Auto negligence; Vehicle-pedestrian accident; Duty or obligations owed by a pedestrian; Malone v Vining; A driver’s duty owed to pedestrians; Birkhill v Todd; Applicability of MCL 600.2955a(1); Sudden emergency doctrine

The court held that the trial court did not err in denying defendant-Knapp’s summary disposition motion in light of the documentary evidence. Further, “MCL 600.2955a(1) did not serve as a basis to dismiss plaintiff’s complaint.” Lastly, defendant’s reliance on the sudden emergency doctrine was misplaced, and the officers’ determination that he was credible did not remove the issue from the jury. “Defendant was driving on the freeway when his vehicle collided with the decedent, a pedestrian.” The court held that at “common-law, defendant had a duty to look out for pedestrians such as the decedent. Because this duty was established, the trier of fact was required to determine if defendant breached the duty of reasonable care owed under the circumstances.” The court noted that defendant’s testimony was “subject to a credibility determination. It was certainly curious that two other individuals described a person in all black clothing walking on or near the shoulder of the freeway and called 911 to express their concerns. The decedent was visible to these two individuals. Yet, defendant testified that he never saw the decedent, and the first sight of the decedent was when the contact occurred. Whether defendant was looking at the roadway, as he testified, or was distracted by his phone, tiredness, or some other factor presented a credibility determination for the trier of fact.” Defendant contended “that the decedent as a pedestrian also was subject to duties and cited to the fact that the decedent was walking on the freeway, wearing dark clothing, was in a dark area, and was intoxicated.” While defendant also “submitted that the decedent chose to go to the area at night to work on his car[,]” the court noted that “the decedent’s chosen time to attend to his vehicle and his attire did not alleviate the duty owed by defendant. Rather, the decedent’s actions pertain to comparative negligence[,]” not duty. As to defendant’s reliance on MCL 600.2955a(1), while he asserted that the decedent was more than 50% at fault for the collision due to his intoxication, the “medical examiner did not opine that the decedent was impaired at the time of the accident, and the toxicology report did not positively detect any compounds, contrary to” an officer’s testimony. Affirmed.