Opinion
Docket No. 51277.
Decided April 22, 1981. Leave to appeal applied for.
Smith Smith, for plaintiff.
Willingham, Cote, Hanslovsky, Griffith Foresman, P.C. (by Julius I. Hanslovsky and John A. Yeager), for defendant.
Before: BEASLEY, P.J., and BASHARA and MacKENZIE, JJ.
Plaintiff appeals from a summary judgment in favor of defendant in an automobile negligence action. Defendant's motion was based on GCR 1963, 117.2(3), and asserted that there was no genuine issue of material fact and that defendant was entitled to summary judgment as a matter of law.
The facts are undisputed. Plaintiff was traveling south on Main Street in Perry, Michigan, when he executed a right turn into a bank. In so doing, he came into contact with defendant's auto. The defendant's vehicle was at all times within the boundary lines of a parking space on the street. Defendant was in her car and had just begun to move when the collision occurred. Her automobile had traveled about 12 inches but was still within the parking boundary lines at the point of impact.
Based upon the facts in this case, we are in agreement with the trial court's conclusion that plaintiff did not produce any evidence of negligence on the part of the defendant. As there was no genuine issue as to any material fact, summary judgment was proper. See Hollowell v Career Decisions, Inc, 100 Mich. App. 561; 298 N.W.2d 915 (1980), Brook v Reed, 93 Mich. App. 166; 286 N.W.2d 81 (1979), and Gamet v Jenks, 38 Mich. App. 719; 197 N.W.2d 160 (1972).
Affirmed.
MacKENZIE, J., concurred.
I respectfully dissent.
The issue of material fact was whether defendant's driving her car about 12 inches within her parking space in collision with plaintiff's truck violated her duty to drive as a reasonably prudent person would under the same or similar circumstances and, if so, whether her driving was a proximate cause of the collision. I would hold these questions are of fact for the jury under the usual instruction regarding the law.
SJI 10.01, 10.02, 10.04 and 15.01. See, Krzysiak v Hinton, 104 Mich. App. 134; 304 N.W.2d 823 (1981).
I would vote to reverse the summary judgment and to remand for trial on the merits. However, since plaintiff's brief does not conform to the court rules, I would not award costs.