Derbeck v. Ward

• Decision Date: 16 August 1989
• Docket Number: Docket No. 103751
• Citation: Derbeck v. Ward, 178 Mich.App. 38, 443 N.W.2d 812 (Mich. App. 1989)
• Parties: Joseph Lawrence DERBECK, Plaintiff-Appellant, v. Barbara Jean WARD, Defendant-Appellee. 178 Mich.App. 38, 443 N.W.2d 812
• Court: Court of Appeal of Michigan

Page 812

443 N.W.2d 812

Joseph Lawrence DERBECK, Plaintiff-Appellant, v. Barbara Jean WARD, Defendant-Appellee.

Docket No. 103751.

178 Mich.App. 38, 443 N.W.2d 812

Court of Appeals of Michigan.

Submitted April 4, 1989.

Decided July 5, 1989.

Released for Publication Aug. 16, 1989.

[178 MICHAPP 39] Hooper, Hathaway, Price, Beuche & Wallace by Mark R. Daane, Ann Arbor, for plaintiff-appellant.

[178 MICHAPP 40] Ready, Sullivan & Ready by Durward L. Hutchinson, Monroe, for defendant-appellee.

Before DANHOF, C.J., and WAHLS and GRIFFIN, JJ.

GRIFFIN, Judge.

Plaintiff appeals as on leave granted from a lower court order granting defendant's motion for partial summary disposition as to several theories of negligence on the grounds that such alleged negligence was not a proximate cause of plaintiff's personal injuries. We affirm.

I

Count I of plaintiff's complaint alleges negligence against defendant Barbara Jean Ward in connection with a claim for personal injuries arising out of a motor vehicle accident. Count II, which was dismissed pursuant to stipulation, alleged a dramshop claim against Scoop Williams, doing business as Shelton Park Tavern.

The order from which plaintiff appeals grants defendant summary disposition as to six of the nine theories of negligence asserted in plaintiff's complaint. Although the lower court certified its order pursuant to MCR 2.604(A) and stated "there is no just reason for delay in the entry of a final judgment," the instant appeal of the partial summary disposition order is by leave rather than by right. The order does not dispose of a claim. On the contrary it only dismisses some of the several theories of negligence asserted in support of a claim for personal injuries.

The court rule governing final judgments is MCR 2.604(A), which provides:

(A) Final Judgment on Fewer Than All Claims. [178 MICHAPP 41] When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct entry of a final judgment on one or more but fewer than all the claims or parties, but only on an express determination that there is no just reason for delay.

Commentators Martin, Dean, and Webster have explained that lower court certification does not end the inquiry as to whether a final judgment has been rendered:

[I]t does not necessarily follow that the matter may be appealed of right whenever the trial court makes the required certificate in connection with the disposition of a part of the case. MCR 2.603(A) operates only "when more than one claim for relief is presented in an action." The certificate of the trial judge does not preclude the appellate court as to whether there were actually multiple claims presented. The appellate court is free to decide for itself whether there were actually multiple claims or only mere variants of a single claim. [Martin, Dean & Webster, Michigan Court Rules Practice, Rule 2.604, author's comments, p. 416.]

Martin, Dean and Webster continue:

[I]f a claimant presents merely alternative legal theories, such that he will be permitted to recover on at most one of them, his possible recoveries are mutually exclusive, and he has presented only a single claim for relief. A preliminary disposition of one of his alternative theories cannot be made the subject of a final judgment and resulting appeal under MCR 2.604(A). [Martin, Dean & Webster, supra at 417.]

The claim/theory distinction is emphasized in [178 MICHAPP 42] other areas of our court rules such as the compulsory joinder rule, MCR 2.203. Under MCR 2.203, the opposing party waives the compulsory joinder rule unless the party objects to the improper joinder of claims. The failure to object to improper joinder of claims, however, does not affect "the prohibition against relitigation of a claim under a different theory." MCR 2.203(A)(2).

In the present case, the plaintiff's only liability claim against defendant Ward is one for personal injuries arising out of an automobile-motorcycle accident. Although several theories of negligence are alleged, the partial summary disposition as to some but not all of the theories is not sufficient to qualify the order as a final judgment under MCR 2.604(A).

In keeping with the interlocutory nature of the order, we consider the merits of the appeal as on leave granted.

II

On May 20, 1984, at approximately 3 a.m., plaintiff, while operating his motorcycle, collided with defendant's parked automobile. Plaintiff alleged that the defendant, while intoxicated, crossed the center line of the roadway, lost control of her vehicle, and thereafter collided with a telephone pole. The defendant's disabled vehicle allegedly came to rest in the southbound lane of the roadway blocking the plaintiff's lane of travel. It was asserted that the intoxicated defendant left her vehicle in the roadway without activating her emergency flashers or lights and failed to take any precautions to warn oncoming motorists of the existence of her disabled vehicle in the roadway. Five to ten minutes after the defendant abandoned her car, the plaintiff, while operating a motorcycle, [178 MICHAPP 43] approached the scene and struck the disabled vehicle, thereby causing the plaintiff personal injuries.

Count I of plaintiff's complaint alleges the following negligence against defendant Ward:

11. Defendant Barbara Jean Ward violated said duties to the Plaintiff in, but not limited to, the following particulars:

a) Failing to operate said vehicle on the highway with due regard to traffic and surface conditions;

b) Failing to see what was to be seen as a reasonable and prudent person would have done if he had made proper observations, contrary to the common law;

c) Operating said motor vehicle upon a public highway in a careless and negligent manner likely to endanger persons or property;

d) Failing to obey the instructions of traffic control devices;

e) Driving on the wrong side of the road, contrary to the provisions of MCLA 257.634;

f) Operating an automobile while under the influence of intoxicating liquors;

g) Leaving the scene of an accident;

h) Failing to activate emergency flashers on the automobile so as to provide reasonable notice of its presence to persons travelling southbound;

i) Failing to take such steps as a reasonable and ordinary person would take to alert oncoming traffic of the existence of her vehicle in the roadway.

12. Notwithstanding the obligations and duties imposed upon Barbara Jean Ward by the statutes of the State of Michigan and the rules of common law set forth above, Barbara Jean Ward violated said duties and as a proximate result of her negligence, Plaintiff sustained damage and injury including but not limited to:

Defendant brought a motion for partial summary[178 MICHAPP 44] disposition pursuant to MCR 2.116(C)(8) and (10) seeking dismissal of paragraphs 11a through 11f of plaintiff's complaint on the grounds that such theories of negligence were not a proximate cause of plaintiff's injuries. In support of her motion, defendant cited the case of Deaton v. Baker, 122 Mich.App. 252, 332 N.W.2d 457 (1982), and filed her affidavit.

Monroe Circuit Judge James J. Kelley, Jr., granted defendant's motion for partial summary disposition ruling that the theories of negligence alleged in paragraphs 11a through 11f were not as a matter of law a proximate cause of the plaintiff's injuries. We agree and affirm.

It is elementary law that the necessary elements in every negligence cause of action are: (1) duty; (2) breach of duty; (3) proximate cause; and (4) damages. Roulo v. Auto. Club of Mich., 386 Mich. 324, 192 N.W.2d 237 (1971). Although proximate cause is usually a factual issue to be decided by the trier of fact, the court should rule as a matter of law if reasonable minds could not differ. Paparelli v. General Motors Corp, 23 Mich.App. 575, 179 N.W.2d 263 (1970), lv. den. 383 Mich. 826 (1970).

Proximate cause involves two concepts: (1) causation in fact and (2) foreseeability. SJI2d 15.01, comment. Causation in fact...