Jones v. Tronex Chemical Corp.

• Decision Date: 15 December 1983
• Docket Number: Docket No. 62580
• Citation: 129 Mich.App. 188,341 N.W.2d 469
• Parties: Pledge JONES and Kathleen Jones, his wife, Plaintiffs-Appellees, v. TRONEX CHEMICAL CORPORATION, a Michigan corporation, Defendant, and City of Detroit, Department of Transportation, a municipal corporation, Defendant-Appellant, and Carriers Insurance Company, an Iowa corporation, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 469

341 N.W.2d 469

129 Mich.App. 188

Pledge JONES and Kathleen Jones, his wife, Plaintiffs-Appellees, v. TRONEX CHEMICAL CORPORATION, a Michigan corporation, Defendant and City of Detroit, Department of Transportation, a municipal corporation, Defendant-Appellant and Carriers Insurance Company, an Iowa corporation, Defendant-Appellee.

Docket No. 62580.

Court of Appeals of Michigan.

Submitted June 28, 1983.

Decided Sept. 27, 1983.

Released for Publication Dec. 15, 1983.

Coticchio, Zotter & Sullivan, P.C. by Gary W. Parker, Detroit, for plaintiffs-appellees.

Maureen Smith, Asst. Corp. Counsel, City of Detroit, Detroit, for City of Detroit, Dept. of Transp., defendant-appellant.

Romain, Donofrio & Kick, P.C. by Pat M. Donofrio, Southfield, for Carriers Insurance Company, defendant-appellee.

Before CYNAR, P.J., and HOOD and JASON, ^* JJ.

PER CURIAM.

Defendant City of Detroit (Detroit) appeals from two circuit court orders of summary judgment entered against it. The orders relieved codefendant Carriers Insurance Company (Carriers) of liability to plaintiffs and entered judgment in plaintiffs' favor against Detroit.

On December 4, 1979, a tanker trailer connected to a truck owned by Michigan Transportation Company, Carriers' insured, was in the parking lot of Tronex Chemical Company in Detroit. Tronex is in the business of compounding liquid detergents. The truck which Carriers insured had brought 4,000 gallons of sodium hydroxide. A hose was connected between the truck and the Tronex plant. Two hundred and twenty gallons of sodium hydroxide were pumped out, 220 gallons of sodium gluconate and liquid detergents were pumped in, and the whole concoction was mixed by circulation through the hoses between the chemical plant and the tanker. Lye was the intended product of this process.

Unfortunately, the link-up broke down and a good deal of the lye spilled out onto the Tronex parking lot. The system was shut down and the tanker was driven away. Tronex employees began to flush the lye from the parking lot into an alley by spraying the lot with water. The lye flowed through the alley to Linwood Street, along Linwood to Fenkell Avenue, then along Fenkell into a pool by a bus stop. Pledge Jones was standing at the bus stop when a City of Detroit bus pulled up. It splashed slush, water, ice and lye onto him, and into his eye, causing significant damage. Plaintiffs Pledge Jones and his wife, Kathleen Jones, sued and brought a motion for summary judgment against Detroit. Carriers also sought summary judgment.

On the original presentation of the motions, the court determined that summary judgment should be granted against both defendants in plaintiffs' favor. However, the trial court granted a motion for rehearing before any order had been entered. It then issued a new opinion, in which summary judgment was approved in favor of both plaintiffs and defendant Carriers and against Detroit.

Liability for no-fault personal protection benefits is governed by M.C.L. § 500.3105; M.S.A. § 24.13105:

"Sec. 3105. (1) Under personal protection insurance an insurer is liable to pay benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle, subject to the provisions of this chapter."

Detroit contends that the eye injury did not arise out of its use of the bus as a motor vehicle. We believe that it clearly did.

"The term 'arising out of' does not necessitate a finding that the injury was directly and proximately caused by the use of the vehicle. On the other hand, it cannot be extended to something distinctly remote. Each case depends on its own facts. Williams v Citizens Mutual Ins Co of America, 94 Mich App 762, 764-765; 290 NW2d 76 (1980)." Smith v. Community Service Ins. Co., 114 Mich.App. 431, 433, 319 N.W.2d 358 (1982).

A frequently quoted statement of the standard for determining whether an injury arose out of the use of a motor vehicle is found in DAIIE v. Higginbotham, 95 Mich.App. 213, 222, 290 N.W.2d 414 (1980), lv. den. 409 Mich. 919 (1980);

"Cases construing the phrase 'arising out of the * * * use of a motor vehicle' uniformly require that the injured person establish a causal connection between the use of the motor vehicle and the injury. See Anno: Automobile liability insurance: what are accidents or injuries 'arising out of the ownership, maintenance, or use' of insured vehicle, 89 ALR2d 150. Such causal connection must be more than incidental, fortuitous or but for. The injury must be foreseeably identifiable with the normal use of the vehicle. Kangas v Aetna Casualty & Surety Co, 64 Mich App 1, 17; 235 NW2d 42 (1975)."

Detroit's argument focuses on the foreseeability of an eye injury arising out of the use of the bus as a motor vehicle.

We find it eminently foreseeable that a bus, upon encountering a pool of water, may propel that water and whatever may be mixed with it in the direction of nearby pedestrians. The likelihood that the puddle of water would contain a caustic chemical is simply not relevant to this inquiry. It is the manner in which injury occurs that must be "foreseeably identifiable with the normal use of the vehicle", not the quality of the injury.

In this regard, Gajewski v. Auto-Owners Ins. Co., 112 Mich.App. 59, 314 N.W.2d 799 (1981), rev'd 414 Mich. 968 (1982), is analytically helpful. Gajewski was injured when a dynamite bomb connected to the ignition of his car exploded as he turned the key. The Court of Appeals ruled that the injury was not covered by the no-fault act, holding that the fact that Gajewski was injured in his car was a "mere fortuity". It was not Gajewski's act of trying to start the car that injured him, but the connection of the explosive device. The Court held that injury by explosive device is not "foreseeably identifiable with the normal use, maintenance, and ownership of the vehicle". Gajewski, supra, p. 62, 314 N.W.2d 799.

The Supreme Court reversed Gajewski in an order adopting the dissent of Judge Cynar. That opinion reads in full as follows:

"CYNAR, J. (dissenting). I agree with the trial court that there was a sufficient causal relationship between plaintiff's use of the vehicle and his injuries. This case is distinguishable from the cases in which benefits were denied because the plaintiff's presence in the vehicle at the time of the injury was a mere fortuity. See, e.g., Detroit Automobile Inter-Ins Exchange v Higginbotham, 95 Mich App 213; 290 NW2d 414 (1980) (the insured's husband forced her to the curb, trapped her in her car, and shot her several times with a revolver), Kangas v Aetna Casualty & Surety Co, 64 Mich App 1; 235 NW2d 42 (1975) (passengers of the insured's vehicle assaulted a pedestrian), O'Key v State Farm Mutual Automobile Ins Co, 89 Mich App 526; 280 NW2d 583 (1979) (the insured was shot by an assailant while she was sitting in her vehicle). In these cases, the injury could have resulted whether the plaintiff was using the vehicle or not. The vehicle was more than merely the site of the injury. Under the facts in this case, turning the ignition key must be identified with the normal manner of starting a vehicle. There was a direct causal relationship between the use of the motor vehicle and plaintiff's injuries." Gajewski, supra, 112 Mich.App. pp. 62-63, 314 N.W.2d 799. See also, Smith v. Community Service Ins. Co., 114 Mich.App. 431, 319 N.W.2d 358 (1982).

Just as an ample causal nexus between the use of a vehicle and an injury was supplied in Gajewski by the turning of an ignition key, it is extant here in the splashing of water by Detroit's bus. That the actual character of the resulting injury was bizarre or unexpected is not dispositive. Pledge Jones's injury resulted directly from the force of the bus as it was being operated in a normal fashion as a motor vehicle. The fact that the bus itself did not strike him does not bar his claim. Bromley v. Citizens Ins. Co. of America, 113 Mich.App. 131, 135, 317 N.W.2d 318 (1982). Summary judgment in favor of plaintiffs and against Detroit is therefore affirmed.

We now address the propriety of summary judgment in favor of Carriers, insurer of the tanker trailer. This question involves the parked vehicle provision of the no-fault act, M.C.L. § 500.3106(1)(b); M.S.A. § 24.13106(1)(b), which...