Author(s): Richard A. Riekkola

SUPREME COURT DISCUSSES SUDDEN EMERGENCY DOCTRINE

In White v Taylor Distributing Co, et al, ___ Mich ___ (No. 134751, rel’d 7/23/08), Michigan’s Supreme Court affirmed a Court of Appeals decision in an auto negligence case in which the sudden emergency defense was used. The Court of Appeals had overturned the trial court’s decision granting summary disposition to the defendant. Even though the sudden emergency doctrine is typically decided by a jury, this decision reaffirms that summary disposition is disfavored if there are any questions of fact.

On March 15, 2004, defendant was driving from Cincinnati, Ohio, to Novi, Michigan. Defendant stated he stopped at a rest area in Canton, Michigan because he experienced an “urgent onset of severe diarrhea”. After this episode, Defendant stated he waited about 20 minutes at the rest area to see how he felt. Feeling better, he continued with his trip.

Defendant stated that as he took the Novi Road exit, approximately one half hour after the initial episode, he began to feel dizzy and break into a sweat. He saw Plaintiff’s vehicle about 250-300 yards in front of him. Plaintiff was stopped at a red light at the end of the exit ramp. Defendant applied his brakes, began to slow down, and then blacked out. Defendant asserts he has no recollection of events which occurred before the impact with Plaintiff’s vehicle which jarred him back to consciousness.

After the collision, defendant remembers applying his emergency brake, set the emergency flashers, and exited his truck. He then blacked out again. He was assisted by other motorists then treated by emergency medical personnel at the scene.

Defendant was taken to the hospital by ambulance. There he was diagnosed with having experienced a “syncopal episode” (meaning he blacked out). While still at the hospital, he described the incident to a police officer. He was ticketed for violating MCL 257.627(1), failure to maintain an assured clear distance ahead. The next day the Defendant visited his family doctor. He was diagnosed with having experienced “viral enteritis with syncopal spell secondary to hypovolemia” (intestinal inflammation with secondary blackout ).

Plaintiff filed suit alleging Defendant was presumed negligent under MCL 257.402(a) because he had struck Plaintiff’s vehicle from the rear. Defendant moved for summary disposition asserting he was not negligent because his illness created a sudden emergency.

Defendant submitted his deposition testimony, accident report and related medical reports to support his motion. The Plaintiff argued there existed a question of fact whether the Defendant actually blacked out. Also, Plaintiff questioned whether Defendant knew, or should have known, he was not fit to drive after his first episode of diarrhea. The trial court granted Defendant’s motion. Plaintiff appealed.

The Court of Appeals reversed the trial court. They held summary disposition was not appropriate because the key evidence was within Defendant’s exclusive knowledge citing White v Taylor Distributing Co., 275 Mich App 615,630 &39 NW2d 132 (2007), the Michigan’s Supreme Court granted leave to appeal.

The Supreme Court noted that the statutory presumption of negligence under MCL 257.402(a) may be rebutted by showing there existed a sudden emergency. The doctrine applies when a collision occurs as a result of a sudden emergency not caused by the defendant.

Here, the Defendant alleges he had a sudden emergency. The court agreed a sudden blackout would constitute a sudden emergency sufficient to rebut the statutory presumption. However, the sudden emergency must be “totally unexpected”. Evidence the Defendant knew, or should have known, he was not feeling well creates a genuine issue of material fact whether Defendant’s emergency was totally unexpected. The court’s analysis mainly focused upon three issues.

First, it was evident the Defendant knew he was not feeling well. His testimony that after experiencing diarrhea: “I hung around a while, walked around to make sure I was finished and felt fine so I continued to where I had to go because it wasn’t far away”. The court felt this statement could imply Defendant knew he was not well, yet continued to drive.

Second, the Court looked at the medical evidence. The emergency room physician who treated Defendant indicated multiple bouts of diarrhea would typically not cause one to pass out. Also, the next day Defendant treated with his family doctor who diagnosed him with viral enteritis severe enough to cause blackout. Viral enteritis causes nausea, vomiting, diarrhea, cramps and abdominal pain. Furthermore, the Defendant told the responding officer he “blacked out” possibly from being ill. If Defendant’s symptoms were ongoing, then any subsequent emergency was not totally unexpected.

Finally, the court felt the Defendant made inconsistent statements. The notes from his family doctor the day after the accident state “blacked out while driving . . . feels like it was from eating a hardboiled egg 1 hour prior”. This information was not given to the ER physician. When asked at deposition what he had to eat or drink before the accident, Defendant did not mention a hardboiled egg. The court felt Defendant’s inconsistent statements about the cause of his illness create issues of material fact which preclude summary disposition.

The Court held that questions regarding whether defendant experienced a sudden emergency and whether Defendant was negligent in driving under the facts presented were proper questions for the jury.

This case is valuable as it illustrates that if a defendant knew, or should have known, he was not feeling well, he may not be able to use a “sudden emergency” defense.

PARENTAL SPORTING ACTIVITIES RELEASE FOR CHILD NOT VALID IN MICHIGAN

In a recent published opinion, the Michigan Court of Appeals held that sports participation waivers by parents for their minor children are not valid in Michigan. A minor child injured in the activity can still file suit against school districts, sports facilities or other participants.

Woodman v Kera, LLC, d/b/a Bounce Party (Court of Appeals Docket Number 275079 and 275882), involved a birthday bounce party on an inflatable play area for a group of five year olds. The injured child fell or jumped off an inflatable slide and broke his leg. The child’s father had signed a Release of Claims incorporated in the RSVP for the party. The invitation specified children could not participate without the signed waiver. The father was also allegedly present and either observing or helping supervise the activities. The child’s mother filed suit as next friend.

The three member Appeals panel issued three written opinions concerning the validity of the waiver. All three agreed that under current Michigan law, as in most other states, the waiver was not valid. There are only limited situations in Michigan where a parent can settle even post injury claims for his child without specific court approval. The court noted that a similar court ruling in Colorado was remedied with a state statute allowing parents to execute a sports participation waiver. Two of the three opinions suggested the Michigan legislature should consider a similar statute.

One of the three opinions attached sample waivers from a number of organizations to show the widespread use of such waivers. These included a 5K run, a youth summer camp, a quarterback camp, a YMCA field trip and the Detroit marathon.

The waiver form in Woodman also included an indemnification agreement which presumably remained valid. To the extent the father was either insured or collectable, the event facility was partially protected. The parents could also presumably waive any claim for medical expenses as the minor child is not technically the person responsible for those expenses.

While a general waiver of claims by a parent is not enforceable, the child’s claim is still subject to specific recreational statutes such as the Ski Area Safety Act, the Roller Skating Safety Act, The Snowmobiling Statute, the Equine Liability Act, and the Recreational Land Use Act. A written parental waiver is also still a very practical tool in discouraging parents from pursuing a claim on behalf of their child.

**LAST CALL** TROY BREAKFAST SEMINAR – WEBCAST

The Firm’s annual No Fault Seminar will be held at the Troy Marriott on September 18, 2008. There are many important issues which will be discussed at this seminar, including a presentation by Sharon Filas, CPA, regarding the Ross decision from the Michigan Supreme Court. The Supreme Court’s recent decision in Cooper v ACIA, which opens the door to claims of fraud, will be discussed in depth, inclusive of suggestions on claim handling to avoid litigation. We will also present a review of cases pending in the Supreme Court which will significantly impact no fault claims handling, including USF&G v MCCA, Benefiel v Auto Owners, Scott v State Farm and Budget Rent-A-Car v City of Detroit.

We will have a “full house” for this seminar and we ask that if you have registered and cannot now attend, that you please advise Beth Bezenah to remove you from the registration to allow someone else to participate. Reservations will be taken until Wednesday, September 10, 2008. Please contact Beth Bezenah to reserve your seat at bbezenah@garanlucow.com.

In addition, the Firm will be offering the seminar via Webcast. If you wish to access the Webcast presentation, please email Beth Bezenah at bbezenah@garanlucow.com and, in your email, please advise how many people will be attending Webcast so we can prepare and send you materials in advance. Due of the limited number of log-ins available, we are forced to restrict the Webcast to clients only and we would ask that if you are registered and now unable to attend via Webcast, to please advise Ms. Bezenah.