Dedes v. Asch
Dedes v. Asch
Opinion of the Court
Following a jury trial, the jury returned a verdict in favor of the estate of Adrian Dedes in the amount of $1,095,000, less eighty-five percent comparative negligence attributed to “plaintiff, Estate of Adrian Dedes,” finding defendant Jeanne Asch five percent grossly negligent and defendant Joan Shifferd ten percent grossly negligent. The jury also returned a verdict in favor of Lauren Dedes in the amount of $52,000, finding Asch thirty-five percent grossly negligent and Shifferd sixty-five percent grossly negligent. Plaintiffs appeal as of right from the trial court’s denial of their motion for apportionment of comparative negligence among the claimants to the estate of Adrian Dedes. On cross appeal, defendants appeal as of right from the trial court’s denial of their motion for a directed verdict or judgment notwithstanding the verdict and an order denying their motion to stay
This case, which has a long appellate history,
i
Plaintiffs’ sole issue on appeal is whether the trial court erred in applying the comparative negligence assessed against the estate of Adrian Dedes to all of the claimants to the estate. The claimants to the estate were Adrian’s mother and father, her sister Lauren (also a plaintiff in this matter), and two other siblings. Plaintiffs argue that the trial court should have assessed the eighty-five percent comparative negligence against the parents only, and the siblings’ portion of the award should not have been reduced for comparative negligence because two of them were not even present at the time of the accident and Lauren was specifically found by the jury not to have been comparatively negligent.
We find that plaintiffs have waived this claim for appellate review. In the present case, before the jury instructions were given, the parties discussed the propriety of giving a comparative negligence instruction regarding Adrian’s parents. Plaintiffs’ counsel indicated that there were claims to the estate other than the parents’ claims and, therefore, a comparative negligence instruction should not be given broad application to the estate. In fact, plaintiffs’ counsel did not want the trial court to give an instruction to the jury regarding the comparative negligence of the parents and counsel did not want the trial court to give a jury instruction regarding each party’s comparative negli
Moreover, plaintiffs’ counsel helped to prepare the special verdict form that was given to the jury. The special verdict form advised the jury that the trial court would “reduce the total amount of the plaintiff, Estate of Adrian Dedes’ damages ... by the percentage of fault attributable to the plaintiff, Estate of Adrian Dedes.” Plaintiffs did not object to the special verdict form. At no time before the jury returned its verdict did plaintiffs request that the trial court instruct the jury to apportion the relative fault among the different parties. Finally, we note that at the post-trial motion requesting that the trial court apportion relative fault to each of the parties, plaintiffs’ counsel conceded that he did not request a verdict form that separated each party’s relative fault.
Under these circumstances, plaintiffs have forfeited any claim of error with respect to the instructions or verdict form concerning the comparative negligence apportionment. MCR 2.516(C) states that a “party may assign as error the giving of or failure to give an instruction only if the party objects on the record before the jury retires to consider the verdict.” Similarly, MCR 2.514(A) states that if a special verdict form is required, the trial court shall settle the form
E
On cross appeal, defendants argue that the trial court erred in denying their motion for judgment notwithstanding the verdict (jnov).
A
At a meeting held on November 15, 1988, with Asch, Shifferd, Mr. and Mrs. Dedes, the school principal, the school social worker, and Adrian Dedes, Asch confirmed with Mrs. Dedes where the children were to wait for the bus. The meeting was in response to complaints that Asch had received about the Dedes children standing too close to the road on some mornings while waiting for the bus. At the meeting, Asch also discussed with the Dedes Adrian’s behavior on the bus and her closeness to the road on some mornings. Mrs. Dedes was given a manual that had been prepared concerning the responsibility of the parent as well as the school and the student riding the bus. Mrs. Dedes was also advised of the rules regarding waiting for the bus and staying at least ten feet back from the roadway. Asch told Mrs. Dedes that if the children were unsure about where to stand, then she should paint a line or lay a rope in the yard
There was really no other evidence concerning Asch’s involvement in this case. Even taken in a light most favorable to plaintiffs and making all reasonable inferences in favor of plaintiffs, this evidence is insufficient to establish that Asch’s conduct was so reckless as to demonstrate a substantial lack of concern for whether an injury resulted in establishing the bus stops for the children. See, e.g., Lindberg v Livonia Public Schools, 219 Mich App 364, 368; 556 NW2d 509 (1996); Vermilya v Dunham, 195 Mich App 79, 83; 489 NW2d 496 (1992). Accordingly, we reverse the jury’s verdict against Asch.
B
With respect to Shifferd, we find that there was sufficient evidence presented such that the jury could find that her conduct was grossly negligent. Evidence was presented by Lauren Dedes that approximately two weeks before the accident, Shifferd told her and Adrian that as soon as they saw the bus coming, to wait on the gravel with their toes touching the road or they would not be picked up. Mrs. Dedes also testified that after the accident, Lauren informed her that about a week or week-and-a-half earlier, the bus stop had been changed so that Lauren and Adrian would be waiting directly across from other children boarding the bus in order to expedite the process. There was additional testimony from Mrs. Dedes that Shifferd had earlier told Mrs. Dedes that she wanted the children to stand by the side of the road so that she
Accordingly, we find that sufficient evidence was presented to create a question of fact with respect to whether Shifferd instructed the children to wait by the road. The trial court did not err in denying Shifferd’s motion for jnov with respect to the gross negligence issue.
m
Defendants also argue that there is no evidence that their conduct was the proximate cause of the injuries suffered. To prove proximate cause, plaintiffs had to prove two separate elements: (1) cause in fact and (2) legal cause. Skinner v Square D Co, 445 Mich 153, 162-163; 516 NW2d 475 (1994). Defendants attack only the cause in fact element. The cause in fact element generally requires a showing that but for the defendant’s actions, the plaintiff’s injury would not have occurred. Id., p 163.
Given our resolution that there was no evidence that Asch’s conduct could be considered grossly negli
Accordingly, taken in a light most favorable to plaintiffs and making all reasonable inferences in favor of plaintiffs, there was a factual question for the jury to resolve regarding the cause in fact of the injuries. The trial court did not err in denying the motion for jnov on this basis.
w
Lastly, defendants argue that they should not be held responsible for the accrual of prejudgment interest from the entry of the order in the trial court granting their motion for summary disposition and our Supreme Court’s opinion reversing the trial court’s order, a period of over four years. This Court reviews de novo the award of prejudgment interest under MCL 600.6013(1); MSA 27A.6013(1). Phinney, supra, p 540.
MCL 600.6013(1); MSA 27A.6013(1) provides that interest shall be allowed on a money judgment recovered in a civil action and MCL 600.6013(6); MSA 27A.6013(6) provides that prejudgment interest is calculated from the date of the filing of the complaint.
Here, we find that the fault for the delay was not attributable to defendants. This case concerned at least one issue of such significance that our Supreme Court agreed to rule on it following an application for leave to appeal sought by the plaintiffs. To allow interest to continue to accrue during an appellate process would hinder parties from asserting new and innovative arguments in the trial court for fear that interest will continue to accrue on a claim that may be reversed during the appeal process. Therefore, because the fault for the delay is not properly attributable to defendants, the trial court erred in granting prejudgment interest for the period that the matter was on appeal. We remand to the trial court for it to recalculate interest from the time of the filing of the complaint until the judgment is satisfied, abating the interest for the period that the matter was on appeal.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. Jurisdiction is not retained.
See Dedes v Asch, 446 Mich 99; 521 NW2d 488 (1994), which reversed Dedes v South Lyon Community Schools, 199 Mich App 385; 502 NW2d 720 (1993).
Plaintiffs originally filed suit against Anthony Neumaier, Neumaier’s father James (the owner of the automobile), the Oakland County Road Commission, and the South Lyon School District. Plaintiffs ultimately settled their claims with the Neumaiers and the road commission, and the school district was granted summary disposition by the trial court.
We note that it was defendants’ counsel who initially requested that the trial court give a special instruction regarding the comparative negligence of the parents. After further discussing the issue in chambers, the trial court declined to give defendants’ requested instruction regarding the comparative negligence of the parents. This was plaintiffs’ position at the time.
The defendants had moved for a directed verdict at the close of plaintiffs’ proofs, but the trial court took the motion under advisement and ruled on it after the jury’s verdict.
Concurring in Part
(concurring in part and dissenting in part). I think this case should go back to the trial judge’s successor to determine the issue of comparative negligence by the various beneficiaries under the rule announced in Hierta v General Motors Corp
Before closing arguments, there was a discussion regarding the propriety of giving a comparative negligence jury instruction with respect to Adrian’s parents. While it is true that plaintiffs’ counsel was leery about the effect of such an instruction, it is not correct, I think, to charge the plaintiffs with a waiver of the claims of the other beneficiaries of the estate thereby permitting them to be charged offsets for which there clearly could be no predicate arising out of the siblings’ conduct. The jury awarded damages of $1,095,000 for the total loss of all the family members. The jury was instructed to find comparative negligence on the part of only the decedent and the other injured child. It should be clear to any reader of the record that the eight-year-old, Lauren Dedes, was probably not comparatively negligent and the ten-year-old decedent may have been slightly comparatively negligent. The siblings of the deceased child could not have been comparatively negligent and that includes the other injured child as well as Jessica and Michael. Obviously the great weight of the eighty-five percent comparative negligence was laid on the shoulders of the parents. It should be sorted out and adjusted appropriately in the trial court and if that is not possible, a new trial with respect to the issue of comparative negligence only should be granted. In other words, I believe the trial court erred in determining that the sum total of comparative negligence^) assessed by the jury should redound against
the trial court did not err in submitting to the jury the issue of the parents’ comparative negligence in relation to their recovery for loss of services, society, and companionship. [Id. at 189].
Here the allocations of comparative negligence against the damages all but subsumes the verdict.
I think this is an appropriate instruction. It’s not covered by the regular instructions. Do you want to discuss that? Do you know which one I’m talking about?
Mr. Domol [plaintiffs’ counsel]: I don’t have a copy of those specials [requests?].
The Court: In determining the parents claim[s?] for loss of services, society and companionship, you may reduce the recovery by the amount of the parents’ comparative negligence. I can’t see anything against it. It isn’t covered in the standard.
Mr. Domol. It wasn’t pled that way, and it wasn’t tried that way and the instructions of the form that’s been done doesn’t even address that.
The Court: You have a comparative form, don’t you, on the estate.
Mr. Domol: We have a comparative as to the individual[s?].
Mr. Domol: I’m a little puzzled, I guess, if the court is going to give the instruction that [defendants] requested in regard to the comparative part of the parts . . .
The Court: Um-hum
Mr. Domol: . . . and give it a broad sweeping overall application to the estate . . .
The Court: Um-hum.
Mr. Domol: And there are claims in the estate that aren’t necessarily the parents.
The Court: Oh, but the instruction that I thought I saw was limited to when you’re talking about their loss of service to society . . .
Mr. Domol: But on the . . .
The Court: . . . you may reduce the recovery by the amount of the parents1’1 comparative negligence.
Ms. Neal [defendants’ attorney]: That goes to damages, your Honor, in the wrongful death action.
Mr. Domol: It may go to the damages in the wrongful death action as to the parents1’' individual damages, if I understand the Court’s position, but it wouldn’t — why should it affect the siblings claims, is my question.
The Court: Well, what we do as we live in this ideal world that we think the jury is going to consider the parents1’' claim, the siblings1’' complaint and we’re going to consider all of that. Well, what we’re saying is when you’re considering the parents, then think in terms of what their negligence — how that produced [sic] and to that extent, that’s the law of the state and I think it’s appropriate to give.
Mr. Domol: And again, I’d point out that was not the way this case — was not an issue in the openings. There was not an issue during the course of the pretrial of this case. I’m frankly surprised that it becomes an issue at this point.
*345 Ms. Neal: We have been talking about this jury instructions [sic] from the first day of trial.
The Court: Yeah but we — that wasn’t there. Let me think about that during the closings and don’t argue the instructions. We [sic-you?] can argue comparative and I’ll think about it.
This issue was not addressed again before the jury retired to deliberate. The special jury verdict form, which was approved by plaintiffs, did not direct the jurors to apportion relative fault among the claimants if and when they reached a verdict.
In advancing the motion to apportion, it was plaintiffs’ position, based on off-the-record discussions with the jurors after trial, that the jury had found Adrian’s parents to be comparatively negligent but did not believe that either Adrian or her siblings were negligent. That because of the dictates of the special verdict form, the jury could not and did not apportion comparative negligence against each claimant of the estate. The trial court did not revisit its preargument iryunction that you “can argue comparative and I’ll think about it,” it merely subliminally concluded that Byrne, supra, was wrongly decided. Never did the court rule that plaintiffs had waived the issue. Even learned trial judges make mistakes. Under the circumstances and in fairness to the claimants who were not negligent, I believe that this matter should be remanded to the trial court for a new trial solely on the issue of comparative negligence, Hierta, supra at 798, unless the parties are able to convince the trial judge’s successor of an appropriate allocation of the comparative negligence.
There seems to be some confusion with respect to whether the verdict was $1,035,000, in which event the award would be $155,250, or $1,095,000, in which event it would be $164,250.
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