                          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ESTATE OF AVA CAMERON TAYLOR, by                                   UNPUBLISHED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.

PER CURIAM.

       Plaintiff, Estate of Ava Cameron Taylor by her personal representative, Amy Taylor
(Taylor), appeals as of right the trial court’s order granting summary disposition under MCR
2.116(C)(10) on the basis that there was no genuine issue of material fact regarding whether
Taylor was more than 50% at fault for a fatal car/pedestrian accident with defendant Darin Lee
Coole (Coole). We affirm.

                                I. FACTUAL BACKGROUND

        Taylor was killed after she was struck by Coole’s car at about 7:08 a.m. on October 2,
2012. At the time of the accident, Coole worked from 10:45 p.m. to 6:45 a.m. and his route
home from work included driving on Lapeer Road “when the kids were out, but before the
busses came.” Coole’s usual precautions were to drive the speed limit, pay attention to the road,
know where the kids were at and what they were doing, and be observant. About 99% of the
time, there was only one boy at the Kelly Lake entrance bus stop. He had seen another child
there only once or twice before.

         Coole saw that the boy was sitting at the Kelly Lake bus stop. After he passed the
intersection, “faster than you can blink the accident occurred.” He was looking forward and the
first time he saw Taylor was when she hit the hood of his car. She was wearing dark clothing
and crossing the road in a darkened area. From the way her feet were pointing, Coole had the
impression that she had been running. He did not brake or swerve because by the time he saw
her, “[t]here was no action to take.” Coole immediately stopped, told the boy to find Taylor’s
parents, and called 911. Taylor ultimately died from her injuries.



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        Taylor sued Coole for wrongful death. After discovery, Coole moved for summary
disposition in part on the basis that Taylor had not exercised reasonable care for her safety and
was more than 50% at fault for the accident. The trial court agreed and granted summary
disposition under MCR 2.116(C)(10). Taylor now appeals.

                                  II. STANDARD OF REVIEW

        This Court reviews de novo the trial court’s decision on a motion for summary
disposition. Gorman v American Honda Motor Co, Inc, 302 Mich App 113, 115; 839 NW2d 223
(2013). A party is entitled to summary disposition under MCR 2.116(C)(10) if “there is no
genuine issue as to any material fact, and the moving party is entitled to judgment . . . as a matter
of law.” The trial court must consider all the documentary evidence in the light most favorable
to the nonmoving party. MCR 2.116(G)(5). A genuine issue of material fact exists if, when
viewing the record in the light most favorable to the nonmoving party, reasonable minds could
differ on the issue. Gorman, 302 Mich App at 116. “[D]isputed fact, or the lack of it, must be
established by admissible evidence.” Marlo Beauty Supply, Inc v Farmers Ins Group of
Companies, 227 Mich App 309, 321; 575 NW2d 324 (1998), modified on other grounds by
Harts v Farmers Ins Exchange, 461 Mich 1; 597 NW2d 47 (1999).

                                         III. ANALYSIS

        To prove negligence, a plaintiff must show that (1) the defendant owed the plaintiff a
duty of care, (2) the defendant breached that duty, (3) the plaintiff was injured, and (4) the
defendant’s breach caused the plaintiff’s injury. Henry v Dow Chemical Co, 473 Mich 63, 71-
72; 701 NW2d 684 (2005). Typically, whether a driver was negligent is a question of fact for the
jury. Cole v Barber, 353 Mich 427, 431; 91 NW2d 848 (1958). However, MCL 500.3135(2)(b)
provides that “damages shall not be assessed in favor of a party who is more than 50% at fault.”
If no reasonable juror could find that the defendant was more at fault for an accident than the
decedent, summary disposition is appropriate. Huggins v Scripter, 469 Mich 898, 898-899; 669
NW2d 813 (2003).

       Taylor argues that the trial court improperly granted summary disposition because
whether decedent was more than 50% at fault for the accident was a question of fact. First,
Taylor argues that there was a question of fact regarding whether Coole’s speed was excessive
under the circumstances. We disagree because the trial court recognized that there was a
question of fact regarding whether Coole’s speed was excessive under the circumstances when it
declined to grant summary disposition on this ground.

        A person has a statutory duty to operate a vehicle “at a careful and prudent speed not
greater than nor less than is reasonable and proper,” and “shall not operate a vehicle upon a
highway at a speed greater than that which will permit a stop within the assured, clear distance
ahead.” MCL 257.627(1). In other words “a driver shall not operate his vehicle so fast that he
cannot bring it to a complete stop within that distance ahead of him in which he can clearly
perceive any object that might appear in his path.” Cole, 353 Mich at 431. Simply traveling
within the speed limit does not mean that the driver was traveling at a speed to stop within the
assured clear distance. See Vander Laan v Miedma, 385 Mich 226, 229-230, 233; 188 NW2d
564, 566 (1971) (holding that a defendant traveling at 25 miles an hour in a zone with a speed

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limit of 35 miles an hour did not establish that he was traveling at a speed that rendered him able
to stop within the assured clear distance).

        Coole testified that he was traveling at 45 miles an hour. Traffic reconstructionist James
Campbell estimated Coole’s speed at 41 to 53 miles an hour. Campbell’s estimate did not
contradict Coole’s assertion that he was traveling the speed limit. Regardless, Coole’s exact
speed was not outcome determinative because the trial court recognized that whether Coole
traveled at the speed limit did not automatically render his speed reasonable. Contrary to
Taylor’s assertion, the trial court found specifically that “[t]here is a possibility that Coole could
have acted differently.” In other words, the trial court did not ignore that there was a question of
fact regarding whether Coole’s speed was excessive under the circumstances.

       Second, Taylor argues that the trial court improperly determined that Coole did not have
time to stop. Taylor asserts that Kilburn’s testimony provided evidence that Coole tried to, but
could not, stop. We disagree.

        A driver is not negligent “if another vehicle or other moving object suddenly intersects
his lane of travel or line of vision at some intermediate point within his assured clear distance
ahead.” Cole, 353 Mich at 431. Taylor relies on Kilburn’s statement in Burton Police Officer
Mark Mahoon’s police report that Kilburn “heard the car braking hard and heard a ‘pop’ sound,”
arguing that this means that there is evidence that Coole did in fact see Taylor and braked but
was traveling too fast to stop. A party must establish the existence of a factual dispute with
admissible evidence. Marlo Beauty Supply, 227 Mich App at 321. Statements in a police report
must be plausibly admissible for a trial court to consider them during summary disposition.
Maiden v Rozwood, 461 Mich 109, 124; 597 NW2d 817 (1999). The trial court properly
declined to consider this hearsay statement when determining whether to grant summary
disposition. Even presuming that the order in which the statements are recited is the same as the
order in which Kilburn heard the sounds, this statement is in a police report, and Taylor has not
established that this proposed evidence fits under any hearsay exception.

        In contrast, Coole testified that he did not have time to brake, swerve, or take any evasive
action because the first time he saw Taylor, she was on the hood of his car. Police investigators
found no deceleration or scuff marks on the road related to the accident, and the airbag sensors of
Coole’s car registered a speed change of less than 1 mile an hour at the time of the impact.
Accordingly, there was no genuine issue of material fact regarding whether Coole saw Taylor in
time to take evasive action, and the trial court properly determined that there was no question of
fact regarding whether Coole was traveling faster than he could stop within the assured clear
distance because a driver is not negligent if a moving person suddenly intersects his or her lane
of travel.

       Third, Taylor argues that the trial court erred by finding that the decedent did not exercise
reasonable care for her own safety. We again disagree.

       “In the absence of evidence to the contrary, a pedestrian killed while walking on a public
highway is presumed to have exercised at all times the requisite degree and amount of care for
his own safety and preservation.” People v Campbell, 237 Mich 424, 442; 212 NW 97, 104
(1927). However, a pedestrian who knows that a vehicle is oncoming has a duty to watch the

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vehicle’s progress to avoid being hit. Heger v Meissner, 340 Mich 586, 589; 66 NW2d 220
(1954). Courts may consider whether a pedestrian was crossing outside a crosswalk when
considering whether the pedestrian was comparatively negligent. Mason v Wayne Co Bd of
Comm’rs, 447 Mich 130, 136 n 5; 523 NW2d 791 (1994) (“Pedestrians crossing outside of
crosswalks face the additional hurdle of comparative negligence.”)

         In this case, both Coole’s testimony and Campbell’s report established that there was no
street light or ambient light at the area that Taylor crossed the road. Coole had his headlights on
as he was traveling. Taylor was wearing a dark sweatshirt, dark pants, and black boots. Taylor
was running and did not cross within a crosswalk. Given these facts, the trial court did not err by
determining that Taylor did not exercise reasonable care for her own safety.

        Comparing Coole’s negligence with Taylor’s, we agree with the trial court’s conclusion
that there was no genuine issue of material fact regarding whether Taylor was more than 50% at
fault for the accident. In this case, Coole was potentially driving too fast for the conditions.
However, Coole testified that he took precautions while driving near the bus stops on his way
home from work. Specifically, he traveled the speed limit, knew which children were at which
stops, and watched out for them. Immediately before the accident, Coole ascertained that the
child who was usually at the Kelly Lake bus stop was sitting at that bus stop. Coole did not have
reason to anticipate that another child would be in the road because the child at the Kelly Lake
bus stop was alone most of the time.1

        In contrast, Taylor would have known that there was an oncoming car because it was
dark and Coole was driving with his lights on, but she chose to cross the road anyway in a dark
area and while wearing dark clothing. She was running and did not cross at a crosswalk. We
conclude that the trial court did not err by granting summary disposition on the basis that that
Taylor was more than 50% at fault for the accident because reasonable minds could not differ on
the issue.

       We affirm.

                                                            /s/ Peter D. O’Connell
                                                            /s/ Mark T. Boonstra




1
  Taylor argues that Coole should have been traveling more slowly because he knew that one girl
in dark clothing walked in the road. However, Coole’s testimony established that this girl was at
a different bus stop, not the Kelly Lake bus stop.


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