Jones v. Enertel, Inc.

• Decision Date: 20 February 2003
• Docket Number: Docket No. 234522.
• Citation: 254 Mich. App. 432,656 N.W.2d 870
• Parties: Betty J. JONES, Plaintiff-Appellee, v. ENERTEL, INC., Defendant, and City of South Lyon, a Municipal Corporation, jointly and severally, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

656 N.W.2d 870

254 Mich. App. 432

Betty J. JONES, Plaintiff-Appellee, v. ENERTEL, INC., Defendant, and City of South Lyon, a Municipal Corporation, jointly and severally, Defendant-Appellant.

Docket No. 234522.

Court of Appeals of Michigan.

Submitted November 13, 2002, at Detroit.

Decided December 17, 2002, at 9:05 a.m.

Released for Publication February 20, 2003.

Sommers, Schwartz, Silver & Schwartz, P.C. (by Michael J. Cunningham), Southfield, for Betty J. Jones.

Garan Lucow Miller, P.C. (by Rosalind Rochkind and Roger A. Smith), Detroit, for the city of South Lyon.

Before: JANSEN, P.J., and HOLBROOK, JR., and COOPER, JJ.

PER CURIAM.

In this premises liability action involving a slip and fall, defendant city of South Lyon appeals by leave granted the trial court's order denying its motion to name Enertel, Inc., as a nonparty at fault. We affirm.

Plaintiff alleged that she tripped and fell on a sidewalk located within South Lyon. According to plaintiff, Enertel had recently replaced the sidewalk in question under a contract to install fiber optic cable for Ameritech, Inc. Plaintiff claimed that the newly installed concrete slabs sunk below the level of the adjoining slabs, creating an uneven and hazardous surface. Plaintiff further asserted that South Lyon was informed of the problem well before her accident. She alleged that defendants negligently, carelessly, and improperly maintained and constructed the sidewalk.

Both Enertel and South Lyon moved for summary disposition on the grounds that the danger was open and obvious. While the trial court granted Enertel's motion, it denied South Lyon's motion, citing Haas v. Ionia, 214 Mich.App. 361, 543 N.W.2d 21 (1995), because a municipality cannot rely on the open and obvious danger defense where liability is premised on a failure to repair its sidewalk.¹ After the trial court denied its motion, South Lyon requested permission to identify Enertel, under MCR 2.112(K), as a nonparty at fault and the trial court granted this request at the conclusion of the hearing. However, plaintiff subsequently objected to Enertel's being named as a nonparty at fault and filed a motion to set aside the trial court's order. Plaintiff asserted that naming Enertel as a nonparty at fault would be inconsistent with the trial court's determination that Enertel had no duty because of the open and obvious danger doctrine. The trial court agreed and set aside its previous order.

On appeal, South Lyon contends that Michigan's several liability system permits it to name Enertel as a potential nonparty at fault. South Lyon argues that the fact that Enertel was previously dismissed from the lawsuit under the open and obvious doctrine does not preclude the trial court from apportioning fault to Enertel under M.C.L. § 600.6304(8). We disagree. A trial court's decision to grant relief from a judgment is reviewed for an abuse of discretion. Detroit Free Press, Inc. v. Dep't of State Police, 233 Mich.App. 554, 556, 593 N.W.2d 200 (1999). However, issues involving statutory interpretation are reviewed de novo on appeal as issues of law. Oade v. Jackson Nat'l Life Ins. Co., 465 Mich. 244, 250, 632 N.W.2d 126 (2001).

The primary goal of statutory interpretation is to ascertain and give effect to the intent of the Legislature. Hinkle v. Wayne Co. Clerk, 245 Mich.App. 405, 414, 631 N.W.2d 27 (2001). The Legislature is presumed to intend the meaning it plainly expressed. Guardian Photo, Inc. v. Dep't of Treasury, 243 Mich.App. 270, 276-277, 621 N.W.2d 233 (2000). "In reviewing the statute's language, every word should be given meaning, and we should avoid a construction that would render any part of the statute surplusage or nugatory." Wickens v. Oakwood Healthcare Sys., 465 Mich. 53, 60, 631 N.W.2d 686 (2001). However, when the language of the statute is clear and unambiguous, judicial construction is neither required nor permitted. Frankenmuth Mut. Ins. Co. v. Marlette Homes, Inc., 456 Mich. 511, 515, 573 N.W.2d 611 (1998).

The common-law doctrine of joint and several liability among multiple tortfeasors was replaced with the doctrine of several liability as a result of Michigan's 1995 tort reform legislation. Smiley v. Corrigan, 248 Mich.App. 51, 53, 638 N.W.2d 151 (2001); see also M.C.L. § 600.2956. As a result of the Legislature's "fair share liability" system, each tortfeasor is responsible for a portion of the total damage award according to their percentage of fault. Smiley, supra at 55, 638 N.W.2d 151. According to M.C.L. § 600.2957:

(1) In an action based on tort or another legal theory seeking damages for personal injury, ... the liability of each person shall be allocated under this section by the trier of fact and, subject to section 6304, in direct proportion to the person's percentage of fault. In assessing percentages of fault under this subsection, the trier of fact shall consider the fault of each person, regardless of whether the person is, or could have been, named as a party to the action.

* * *

(3) Sections 2956 to 2960 do not eliminate or diminish a defense or immunity that currently exists, except as expressly provided in those sections. Assessments of percentages of fault for nonparties are used only to accurately determine the fault of named parties. If fault is assessed against a nonparty, a finding of fault does not subject the nonparty to liability in that action and shall not be introduced as evidence of liability in another action. [Emphasis added.]

Thus, under M.C.L. § 600.2957(1), the trier of fact in a tort-based action must allocate liability among those at fault.

MCL 600.6304(1)(b) further provides that in personal injury actions involving the fault of more than one person, the trier of fact must specifically determine the plaintiff's total damages and the percentage of fault attributed to all persons involved, "regardless of whether the person was or could have been named as a party to the action." Under M.C.L. § 600.6304(8), "`fault' includes an act, an omission, conduct, including intentional conduct, a breach of warranty, or a breach of a legal duty, or any conduct that could give rise to the imposition of strict liability, that is a proximate cause of damage...