Henley v. Department of State Highways and Transp.

• Decision Date: 19 October 1983
• Docket Number: Docket No. 60924
• Citation: 340 N.W.2d 72,128 Mich.App. 214
• Parties: David A. HENLEY, Charles E. Henley, and B. Louise Henley, Plaintiffs-Appellees and Cross-Appellants, v. DEPARTMENT OF STATE HIGHWAYS AND TRANSPORTATION, Defendant-Appellant and Cross-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 72

340 N.W.2d 72

128 Mich.App. 214

David A. HENLEY, Charles E. Henley, and B. Louise Henley Plaintiffs-Appellees and Cross-Appellants, v. DEPARTMENT OF STATE HIGHWAYS AND TRANSPORTATION Defendant-Appellant and Cross-Appellee.

Docket No. 60924.

Court of Appeals of Michigan.

Submitted April 5, 1983.

Decided Aug. 17, 1983.

Released for Publication Oct. 19, 1983.

Foster, Swift, Collins & Coey, P.C. by Webb A. Smith and Scott A. Storey, Lansing, for plaintiffs-appellees and cross-appellants.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Carl K. Carlsen and Myron A. McMillan, Asst. Attys. Gen., for defendant-appellant and cross-appellee.

Before HOLBROOK, P.J., and HOOD and GREEN ^*, JJ.

PER CURIAM.

Plaintiffs, David Henley and his parents, Charles and Louise Henley, commenced this action in the Court of Claims against the defendant Department of Highways, alleging that an automobile accident resulting in severe injuries to David Henley was caused by defective highway conditions. The court awarded David Henley $1,158,903 for lost wages, medical expenses and pain and suffering. David's parents, who were not involved in the accident, were awarded $100,000 each for their emotional experience.

Plaintiffs moved for prejudgment interest at 12 percent under the general civil statutory interest provision and a declaration that the Court of Claim's statutory interest provision calling for 5 percent interest from the time of judgment was unconstitutional. The lower court agreed that the Court of Claim's interest provision violated equal protection and ordered that interest be calculated at 12 percent from the time judgment was entered, but denied prejudgment interest.

Defendant filed an application for delayed appeal from the award of damages to the parents and from the court's ruling that the Court of Claim's statutory interest provision was unconstitutional. This Court granted defendant's motion for delayed appeal on January 22, 1982. Plaintiffs cross-appeal from the court's denial of their motion for prejudgment interest from the time the complaint was filed.

The circumstances of the accident are not in dispute or at issue on appeal. Accordingly, the parties stipulated to a limited trial transcript for purposes of appeal. David was 22 years old at the time of the accident and was not living at the home of his parents in East Lansing. On May 1, 1978, he was a passenger in a 1974 Chevy pickup truck traveling south on US-27 in Clinton County. While passing another vehicle, the truck's left wheels went onto the unpaved left side shoulder of the road. Apparently because the shoulder was about three to eight inches lower than the pavement, the driver was unable to steer the truck back onto the pavement and lost control. The driver was killed in the accident. Plaintiff David Henley suffered a spinal cord injury which has left him paralyzed in his legs and partially paralyzed in his arms. He now lives at his parents' home in East Lansing.

The first issue for our consideration is whether Michigan common law allows a parent to recover for emotional distress caused by accidental injury to a child under the facts of this case. We hold it does not.

In Gustafson v. Faris, 67 Mich.App. 363, 241 N.W.2d 208 (1976), this Court held that the parents of a five-year-old boy killed in an accident could not recover for their mental distress and resulting physical harm because the injury to the parents was not "fairly contemporaneous" with the accident. The Court adopted the limitations on actions to recover for emotional distress found in Prosser, Torts (4th ed), Sec. 54, pp 334-335:

" 'Some limitations might, however, be suggested. It is clear that the injury threatened or inflicted upon the third person must be a serious one, of a nature to cause severe mental disturbance to the plaintiff, and that the shock must result in actual physical harm. The action might, at least initially, well be confined to members of the immediate family of the one endangered, or perhaps to husband, wife, parent, or child, to the exclusion of mere bystanders, and remote relatives. As an additional safeguard, it might be required that the plaintiff be present at the time of the accident or peril, or at least that the shock be fairly contemporaneous with it, rather than follow when the plaintiff is informed of the whole matter at a later date.' (Footnotes omitted. Emphasis supplied.)" Gustafson, supra, pp. 368-369, 241 N.W.2d 208.

The Court looked to California law to define "fairly contemporaneous":

"In determining what the term 'fairly contemporaneous' means, guidance is found in the decisions of a sister state wherein the standard has been previously applied. In Powers v. Sissoev, 39 Cal App 3d 865; 114 Cal Rptr 868 (1974), the Court of Appeals for California held that a mother could not recover for emotional distress which resulted in seeing her daughter some 30 to 60 minutes after the occurrence of an accident. The Court reasoned that the circumstances under which the mother saw her child were not materially different from the circumstances undergone by virtually all parents whose children have been injured in accidents which the parents did not witness. In the earlier case of Archibald v Braverman, 275 Cal App 2d 253; 79 Cal Rptr 723 (1969), the California Court of Appeals held that a mother who viewed her son's injuries from an explosion within moments after the allegedly negligent accident occurred had a cause of action for emotional distress and resulting physical injury in spite of the fact that she did not witness the actual incident." Gustafson, supra, pp. 369-370, 241 N.W.2d 208.

In this case David's parents did not learn of the accident until at least five hours later. They first saw him at the hospital. Clearly the Gustafson requirement that they witness the accident or be on the scene moments later was not met. In addition, they did not plead or testify that either of them had suffered any physical harm resulting from their emotional distress. Mr. and Mrs. Henley did not have a cause of action to recover for their mental suffering. Plaintiffs argue that defendant is precluded from raising this argument on appeal since it was not raised below. We disagree. Review of the lower court record indicates that defendant apparently did raise this issue below. In plaintiffs' answer in opposition to defendant's motion for a rehearing after judgment was rendered, plaintiffs state:

"Defendant's Motion for Rehearing raises no new issues. Rather, it cites Miller v Cook, 87 Mich App 6; 273 NW2d 567 (1978) and Gustafson v Faris, 67 Mich App 363; 241 NW2d 208 (1976), apparently arguing again that a family member does not suffer compensible injury unless he or she views the infliction of an injury upon a loved one. The same argument was raised in Defendant's prior arguments and Motions. As Plaintiffs noted in prior argument, the recent Michigan Supreme Court decision of Berger v Weber, 411 Mich 1; 303 NW2d 424 (1981) significantly altered the law in Michigan, eliminating the strict rule that a family member must actually witness the infliction of a loved one's injury prior to recovery."

The second issue on appeal is whether M.C.L. Sec. 691.1402; M.S.A. Sec. 3.996(102), the defective highway statute, would allow plaintiff parents to recover for emotional distress. The purpose of M.C.L. Sec. 691.1402; M.S.A. Sec. 3.996(102) is to place victims of a highway department tortfeasor on an equal footing with victims of a private tortfeasor. Forest v. Parmalee, 402 Mich. 348, 262 N.W.2d 653 (1978). We hold this issue to be moot however, since, as discussed above, plaintiff parents do not even have an action for mental distress against a private tortfeasor under common law.

The final issue on appeal is whether M.C.L. Sec. 600.6455; M.S.A. Sec. 27A.6455 is unconstitutional because it provides for only 5 percent interest from the time of judgment on awards recovered in the Court of Claims rather than the 12 percent rate prescribed for civil actions generally under M.C.L. Sec. 600.6013; M.S.A. Sec. 27A.6013. Our holding in issue one above makes this issue moot as to plaintiff parents but not as to plaintiff David Henley.

The trial court, relying on the rationale of Reich v. State Highway Dep't, 386 Mich 617, 194 N.W.2d 700 (1972), held that the 5 percent interest rate of M.C.L. Sec....