Auto negligence; Burden of proof once a defendant moves for summary disposition under MCR 2.116(C)(10); McMaster v DTE Energy Co; Whether summary disposition was premature; Doe v General Motors, LLC

In light of the Michigan State Police’s report and plaintiff’s expert’s affidavit, the court concluded plaintiff had a potentially viable theory of liability in this auto negligence case. Because no discovery had occurred, it could not conclude on the record presented that discovery did “not stand a fair chance of uncovering factual support for plaintiff’s position.” Thus, it vacated the trial court’s order granting defendant summary disposition under MCR 2.116(C)(10) and remanded. Plaintiff’s decedent, “Sadek, was killed when the car he was driving collided with a semi-truck allegedly driven by” defendant-Harvey on behalf of the other defendant. Plaintiff argued on appeal that summary disposition was premature “because discovery had not yet commenced.” The court agreed. It noted that the trial court was correct “that to avoid summary disposition in this case, plaintiff was obligated to assert facts establishing the elements of her claim, not merely theories. However, in general, a party should be permitted the opportunity to complete discovery before facing dismissal under MCR 2.116(C)(10).” The court determined that, as “set forth in the Michigan State Police’s report and in the affidavit of plaintiff’s expert, plaintiff has a potentially viable theory of liability based on the facts or assertions that defendant was talking on his cell phone at the time of the accident, defendant did not see plaintiff’s vehicle approaching from behind (which could call into question whether defendant was appropriately checking his side mirrors), and that defendant did not brake before the impact with plaintiff’s vehicle.”