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STATUTORY AND COMMON LAW DUTIES INVOLVING AUTOMOBILE CASES IN MICHIGAN
By: Robert E. Logeman
Michigan statutes regulate the use of motor vehicles on the highway. The most common statutory violations are of the traffic regulations found at MCL 257.601-.714b. In Michigan, the violation of a statute creates a prima facie case on which a jury may infer negligence. See Zeni v Anderson, 397 Mich 117, 243 NW2d 270 (1976). This is a rebuttable presumption. For example, when defendant driver, while recognizing that the road was icy, hit a patch of ice and skidded across the centerline, the court held that the violation of the statute requiring drivers to keep to the right was excused. Young v Flood, 182 Mich App 538, 452 NW2d 869 (1990); Skidding on ice does not excuse a violation of the Aassured clear, distance@ statute because this statute requires a driver to take conditions into account. Jackson v Coeling, 133 Mich App 394, 349 NW2d 517 (1984).
The Michigan seat belt statute, MCL 257.710e, includes an exception to the normal rule of statutory violation. The statute provides that each driver and passenger in the front seat of the motor vehicle must wear a seat belt and requires more stringent belt usage rules for children. In a civil lawsuit, for the purpose of comparative negligence, the statute provides that the failure to wear a seat belt may be considered evidence of negligence.
A violation of a statutory duty does no always establish an inference of negligence. MCL 257.618 requires the driver or occupant of a vehicle involved in an accident to remove the vehicle from the main traveled portion of the roadway into a safe area on the shoulder, emergency lane, or median or to a place otherwise removed from the roadway if moving the motor vehicle can be done safely and the vehicle can be moved under its own power without further damage or hazard to the traffic elements or the roadway. The vehicle does not need to be moved if the driver or occupant knows or reasonably should know that serious injury or death has resulted from the accident. If a vehicle is moved under this statute, the operator is not prima facie at fault regarding the cause of the accident solely by reason of moving the vehicle. The decision to move or not move the vehicle is also not admissible in a civil action as evidence that a serious impairment of bodily function has or has not resulted from the accident.
Generally, a motor vehicle driver owes a duty of care to anyone who may be reasonably, foreseeably injured as a result of negligent acts or omissions, regardless of whether the person is physically located on the roadway. Typically, this duty extends to other individuals using the highways, including motorcyclists, bicyclists, pedestrians, guests or passengers, persons stopped along the roadway in disabled vehicles, and persons performing highway maintenance at or near the highway.
However, a driver is not an insurer of the safety of others, and the mere fact that an accident occurs does not establish liability or raise a presumption of negligence. Barger v Bissell, 188 Mich 366, 154 NW 107 (1915). Furthermore, reciprocal duties of reasonable care are owed to the driver of a motor vehicle. For example, a pedestrian owes reciprocal duties of reasonable care to a motorist because both have equal rights to use the roadway, except as modified by statute. Wilson v Johnson, 195 Mich 94, 161 NW 924 (1917); Schock v Cooling, 175 Mich 313, 141 NW 675 (1913). However, the degree of care imposed on each differs due to the ability of a motor vehicle to inflict far greater injury to a pedestrian than vice versa. Patterson v Wagner, 204 Mich 593, 171 NW 356 (1919).
The same principle of reciprocal duties holds true for a person riding a bicycle, electric bicycle, electric personal assistive mobility device, electric skateboard, commercial quadricycle, and moped or low-speed vehicle rider, MCL 257.657; motorcyclists, MCL 257.660; and persons riding on animals in the street or driving an animal-drawn vehicle, MCL 257.604; Wright v Crane, 142 Mich 508, 106 NW 71 (1905).
Although the degree of care owed varies depending on the mode of travel involved, a familial relationship between a driver and an injured person does not deprive the injured person of a motor vehicle negligence cause of action. For example, a child passenger may sue a negligent parent driver, and a passenger spouse may sue a negligent spouse driver. Plumley v Klein, 388 Mich 1, 199 NW2d 169 (1972).
COMMON LAW DUTY OF CARE OWED IN AN AUTO NEGLIGENCE CASE
A motorist has a legal duty to drive an automobile reasonably safely and not to endanger people and property. Wright v Crane, 142 Mich 508, 106 NW 71 (1905). What an ordinarily prudent driver would or would not do varies and depends on the circumstances and conditions the motorist encounters. DePriest v Kooiman, 379 Mich 44, 149 NW2d 449 (1967). In general, a driver must use ordinary, reasonable care in the operation of a motor vehicle, in the speed at which it is driven, and in maintaining an appropriate lookout. Zarzecki v Hatch, 347 Mich 138, 79 NW2d 605 (1956); Sponkowski v Ingham Cty Rd Commn, 152 Mich App 123, 393 NW2d 579 (1986).
These common-law duties temper the additional obligations imposed by statute. For example, driving at a posted speed limit of 70 miles per hour might be appropriate on a sunny, clear day and meet statutory requirements, but driving at that same speed in the midst of fog in which there is limited visibility would breach the common-law duty of ordinary, reasonable care. In such circumstances, an increased duty to exercise care and caution is imposed on the driver, regardless of statutory provisions. Russell v Szczawinski, 268 Mich 112, 255 NW 731 (1934).
WHEN DOES AN AUTO INJURY SATISFY THE NO-FAULT LAW STATUTORY
By: Robert E. Logeman
The legislative trade-off for the first-party benefits provided by the No-Fault Act was a limit on some benefits and the elimination, in some circumstances, of traditional negligence suits against the responsible driver. The major distinctions between third-party auto negligence litigation and other negligence suits is that the no-fault defendants liability is statutorily limited. The plaintiff in an automobile negligence suit must show that an injury is serious enough to warrant filing a suit to recover noneconomic damages. The injury must be shown to have crossed the no-fault threshold established by MCL 500.3135.
MCL 500.3135 can bar certain damage claims against the negligent driver. An insured defendant whose liability arises out of the ownership, maintenance, operation, or use of a motor vehicle is afforded a conditional immunity. That immunity bars the plaintiff from recovering for any noneconomic losses (such as pain and suffering or mental anguish) without demonstrating one of the three classes of injury set forth in MCL 500.3135(1). Demonstrating one of the three classes of injury is known as Acrossing the no-fault threshold.@ An auto accident victim has met the statutory threshold if he or she has suffered (1) death, (2) permanent serious disfigurement, or (3) serious impairment of body function. Whether the plaintiff has suffered a serious impairment of body function is a question of law if there is no factual dispute regarding the nature and extent of the plaintiffs injuries or if the factual dispute is not material to whether the plaintiff suffered a serious impairment of body function or permanent serious disfigurement. MCL 500.3135(2)(a).
Even if the plaintiff can cross the threshold, MCL 500.3135(2) limits and potentially even bars recovery in certain circumstances. The plaintiffs damages are limited by comparative fault, and
a plaintiff who is more than 50 percent at fault for the accident cannot be awarded non-economic
damages. MCL 500.3135(2)(b). Moreover, a plaintiff may not be awarded damages if operating their own vehicle at the time of the injury without the insurance required under MCL 500.3101.
When a threshold injury has been proved, the threshold is crossed. Even if the injury improves at a later date, all noneconomic losses are still recoverable. Once the threshold has been crossed, a plaintiff does not have to maintain a continuing level of threshold injury to recover damages. Byer v Smith, 419 Mich 541, 357 NW2d 644 (1984).
PERSONAL INJURY CASES INVOLVING PERMANENT SERIOUS DISFIGUREMENT
There has been little litigation concerning the first two thresholds of MCL 500.3135(1), death and permanent serious disfigurement. There are no death cases in the reported decisions, and there have been only a few permanent serious disfigurement cases. Under MCL 500.3135(2), the question whether the claimant meets the threshold for permanent serious disfigurement is one of law for the court to decide if the court finds there is either (1) no factual dispute regarding the nature and extent of the claimants injuries or (2) a factual dispute about this issue but one that is not material to the threshold determination. The act provides for the assessment of damages based on comparative fault but precludes an award of damages for a party who is more than 50 percent at fault. Thus, pure comparative negligence no longer applies in no-fault cases. Furthermore, the No-Fault Law bars a damages award for a person who was operating their own vehicle at the time of the injury without the security required under MCL 500.3101. See MCL 500.3135(2).
In Kern v Blethen-Coluni, 240 Mich App 333, 612 NW2d 838 (2000), the trial court submitted to the jury the threshold determination of whether the plaintiff suffered permanent serious disfigurement. The court of appeals reversed. Under MCL 500.3135(2), the issue of whether the threshold has been met is a question of law for the court, absent an outcome-determinative factual dispute. Without photographs, a video, or other visual evidence of the disfigurement, the appellate court was not able to conduct a de novo review, and a remand was necessary. The court of appeals stated that if the trial court on remand found permanent serious disfigurement, it should hold a trial on the issue of damages. If the trial court ruled against plaintiff, plaintiff must make an offer of proof in that court with photographs or other documentary evidence sufficient to support plaintiffs claim on appeal.
In Minter v City of Grand Rapids, 275 Mich App 220, 739 NW2d 108 (2007), revd, 480 Mich 1182, 747 NW2d 229 (2008), the court of appeals reversed a trial courts decision that a Arelatively small@ scar above plaintiffs eyebrow that was not Areadily noticeable@ and therefore not a permanent serious impairment. The Court of Appeals held that a question of fact existed because not only was the scar visible but, presuming the truth of plaintiffs allegations, it also caused a functional problem with her ability to express emotions or otherwise communicate nonverbally. The court noted that a great deal of human face-to-face communication is nonverbal, and plaintiffs contention she could not move her eyebrow in a natural or normal manner because of the scar could add to a claim of disfigurement. The supreme court reversed and reinstated the trial courts original judgment for the reason stated in the court of appeals dissenting opinion. The court of appeals dissent had opined that there was no question of fact regarding the nature and extent of plaintiffs scar because plaintiff had offered testimony and provided color photographs showing the scar:
The undisputed evidence, which is comprised of the color photographs of the scar, reveal a 13 millimeter scar above plaintiffs eyebrow that is only slightly lighter in color than plaintiffs skin tone. Additionally, plaintiff testified that it Aitches@ and, when she frowns, it bothers her. And, even though plaintiff stated that she was Asomewhat@ embarrassed about her scar, she has to date foregone the option of corrective surgery. More importantly, a plaintiffs embarrassment and sensitivity about her appearance are a subjective reaction to a condition that must be objectively judged by the trial court, and do not always create a question of fact. . . .Thus, the trial court did not err in concluding that Plaintiffs scar did not constitute a Apermanent serious disfigurement.
DENTAL INJURY CASES
In Fisher v Blakenship, 286 Mich App 54, 777 NW2d 469 (2009), struck his mouth and nose on the steering wheel in an automobile accident. A dentist removed a front tooth that was fractured in the accident and replaced it with a single implanted post and crown. Due to existing conditions in plaintiffs surrounding teeth, all of his top front teeth were eventually removed and replaced with a partial upper denture. There were no restrictions placed on any of plaintiffs activities, and he missed only a few days of work for the dental work. Plaintiff testified the denture altered his appearance, although some friends felt his appearance was improved with his new teeth. He also testified that he drooled occasionally due to the denture and that it altered his speech. Finally, the process of removing and replacing the denture each day was frequently painful, frustrating, and upsetting, although he had not sought counseling to address these issues or taken medication to deal with the discomfort. The court of appeals determined based on this record that plaintiff had suffered a permanent serious disfigurement: In this case, it is clear that [plaintiffs] loss of teeth mars or deforms his overall appearance. Thus, the loss of teeth is a disfigurement. It is also abundantly clear that the disfigurement will last for the remainder of his life. Consequently,[plaintiff] has suffered a permanent disfigurement.
The court in Fisher then discussed whether it was appropriate to consider when a disfigurement could be concealed from view in determining whether a disfigurement was serious: [W]hether the disfigurement is serious must be determined with regard to the injurys physical characteristics under a totality of circumstances, which necessarily includes those times when the disfigurement is fully exposed to view. Moreover, we do not agree that a disfigurements seriousness is in any way diminished because the only persons who will see it when fully exposed are the injured person or those persons who are intimately connected to the injured person; a serious disfigurement remains a serious disfigurement even when hidden from the general public. For these reasons, we hold that courts must consider the effect of the disfigurement on the injured persons appearance without the use of devices designed to conceal the disfigurement, such as the dentures in this case. We do not, however, hold that the need, or lack thereof, for a prosthetic device cannot be considered when determining the seriousness of the disfigurement. Indeed, the fact that an injured person requires, or does not require, the use of a prosthetic to mitigate the disfiguring effects of an injury will often be evidence of the seriousness of the disfigurement.. . . [Plaintiffs] ability to partially conceal his disfigurement through the use of dentures does not render his disfigurement less serious. Rather, we conclude that the need for such a prosthetic is evidence that the disfigurement itself is so serious that one cannot reasonably expect [plaintiff] to appear in public without it. Further, even when he uses the dentures, his appearance is significantly altered; his upper lip protrudes, he drools, and his speech is altered.
Owens v City of Detroit, 163 Mich App 134, 413 NW2d 679 (1987), was a dental injury case after DiFranco. In Owens, Plaintiff suffered the loss of four front teeth and had to have a removable denture plate to remedy the problem. There were issues of serious impairment of body function due to the injuries to plaintiffs mouth and also issues regarding permanent serious disfigurement. On the disfigurement issue, the court stated that under DiFranco, Aserious is a jury question except in the most extreme cases and in Owens it was a jury question. Most of the decisions on permanent serious disfigurement have been unpublished. A couple of cases before DiFranco held that minor facial scarring was not serious enough. However, DiFranco and Owens suggest that only in the most extreme cases should a plaintiff be barred from presenting this issue as a question of fact for the jury. Indeed, in most instances, the question of whether the injury is serious enough is presented and argued to a jury.
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