Sandra Rupert v. Freda Daggett

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0340p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

SANDRA L. RUPERT, Special Administrator of X
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Plaintiff-Appellant, --
the Estate of Ivan L. Rupert, Jr., deceased,

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No. 11-1134

,
>
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v.

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FREDA DAGGETT, doing business as KFDGT
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Pilot Car Services,
Defendant - Appellee. N
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:09-cv-221—Gordon J. Quist, District Judge.
Argued: April 13, 2012
Decided and Filed: September 19, 2012
Before: WHITE, STRANCH, and FARRIS, Circuit Judges.*

_________________

COUNSEL
ARGUED: Scott R. Melton, GRUEL, MILLS, NIMS & PYLMAN, LLP, Grand Rapids,
Michigan for Appellant. Daniel S. Saylor, GARAN LUCOW MILLER, P.C., Detroit,
Michigan, for Appellee. ON BRIEF: Scott R. Melton, William F. Mills, GRUEL,
MILLS, NIMS & PYLMAN, LLP, Grand Rapids, Michigan for Appellant. Roger A.
Smith, Caryn A. Gordon, GARAN LUCOW MILLER, P.C., Detroit, Michigan, for
Appellee.

*
The Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.

1
No. 11-1134 Rupert v. Daggett Page 2

_________________

OPINION
_________________

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 REVERSE the judgment of the district
court.

I. BACKGROUND

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 2001.1 Otteren had been driving a pilot vehicle for about nine months before
the accident for his own company, AAA Pilot Car Service. They were acquainted
through Otteren’s father, a truck driver with whom Daggett had worked, and Daggett had
provided some instruction to Otteren about how to operate a pilot car. Sandra Rupert

1
The acronym stands for “Kermit Frog’s Done Gone Trucking,” which is a reference to Daggett’s
nickname, “Froggy.”
No. 11-1134 Rupert v. Daggett Page 3

alleges that Daggett and Otteren had a mentor-mentee relationship, but the exact nature
and degree of their association is not entirely clear from the record.

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.2 As they headed east on Interstate 70,
they were in regular communication over CB radio and stopped together at the same
locations.

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 had further
discussion about their route, although she did agree the “plan” was to “[f]ind a place to
turn around and go back eastbound.” Meanwhile, Ivan Rupert was approaching the exit
on his Harley Davidson motorcycle from the westbound portion of the interstate.

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:

The two pilot vehicles entered Interstate 70 westbound at the Grand
Mesa-Collbran entrance. There is a cement divider between the
westbound and eastbound lanes of traffic when one enters the interstate
at that point. I passed the pilot cars as they merged onto the interstate or
shortly afterwards. The motorcycle driver was behind the trailing pilot
vehicle in the right lane and signaled his intention to move into the left

2
Daggett explained they drove together because “we were at the same place at the same time.”
Otteren stated: “It makes sense. That way if somebody gets a flat tire or something happens, you’ve got
someone you know along the way to at least help out.”
No. 11-1134 Rupert v. Daggett Page 4

lane and then moved into the left lane. The two pilot cars were still in
the right lane and were slightly ahead of the motorcycle. I was looking
in my rear view mirror so I would be able to safely move from the left
lane to the right after I passed the lead pilot vehicle. The trailing pilot
vehicle was one and half to two car lengths behind the lead pilot vehicle.3
The motorcycle was five or six car lengths behind my vehicle.
I had just passed the lead pilot car when suddenly, the lead pilot
car made an abrupt left turn from the west bound right lane, crossing over
the westbound left lane into the median at the U-turn access point
designated for authorized and emergency vehicles only. The trailing
pilot vehicle followed the lead pilot vehicle, executing the same
maneuver, turning left from the right hand westbound lane cutting across
the westbound left lane behind the lead SUV pilot vehicle.4 Neither pilot
vehicle activated its yellow roof lights or turn signals.

Perri described the angle taken by the pilot vehicles as a sharp perpendicular5 turn with
“no merging to the left lane at all.” Daggett was able to proceed through the median
without incident, but Ivan Rupert’s motorcycle struck the right rear corner of Otteren’s
vehicle as their paths intersected. Rupert died as a result of his injuries. Just one mile
from the accident site was an exit which would have allowed Daggett and Otteren to
reenter the interstate on its eastbound side without taking a U-turn.

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.”

3
During her deposition, Perri stated that the pilot vehicles “were literally right behind tailgating
each other.”
4
During her deposition, Perri stated that the second pilot vehicle “did an immediate [turn]”
following the turn of the first vehicle.
5
Although Perri used the word “parallel,” it seems clear from the context and a subsequent
question that she intended to say “perpendicular.”
No. 11-1134 Rupert v. Daggett Page 5

Sandra Rupert submitted an affidavit by Robert Caldwell, an experienced
accident reconstruction expert, which stated that the description of events provided by
Otteren is “unlikely” for two reasons. First, the vehicle damage indicates Otteren “had
to be at a substantial angle to the roadway . . . consistent with a sudden decision to make
the dangerous U-turn.” Second, the visibility of the median crossover is “extremely
limited” from the westbound direction because it is located “immediately after” a
guardrail installation. As a result of these findings, Caldwell concluded: “Ms. Daggett
made an abrupt maneuver, crossing from the outermost, right hand lane, to the median
crossover, followed immediately by Mr. Otteren. This resulted in a left turn immediately
in front of Ivan Rupert.”

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:

I made a bad decision. I didn’t do it on purpose. I didn’t say, hey,
there’s a guy on a motorcycle, watch this. I just—I made a bad decision.
You know, Freda [Daggett] said on the radio, let’s make—let’s take the
U-turn. Let’s take the turnaround. With the type of work we’ve done,
I’ve worked with her, she has been kind of teaching me how to do—she
was teaching me how to do pilot car work. And with our work, we do it
quite often, so I didn’t even give it a second thought. I thought I had
plenty of room.

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
No. 11-1134 Rupert v. Daggett Page 6

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.

II. DISCUSSION

A. Standard of Review and Applicable Law

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 party.” Ford v. Gen. Motors Corp., 305 F.3d 545,
551 (6th Cir. 2002) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
“In reviewing the record, we view the factual evidence in the light most favorable to the
nonmoving party, and draw all reasonable inferences in that party’s favor. Ultimately,
the proper inquiry is whether the state of the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Slusher v. Carson, 540 F.3d 449, 453
(6th Cir. 2008) (citations omitted).

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
No. 11-1134 Rupert v. Daggett Page 7

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).

B. Negligence

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, 739 N.W.2d 313, 316–17 (Mich.
2007) (citing Fultz v. Union-Commerce Assoc., 683 N.W.2d 587, 590 (Mich. 2004)).
We conclude that disputed issues of material fact exist upon which a reasonable jury
could find for Sandra Rupert as to each element.

1. Duty

“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, 254 N.W.2d 759, 765 (Mich. 1977)). Several factors are
instructive in determining whether to impose a common-law duty:

(1) the relationship of the parties, (2) the foreseeability of the harm,
(3) the degree of certainty of injury, (4) the closeness of connection
between the conduct and injury, (5) the moral blame attached to the
conduct, (6) the policy of preventing future harm, and, (7) finally, the
burdens and consequences of imposing a duty and the resulting liability
for breach.

Rakowski v. Sarb, 713 N.W.2d 787, 795 (Mich. Ct. App. 2006) (quoting Buczkowski v.
McKay, 490 N.W.2d 330, 333 n.4 (Mich. 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).
No. 11-1134 Rupert v. Daggett Page 8

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., 418 N.W.2d 381, 383 (Mich. 1988). A special relationship exists
when “one person entrusts himself to the control and protection of another, with a
consequent loss of control to protect himself.” Id. Because there was no special
relationship between the plaintiff and defendant in this case, Daggett asserts, Daggett
had no duty to protect the decedent from Otteren. Although perhaps accurate, this
argument misses the point here.

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, 393 N.W.2d 579, 581 (Mich. Ct.
App. 1986) (citing Zarzecki v. Hatch, 79 N.W.2d 605, 607 (Mich. 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, 446 N.W.2d 523, 527 (Mich. Ct. App. 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, 180 N.W.2d 11, 15–16 (Mich. 1970)).
No. 11-1134 Rupert v. Daggett Page 9

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., 590 N.W.2d 301, 302 (Mich.
Ct. App. 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.,
600 N.W.2d 384, 395 (Mich. Ct. App. 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 lead the
way with the “plan” of returning to the eastbound portion of the interstate. Drawing all
inferences in Sandra Rupert’s favor, a jury could reasonably find that the agreement
made it foreseeable to Daggett that any careless driving on her part would be followed
by Otteren and result in additional danger to other motorists, particularly in light of the
close proximity in which Daggett and Otteren were allegedly driving. Accordingly, we
conclude that Daggett is not entitled to summary judgment as to the element of duty.
No. 11-1134 Rupert v. Daggett Page 10

2. Breach

“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.

3. Causation

In order to establish causation, a plaintiff must prove two elements: (1) cause in
fact and (2) proximate cause. Skinner v. Square D Co., 516 N.W.2d 475, 479 (Mich.
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:
No. 11-1134 Rupert v. Daggett Page 11

Proximate causation involves examining the foreseeability of
consequences and whether a defendant should be held legally responsible
for such consequences given his negligent acts or omissions. This Court
has defined proximate cause as “a foreseeable, natural, and probable
cause.” Such causation is distinct from factual or “but for” causation,
and issues of proximate causation thus call for an independent, searching
inquiry, the focus of which is whether the result of conduct that created
a risk of harm and any intervening causes were foreseeable. Probability
of harm is thus a relevant consideration to determine whether the
defendant’s conduct was foreseeable or if the defendant should be held
legally liable in light of the circumstances. Since there are risks that can
be foreseen but would not be avoided by a reasonable person, for liability
to attach the harm must be of a kind that defendant should have avoided
or it must be shown that defendant's actions presented an unreasonable
risk of harm.

Jones v. Detroit Med. Ctr., 806 N.W.2d 304, 305 (Mich. 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, 590 N.W.2d 69, 73 (Mich. Ct. App. 1998),
remanded on other grounds sub nom. Ridley v. Collins, 622 N.W.2d 65 (Mich. 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, 703 N.W.2d 774, 786 (Mich.
2005); see also Love v. City of Detroit, 716 N.W.2d 604, 610 (Mich. Ct. App. 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, 487 N.W.2d 106,
119 (Mich. 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.,
776 N.W.2d 114, 133 (Mich. Ct. App. 2009) (quoting Taylor v. Wyeth Lab., Inc., 362
N.W.2d 293, 300 (Mich. Ct. App. 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).
No. 11-1134 Rupert v. Daggett Page 12

Applying this precedent upon reconsideration of its initial Opinion, the district
court wrote:

Regardless of how closely the two vehicles were traveling or how
abruptly Defendant made her decision to use the median, Otteren’s
negligent operation of his own vehicle was a superseding, intervening
cause that cut-off any liability on the part of Defendant. Despite
Plaintiff’s characterization of the two vehicles as “an engine pulling a
caboose,” there is no evidence to support that Defendant either directed
or had any control over the manner in which Otteren operated his own
vehicle. Although the two may have been traveling together, Otteren
was solely responsible for the safe operation of his vehicle.

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.6 See Palsgraf v. Long Island R.R. Co., 162 N.E. 99, 100 (N.Y. 1928) (“Some
acts, such as shooting are so imminently dangerous to any one who may come within
reach of the missile however unexpectedly, as to impose a duty of prevision not far from
that of an insurer.”).

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.

6
This would be a different case if the maneuver in question was, for example, a legal left turn at
an intersection taken by the lead driver in the absence of oncoming traffic.
No. 11-1134 Rupert v. Daggett Page 13

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:

There was no proof that Stelly or Trahan were directing, supervising, or
controlling Broussard. At best from plaintiff’s point of view the
evidence shows that the three were traveling together. But each one was
solely responsible for the safe operation of his vehicle. When Broussard
decided to leave the safety of the shoulder and negotiate his “U” turn he
set into motion the operative facts causing the accident. The fact that
Stelly and Trahan accomplished a similar maneuver in safety a few
minutes before could not make them liable for Broussard’s failure to
exercise reasonable care.

Id.7

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

7
The Louisiana Supreme Court stated simply in regard to this issue: “The jury’s verdict in favor
of Stelly and Trahan is not clearly wrong.” Mohr, 528 So.2d at 149.
No. 11-1134 Rupert v. Daggett Page 14

made it more likely that he would resolve the quick decision in favor of staying together
rather than separating.8

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.

4. Damages

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.

C. Negligence Per Se

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.,
393 N.W.2d 356, 360 (Mich. 1986); Zeni v. Anderson, 243 N.W.2d 270, 280 (Mich.
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.

III. CONCLUSION

For the above reasons, we REVERSE the district court’s grant of summary
judgment to Daggett and REMAND the case for trial.

8
Although Sandra Rupert’s brief suggests there is an additional distinction in that the U-turn here
was illegal, it is unclear whether the U-turn in Mohr violated any statute or ordinance.