Jones v. Cloverdale Equipment Co.

• Decision Date: 26 February 1988
• Docket Number: Docket No. 93323
• Citation: 419 N.W.2d 11,165 Mich.App. 511
• Parties: Kenneth JONES and Patricia Jones, Individually and as Next Friend of Brandy Jones, Carol Jo Jones, and Kelly Jones, Plaintiffs-Appellants, v. CLOVERDALE EQUIPMENT COMPANY, Hasper Equipment Company, and Heavy Equipment Leasing Services Company, Inc., Defendants-Appellees, Third-Party Plaintiffs-Cross-Appellants, and W.W. Kimmins & Sons, Inc., a foreign corporation, Third-Party-Defendant-Cross-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 11

419 N.W.2d 11

165 Mich.App. 511

Kenneth JONES and Patricia Jones, Individually and as Next Friend of Brandy Jones, Carol Jo Jones, and Kelly Jones, Plaintiffs-Appellants, v.CLOVERDALE EQUIPMENT COMPANY, Hasper Equipment Company, and Heavy Equipment Leasing Services Company, Inc.Defendants-Appellees, Third-Party Plaintiffs-Cross-Appellants and W.W. Kimmins & Sons, Inc., a foreign corporationThird-Party-Defendant-Cross-Appellee.

Docket No. 93323.

Court of Appeals of Michigan.

Submitted Aug. 21, 1987.

Decided Oct. 23, 1987.

Released for Publication Feb. 26, 1988.

McCroskey, Feldman, Cochrane & Brock by Robert O. Chessman, Muskegon, for plaintiffs-appellants.

Allaben, Massie, Vander Weyden & Timmer by Sam F. Massie, Jr., Grand Rapids, for defendants-appellees, third-partyplaintiffs-cross-appellantsCloverdale Equipment Co. and Hasper Equipment Co.

Smith, Haughey, Rice & Roegge by Jon D. VanderPloeg, Grand Rapids, for defendant-appellee, third-partyplaintiff-cross-appellantHeavy Equipment Leasing Services Co., Inc.

Before MacKENZIE, P.J., and DOCTOROFF and KINGSLEY, ^* JJ.

PER CURIAM.

Plaintiffs appeal as of right from an order granting defendants' motion for summary disposition.We affirm.

PlaintiffKenneth Jones(plaintiff) was employed by W.W. Kimmins & Sons to cut metal away from the face of a building which Kimmins had contracted to dismantle.While performing the work, plaintiff was enclosed in a cage attached to the prongs of a forklift and raised about twenty-five feet.Plaintiff was injured when the cage fell off the forklift and toppled to the ground.The accident occurred in the parking lot of the construction site and not on a public highway.Plaintiff alleges that the accident was the result of the negligence of the coworker operating the forklift.

The forklift was owned by defendantCloverdale Equipment Company and leased to defendantHasper Equipment Company, who, in turn, leased it to defendantHeavy Equipment Leasing Services Company.Plaintiff filed a complaint for damages against these defendants premised on their vicarious liability as "owners" of the forklift under the owner's liability statute of the civil liability act, Sec. 401 of the Michigan Vehicle Code,M.C.L. Sec. 257.401;M.S.A. Sec. 9.2101.The issue in this case is whether the forklift was a "motor vehicle" as used in that statute.

The owner's liability statute states in pertinent part:

"Nothing herein contained shall be construed to abridge the right of any person to prosecute a civil action for damages for injuries to either person or property resulting from a violation of any of the provisions of this act by the owner or operator of a motor vehicle, his agent or servant.The owner of a motor vehicle shall be liable for any injury occasioned by the negligent operation of such motor vehicle whether such negligence consists of a violation of the provisions of the statutes of the state or in the failure to observe such ordinary care in such operation as the rules of the common law requires.The owner shall not be liable, however, unless said motor vehicle is being driven with his or her express or implied consent or knowledge. "M.C.L. Sec. 257.401;M.S.A. Sec. 9.2101.(Emphasis added.)

The Michigan Vehicle Code defines "motor vehicle" to mean

"every vehicle which is self-propelled and every vehicle which is propelled by electric power obtained from overhead trolley wires, but not operated upon rails."M.C.L. Sec. 257.33;M.S.A. Sec. 9.1833.(Emphasis added.)

"Vehicle" means

"every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, excepting devices exclusively moved by human power or used exclusively upon stationary rails or tracks and excepting a mobile home."M.C.L. Sec. 257.79;M.S.A. Sec. 9.1879.(Emphasis added.)

In Calladine v. Hyster Co., 155 Mich.App. 175, 180, 399 N.W.2d 404(1986), this Court held that under the "is or may be" language found in the above-quoted definition, a device must be capable of lawful operation on a highway in order to be considered a "vehicle" within the purview of the owner's liability statute.In this case, the undisputed facts established that the subject forklift had no headlights or taillights, no turn signals, no windows or doors, and lacked registration or licensing.It was thus incapable of lawful operation on a highway.Consequently, under Calladine, it was not a "vehicle"--and therefore not a "motor vehicle"--for purposes of the owner's liability statute.

Even if the forklift were considered...