Estate of John Conforti v. Stanley Webster Cornell

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
ESTATE OF JOHN CONFORTI, by DONNA UNPUBLISHED
CONFORTI, Personal Representative, October 29, 2020
Plaintiff-Appellant,
v No. 348745
Macomb Circuit Court
STANLEY WEBSTER CORNELL and METRO LC No. 2017-002406-NI
CONTROLS, INC.,
Defendants-Appellees.
Before: FORT HOOD, P.J., and JANSEN and TUKEL, JJ.
TUKEL, J (dissenting).
I. INTRODUCTION
I disagree with the majority’s two conclusions: (1) that a genuine question of material fact
exists regarding whether the defendant, Stanley Webster Cornell, was negligent at all; and (2) that,
even though, as the majority concedes, decedent Conforti was negligent, there nevertheless was
sufficient evidence from which the jury could find that defendant Cornell was more than 50% at
fault for the auto-pedestrian collision that resulted in Conforti’s death. The majority reaches those
conclusions by giving short shrift to the actual facts of the case, instead relying on mere speculation
by plaintiff’s retained expert witness, Timothy Abbo. Consequently, I respectfully dissent from
the majority’s opinion, and would affirm the trial court’s grant of summary disposition in favor of
defendants.
II. STANDARD OF REVIEW
MCL 500.3135(2)(b) provides that, in automobile negligence cases, “[d]amages must be
assessed on the basis of comparative fault, except that damages must not be assessed in favor of a
party who is more than 50% at fault.” Furthermore, MCL 600.2959 provides that, in actions based
on tort, if the plaintiff’s fault is greater than the defendant’s, “the court shall reduce economic
damages by the percentage of comparative fault . . . and noneconomic damages shall not be
awarded.” A plaintiff is considered to be at fault if “the plaintiff’s conduct was both a cause in
fact and a legal, or proximate, cause of his damages.” Lamp v Reynolds, 249 Mich. App. 591, 599;
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645 NW2d 311 (2002). “The extent of a plaintiff’s comparative fault, if any, is generally a question
for the jury . . . .” Jimkoski v Shupe, 282 Mich. App. 1, 8 n 3; 763 NW2d 1 (2008). That being said,
summary disposition “is appropriate if there is no genuine issue regarding any material fact.”
Patrick v Turkelson, 322 Mich. App. 595, 605; 913 NW2d 369 (2018). And even more significantly,
at least in this case, “[s]ummary disposition is not precluded simply because a party has produced
an expert to support its position.” Amorello v Monsanto Corp, 186 Mich. App. 324, 331; 463 NW2d
487 (1990). In this case, that is so because “parties opposing a motion for summary disposition
must present more than conjecture and speculation to meet their burden of providing evidentiary
proof establishing a genuine issue of material fact.” Libralter Plastics, Inc v Chubb Group of Ins
Cos, 199 Mich. App. 482, 486; 502 NW2d 742 (1993). The majority, in fact, acknowledges that
“Conforti was negligently attempting to cross Van Dyke Avenue outside of a marked crosswalk,”
but then concludes “he had been visible in the roadway for a sufficient amount of time to be seen
and avoided.” That conclusion, however, simply does not stand up to scrutiny, as demonstrated
by Abbo’s own analysis.
III. NEGLIGENCE
Cornell was driving in the northbound right lane of Van Dyke Avenue when the collision
occurred. At the location of the accident, Van Dyke Avenue consists of seven lanes and the nearest
crosswalk was approximately 1/6 mile away.1 The flow of traffic ranged from moderate to heavy.
Conforti crossed from the far side of Van Dyke, across the three southbound lanes; across the
center turn lane; across two of the northbound lanes; and then finally stepped into the seventh lane,
directly in front of Cornell’s Ford F-150, where he was struck.2
Viewing Abbo’s affidavit in its most favorable light to plaintiff, Abbo determined that
Cornell was driving 42 miles per hour in a 45 miles-per-hour zone; the weather was clear and dry;
a review of a video recording showed that Conforti appeared four seconds before the accident; the
1
Abbo states in his affidavit that using the crosswalk would have added about 1/3 of a mile to
Conforti’s route, which includes walking to the corner of the southbound side, crossing, and then
walking back on the northbound side. For sake of simplicity, I have ignored the width of the
roadway and simply divided the 1/3 mile distance in half to cover the portion of the route on each
side of Van Dyke.
2
The three police officers who investigated the accident concluded that Conforti was at fault for
the accident and that it was impossible for Cornell to have avoided hitting him. Viewing the
evidence in the light most favorable to plaintiff, I give no weight to those conclusions because
summary disposition permits us to consider only Abbo’s affidavit, as it is the sole basis for any
argument that Cornell was negligent. However, the investigating officers’ conclusions that Cornell
was not at fault are properly considered as to comparative negligence, as that issue requires us to
consider whether there was any evidence from which a jury could conclude that Cornell was more
at fault than Conforti, assuming Conforti was at fault at all. As Abbo’s affidavit fails to address
comparative negligence, it is necessary to consider the three officers’ conclusions in order to
determine whether Abbo’s affidavit, construed most favorably for plaintiff, is sufficient to allow a
jury to find that Conforti was less at fault than Cornell.
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average “perception-response” time was 1.8 seconds; and Cornell’s vehicle traveled 246 feet in
the four seconds that Conforti was visible, or 61 feet per second. From this, Abbo concluded that
Cornell was negligent because one second of braking would have avoided the accident, and
therefore, in his view, Cornell “did not exercise due care to avoid colliding with Plaintiff; as
Plaintiff was visible to Defendant Cornell, there were no obstructions of Defendant Cornell's view
of Plaintiff, and Defendant failed to properly swerve and/or apply his brakes, and/or stop in order
to avoid the collision.” However, accepting as true all of Abbo’s opinions, they nevertheless fall
far short of demonstrating that Cornell was negligent.
A “perception-response” time is defined as “the time from the first sighting of an obstacle
until the driver applies the brakes.”3 (Emphasis added.) In conducting his analysis, however,
Abbo conflated the point at which Conforti became visible, as shown by a video recording, with
the point at which Cornell actually saw Conforti, which is the moment at which the perception-
response time would properly begin. Nevertheless, those are two very different metrics; while it
was physically possible for Cornell to have viewed Conforti at the very first instant in which
Conforti came into view, Cornell obviously did not see Conforti at that moment or he would have
avoided the accident. Indeed, Cornell testified that he did not see Conforti until the moment before
impact. Consequently, the only relevant questions, which Abbo did not even purport to address,
were whether and when it became unreasonable for Cornell not to have seen Conforti.
Thus, Abbo’s analysis simply assumed that a driver reasonably should have seen Conforti
at the precise instant Conforti stepped through the left turn lane and became potentially visible to
northbound drivers. That assumption, however, fails to consider the full circumstances. Cornell
testified that, as he was driving in the right-hand lane, he was looking to his right to ensure that no
cars pulled out of a driveway in front of him, an eminently reasonable consideration. Crediting
everything Abbo put forward, the time line is this: there were only four seconds in which Conforti
was potentially visible to Cornell. In that time, Cornell needed to see Conforti and brake
sufficiently to avoid the collision. Abbo established that the average “perception-response” time
was 1.8 seconds and that Cornell required one full second to brake enough to avoid the collision;
thus, it would take Cornell 2.8 seconds of action, i.e., seeing Conforti and braking to avoid him, to
avoid the collision. Consequently, if Cornell did not see Conforti in the first 1.2 seconds that he
was visible, then, by Abbo’s own calculations, Cornell could not have avoided the collision.
Accordingly, the question of whether or not Cornell was negligent boils down to whether in the
remaining 1.2 seconds available to him, it was unreasonable for Cornell not to have looked back
across two lanes of roadway to scan for someone unlawfully crossing outside a crosswalk, and in
that allotted time, to fail to spot such person and begin to apply the brakes. Understanding the
relevant legal inquiries plainly shows that there was no evidence presented from which a jury could
reasonably reach the conclusion that Cornell was negligent.
As noted, plaintiff posits that Cornell was obliged to look to his left. If he had done so,
however, and instead struck a car pulling out from a driveway to his right, there can be no doubt
3
See https://journals.sagepub.com/doi/10.1177/001872088602800110 (last visited October 19,
2020).
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that his driving would be deemed unreasonable, because it was far more likely that a car would
pull out from a driveway than that a pedestrian would unlawfully cross a busy seven-lane roadway
in the middle of a block. After all, reasonableness requires that a driver be more heedful of the
more likely hazard, not the less likely one. The majority’s conclusion, however, is simply that it
was unreasonable for Cornell not to look to his left; but it also is clear that that it would have been
unreasonable for him to not look to his right had that instead led to an accident, as failure to look
right was even more likely to lead to a collision. The majority thus constructs an impossible
standard, because under its standard Cornell’s driving was unreasonable no matter which choice
he made. Moreover, even if Cornell was under a duty to look back to his left to scan for hazards,
Abbo presented no evidence under which Cornell was required to do so every one and a half
seconds, which is what would have been necessary to avoid the accident under Abbo’s timeline.
Thus, Abbo’s affidavit provided nothing but “conjecture and speculation,” because it failed to
provide any proper standard to determine whether Cornell’s driving was reasonable, and thus fails
to meet plaintiff’s “burden of providing evidentiary proof establishing a genuine issue of material
fact.” Libralter Plastics, Inc 199 Mich. App. at 486.4
IV. COMPARATIVE NEGLIGENCE
Additionally, as is clear from the discussion above, Abbo’s analysis completely ignores the
role Conforti played in causing the accident. Pedestrians have a duty to make a proper observation
as to potentially approaching traffic and to “exercise that degree of care and caution which an
ordinarily careful and prudent person would exercise under like circumstances.” Malone v Vining,
313 Mich. 315, 321; 21 NW2d 144 (1946). Moreover, under the Uniform Traffic Code adopted by
the city of Warren, Warren Ordinances, § 37-2, “[w]here traffic-control signals are in operation,
pedestrians shall not cross the roadway except in a marked crosswalk.” Mich Admin Code, R
28.1709. Additionally, “[e]very pedestrian who crosses a roadway at any point other than within
a marked crosswalk at an intersection shall yield the right-of-way to all vehicles on the roadway.”
Mich Admin Code, R 28.1706. A violation of an administrative regulation is evidence of
negligence. Estate of Goodwin v Northwest Mich Fair Ass’n, 325 Mich. App. 129, 163; 923 NW2d
894 (2018).
Conforti obviously did not cross in a marked crosswalk, even though, according to Abbo,
the nearest one was just a few hundred feet away, and equally obviously Conforti did not yield to
Cornell. These violations are evidence that Conforti was negligent, and the majority agrees that
he was. Furthermore, Conforti was almost struck by another vehicle as he crossed the center lane
of Van Dyke Avenue, and Conforti appeared to observe several northbound vehicles traveling in
4
Abbo’s statement in his affidavit also attempts to go well beyond any permissible expert
testimony or opinion. Although there is no evidence that Cornell was distracted, as both he and
his passenger denied that allegation, Abbo simply asserts as fact that Cornell was distracted, and
even speculates as to the possible reasons. Nevertheless, “The facts or data in the particular case
upon which an expert bases an opinion or inference shall be in evidence.” MRE 703. As there are
no facts in evidence supporting the assertion that Cornell was distracted, that portion of Abbo’s
affidavit was not properly before the trial court and thus cannot be considered on appeal.
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his direction before he began crossing the northbound lanes of Van Dyke Avenue. Conforti
decided to cross the northbound lanes of Van Dyke Avenue despite having an unobstructed view
of Cornell’s vehicle. Conforti also stepped directly in front of Cornell’s vehicle, even though
Conforti would have been able to see that Cornell was not looking at him. Abbo did not discuss
Conforti’s actions in that regard at all, other than to opine, without giving any reason, that “a
reasonable person facing a similar situation” would have chosen to violate the traffic laws and
cross a busy seven-lane “84-foot roadway in lieu of walking one-third” of a mile to reach a
crosswalk and traffic light.5 By failing to discuss the evidence of Conforti’s negligence, Abbo’s
affidavit failed to consider Conforti’s comparative negligence, and thus is irrelevant under the
proper legal standard. Consequently, even if Cornell had been negligent, Abbo’s affidavit
provided no basis for finding that Cornell was more than 50% at fault, the threshold for a recovery.
MCL 500.3135(2)(b). Thus, the only admissible evidence on that point was the statements of the
three investigating officers, who determined that Conforti was solely at fault, which is a bar to
recovery. Id.
V. CONCLUSION
In sum, I would hold that the trial court did not err by granting defendants’ motion for
summary disposition, because there was no evidence showing that Cornell was negligent, nor was
there evidence showing that if Cornell was negligent that Conforti was less than 50% at fault. I
would affirm the trial court’s granting of summary disposition in favor of defendants.
/s/ Jonathan Tukel
5
Abbo’s affidavit stating an opinion that a reasonable person would attempt to cross the seven-
lane roadway unlawfully, without using a cross-walk or traffic signal and in violation of the Warren
Ordinance and the Michigan Administrative Code, is particularly startling in light of his
employment as a police officer, albeit not for the jurisdiction in which the accident occurred. See
also note 2 of this opinion. Additionally, the majority concedes that Conforti was negligent; as he
was in obvious violation of law by crossing the street where he did; and as the accident would not
have occurred had he crossed in a crosswalk, as required by law, the conclusion that his was more
than 50% of the cause for the accident is inescapable.
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