DeVoe v. C.A. Hull, Inc. (State Report Title: De Voe v. C A Hull, Inc)

• Citation: 426 N.W.2d 709,169 Mich.App. 569
• Decision Date: 07 September 1988
• Docket Number: 92565,Docket Nos. 92564
• Parties: Geraldine Fischer DeVOE as personal representative of the Estate of Bobby Fischer, deceased, Plaintiff-Appellant, v. C.A. HULL, INC., and City of Saginaw, Defendants-Appellees. Geraldine Fischer DEVOE as personal representative of the Estate of Bobby Fischer, deceased, Plaintiff-Appellant, v. DEPARTMENT OF TRANSPORTATION, Defendant-Appellee. *
• Court: Court of Appeal of Michigan (US)

Page 709

426 N.W.2d 709

169 Mich.App. 569

Geraldine Fischer DeVOE as personal representative of the Estate of Bobby Fischer, deceased, Plaintiff-Appellant, v. C.A. HULL, INC., and City of Saginaw, Defendants-Appellees.

Geraldine Fischer DEVOE as personal representative of the Estate of Bobby Fischer, deceased, Plaintiff-Appellant, v. DEPARTMENT OF TRANSPORTATION, Defendant-Appellee.

*

Docket Nos. 92564, 92565.

Court of Appeals of Michigan.

Submitted Jan. 6, 1988.

Decided March 25, 1988.

Released for Publication Aug. 11, 1988.

Leave to Appeal Denied Sept. 7, 1988.

Rousseau & Rygiel, P.C. by Steven L. Rygiel, Chesaning, for plaintiff-appellant.

Davidson, Breen & Doud, P.C. by Richard J. Doud, Saginaw, for defendants-appellees.

Before CYNAR, P.J., and BEASLEY and GLASER, ^* JJ.

PER CURIAM.

Plaintiff's decedent, Bobby Fischer, was thrown overboard and drowned after the boat he was on struck a bridge that was in the process of being renovated. As a result, the decedent's widow, Geraldine Fischer DeVoe, brought suit against defendants C.A. Hull, Inc., and the City of Saginaw in circuit court. DeVoe also filed suit in the Court of Claims against defendant Michigan Department of Transportation (MDOT). On August 31, 1983, both cases were consolidated in circuit court and Circuit Judge Robert A. Gilbert was assigned to sit as the Court of Claims judge for all matters involving the Court of Claims action. Using a special verdict, on April 23, 1986, the jury returned a verdict of no cause of action in favor of C.A. Hull and the City of Saginaw. On April 30, 1986, the trial judge made findings of fact and rendered a verdict of no cause of action against defendant MDOT. Plaintiff appeals as of right both verdicts. This Court has consolidated both of plaintiff's appeals.

Prior to the accident, defendant city contracted with the MDOT to dismantle the Johnson Street Bridge and build a new bridge at the same site. The bridge is located on the Saginaw River in Saginaw, Michigan. The MDOT hired C.A Hull as the general contractor in charge of dismantling the bridge. Before the bridge was taken apart, it had navigational aides on its span, including a green light that indicated a channel for boats to pass through and two red lights that marked the sides of the channel. The day of the accident, June 6, 1981, part of the top section of the bridge had been removed including the green and red lights. In addition, two of the bridge's piers had been taken out and the contractor's barge blocked two-thirds of the channel. On the barge there was a steady red light and a flashing yellow light and another red light was placed thirty-one feet west of the barge on an icebreaker pier.

On the day in question, at approximately 8:00 a.m., the decedent and his wife met Richard and Sue Wenzel at the marina where the Wenzel's boat was docked. The Fischers and Wenzels had been out on the boat the weekend before and had passed through the bridge construction site. At about 9:00 a.m., the couples left the marina and commenced drinking beer from a keg which Wenzel had on his boat in a tub of ice.

They traveled to a nearby marina where DeVoe's sister kept a boat. They visited for approximately forty-five minutes and proceeded to Wickes Park. Afterwards, they went to Ojibway Island and then to a restaurant and bar called Miller's Landing at about 1:00 or 2:00 p.m. Sometime that morning, the Wenzels' boat passed through the bridge construction site on the way out of Saginaw.

At about 3:00 p.m., the Fischers and Wenzels left the boat at the restaurant and went to a nearby party. Eugene and Dorothy Sturm were also at the party. Mr. Sturm saw Wenzel at the party and noticed that Wenzel was quite intoxicated. Wenzel's speech was slurred and he lacked coordination. Sturm drove decedent and Wenzel to a nearby store so that Wenzel could purchase some parts for his boat. The men then returned to the party for about forty-five minutes.

At approximately 6:30 p.m., the Fischers, the Wenzels and the Sturms returned to Miller's Landing. Sturm helped carry the Wenzels' keg of beer back onto the boat. Apparently, the same keg had been taken to the party by Wenzel. Sturm indicated that there was still a good amount of beer left in the keg. Sturm and decedent worked on the boat's engine while Wenzel socialized and continued to drink beer.

The entire group went for a boat ride out into Saginaw Bay. Mrs. Sturm testified to being a little frightened during the ride because Wenzel was driving too fast for the condition of the waves and making sharp turns. After the boat ride, the group went back to Miller's Landing and ordered a pitcher of beer. At that time, Mrs. Sturm looked at Wenzel and noticed that his eyes were glazed and he was "very slow."

Around 9:15 p.m., the men had a confrontation with the barmaid at the restaurant and were asked to leave. Everyone returned to the boat and had one more drink before the Sturms left. When the Sturms departed, it was beginning to get dark, but it was a clear night.

The Wenzels and Fischers then travelled to the Sands Bar. It took them approximately one hour to get there and they stayed for about thirty to forty-five minutes. They left the Sands Bar around 11:15 p.m. and proceeded south down the river towards Saginaw and the bridge. Wenzel drove the boat and decedent stayed next to the engine at the rear of the boat. Wenzel and decedent were discussing some mechanical problems with the boat while Wenzel increased and decreased the boat's speed.

While Wenzel and decedent continued discussing the mechanical problems, Wenzel completely turned around and faced decedent. Plaintiff heard Wenzel suddenly exclaim, "Oh my God" and then the boat struck the bridge with a violent impact. The boat had veered right of the lighted channel and struck an unlighted pier of the bridge that was ninety feet west of the right side of the channel.

After the impact, plaintiff called for decedent but there was no response. Plaintiff then threw the beer barrel and the ice tub out of the boat. Plaintiff noticed that the barrel was not heavy. Decedent's body was later found in the river. The cause of death was drowning.

Deputy Gary Van Riper, a fourteen-year veteran of the Saginaw County Sheriff's Department and a ten-year veteran of the department's marine division, testified that the construction site was not properly lighted at the time of the accident. However, Van Riper stated that the accident occurred on a clear evening and the piers of the bridge were clearly visible.

After conducting an investigation into the accident, Van Riper concluded that the boat was travelling at full plane at the time of the impact. Van Riper estimated that the boat's speed on impact was about seventeen to twenty-five miles per hour. After the accident, the boat's throttle was found in the full forward position.

Deputy Sheriff Jeffrey Richardson opined that the boat was running at full plane at the time of impact. He stated that, although the bridge was poorly lit at the time of the accident, the bridge's pillars were clearly visible even without the lighting.

Plaintiff's expert, Robert V. Ricard, testified that defendants' light configuration and the location of C.A. Hull's barge at the time of the accident were both in violation of federal law.

Diane Johnson, a paramedic, testified that she saw Wenzel's eyes after the accident and they were bloodshot and he had a strong odor of alcohol on his breath. Wenzel slurred his speech, staggered about the boat, was belligerent and only wanted to get off the boat. Johnson heard plaintiff state "he [Wenzel] should never have been driving."

The jury returned a verdict of no cause of action against C.A. Hull and the city. On April 30, 1986, the trial judge rendered a verdict of no cause of action in favor of the MDOT. The instant appeals followed.

First, plaintiff contends that the trial judge erred in first determining the issue of sole proximate cause as to the nonparty driver prior to determining whether the Department of Transportation's negligence was a proximate cause of the accident. Plaintiff argues that the court's opinion should have been written in the same sequential order as SJI2d 15.03 to SJI2d 15.05. We disagree.

Findings of fact are sufficient where it is manifest that the factfinder was aware of the factual issue, that he resolved it, and that it would not facilitate appellate review to require further explanation of the path followed by the factfinder in reaching the result. Blom v. Thermotron Corp., 139 Mich.App. 50, 55, 360 N.W.2d 172 (1984), citing People v. Jackson, 390 Mich. 621, 627 n. 3, 212 N.W.2d 918 (1973). In the Court of Claims case, the trial court correctly decided the factual issue of proximate cause. The sequence in which the trial judge wrote his opinion is not a ground for reversal. The trial judge was aware of the issues in the case and correctly applied the law since it is evident that, although defendants were negligent in lighting the channel and in mooring the barge, the evidence indicated that the accident would not have occurred if Wenzel had maintained a proper lookout of the bridge and carefully driven the boat through the construction area. Thus, we find no merit to plaintiff's first claim of error.

Next, plaintiff complains that the trial judge abused his discretion in admitting evidence of Wenzel's intoxication, since the probative value of this evidence was substantially outweighed by the unfair prejudice caused to plaintiff.

A decision whether to admit certain evidence rests within the sound discretion of the trial court, and that decision will not be set aside absent an abuse of discretion. Guider v. Smith, 157 Mich.App. 92, 103-104, 403 N.W.2d 505 (1987). When reviewing a trial court's decision to allow the jury to be presented with certain evidence, this Court will not assess the weight and value of the evidence, but will only determine whether the...