Personal injury; Standard of care (SOC); Distinguishing Jenkins v Bentley; McCullough v Ward Trucking Co; Vanden Berg v Grand Rapids Gravel Co; Hopkins v Lake; Discovery; Personal representative (PR)

The court affirmed the trial court’s order granting defendant summary disposition in this personal injury case, and found that it was not premature. The case arose from plaintiff-PR’s claim for damages allegedly sustained when plaintiff’s decedent, Oscar Ousley, was struck by a tow truck owned by defendant and operated by one of its employees. Plaintiff presented no evidence of negligence. The only witness with any direct knowledge of the facts was M, “who testified that he checked the area where he was driving and saw no one, and he continually checked his mirrors to make sure he did not hit anyone as he was backing up the tow truck.” That Ousley was struck by the truck was not enough, in and of itself, to refute M’s testimony—it would be consistent with M’s “testimony that he did not know where Ousley came from and might have approached the tow truck in” M’s blind spot. Plaintiff’s expert, S, did not provide sufficient evidence to raise a material question of fact about whether M breached the SOC. The court also noted that S was not offered as a SOC “expert for tow truck drivers or other commercial drivers, he did not purport to know or otherwise opine on the applicable standard of care, and he admitted that he had no personal knowledge of the key facts and that most of his opinions were based on his assumptions about what had occurred.” Defendant correctly asserted that Jenkins, the authority upon which plaintiff relied, was distinguishable from this case. Similarly, in McCullough, “the record included evidence that the defendant driver failed to use his rearview mirrors before the accident at issue; here, the only evidence presented on that subject was that [M] did make continual use of his mirrors.” Vanden Berg was another case where, unlike in this case, “a defendant truck driver injured a plaintiff after failing to take any steps to determine whether he had a clear path before he began driving.” And Hopkins “held that the defendant had, and breached, a heightened duty to be cautious because of the presence of a young child, whom he struck with his truck. Neither Ousley nor his son was a child,” and thus Hopkins had no application here.