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STATE OF MICHIGAN
COURT OF APPEALS


MAROUN J. HAKIM, Personal Representative of the Estate of JEFFREY ALLEN HAMMOND, Deceased, Plaintiff-Appellee, v ANGELA JEAN GUASTELLA and WILLIAM HANLEY, Defendants-Appellants.

UNPUBLISHED December 19, 2006

No. 270322 Macomb Circuit Court LC No. 05-002503-NI

Before: Murphy, P.J., and Smolenski and Kelly, JJ. PER CURIAM. Defendants appeal by leave granted a circuit court order denying their motion for summary disposition pursuant to MCR 2.116(C)(10). This is a wrongful death/negligent entrustment action involving a motor vehicle accident in which a vehicle owned by defendant Hanley and driven by defendant Guastella struck and killed plaintiff's decedent, a pedestrian who was jaywalking across Van Dyke Road. We reverse. This case is being decided without oral argument pursuant to MCR 7.214(E). Defendants argue that they were entitled to summary disposition because there was no evidence of negligence by Guastella. We agree. Summary disposition may be granted under MCR 2.116(C)(10) when "there is no genuine issue as to any material fact, and the moving party is entitled to judgment . . . as a matter of law." Summary dismissal is proper under MCR 2.116(C)(10) if the pleadings, affidavits, and other documentary evidence, when viewed in a light most favorable to the nonmovant, show that there is no genuine issue with respect to any material fact. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996), citing MCR 2.116(G)(5). This Court reviews a trial court's decision on a motion for summary disposition de novo. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). The driver of an automobile has a duty to use ordinary and reasonable care and caution in operating the vehicle. Zarzecki v Hatch, 347 Mich 138, 141; 79 NW2d 605 (1956). Defendants do not dispute that defendant Guastella owed the deceased victim a duty to use ordinary and reasonable care in the operation of her car. However, they argue that Guastella did not breach this duty. The question whether a defendant breached a duty is generally a question of fact for the jury, but when the moving party can show that the nonmoving party's evidence is simply -1-


insufficient to show any negligence or a breach of duty, summary disposition is properly granted. Latham v Nat'l Car Rental Systems, Inc, 239 Mich App 330, 340; 608 NW2d 66 (2000). The evidence presented indicated that plaintiff's decedent attempted to cross the three busy northbound lanes of Van Dyke Road. He did not use a crosswalk or cross at a light. He ran into traffic, apparently using his hand to signal drivers to stop. At least one other driver nearly hit him. Defendant Guastella, whose view was blocked by another vehicle, did not see the decedent until they collided. There is no evidence that she was speeding or using an improper lane. Witnesses testified that the decedent simply ran into the road and then into defendant's vehicle. We cannot conclude that Guastella was proceeding without caution and due care. On this record, there is no indication of negligence on Guastella's part. See Houck v Carigan, 359 Mich 224; 102 NW2d 191 (1960) (no negligence where the plaintiff attempted to cross street in the middle of a block and darted into the side of the defendant's vehicle). The evidence, when viewed in a light most favorable to plaintiff as the nonmoving party, fails to establish a genuine issue of material fact, and defendants are entitled to judgment as a matter of law. Reversed and remanded for entry of judgment in favor of defendants. We do not retain jurisdiction. /s/ William B. Murphy /s/ Kirsten Frank Kelly

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Michigan Law