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Court upholds summary disposition of pedestrian's claim that he was struck while walking on shoulder; court enforces time limit where brief filed 7 hours late

Daniel Moore was struck by an on-duty Oakland County Sheriff's Deputy while walking down a poorly lit road with a gravel shoulder.  He claimed he was struck on the gravel shoulder; the Deputy claimed that his car never left the paved road.  The Deputy's attorneys filed a Motion for Summary Disposition and Moore's lawyer filed a responsive brief at 5:08 pm on May 29.  By the terms of the scheduling order, the brief was due at 10:00 am.  The judge refused to consider the response brief and accepted the Deputy's account of the incident.  Moore's attorneys appealed the grant of summary disposition.

The Court of Appeals rejected Moore's argument that failing to consider his response brief was an "abuse of discretion."  It ruled that the trial judge  was not obligated to conclude that the decision to penalize the late brief was "just under the circumstances" in order to uphold the decision.   It held that the sanction was not unduly severe as a penalty for filing 7 hours late.  It also ruled that no reasonable juror could find that the Deputy was negligent based on Moore's testimony:  in essence, it ruled that his testimony was outweighed by the Deputy's evidence--theoretically a decision reserved for the jury under our constitution.  The appellate judges also rejected Moore's lawyers' argument that evidence of the Deputy's texting at the time of the event which was contained in a different brief need not be considered, because a judge is not " scour the record..." to analyze whether there is a genuine issue of fact. Not surprisingly, the Court of Appeals panel included Kirsten Frank Kelly, the insurance industry's best friend on the bench.

Thompson O’Neil, P.C.
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Traverse City, Michigan 49684
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