Zeni v. Anderson

Supreme Court of Michigan · 1976 · Torts

TortsNegligenceContributory negligenceNegligence per seLast clear chanceStatutory violationprima facie negligencestatutory violation

Facts

On a snowy March morning, plaintiff walked to work along a well-used pedestrian snowpath in the roadway rather than on the snow-covered sidewalk, and she walked with her back to oncoming traffic. Defendant, driving within the speed limit in traffic, struck plaintiff; an eyewitness testified defendant's windshield was clouded, the car was too close to the curb, and it was apparent plaintiff would be hit. Evidence showed it was common in winter for nurses to use the roadway because it was safer than the sidewalk, and plaintiff had previously fallen on the sidewalk. Because plaintiff suffered retrograde amnesia, there was no way to determine whether she knew defendant's car was behind her.

Issue

Does a plaintiff's violation of a pedestrian statute amount to negligence per se that bars recovery, or does it create only a prima facie case subject to excuse? Also, was the trial court's instruction on last clear chance sufficient in this case?

Rule

When a court adopts a penal statute as the standard of care in a negligence action, violation of that statute establishes a prima facie case of negligence from which the jury may infer negligence, but the jury may consider whether the violator has shown a legally sufficient excuse; if so, the common-law standard of care applies. For last clear chance, Michigan adopts Restatement (Second) of Torts § 479 for a helpless plaintiff and § 480 for an inattentive plaintiff, and SJI 14.01 may no longer be given in future cases.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

On a winter morning in Duluth, Nora Patel walked in the street beside a row of parked cars rather than on the adjacent sidewalk, which was covered with glare ice. A delivery van driven by Owen Briggs clipped her after he drifted toward the curb while checking a paper route sheet.

If the jurisdiction follows the majority rule described here, what is the effect of Nora's violation of a pedestrian safety statute requiring use of sidewalks where provided?

Explanation. The majority held that when a court adopts a penal statute as the standard of care in negligence, violation creates only a prima facie case permitting an inference of negligence. The finder of fact may consider whether the violator has shown a legally sufficient excuse. Evidence that the sidewalk was dangerously icy goes to excuse and prevents automatic bar.