989), and Deaton v Baker, 122 Mich App 252, 254; 332 NW2d 457 (1982), two cases on
which the trial court relied, were factually and legally distinguishable from the present case.
Besides the fact that these cases are not binding, MCR 7.215(J)(1), and analyze cause in fact
(“but for” cause), as opposed to legal, or proximate, causation, Craig v Oakwood Hosp, 471
Mich 67, 86-87; 684 NW2d 296 (2004), there were also significant factual distinctions.
Significantly, there was a larger time lapse between accidents in those cases. In addition, both
the plaintiffs in Deaton and Derbeck were involved in the first accident, and had actually exited
their vehicles. Deaton, 122 Mich App at 254; Derbeck, 178 Mich App at 42-43. Although the
majority does not rely on these cases in making their decision, I note that I would hold that these
cases were distinguishable.

       Additionally, I would also conclude that there was a question of fact whether Jacisin’s
post-accident conduct constituted negligence. Both the Derback and Deaton Courts remanded
for consideration of whether the negligent party’s post-accident actions constituted negligence,
such as failing to activate emergency lights and leaving a disabled vehicle in the roadway.
Deaton, 122 Mich App at 254; Derbeck, 178 Mich App at 45. Here, plaintiff amended his
complaint to include allegations that Jacisin failed to activate her emergency flashers, failed to

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remove the vehicle from the center lane, and failed to alert oncoming motorists of the overturned
vehicle ahead of her. The trial court found that plaintiff failed to establish a question of fact
regarding these allegations. The court held that “there is no testimony that [Jacisin] had any time
to remove the vehicle from the center lane before plaintiff arrived at the scene.” Here, Jacisin
did not have lights, emergency or otherwise, activated, despite the fact that her vehicle was
immobilized in the highway and it was dark. While, as the trial court held, there was no
evidence that Jacisin had time to remove her vehicle, there was also no evidence that Jacisin did
not have time to remove her car or activate her lights, an allegation unaddressed by the trial
court. Thus, viewing the evidence in the light most favorable to plaintiff, I would conclude that
there was a question of fact whether Jacisin’s post-accident conduct constituted negligence.



                                                            /s/ Karen M. Fort Hood




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