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Sullivan v. Little7/26/2005
UNPUBLISHED
Before: Fitzgerald, P.J., and Meter and Owens, JJ.
Defendant appeals by leave granted from a circuit court order denying his motion for summary disposition in this wrongful death action. The victim, Lydia Peters, was struck by defendant's vehicle as she walked on a roadway in Saginaw County. Plaintiff is the personal representative of Peter's estate. We affirm.
Defendant's sole argument on appeal is that he is entitled to summary disposition because the sole proximate cause of Peter's injuries is her own negligence. He contends that either he was not negligent at all or, assuming some negligence on his part, Peters was more than fifty percent comparatively negligent. We review a trial court's ruling on a motion for summary disposition de novo. Maskery v Univ of Michigan Bd of Regents, 468 Mich 609, 613; 664 NW2d 165 (2003). A motion for summary disposition brought under MCR 2.116(C)(10) tests the factual support for a claim. Dressel v Ameribank,468 Mich 557, 561; 664 NW2d 151 (2003). In ruling on a motion for summary disposition under MCR2.116(C)(10), the trial court should consider the pleadings, affidavits, depositions, admissions, and other admissible evidence submitted by the parties in the light most favorable to the nonmoving party. Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). If the evidence does not establish a genuine issue of material fact, the moving party is entitled to a judgment as a matter of law. Id.
The standards for determining the comparative negligence of a plaintiff are the same as those of a defendant--the jury must consider the nature of the conduct and its causal relationship to the damages--and the question is one for the jury unless all reasonable minds could not differ. Rodriguez v Solar of Michigan, Inc, 191 Mich App 483, 488; 478 NW2d 914 (1991). In support of his motion for summary disposition, defendant relied on MCL 500.3135(2)(b) of the no-fault insurance act, MCL 500.3101 et seq., which provides that non-economic "damages shall not be assessed in favor of a party who is more than 50% at fault." MCL 500.3135(2)(b). Defendant also relied on MCL 600.2955a(1), which provides:
It is an absolute defense in an action for the death of an individual or for injury to a person or property that the individual upon whose death or injury the action is based had an impaired ability to function due to the influence of intoxicating liquor or a controlled substance, and as a result of that impaired ability, the individual was 50% or more the cause of the accident or event that resulted in the death or injury. If the individual described in this subsection was less than 50% the cause of the accident or event, an award of damages shall be reduced by that percentage.
Defendant asserted that plaintiff was negligent in the following respects:
1. In failing to walk facing traffic as required under the statutes of the State of Michigan pertaining to pedestrian movement.
2. In failing to make appropriate observations of her surroundings so as to avoid walking directly into the path of Defendant at a time when it was unsafe to do so.
3. In having a BAC [blood alcohol content] of 0.16 as shown by a blood sample drawn during her treatment at St. Mary's.
4. In having an impaired ability to function within the meaning of MCL 600.2955(a).
5. In failing to take proper precautions for her own safety.
6. In attempting to cross the road at a point other than a designated crosswalk.
7. In attempting to cross the road without making proper observation.
8. In wearing dark clothing, during a rain storm
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