Harbour v. CORRECTIONAL MED. SERV., INC.

• Decision Date: 03 August 2005
• Docket Number: Docket No. 257012.,Docket No. 252857
• Citation: 266 Mich. App. 452,702 N.W.2d 671
• Parties: Karlene S. HARBOUR, as Personal Representative of the Estate of Kevin Daniel Harbour, Deceased, Plaintiff-Appellant, v. CORRECTIONAL MEDICAL SERVICES, INC., a/k/a Correctional Medical Systems, Inc., Defendant-Appellee. Karlene S. Harbour, Personal Representative of the Estate of Kevin Daniel Harbour, Deceased, Plaintiff-Appellee, v. Correctional Medical Services, Inc., a/k/a Correctional Medical Systems, Inc., Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

702 N.W.2d 671

266 Mich. App. 452

Karlene S. HARBOUR, as Personal Representative of the Estate of Kevin Daniel Harbour, Deceased, Plaintiff-Appellant, v. CORRECTIONAL MEDICAL SERVICES, INC., a/k/a Correctional Medical Systems, Inc., Defendant-Appellee.

Karlene S. Harbour, Personal Representative of the Estate of Kevin Daniel Harbour, Deceased, Plaintiff-Appellee, v. Correctional Medical Services, Inc., a/k/a Correctional Medical Systems, Inc., Defendant-Appellant.

Docket Nos. 252857, 257012.

Court of Appeals of Michigan.

Submitted April 13, 2005, at Detroit.

Decided May 24, 2005, at 9:00 a.m.

Released for Publication August 3, 2005.

Frank K. Penirian, Jr., Detroit, for the plaintiff.

Chapman and Associates, P.C. (by Ronald W. Chapman and Brian J. Richtarcik), Bloomfield Hills, for the defendant.

Before: GRIFFIN, P.J., and BANDSTRA and HOEKSTRA, JJ.

GRIFFIN, P.J.

In these consolidated appeals, plaintiff appeals as of right in Docket No. 252857 the trial court's order granting defendant's motion for directed verdict and dismissing plaintiff's case with prejudice. In Docket No. 257012, defendant appeals as of right the order of the same court denying its motion for case evaluation sanctions. We affirm.

I

This case arose when plaintiff's decedent, Kevin Daniel Harbour, was arrested for driving while under the influence of intoxicating liquor. He was taken to the Macomb County Jail and a Breathalyzer test was administered. He registered 0.32 grams per 210 liters of breath, over three times the then-existing legal limit for operating a motor vehicle while under the influence of liquor (OUIL). At the jail, he was assessed by an employee of defendant Correctional Medical Services, Inc. (CMS), nurse Brenda Froehlich, who placed him on "sick call" in a holding cell, to be seen by a doctor the next morning. Kevin Harbour collapsed in his cell approximately two hours after the assessment and died as a result of irregular heart rhythms caused by acute alcohol withdrawal, a manifestation of chronic alcoholism.

Plaintiff filed suit for the wrongful death of Kevin Daniel Harbour. Plaintiff's first amended complaint alleged medical malpractice, intentional misconduct, and ordinary negligence against defendant CMS.¹ In December 2000, both parties rejected a unanimous case evaluation of $75,000 in favor of plaintiff. The trial court thereafter granted in part defendant's motion for summary disposition and dismissed all the plaintiff's claims, with the exception of the count alleging medical malpractice.² A jury trial commenced, and at the close of plaintiff's proofs, defendant moved for, and the trial court granted, a directed verdict on the ground that MCL 600.2955a precluded recovery because the evidence unequivocally established that the decedent's intoxication was the proximate cause of his death. However, the trial court denied defendant's motion for case evaluation sanctions on the ground that defendant should have raised the statutory defense of impairment provided by MCL 600.2955a earlier and, by failing to do so, therefore caused plaintiff and the court to waste resources. The parties now appeal.

II

In Docket No. 252857, plaintiff argues that the trial court erred in granting a directed verdict in favor of defendant on the basis of MCL 600.2955a. A trial court's decision on a motion for a directed verdict is reviewed de novo to determine whether all the evidence and inferences, viewed in the light most favorable to the nonmovant, fail to establish a claim as a matter of law. Sniecinski v. Blue Cross & Blue Shield of Michigan, 469 Mich. 124, 131, 666 N.W.2d 186 (2003). Issues of law are also reviewed de novo on appeal. Burba v. Burba (After Remand), 461 Mich. 637, 647, 610 N.W.2d 873 (2000).

The trial court granted the directed verdict on the basis of MCL 600.2955a, which provides:

(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.

(2) As used in this section:

(a) "Controlled substance" means that term as defined in [MCL 333.7104].

(b) "Impaired ability to function due to the influence of intoxicating liquor or a controlled substance" means that, as a result of an individual drinking, ingesting, smoking, or otherwise consuming intoxicating liquor or a controlled substance, the individual's senses are impaired to the point that the ability to react is diminished from what it would be had the individual not consumed liquor or a controlled substance. An individual is presumed under this section to have an impaired ability to function due to the influence of intoxicating liquor or a controlled substance if, under a standard prescribed by [MCL 257.625a], a presumption would arise that the individual's ability to operate a vehicle was impaired.

Thus, pursuant to MCL 600.2955a, in order to successfully avail itself of the absolute defense of impairment, defendant in this case was required to establish that (1) the decedent had an impaired ability to function due to the influence of intoxicating liquor or a controlled substance, and (2) that as a result of that impaired ability, the decedent was fifty percent or more the cause of the accident or event that resulted in his death. As a preliminary matter, we note that under the version of MCL 257.625a(7) in effect at the time of the incident in question, legal intoxication was 0.10 grams or more of alcohol in each 210 liters of breath or 100 milliliters of blood. There is no dispute that plaintiff decedent's blood alcohol level was 0.32, or three times the legal limit. Therefore, the decedent presumptively had an "impaired ability to function due to the influence of intoxicating liquor" under MCL 600.2955a(2)(b). At trial, plaintiff presented no evidence to refute that presumption. On the contrary, plaintiff's expert addictionist, Dr. Berger, testified that, although the decedent was a chronic alcoholic with a very high alcohol tolerance, the decedent had an impaired ability to function due to the influence of intoxicating liquor at the time of the incident in question. Therefore, the first element of the statute was established beyond dispute.

Plaintiff, however, argues that the directed verdict contradicts the statute's requirement that there must be an "accident or event" resulting in death, distinct and apart from the decedent's initial voluntary intoxication that caused impairment. Plaintiff maintains that alcohol withdrawal should not be considered an "accident or event" under MCL 600.2955a(1). Plaintiff contends that this case is distinguishable from Piccalo v. Nix (On Remand), 252 Mich.App. 675, 653 N.W.2d 447 (2002), and Wysocki v. Felt, 248 Mich.App. 346, 639 N.W.2d 572 (2001), both of which were cited by defendant in support of its motion for a directed verdict. Plaintiff claims that in those cases, intoxication was followed by a discrete injurious "event," arguably influenced by the insobriety of the injured party, whereas in the present case there was no "accident or event" independent of the decedent's alcohol-induced impairment and resultant withdrawal. We disagree.

In Piccalo, the plaintiff brought an action against the defendant, alleging that, as a result of the defendant's negligence, she sustained injuries in an automobile accident on her way home from a party hosted by the defendant. The plaintiff had become intoxicated at the party and then left the party as a passenger in a van driven by a drunken driver. The plaintiff was seated in the back of the van, with no seat and no seat belt, when the van left the roadway and struck a tree. The trial court entered a judgment of no cause of action pursuant to MCL 600.2955a after the jury found the plaintiff to be fifty-three percent negligent. On appeal, this Court ultimately affirmed the judgment of no cause of action, holding that the defendant was entitled to the absolute defense of impairment provided by MCL 600.2955a because there was sufficient evidence from which the jury could conclude that the plaintiff was fifty percent or more the cause of the event that resulted in the injury. In so holding, this Court explained:

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 N.W.2d 751 (1998). Every word or phrase of a statute will be assigned its plain and ordinary meaning unless defined in the statute. See MCL 8.3a; Robertson v. DaimlerChrysler Corp., 465 Mich. 732, 748, 641 N.W.2d 567 (2002). We may consult dictionary definitions when terms are not expressly defined by statute. Oakland Co., supra at 604, 575 N.W.2d 751. "Event" means "something that happens or is regarded as happening; an occurrence, especially one of some importance" or "the outcome, issue, or result of anything." The Random House Dictionary of the English Language: Unabridged Second Edition (1998), p 671.

Given this broad definition, there was evidence from which the jury could conclude that plaintiff was fifty percent, or more, the cause of the "event" that resulted in the injury. Plaintiff, who was over eighteen years of age but under the legal drinking age of twenty-one, elected to consume alcohol and become intoxicated. Plaintiff freely chose to accept a ride home from an intoxicated driver. Plaintiff also chose to ride in an automobile that did not have proper seating or restraints in the rear compartment and was filled with unrestrained materials

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