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Insurer loses attempt to summarily dismiss freeway injury claim as "sudden emergency;" trial required on this issue and agency

When Ronald Fountaine and his friend encountered a 12' extension ladder in the fast lane of I-94 in Wayne County, they pulled into the median and attempted to remove the ladder.  Unfortunately, a following motorist was less alert, could not stop or avoid the ladder, and drove into the median, striking Fountaine.  When Fountaine sued for serious injuries, the second driver, Randy Hersey, argued that he was confronted by a sudden emergency, and therefore not responsible for leaving the freeway and striking the plaintiff.

The Court pointed out that the evidence created a question of fact with regard to whether Hersey was negligent as he approached the ladder.  There was testimony that he was on his cell phone and that while other motorists reacted with ample time to avoid the ladder, which was admittedly in "clear view," Hersey was inattentive and did not.    On this basis, the ultimate decision about whether Hersey was excused from negligence by the existence of a sudden emergency was one for jurors--not a question to be summarily decided by a judge.

The Court also rejected Hersey's employer's claim that it was not responsible for Hersey's negligence because he was an independent contractor.  The Court noted that regardless of whether Hersey was paid by a W-2 or a 1099, he was acting in the course of his agency for the employer when he hurt Fountaine.  Since he was returning from a client meeting arranged for the employer's benefit, the principal was responsible for any injuries caused by his negligence.

Thompson O’Neil, P.C.
309 East Front Street
Traverse City, Michigan 49684
Toll Free: 1-800-678-1307
Fax: 231-929-7262