Moerman v. Kalamazoo County Road Com'n, Docket No. 58635

• Decision Date: 15 December 1983
• Docket Number: Docket No. 58635
• Citation: 341 N.W.2d 829,129 Mich.App. 584
• Parties: Yolanda MOERMAN, Administratrix of the Estate of Ronald George Moerman, Deceased, Plaintiff-Appellant, Cross-Appellee, v. KALAMAZOO COUNTY ROAD COMMISSION, Defendant-Appellee, Cross-Appellant. 129 Mich.App. 584, 341 N.W.2d 829
• Court: Court of Appeal of Michigan — District of US

Page 829

341 N.W.2d 829

Yolanda MOERMAN, Administratrix of the Estate of Ronald George Moerman, Deceased, Plaintiff-Appellant Cross-Appellee, v. KALAMAZOO COUNTY ROAD COMMISSION, Defendant-Appellee Cross-Appellant.

Docket No. 58635.

129 Mich.App. 584, 341 N.W.2d 829

Court of Appeals of Michigan.

Submitted June 28, 1983.

Decided Oct. 11, 1983.

Released for Publication Dec. 15, 1983.

[129 MICHAPP 588] Sloan, Benefiel & Farrer by Gary C. Newton, Kalamazoo, for plaintiff-appellant, cross-appellee.

Lilly & Domeny, P.C. by Jeffrey E. Gwillim, Kalamazoo, for defendant-appellee, cross-appellant.

Before WALSH, P.J., and MAHER and ROUMELL ^*, JJ.

PER CURIAM.

Plaintiff appeals from the trial court's order denying her motion for new trial.

On May 28, 1978, plaintiff's decedent was killed when his car left the paved portion of the highway, ran through a ditch and collided with a tree near the shoulder of the road. There was evidence that decedent had been drinking. The road was in defendant's jurisdiction. Plaintiff brought this action which came to trial before a jury. At the close of plaintiff's proofs, the trial court denied defendant's motion for directed verdict. The action went to the jury on the theories of negligence and intentional nuisance. The jury found no negligence on the part of defendant, 100% negligence on the part of decedent, intentional nuisance which was not a proximate cause of the accident, and no damages. Plaintiff's subsequent motion for new trial was denied.

[129 MICHAPP 589] Plaintiff raises five claims of error on appeal. Defendant has also cross-appealed.

First, the plaintiff contends that the trial court improperly instructed the jury as to proximate cause. At one point, the court told the jury that it must determine whether the negligence of plaintiff's decedent was "the proximate cause" of the accident and that "what you have to do in all cases is to determine the proximate cause of the accident". (Emphasis supplied.) Yet, at other times the court instructed the jury that they must determine whether the negligence of the plaintiff and defendant, if any, is "a" proximate cause.

The plaintiff timely objected to the proximate cause instructions. See GCR 1963, 516.2. The correct instruction is "a proximate cause". Kirby v. Larson, 400 Mich. 585, 605, 256 N.W.2d 400 (1977) (opinion of Williams, J.). Moreover, where the trial court gives contradictory instructions, as in this case, we must reverse on the theory that the jury believed the erroneous instruction. Kirby v. Larson, supra, p. 607, 256 N.W.2d 400. Thus, the trial court committed reversible error.

Second, plaintiff argues that the trial court erred in instructing the jury that a violation of a particular statute by the defendant is a "prima facie" case of negligence. Plaintiff asserts that the trial court should have told the jury that a violation of a statute creates a "rebuttable presumption" of negligence. Plaintiff timely objected to the "prima facie" instruction.

In Zeni v. Anderson, 397 Mich. 117, 243 N.W.2d 270 (1976), the Supreme Court adopted the rule that the violation of a penal statute creates a "prima facie" case of negligence or, alternatively, a "presumption" of negligence which may be rebutted by a showing on the part of the party [129 MICHAPP 590] violating the statute of an adequate excuse. The Court used both "prima facie" case and "rebuttable presumption" to label the rule it adopted. Plaintiff argues that there is a difference and that the Court really meant that violation of the statute gives rise to a rebuttable presumption.

Zeni, however, is inapposite. That case and the rule announced therein apply only to the violation of a penal statute. See Zeni, supra, p. 143, 243 N.W.2d 270; Baumann v. Potts, 82 Mich.App. 225, 229, 266 N.W.2d 766 (1978). In the present case, the plaintiff tried to prove that defendant violated M.C.L. Sec. 691.1402; M.S.A. Sec. 3.996(102) and M.C.L. Sec. 224.21; M.S.A. Sec. 9.121. The statutes provide in pertinent part:

"Each governmental agency having jurisdiction over any highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. Any person sustaining bodily injury or damage to his property by reason of failure of any governmental agency to keep any highway under its jurisdiction in reasonable repair, and in condition reasonably safe and fit for travel, may recover the damages suffered by him from such governmental agency." M.C.L. Sec. 691.1402; M.S.A. Sec. 3.996(102).

" * * * It is hereby made the duty of the counties to keep in reasonable repair, so that they shall be reasonably safe and convenient for public travel, all county roads, bridges and culverts that are within their jurisdiction and under their care and control and which are open to public travel. The provisions of law respecting the liability of townships, cities, villages and corporations for damages for injuries resulting from a failure in the performance of the same duty respecting roads under their control, shall apply to counties adopting such county road system." M.C.L. Sec. 224.21; M.S.A. 9.121.

The above are not penal statutes. They impose no criminal liability. Instead, they specifically impose civil liability for breach of the duties imposed [129 MICHAPP 591] therein. Violation of these statutes, far from creating a prima facie case or rebuttable presumption of negligence, conclusively establish negligence. In order to violate the statutes the governmental unit must breach its duty to keep the roads in "reasonable repair". Such a breach would be negligence.

Because a violation of the statutes is negligence as such, the trial court erred in instructing the jury that if the defendant violated either statute it "was prima facie negligent". That instruction made it more difficult for plaintiff to establish defendant's negligence. Thus, the instruction prejudiced plaintiff and requires reversal.

Third, plaintiff maintains that the trial court erred in ruling that, as a matter of law, the defendant did not have a duty to remove the tree near the shoulder of the roadway, thus taking this issue away from the jury.

The liability of a governmental unit, including a county, for injuries upon the highway is purely statutory. Goodrich v. County of Kalamazoo, 304 Mich. 442, 445, 8 N.W.2d 130 (1943). The applicable statutes are M.C.L. Sec. 691.1402; M.S.A. Sec. 3.996(102), and M.C.L. Sec. 224.21; M.S.A. Sec. 9.121, set forth above. The former statute, however, imposes an important limitation on the liability of the state and the county road commission:

"The duty of the state and the county road commissions to repair and maintain highways, and the liability therefor, shall extend only to the improved portion of the highway designed for vehicular travel and shall not include sidewalks, crosswalks or any other installation outside of the improved portion of the highway designed for vehicular travel."

Thus, the duty of the state and county road commissions is "to keep the 'improved portion of the [129 MICHAPP 592] highway designed for vehicular travel' in 'reasonable repair, and in condition reasonably safe and fit for travel' ". Mullins v. Wayne County, 16 Mich.App. 365, 373, fn. 3, 168 N.W.2d 246 (1969), lv. den. 382 Mich. 791 (1969).

It is well-settled that the statutory duty is not restricted to maintenance of the paved area of the road. Thus, this Court has held that the state has a duty to properly maintain a guardrail, Hall v. Dep't of State Highways, 109 Mich.App. 592, 311 N.W.2d 813 (1981), lv. den. 413 Mich. 942 (1982); Van Liere v. State Highway Dep't, 59 Mich.App. 133, 229 N.W.2d 369 (1975); Detroit Bank & Trust Co. v. Dep't of State Highways, 55 Mich.App. 131, 222 N.W.2d 59 (1974), as well as the shoulder of the road, Johnson v. Michigan, 32 Mich.App. 37, 188 N.W.2d 33 (1971), lv. den. 385 Mich. 762 (1971). See also, Lynes v. St. Joseph County Road Comm. 29 Mich.App. 51, 185 N.W.2d 111 (1979) (stop sign); Miller v. Oakland County Road Comm., 43 Mich.App. 215, 204 N.W.2d 141 (1972) (tree by the side of road). The gist of these cases is that the statutory duty extends to the maintenance of conditions that affect the safety of motorists using the improved portion of the highway designed for vehicular travel. ¹

[129 MICHAPP 593] In the present case, we need to determine whether the tree affected the safety of motorists using the shoulder of the road. We are uncertain as to whether decedent's vehicle struck the tree while the vehicle was still completely on the shoulder or whether it collided with the tree only after one or more of its wheels had left the shoulder. If the tree was positioned such that the average vehicle could have struck the tree without any of the vehicle's wheels leaving the shoulder, the tree would affect the safety of motorists using the shoulder. Under such circumstances, the defendant's duty to keep the road reasonably safe would extend to the maintenance of the tree. The record, however, does not disclose whether those circumstances existed in this case. Consequently, we are unable to decide whether the defendant had a duty to maintain the tree. If, on retrial, the duty issue is brought before the court, the court shall decide the issue by determining whether the circumstances creating that duty exist.

Fourth, the plaintiff contends that the deposition of defendant's expert, Dr. Richard Stockmar, should not have been admitted into evidence. Stockmar opined that the blood alcohol level of plaintiff's decedent is "a reasonable explanation for erratic driving". Plaintiff argues that that testimony lacked a foundation.

In order to establish a foundation for the admissibility of a blood sample analysis, it must be shown:

" * * * (1) that the blood was timely taken (2) from a particular identified body (3) by an authorized licensed physician, medical technologist, or registered nurse designated by a licensed...