Piccalo v. Nix
Piccalo v. Nix
Opinion of the Court
Plaintiff appeals as of right, following a jury trial, from a judgment of no cause of action. We reverse and remand for a new trial.
The testimony surrounding Burnham’s departure from the party also varied. Defendant testified that she was assured that Burnham was not driving home, but was being driven home by another individual. Defendant had trouble identifying the various individuals who had attended the party and who agreed to ensure Burnham’s safe return home. Other witnesses alleged that defendant turned the lights on and off and told everyone to leave the home, in such a manner that staying overnight at the residence was not an option. Another witness testified that defendant implored Burnham to stay the night at her home, but Burnham essentially “fooled” defendant into believing that he was capable of driving. Nonetheless, Burnham got into his cargo van with five other individuals,
Before the commencement of trial, plaintiff’s counsel sought to exclude evidence of plaintiff’s drug and alcohol use before the day of the accident. Additionally, plaintiff sought to exclude allegations that police officers were negligent in failing to arrest Burnham following their determination that he was intoxicated and in possession of drug paraphernalia in his van. The trial court did not exclude evidence of plaintiff’s prior use, but did conclude that defendant would not be allowed to argue the negligence of police. Also, just before trial, plaintiff wished to add an allegation that defendant committed negligence for violating a local city ordinance. The trial court granted plaintiff’s
On appeal, plaintiff raises various claims of error as grounds for a new trial. We conclude that the cumulative effect of errors requires reversal and remand for a new trial. Haynes v Seiler, 16 Mich App 98, 103; 167 NW2d 819 (1969) (“Although one of several incidents or errors, standing alone, may be disregarded as harmless error, it is still possible that when considered in toto they accumulate such a cumulative prejudice that they may require a reversal.”).
Plaintiff argues that the trial court erred in applying and instructing the jury regarding the impairment defense. We agree. MCL 600.2955a provides, in relevant part:
(1) It is an absolute defense in an action for the death of an individual or for injury to a person or property that the individual upon whose death or injury the action is based had an impaired ability to function due to the influence of intoxicating liquor or a controlled substance, and as a result of that impaired ability, the individual was 50% or more the cause of the accident or event that resulted in the death or injury. If the individual described in this subsection was less than 50% the cause of the accident or event, an award of damages shall be reduced by that percentage.
Issues of statutory construction present questions of law and receive review de novo. Oakland Co Bd of Co Rd Comm’rs v Michigan Property & Casualty Guaranty Ass’n, 456 Mich 590, 610; 575 NW2d 751 (1998). The primary goal of statutory interpretation is to give
In the present case, the alleged negligence committed by defendant was the violation of state and local law in providing alcohol to minors.
Plaintiff also argues that the trial court erred in failing to strike the testimony defense counsel elicited from the plaintiff regarding her percentage of fault. We agree.
Plaintiff also argues that the trial court erred in failing to cure the violation of plaintiff’s substantial rights when defense counsel improperly referred to a fee agreement between plaintiff and her counsel and improperly elicited testimony from police officers that had been excluded by the trial court. We con-
Defendant and her son testified that the keg was a quarter barrel of beer, while other witnesses testified that the keg was a half barrel of beer.
The witnesses’ testimony regarding defendant’s knowledge of the substance and alcohol use varied. Defendant claimed that she did not see underage individuals consuming alcohol and that soda pop was available for those individuals. Additionally, defendant claimed that marijuana use did not occur in her presence, and she did not smell marijuana. Other witnesses concurred that marijuana use did not occur in defendant’s presence. However, plaintiff and Jennifer Cassavoy testified that defendant was aware of drug and alcohol use by minors that occurred openly in the home.
Defendant testified that the $5 was not charged for beer, but was to cover the costs of the extensive amount of food purchased for the party and for the band.
Admittedly, plaintiff, being over the age of eighteen, can be characterized as an adult. However, for purposes of consumption of alcoholic liquor, the Legislature has determined that she is underage and cannot be furnished alcohol. At the time pertinent to this action and before its repeal by 1998 PA 58, MCL 436.33(1) provided: “Alcoholic liquor shall not be sold or furnished to a person unless the person has attained 21 years of age.” MCL 436.1701, enacted with 1998 PA 58, provides: Alcoholic liquor shall not be sold or furnished to a minor. MCL 436.1109(3) defines minor as “a person less than 21 years of age.” Any modification to the age of majority in the context of alcoholic liquor should be directed to the Legislature.
The parties dispute whether the statute applies on the basis of the Legislature’s failure to define the terms “cause” and “event” within the statute. Specifically, plaintiff argues that she did not suffer an impairment that “caused” the accident or event, and plaintiffs decision to accept a ride from Burnham is an “act” as opposed to an “event.” Defendant contends that plaintiff’s decision to accept a ride constitutes an “event” that caused her injuries. In light of our disposition of this issue, we need not address the parties’ exercise in semantics.
MRE 103(a)(1) provides that a party opposing the admission of evidence must timely object at trial and specify the same ground for objection that is asserted on appeal. See also In re Weiss, 224 Mich App 37, 39; 568 NW2d 336 (1997). To be timely, an objection should be interposed between the question and answer. Id. In the present case, plaintiff’s counsel did not provide an evidentiary basis for the objection, but stated that defense counsel knew that the comment was inappropriate. The trial court did not request an evidentiary basis to support the objection, but instructed defense counsel to rephrase the question. Plaintiff then estimated her fault at fifty percent. Accordingly, plaintiff did not comply with the strict rules regarding preservation. When an issue is not preserved for
Indeed, when the inquiry was reversed, defense counsel objected to this type of inquiry. When plaintiff’s counsel asked defendant whether she was negligent, an objection was raised.
Additionally, defense counsel asked Cassavoy about her own attorney and, in response to her answer, commented that it was not a “White House intern” situation. Such commentary is ill advised, unnecessary, and merely serves to deflect the jury’s attention from the issues at hand.
We note that plaintiff raises other issues of alleged evidentiary error. We have concluded that a new trial is warranted and the presiding judge over the initial trial has since retired. A circuit judge is required to follow published decisions from the Court of Appeals and the Supreme Court. People v Hunt, 171 Mich App 174, 180; 429 NW2d 824 (1988). There is no similar requirement that one circuit judge follow the decision of the other. Id. Accordingly, on remand the presiding judge is free to examine unresolved evidentiary issues anew. For example, on appeal, plaintiff contends that her prior drug and alcohol use is irrelevant and inadmissible. Plaintiff argues that the evidence was admitted to place her in a bad light. While it appears on its face that any prior drug or alcohol use has no relevance to the issue of defendant’s negligence on the date in question, plaintiff, nonetheless, elicited extensive testimony from other witnesses regarding their own prior drug use. Plaintiff cannot use the same rules of evidence as both a shield and a sword. Plaintiff also alleges that testimony regarding her boyfriend’s financial wherewithal was improperly admitted. However, this testimony was elicited after plaintiff’s counsel, on direct examination, introduced evidence regarding plaintiff’s live-in companion and ownership of her own home. Plaintiffs counsel cannot introduce evidence then exclude cross-examination on topics introduced by plaintiff. Additionally, while the trial court held that the negligence of police was not relevant to this trial, it then allowed, for some unknown reason, defense counsel to question police regarding their options and actions. After its initial ruling regarding exclusion of police negligence, the trial court allowed plaintiff’s counsel to amend the allegations to include viola
Dissenting Opinion
(dissenting). I respectfully dissent. I disagree with the majority’s conclusion that the impairment defense statute, MCL 600.2955a, should be ignored because its application in this case renders an absurd or unjust result. I conclude that the majority has impermissibly utilized the “absurd or unjust result” method of statutory avoidance to substitute its judgment for that of the Legislature. I also disagree with the majority’s conclusion that the trial court erred in failing to strike plaintiff’s testimony regarding her percentage of fault. Finally, I do not conclude that the cumulative effect of the remaining errors alleged in this case warrants setting aside the judgment rendered below and ordering a new trial.
I do not subscribe to a method of statutory construction that allows deviation from the express language of a statute merely because a reviewing court may conclude that application of the statute renders an absurd or unjust result. People v McIntire, 461 Mich 147, 155-156, n 2; 599 NW2d 102 (1999) (explaining that departure from the literal construction of a statute where application may render an absurd or unjust result invites impermissible judicial law making). To the extent this method of statutory avoidance remains viable after our Supreme Court’s condemna
The impairment defense statute was enacted as part of the tort reform package of 1996. In reforming our state’s tort system, our Legislature enacted laws that promote personal responsibility for one’s conduct. While both plaintiff and Burnham, the intoxicated driver of the van in which plaintiff was injured, were not legally permitted to consume alcohol, they were adults (over the age of eighteen) at the time of this accident. Certain duties attach to a person who reaches the age of majority. The most obvious duty attaching to the legal status of adulthood is the duty to obey the laws of the land. Failure to act within the law will result in the imposition of adult sanctions. I do not conclude that it is absurd for the Legislature to enact a law that prohibits an adult from bringing suit for injuries that are the result of that adult’s illegal activities. This is the result reached in this case if the impairment defense is applied. Both plaintiff and Burnham knew or should have known they were precluded by law from consuming alcohol or illegal drugs.
It is also not absurd that this defense applies even where the illegal conduct is facilitated by the alleged tortfeasor. Rather, it is a policy choice made by the Legislature. Principles of separation of powers preclude us from rendering the Legislature’s action void merely because we disagree with the result of its application. Tyler v Livonia Public Schools, 459 Mich 382, 393, n 10; 590 NW2d 560 (1999) (providing: “Our role as members of the judiciary is not to determine whether there is a ‘more proper way,’ that is, to engage in judicial legislation, but is rather to deter
I also disagree with the majority’s conclusion that the trial court erred in failing to strike plaintiffs testimony regarding her percentage of fault. The trial court was never asked to strike this testimony. Plaintiff’s counsel failed to preserve this issue with a proper objection. Thus, appellate review is waived. We may review unpreserved error where manifest injustice results from our failure to review the issue. Winters v Dalton, 207 Mich App 76, 79; 523 NW2d 636 (1994). However, I conclude no manifest injustice results from our failure to review this claim of unpreserved error. When defense counsel entered this area of questioning, plaintiffs counsel asserted a general objection, without offering an evidentiary basis for the objection. The trial court asked defense counsel to rephrase the question. The question was then restated, without objection from plaintiff’s counsel. Plaintiff’s counsel was keenly aware of the sensitive nature of the questioning and consciously chose not to object to it. Under these circumstances we should conclude plaintiff’s counsel chose not to pursue his objection as a matter of trial strategy. It is improper for this Court to find manifest injustice from an unpreserved error where it appears clear from the record that the decision not to preserve the issue was a matter of trial strategy.
I also conclude that the majority has misapplied the manifest injustice standard. The manifest injustice needed to ignore a litigant’s failure to pre
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