Negligence — Tow Truck – Expert Evidence
Negligence — Tow truck – Expert Evidence
Where a defendant towing company was granted summary disposition on a complaint filed by a plaintiff who was struck by one of the defendant’s tow trucks, the judgment should be affirmed, as the plaintiff’s expert did not provide sufficient evidence to raise a material question of fact about whether the driver employed by the defendant breached the standard of care.
“Plaintiff appeals as of right the trial court’s order granting defendant summary disposition in this personal injury case arising from plaintiff’s claim for damages allegedly sustained when plaintiff’s decedent, Oscar Ousley, was struck by a tow truck owned by defendant and operated by one of defendant’s employees.
“The material facts produced during discovery established the following events. Ousley arranged with defendant to tow a car from defendant’s storage lot to Ousley’s property. Defendant’s employee, Joseph Mitchell, drove one of defendant’s tow trucks with the car to Ousley’s farm. Upon arriving at Ousley’s home, Mitchell parked the tow truck in the circular driveway adjacent to Ousley’s house.
“Mitchell testified that Ousley and his son told him that they wanted Mitchell to unload the car at a spot between two outbuildings on the property. Mitchell decided to “check the ground out” to ensure the tow truck would not get stuck and then returned to the truck and began driving it in reverse toward the location where he was asked to ‘drop’ the car. As Mitchell walked back to his truck, Ousley and his son walked away toward their barn and went to the ‘other side’ of the barn out of Mitchell’s view.
“Mitchell began backing the tow truck toward the specified location, driving slowly at ‘not even three miles per hour.’ Mitchell was ‘constantly watching’ his side mirrors while backing the tow truck to ensure that he would not hit anything. As he neared the drop point, Mitchell realized he could not turn his truck to get there without damaging it, so he decided to do some back-and-forth maneuvering to better approach the drop location. After driving forward, he stopped, looked back, and saw Ousley lying on the ground. Mitchell had no idea where Ousley had come from, and that, if Ousley had approached directly behind the tow truck, there was no way Mitchell would have seen him because Ousley would have been in his blind spot. The tow truck Mitchell was driving was equipped with a ‘back-up beeper’ that sounded when the truck was being driven in reverse.
“Ousley suffered several injuries and was transported to the hospital. Ousley remembered being near the tow truck, and that he ‘somehow got caught underneath,’ but was otherwise unable to remember anything about the accident. It is undisputed that the only eyewitness to this incident is Mitchell—Ousley did not recall what happened.
“Plaintiff retained Rodney Sadler, an expert in accident reconstruction.
“Here, plaintiff has simply presented no evidence of negligence. Indeed, the only witness with any direct knowledge of the facts was Mitchell, who testified that he checked the area where he was driving and saw no one, and he continually checked his mirrors to make sure he did not hit anyone as he was backing up the tow truck. That Ousley was struck by the truck is not enough, in and of itself, to refute Mitchell’s testimony—indeed, it would be consistent with Mitchell’s testimony that he did not know where Ousley came from and might have approached the tow truck in Mitchell’s blind spot.
“Plaintiff’s expert, Sadler, did not provide sufficient evidence to raise a material question of fact about whether Mitchell breached the standard of care. Sadler testified only that there were certain things Mitchell might have done differently, which may have yielded a different result. He did not say that the standard of care, or any law or regulation, required Mitchell to take those steps. In fact, Sadler admitted that Mitchell had ‘done nothing wrong’ but that there were extra precautions that might have prevented the accident if Mitchell had taken them. Such hindsight-driven opining is not sufficient to raise a genuine issue of material fact. We also note that Sadler was not offered as a standard-of-care expert for tow truck drivers or other commercial drivers, he did not purport to know or otherwise opine on the applicable standard of care, and he admitted that he had no personal knowledge of the key facts and that most of his opinions were based on his assumptions about what had occurred.”
Estate of Ousley v. Phelps Towing Inc.; MiLW 08-104151, 5 pages; Michigan Court of Appeals unpublished per curiam; Murray, J., Jansen, J., Stephens, J.; on appeal from Jackson Circuit Court; Jennifer Alberts for appellant; Parisa R. Gold for appellee.
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