Zeni v. Anderson

Williams, J. Kavanagh, C. J.

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The accident which precipitated this action occurred one snowy morning, March 7, 1969, when the temperature was 11 degrees F, the sky was clear and the average snow depth was 21 inches. Plaintiff Eleanor Zeni, then a 56-year-old registered nurse, was walking to her work at the Northern Michigan University Health Center in Marquette. Instead of using the snow-covered sidewalk, which in any event would have required her to walk across the street twice to get to her job, she traveled along a well-used pedestrian snowpath, with her back to oncoming traffic.

Defendant Karen Anderson, a college student, was driving within the speed limit in a steady stream of traffic on the same street. Ms. Anderson testified that she had turned on the defroster in the car and her passenger said she had scraped the windshield. An eyewitness whose deposition was read at trial, however, testified that defendant's windshield was clouded and he doubted that the occupants could see out. He also testified that the car was traveling too close to the curb and that he could tell plaintiff was going to be hit.

Defendant's car struck the plaintiff on the driver's right side. Ms. Anderson testified she first saw the plaintiff between a car parked on the right-hand side of the road and defendant's car, and that she did not hear nor feel her car strike Ms. Zeni. The eyewitness reported seeing plaintiff flip over the fender and hood. He said when he went over to help her his knees were on or inside the white line delineating a parking space. A security officer observed blood stains on the pavement approximately 13 feet from the curb.

Ms. Zeni's injuries were serious and included an intracerebral subdural hematoma which required neurosurgery. She has retrograde amnesia and therefore, because she does not remember anything from the time she began walking that morning until sometime after the impact, there is no way to determine whether she knew defendant was behind her. Following an extended period of convalescence, plaintiff, still suffering permanent disability, could return to work on only a part-time basis.

Testimony at trial indicated that it was common for nurses to use the roadway to reach the health center, and a security officer testified that in the wintertime it was safer to walk there than on the one sidewalk. Apparently, several days before the accident, Ms. Zeni had indeed fallen on the sidewalk. Although she was not hurt when she fell, the Director of University Security was hospitalized when he fell on the walk.

Defendant, however, maintained that plaintiff's failure to use that sidewalk constituted contributory negligence because, she said, it violated MCLA 257.655; MSA 9.2355, which requires:

"Where sidewalks are provided, it shall be unlawful for pedestrians to walk upon the main traveled portion of the highway. Where sidewalks are not provided, pedestrians shall, when practicable, walk on the left side of the highway facing traffic which passes nearest."

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The jury found defendant "guilty of subsequent negligence" and awarded plaintiff damages of $ 30,000.

The Court of Appeals, in a thorough opinion. . . found first it was a question of fact whether MCLA 257.655; MSA 9.2355 relating to failure to use a sidewalk applied to the case, . . . and whether if Ms. Zeni were found to be negligent, such negligence was a proximate cause of her injuries. . . . Further, it was not incorrect to instruct on last clear chance. However, the Court of Appeals found that the instruction given was incorrect. Holding that the doctrine of last clear chance "does not apply where the negligence of both parties is concurrent and proximately causes plaintiff's injury", . . . the Court found that "SJI 14.01 is in its wording deficient without further explanation", . . . inasmuch as it does not advise the jury that plaintiff's negligence must cease to operate as a proximate cause of the ensuing injury. The Court of Appeals therefore reversed and remanded for a new trial.

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A. Violation of Statute as Rebuttable Presumption

In a growing number of states, the rule concerning the proper role of a penal statute in a civil action for damages is that violation of the statute which has been found to apply to a particular set of facts establishes only a prima facie case of negligence, a presumption which may be rebutted by a showing on the part of the party violating the statute of an adequate excuse under the facts and circumstances of the case. The excuses may not necessarily be applicable in a criminal action, since, in the absence of legislatively-mandated civil penalties, acceptance of the criminal statute itself as a standard of care in a civil action is purely discretionary. . . .

Michigan cases have in effect followed this rule. For example, over a 65-year period, cases concerning the effect in a negligence action of violation of the statute requiring vehicles to keep to the right side of the road have almost consistently adopted a rebuttable presumption approach, even though the language of the statute is not written in terms of a presumption.

Thus, in Tyler v Nelson, 109 Mich 37, 41; 66 NW 671 (1896), we approved a charge to the jury that even though the "law of the road" required driving to the right,

"if, under all the circumstances, it was apparently safer for him to turn to the left, and he did only what a man of ordinary prudence would have done under similar circumstances, then he had a right to disregard the law of the road in that particular, and his turning to the left would not in itself be negligence."

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By the time we decided Corey v Hartel, 216 Mich 675, 680; 185 NW 748 (1921), it was clear that the law was,

"While a driver who does not keep to the right of the center is presumptively at fault, the circumstances attending such meeting may be such as to overcome the presumption, or the evidence may establish the fact that such act of negligence did not essentially contribute to the injury."

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We think the test of the applicable law was well stated by our Brother Justice Fitzgerald when he was a judge on the Court of Appeals. In Lucas v Carson, . . . he analyzed a case where, in spite of defendant's precautions, her vehicle "inexplicably slid into the rear of plaintiff's stopped car" where plaintiff was waiting at a traffic signal. . . .

First, in analyzing whether the presumption of negligence attributed to a rear-end collision had been rebutted in the case before them, the Court of Appeals acknowledged that the usual grounds for rebuttal, sudden emergency, did not appear in this case. In effect accepting defendant's contention that the doctrine of sudden emergency was not the sole basis for rebutting a presumption of negligence, the Court held:

"The general rule appears to be that evidence required to rebut this presumption as a matter of law should be positive, unequivocal, strong, and credible. In the case at bar, defendant driver contended that she was at all times driving in a reasonable and prudent manner. . . . [T]here was sufficient evidence at least to generate a jury question regarding rebutting of the presumption." . . .

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[An] attraction of this approach is that it is fair. "If there is sufficient excuse or justification, there is ordinarily no violation of a statute and the statutory standard is inapplicable." . . . It would be unreasonable to adhere to an automatic rule of negligence "where observance would subject a person to danger which might be avoided by disregard of the general rule". . . .

The approach is logical. Liability without fault is not truly negligence, and in the absence of a clear legislative mandate to so extend liability, the courts should be hesitant to do so on their own. Because these are, after all, criminal statutes, a court is limited in how far it may go in plucking a statute from its criminal milieu and inserting it into the civil arena. The rule of rebuttable presumption has arisen in part in response to this concern, and in part because of the reluctance to go to the other extreme and in effect, discard or disregard the legislative standard.

B. Violation of Statute as Negligence Per Se

While some Michigan cases seem to speak of negligence per se as a kind of strict liability, . . . an examination indicates that there are a number of conditions that attempt to create a more reasonable approach than would result from an automatic application of a per se rule.

The first such condition is that the penal standard does not have to be applied in the civil action. Absent explicit legislative language creating civil liability for violation of a criminal statute, a court is free to exercise its discretion and either adopt the legislative standard, or retain the common law reasonable person standard of care. . . . By its interpretation of the statutory purpose a court may in effect excuse an individual from the consequences of violating a statute. For example, the court may find the statute's purpose was not to protect the person allegedly injured, or, even if it was, that the harm suffered was not what the Legislature designed the statute to do.

Once this threshold is crossed and the court determines that the statute is applicable to the facts in the case before it, . . . liability still does not attach unless the finder of fact determines that the violation of the statute is the proximate cause of the injury. . . . Even then, liability is not automatic, for defenses such as contributory negligence still apply. . . .

Despite such limitations, the judge-made rule of negligence per se has still proved to be too inflexible and mechanical to satisfy thoughtful commentators and judges. It is forcefully argued that no matter how a court may attempt to confine the negligence per se doctrine, if defendant is liable despite the exercise of due care and the availability of a reasonable excuse, this is really strict liability, and not negligence. . . . Since it is always possible that the Legislature's failure to deal specifically with the question of private rights was not accidental, and that there might have been no legislative intent to change the law of torts, such treatment of the statute may well be a gross perversion of the legislative will. It is troublesome, too, that "potentially ruinous civil liability" may follow from a "minor infraction of petty criminal regulations", . . . or may, in a jurisdiction burdened by contributory negligence, serve to deprive an otherwise deserving plaintiff of a much-needed recovery.

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C. Violation of Statute as Evidence of Negligence

Just as the rebuttable presumption approach to statutory violations in a negligence context apparently arose, at least in part, from dissatisfaction with the result of a mechanical application of the per se rule, a parallel development in our state with respect to infractions of ordinances, and of administrative regulations, has been that violations of these amount to only evidence of negligence. . . . We have not, however, chosen to join that small minority which has decreed that violation of a statute is only evidence of negligence. In view of the fairness and ease with which the rebuttable presumption standard has been and can be administered, we believe the litigants are thereby well served and the Legislature is given appropriate respect.

D. Application of Statutory Standard to This Case

We have seen, therefore, that while some of our Michigan cases seem to present negligence per se as an unqualified rule, the fact of the matter is that there are a number of qualifications which make application of this rule not really a per se approach at all. Not only must the statutory purpose doctrine and the requirement of proximate cause be satisfied, but the alleged wrongdoer has an opportunity to come forward with evidence rebutting the presumption of negligence.

An accurate statement of our law is that when a court adopts a penal statute as the standard of care in an action for negligence, violation of that statute establishes a prima facie case of negligence, with the determination to be made by the finder of fact whether the party accused of violating the statute has established a legally sufficient excuse. If the finder of fact determines such an excuse exists, the appropriate standard of care then becomes that established by the common law. Such excuses shall include, but shall not be limited to, those suggested by the Restatement Torts, 2d, § 288A, and shall be determined by the circumstances of each case.

In the case at bar, moreover, the statute itself provides a guideline for the jury, for a violation will not occur when it is impracticable to use the sidewalk or to walk on the left side of a highway. This is ordinarily a question for the finder of fact, . . . and thus the statute itself provides not only a legislative standard of care which may be accepted by the court, but a legislatively mandated excuse as well.

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Thus, we find the jury was adequately instructed as to the effect of the violation of this particular statute on plaintiff's case.

. . . The Court of Appeals is reversed and the trial court is affirmed. Costs to plaintiff.