get out of the way, that presumption is overcome, and the train operator has a duty to take steps to
avoid a collision. Because there remained genuine issues of material fact as to whether defendants
were negligent, the Court of Appeals’ ruling in favor of plaintiff was affirmed and the case
remanded to the trial court for further proceedings.
1. Whether summary disposition was warranted in this case turned on the scope of
defendants’ duty. When considering whether a duty exists, courts consider several factors,
including the foreseeability of the harm, the degree of certainty of the injury, the closeness of
connection between the conduct and the injury, the moral blame attached to the conduct, the policy
of preventing future harm, and the burdens and consequences of imposing a duty and the resulting
liability for breach. Generally, landowners who should know of frequent trespassers must exercise
reasonable care for the safety of trespassers when conducting dangerous activities. With regard to
trespassers on railroad tracks, if a train operator sees a person on the tracks, and there is no reason
to believe that the person would not heed the danger of the coming train, the train operator can
presume the person will move and has no duty to take steps to avoid a collision. However, under
Lake Shore & MS R Co v Miller, 25 Mich 274, 279-280 (1872), overruled in part on other grounds
by Bricker v Green, 313 Mich 218 (1946), this presumption gives way to a duty to act to avoid a
collision when it becomes apparent that the person will not or cannot move off the tracks. Under
Bouwmeester v Grand Rapids & I R Co, 63 Mich 557 (1886), this duty requires the train operator
to slow the train and, if necessary to preserve life or limb, come to a full stop. When exactly it
becomes apparent that a person will not move off the tracks and what is a reasonable action to
fulfill the duty to take steps to avoid a collision once that duty arises will depend on the particular
facts of each case.
2. There was no support for the proposition that Michigan’s switch from contributory to
comparative negligence in Placek v Sterling Hts, 405 Mich 638 (1979), invalidated large swaths
of prior caselaw, particularly caselaw setting out the presumption that a person will move off the
tracks and establishing when that presumption gives way to a duty to act to avoid a collision.
Under a contributory-negligence scheme, a plaintiff could not recover in a negligence action if
their own negligence also caused the injury. Under the current comparative-negligence scheme, a
plaintiff whose negligence contributed to their injury may recover against a negligent defendant;
their damages award is simply reduced to reflect the extent of their own fault. Accordingly, before
Placek, cases were often resolved without defining the full scope of the defendant’s duty because
they could be decided solely on the basis of plaintiff’s contributory negligence, which generally
served as a complete bar to recovery. However, pre-Placek precedents regarding the scope of a
defendant’s duty generally remain valid, including the principle set out in Lake Shore regarding
when the presumption that a person will move off the tracks gives way to a duty to act to avoid a
collision. While the switch to comparative negligence created distinctions that will sometimes
preclude the application of pre-Placek caselaw, these distinctions did not relate to when the
presumption that a person will move off the tracks gives way to a duty to act to avoid a collision.
3. The Court of Appeals correctly concluded that summary disposition was not warranted
in this case. A reasonable juror could conclude that defendants were negligent in sounding a
second horn rather than applying the emergency brake when it first became apparent that Jacob
would not move, i.e., after Jacob failed to heed the initial horn blast before the crossing, and there
was also a question as to whether defendants had a duty to sound the horn earlier than they initially