JANE B. STRANCH, Circuit Judge.
Michael Otteren was driving behind his travel companion, Freda Daggett, when Daggett made an illegal U-turn. As Otteren repeated Daggett's U-turn, his vehicle cut off a motorcycle being driven by Ivan Rupert, resulting in his death. His widow, Sandra Rupert, sued Daggett under the theory that the accident was a reasonably foreseeable result of Daggett's own negligence because she knew Otteren was following her. The district court granted summary judgment to Daggett upon holding, under Michigan law, that Otteren's operation of his own vehicle constituted a superseding, intervening cause that cut off any liability on Daggett's part. Because we conclude that Sandra Rupert raised genuine issues of material fact as to each element of the prima facie negligence case, we
Freda Daggett and Michael Otteren each owned and operated "pilot vehicles," which escort trucks hauling large or wide loads across the country. Daggett drove a Chevrolet S-10 pickup truck, while Otteren drove a GMC Suburban. At the time of the accident, Daggett was the far more experienced of the two and had been driving commercial trucks since 1983, logging approximately 400,000 miles as a pilot car driver. She is the owner and sole employee of KFDGT Pilot Car Services, a company she started in 2001.
The chain of events giving rise to this case began when Daggett accepted Otteren's invitation to work with him on a multi-trip project escorting loads from Michigan to California, although they traveled separately. Upon reaching their final destination, both drivers hoped to find a job which would pay them to travel back across the country but, upon being unsuccessful in their pursuits, decided to drive back to Michigan together without a load to accompany.
On March 17, 2007, Daggett and Otteren were continuing eastward on the interstate through Colorado, with Daggett in the lead, when they decided to take an exit so Otteren could fix one of his mirrors. Upon discovering there was not an eastbound on-ramp to get back on to the interstate, they agreed to take the westbound ramp instead. During her deposition, Daggett testified she did not recall whether they
Laura Perri, a witness to the accident, was driving in the right lane of the two lanes constituting the westbound portion of the interstate when she saw Daggett, and then Otteren, attempting to merge into that lane from the on ramp. She detailed the subsequent events in an affidavit as follows:
Perri described the angle taken by the pilot vehicles as a sharp perpendicular
Otteren offered a different account of the facts. He testified to seeing Rupert's motorcycle about 300-350 feet behind him when he first saw it through his rearview mirror and said Daggett's vehicle was "a good quarter mile or so" in front of him. He recalls traveling completely in the left lane for about one quarter to one half of a mile for twenty to thirty seconds before deciding to turn into the median, at which time he slowed down and turned on his overhead and rear flashing lights, "which is standard procedure when we're doing pilot car work if you're going to turn around in the median."
Although neither Otteren nor Daggett were ticketed for an illegal U-turn, Otteren was charged with and convicted of careless driving causing death or injury, for which he was sentenced to six months in jail. During his sentencing hearing, Otteren made the following statement about why he attempted to take the U-turn:
Similarly, he stated during his deposition: "[Daggett] had stated over the radio that there was a turnaround ahead and that we could use it.... I guess under that suggestion, we thought we'd use it." However, he also took full responsibility and testified it was solely his decision to make the turn and that Daggett did not order, direct, or supervise the turn and was thus not responsible for his actions.
On March 12, 2009, Sandra Rupert initiated this diversity action against Daggett on behalf of herself and her late husband's estate. Daggett filed a Motion for Summary Judgment, which was granted by the district court. Rupert v. Daggett, No. 1:09-CV-221, 2010 WL 4553650 (W.D.Mich. Nov. 3, 2010). In its Opinion, the court first ruled that under the choice-of-law rules of the forum state, Michigan, the substantive law of Michigan should apply. Next, the court found that Sandra Rupert could not establish proximate cause as a matter of law because Otteren's negligent driving constituted a superseding cause which cut off all liability on the part of Daggett. In response to Sandra Rupert's Motion to Reconsider, which argued that the court failed to view the facts in the light most favorable to her, the court held that its original superseding cause determination was not dependent on how abruptly Otteren made his decision or how closely he was following Daggett. Sandra Rupert filed a timely appeal.
This court reviews a district court's grant of summary judgment de novo. Ciminillo v. Streicher, 434 F.3d 461, 464 (6th Cir.2006). Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the non-moving
Federal courts sitting in diversity generally apply federal procedural rules and the substantive law of the forum state. City of Cleveland v. Ameriquest Mortg. Sec., Inc., 615 F.3d 496, 502 (6th Cir.2010). Although both parties mention Colorado law in their briefs, neither party has challenged the district court's determination that Michigan substantive law applies. Thus, we apply Michigan substantive law in accordance with the currently controlling decisions of Michigan's highest court. See Metz v. Unizan Bank, 649 F.3d 492, 496 (6th Cir.2011). In the absence of such decisions, we may also look to Michigan's lower courts to predict how its highest court would resolve an issue. See Travelers Prop. Cas. Co. of Am. v. Hillerich & Bradsby Co., 598 F.3d 257, 264 (6th Cir. 2010).
The Michigan Supreme Court has established that "[i]n order to make out a prima facie case of negligence, the plaintiff must prove the four elements of duty, breach of that duty, causation, and damages." Brown v. Brown, 478 Mich. 545, 739 N.W.2d 313, 316-17 (2007) (citing Fultz v. Union-Commerce Assoc., 470 Mich. 460, 683 N.W.2d 587, 590 (2004)). We conclude that disputed issues of material fact exist upon which a reasonable jury could find for Sandra Rupert as to each element.
"The threshold question in a negligence action is whether the defendant owed a duty to the plaintiff." Id. at 317 (quoting Fultz, 683 N.W.2d at 590). "Duty is essentially a question of whether the relationship between the actor and the injured person gives rise to any legal obligation on the actor's part for the benefit of the injured person." Id. (quoting Moning v. Alfono, 400 Mich. 425, 254 N.W.2d 759, 765 (1977)). Several factors are instructive in determining whether to impose a common-law duty:
Rakowski v. Sarb, 269 Mich.App. 619, 713 N.W.2d 787, 795 (2006) (quoting Buczkowski v. McKay, 441 Mich. 96, 490 N.W.2d 330, 333 n. 4 (1992)) (punctuation omitted). "The inquiry is ultimately a question of fairness involving a weighing of the relationship of the parties, the nature of the risk, and the public interest in the proposed solution." Id. (citation and internal quotation marks omitted).
Daggett argues that, under Michigan law, there is generally no duty to aid or protect an individual who is endangered by the conduct of a third person unless a special relationship exists between the plaintiff and defendant. See Williams v. Cunningham Drug Stores, Inc., 429 Mich. 495, 418 N.W.2d 381, 383 (1988). A special relationship exists when "one person entrusts
As Sandra Rupert rightly observes, her claim is not that Daggett failed to protect the decedent from Otteren's negligence but rather that Daggett herself was negligent in the operation of her automobile, and that Daggett's own negligence caused the accident. Thus, Sandra Rupert need only show that Daggett owed a duty of reasonable care to the decedent, not that she had a duty to the decedent to protect him from Otteren's actions. We have little difficulty finding the duty element satisfied here because "Michigan law imposes on all motorists a general duty to operate their vehicles in a reasonably prudent manner." Sponkowski v. Ingham Cnty. Rd. Comm'n, 152 Mich.App. 123, 393 N.W.2d 579, 581 (1986) (citing Zarzecki v. Hatch, 347 Mich. 138, 79 N.W.2d 605, 607 (1956)); see also Mich. Comp. Laws § 257.653(2) (providing that drivers of emergency vehicles are not relieved "from the duty to drive with due regard for the safety of persons using the highway"). This duty is owed to other motorists and pedestrians. McCuish v. Jaffe, No. 286807, 2009 WL 3050900, at *1 (Mich.Ct. App. Sept. 24, 2009) (citing Zarzecki, 79 N.W.2d at 607; Poe v. Detroit, 179 Mich.App. 564, 446 N.W.2d 523, 527 (1989)). "While a motorist is not required to guard against every conceivable result of his actions, he is required to exercise reasonable care in order to avoid the foreseeable consequences of his actions. In addition, the determination of whether a particular harm is foreseeable is an issue for the trier of fact in deciding if the defendant has been negligent." Sponkowski, 393 N.W.2d at 581 (citing Davis v. Thornton, 384 Mich. 138, 180 N.W.2d 11, 15-16 (1970)).
Michigan also recognizes the voluntary assumption of duty doctrine. "A party may be under a legal duty when it voluntarily assumes a function that it is not legally required to perform." Zychowski v. A.J. Marshall Co., Inc., 233 Mich.App. 229, 590 N.W.2d 301, 302 (1998). "When a person voluntarily assumes a duty not otherwise imposed by law, that person is required to perform it carefully, not omitting to do what an ordinarily prudent person would do in accomplishing the task." Zine v. Chrysler Corp., 236 Mich.App. 261, 600 N.W.2d 384, 395 (1999) (citation and internal quotation marks omitted).
In Sponkowski, the Michigan Court of Appeals applied the voluntary assumption of duty doctrine to a driver who agreed to lead the way for others. There, the defendant was the lead driver in a caravan of vehicles operated by persons who were unfamiliar with the route to the intended destination. After the leader lost control of his vehicle at a sharp turn and drove off the road, one of the trailing vehicles did the same. The plaintiff's decedent was a passenger in that trailing vehicle and was killed when the car struck a tree. Id. at 580. Overruling the trial court's grant of summary judgment for the defendant for lack of duty, the Michigan Court of Appeals held the leader's knowledge of the following drivers' reliance on him "gave rise to a duty ... to drive reasonably in light of the apparent risk to all those relying upon him, of which [the decedent] was one. Injury to [the decedent] is within the foreseeable risk of harm created by defendant's alleged negligent conduct." Id. at 581.
Similarly, Daggett and Otteren had an understanding that Daggett would
"It is well-settled that a u-turn is one of the most dangerous maneuvers in which a motorist can indulge and that he must make sure that such a maneuver can be accomplished without danger to traffic to his left or rear." Langhoff v. United States, 805 F.Supp.2d 272, 276 (E.D.La. 2011) (citing Cory v. Emp. Mut. Liab. Ins. Co., 267 So.2d 761, 764-65 (La.Ct.App. 1972)). Not only did Daggett undertake a U-turn from one side of the interstate to the other, we must assume for purposes of summary judgment that she did so suddenly across two lanes of traffic. Moreover, construing the facts in favor of Sandra Rupert, a reasonable jury could find that Daggett's decision to make a U-turn on the interstate while Otteren was following her created a foreseeable risk of danger to other motorists. We thus conclude that Daggett is not entitled to summary judgment on the element of breach.
In order to establish causation, a plaintiff must prove two elements: (1) cause in fact and (2) proximate cause. Skinner v. Square D Co., 445 Mich. 153, 516 N.W.2d 475, 479 (1994). "The cause in fact element generally requires showing that `but for' the defendant's actions, the plaintiff's injury would not have occurred." Id. With respect to this element, Daggett argues there is "absolutely no evidence from which a jury could conclude that, more likely than not, but for Daggett's conduct (i.e., using the median as a turnaround) the injury would not have occurred." However, Otteren stated during his deposition that he would have "[m]ore than likely" followed Daggett further westward had she decided not to take the U-turn because "I see no reason why we would separate." A reasonable jury could find Daggett's conduct satisfies the cause in fact element. Whether Daggett's driving was the proximate cause of the accident, however, is a more complicated issue and the one on which the district court erred in granting summary judgment to Daggett.
The Michigan Supreme Court recently clarified the governing standard for proximate cause:
Jones v. Detroit Med. Ctr., 490 Mich. 960, 806 N.W.2d 304, 305 (2011) (order) (citations omitted). If an intervening force is not reasonably foreseeable under an objective standard, it constitutes a "superseding cause" which relieves a prior negligent defendant from liability. Ridley v. City of Detroit, 231 Mich.App. 381, 590 N.W.2d 69, 73 (1998), remanded on other grounds sub nom. Ridley v. Collins, 463 Mich. 932, 622 N.W.2d 65 (2000). "While an act of God or the gross negligence or intentional misconduct by the victim or a third party will generally be considered a superseding cause, ordinary negligence by the victim or a third party will not be regarded as a superseding cause because ordinary negligence is reasonably foreseeable." People v. Schaefer, 473 Mich. 418, 703 N.W.2d 774, 786 (2005); see also Love v. City of Detroit, 270 Mich.App. 563, 716 N.W.2d 604, 610 (2006) (Cooper, J., dissenting) (applying Schaefer to civil case). An intervening cause is considered reasonably foreseeable when the defendant's negligence "enhanc[es] the likelihood that the intervening cause will occur." Hickey v. Zezulka, 439 Mich. 408, 487 N.W.2d 106, 119 (1992). "[W]hether an intervening negligent act of a third person constitutes a superseding proximate cause is a question for the jury." Ykimoff v. Foote Mem. Hosp., 285 Mich.App. 80, 776 N.W.2d 114, 133 (2009) (quoting Taylor v. Wyeth Lab., Inc., 139 Mich.App. 389, 362 N.W.2d 293, 300 (1984)). Lastly, there may be more than one proximate cause contributing to an injury. Lewis v. Yale Co., 888 F.2d 1391 (Table), 1989 WL 136144, at *2 (6th Cir. Nov. 13, 1989).
Applying this precedent upon reconsideration of its initial Opinion, the district court wrote:
This analysis, which is central to Daggett's argument on appeal, is erroneous because it completely overlooks the central consideration of superseding causes — reasonable foreseeability — and replaces it with a "direct or control" test. As discussed above, the matter of direction and control relates to whether there is a special relationship so as to create a duty to protect, a legal concept not applicable to the foreseeability inquiry here. See Williams, 418 N.W.2d at 383. Although the district court did find in its initial Opinion that Sandra Rupert "present[ed] no evidence that Otteren was an unsafe driver or would be inclined to follow Daggett into the median even if doing so would be unreasonably dangerous," Rupert, 2010 WL 4553650, at *5, a jury could reasonably conclude that Otteren's admitted inclination to follow Daggett without "giv[ing] it a second thought" was foreseeable, and that the maneuver in question was inherently dangerous, even if Daggett was able to complete it without striking another vehicle.
The only case upon which the district court's Opinion relied for its conclusion was Mohr v. Broussard, 515 So.2d 833 (La.Ct.App.1987), aff'd, 528 So.2d 144 (La. 1988). There, three tractor-trailer drivers on a joint delivery decided to make a U-turn on a highway in order to have a meal together at a nearby restaurant. While the first two drivers, Stelly and Trahan, were making their turns, the third, Broussard, parked his truck on the right shoulder to wait for an opportunity to cross over. "He pulled out from the shoulder and negotiated his tractor across both north bound lanes. As the tractor was entering the south bound side of the highway the left rear of his trailer which was just out of the north bound shoulder was struck by plaintiff's car." Id. at 835. At that time, the lead vehicle was one mile down the road from the accident site. The appellate court upheld the jury's determination that Stelly and Trahan were not at fault:
Id.
Mohr is distinguishable first because it was an appeal of a jury verdict. The factual disputes were resolved and the resulting determinations were appropriately made by the trier of fact. Further, as Sandra Rupert observes, Mohr is also distinguishable factually. Broussard had the opportunity to decide when to attempt the U-turn from a place of relative safety in which he could have remained indefinitely. His delayed action also meant oncoming vehicles only had to negotiate one truck. By contrast, Sandra Rupert has presented evidence suggesting that Otteren was almost immediately behind Daggett and had only an instant to decide whether to follow her sudden turn. Additionally, the purported mentor/mentee relationship between Daggett and Otteren made it more likely that he would resolve the quick decision in favor of staying together rather than separating.
Viewing the evidence in the light most favorable to Sandra Rupert, we conclude that Daggett has failed to meet her burden to show the absence of a genuine issue as to causation because a reasonable jury could find that Daggett's U-turn proximately caused the accident by inducing Otteren's U-turn and "enhanc[ing] the likelihood" of injury to the decedent. See Schaefer, 703 N.W.2d at 786; Ykimoff, 776 N.W.2d at 133; Hickey, 487 N.W.2d at 119.
That this case involves the death of a motorcyclist is undisputed. Sandra Rupert has sufficiently alleged the existence of damages to satisfy a reasonable jury that the final prong of the prima facie negligence case is met. Accordingly, Daggett is not entitled to summary judgment because "a reasonable jury could return a verdict for the nonmoving party." Slusher, 540 F.3d at 453.
Sandra Rupert separately argues that Daggett was negligent per se. Under Michigan law, negligence per se does not mandate strict liability but rather "creates a rebuttable presumption of negligence." Klanseck v. Anderson Sales & Serv., Inc., 426 Mich. 78, 393 N.W.2d 356, 360 (1986); Zeni v. Anderson, 397 Mich. 117, 243 N.W.2d 270, 280 (1976). We decline to reach this issue because it was not raised in Daggett's Motion for Summary Judgment, decided by the district court, or fully briefed on appeal by both parties.
For the above reasons, we
