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No. 134751
| Sherita White and Derrick White, |
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Mark R. Granzotto |
Plaintiffs-Appellees, |
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(Appeal from Ct of Appeals) |
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(Oakland - Tyner, D.) |
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| Taylor Distributing Company, Inc., Penske Truck |
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John P. Jacobs |
| Leasing Company, L.P., and James J. Birkenheuer, |
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Timothy A. Diemer |
| Defendants-Appellants. |
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| __________________________________________ |
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Click to view briefs in Adobe format:
Plaintiffs-Appellees' Brief on Appeal
Defendants-Appellants' Brief on Appeal>>
Defendants-Appellants' Reply Brief>>
Michigan Defense Trial Counsel, Inc.'s Amicus Curiae Brief>>
Background
Sherita White was injured when a tractor-trailer driven by James J. Birkenheuer rear-ended her vehicle on the exit ramp at Novi Road and I-96 in Oakland County. White and her husband sued Birkenheuer, his employer, and the truck leasing company, claiming that she sustained serious injuries as a result of Birkenheuer’s allegedly negligent driving. Birkenheuer testified at his deposition that he had been overcome with gastrointestinal distress and dizziness and passed out as he was attempting to slow the truck on the exit ramp. Based on this testimony, the defendants moved for summary disposition, arguing that Birkenheuer experienced a “sudden emergency” and that his response to that sudden emergency was not negligent. The accident report and medical records tended to corroborate Birkenheuer’s testimony. The plaintiffs did not present countervailing evidence to the trial court, but they argued that summary disposition was nevertheless inappropriate. Birkenheuer’s motive and intent were at issue, and his credibility was critical to the case, the plaintiffs argued. The trial court granted the defendants’ motion for summary disposition and dismissed the case. But the Court of Appeals reversed in a split, published opinion. Once a moving party presents evidence to show that summary disposition is appropriate, the non-moving party is obligated to rebut the moving party’s case with documentary evidence, the majority acknowledged. However, MCR 2.116(G)(4) provides that judgment should be entered only “if appropriate,” the majority said. The majority concluded that it would be virtually impossible for the plaintiffs to refute Birkenheuer’s testimony, and that the questions of sudden emergency and negligence involve an assessment of his credibility. Under the circumstances, the majority held, summary disposition was “inappropriate” under MCR 2.116(G)(4). The dissenting judge would have affirmed summary disposition for the defendants, based on the plaintiffs’ failure to present any countervailing evidence to rebut Birkenheuer’s testimony. The defendants appeal.
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