Mull v. Equitable Life Assur. Soc. of U.S., Docket No. 127472

• Decision Date: 19 October 1992
• Docket Number: Docket No. 127472
• Citation: 493 N.W.2d 447,196 Mich.App. 411
• Parties: William MULL and Dorothy Mull, Plaintiffs-Appellees, v. EQUITABLE LIFE ASSURANCE SOCIETY of The UNITED STATES, a New York corporation, and Midwest Malls Limited Partnership, Defendants-Appellants, and Rouse Company, a Foreign corporation, Defendant.
• Court: Court of Appeal of Michigan — District of US

Page 447

493 N.W.2d 447

196 Mich.App. 411

William MULL and Dorothy Mull, Plaintiffs-Appellees, v. EQUITABLE LIFE ASSURANCE SOCIETY of The UNITED STATES, a New

York corporation, and Midwest Malls Limited

Partnership, Defendants-Appellants,

and

Rouse Company, a Foreign corporation, Defendant.

Docket No. 127472.

Court of Appeals of Michigan.

Submitted March 3, 1992, at Detroit.

Decided Oct. 19, 1992, at 10:25 a.m.

Released for Publication Jan. 19, 1993.

Swanson, Torgow & Lyons, P.C. by Peter J. Lyons and Paul R. Swanson, Detroit, for plaintiffs.

Richard A. Kudla & Associates by Richard A. Kudla and Victoria P. Lupo, Southfield (Gross & Nemeth, by James G. Gross, of Counsel), Detroit, for defendants.

Before NEFF, P.J., and GRIBBS and MURPHY, JJ.

NEFF, Presiding Judge.

Defendants Midwest Malls Limited Partnership and Equitable Life Assurance Society of the United States appeal as of right from a judgment entered following a jury verdict in favor of plaintiffs. We affirm.

I

William Mull suffered serious personal injuries as a result of a work-related accident that occurred while he was hanging a Christmas wreath at the Southland Mall. At the time of the accident, William Mull was standing in the bucket of a Ford Tractor 3400, a "front-end loader."

Plaintiffs filed this negligence action under the owner's liability statute, M.C.L. Sec. 257.401; M.S.A. Sec. 9.2101. They sought damages incurred as a result of William Mull's injuries, including Dorothy Mull's loss of her husband's love, society, companionship, and consortium.

Defendants moved for summary disposition under MCR 2.116(C)(10) on the grounds that the front-end loader was not a motor vehicle for purposes of M.C.L. Sec. 257.401; M.S.A. Sec. 9.2101 and, alternatively, that the device was not being used as a motor vehicle at the time of the accident.

The trial court found that the front-end loader was a motor vehicle for purposes of the owner's liability statute. It denied defendants' motions for summary disposition and rehearing or reconsideration.

At trial, William Mull testified that Michael Koss was the "lead man" on the day of the accident and that Koss instructed him, Todd Wilkerson, and Jeanette Ramik to hang Christmas wreaths. Koss was operating the front-end loader, which they used to hang the wreaths.

William Mull testified that he had operated the front-end loader on numerous occasions before the accident and that it had four tires, a steering wheel, four forward gears and reverse, brakes, a windshield, and two headlights located on top of the cab. It did not have a license plate, back-up lights, turn indicators, or hazard lights. He further testified that the bucket of the front-end loader operates hydraulically and is controlled by two levers. One lever controls the up and down movement of the bucket, and the other lever moves the bucket forward and backward.

According to William Mull, Wilkerson was supposed to lower each wreath by a rope from the roof, while William Mull and Ramik attached the wreaths to the outside wall and Koss operated the front-end loader. He stated that, in preparation for hanging the wreaths, Koss positioned the front-end loader on the sidewalk with the bucket approximately eighteen inches from the wall. Koss lowered the bucket, and William Mull and Ramik climbed into it. Koss then raised the bucket seven or eight feet so that they could affix the first wreath. William Mull further stated that, after Ramik pushed the wreath into position and he fastened the bottom of the wreath, he gave Koss the "thumbs up" signal, which meant that Koss should raise the bucket straight up. However, instead of going straight up, the bucket of the front-end loader moved up and forward, hitting the wall and crushing William Mull's right foot between the blade of the bucket and the wall. The foot was later surgically removed.

The jury found that Koss was negligent in the operation of the front-end loader and that his negligence was a proximate cause of William Mull's injuries. The trial court entered judgment in plaintiffs' favor consistent with the jury verdict.

Defendants moved for judgment notwithstanding the verdict, a mistrial, or a new trial. The trial court denied these motions.

II

Defendants first claim that the front-end loader was not a "motor vehicle" under the owner's liability statute, M.C.L. Sec. 257.401; M.S.A. Sec. 9.2101, because it could not lawfully be operated on a highway. We disagree.

In denying defendants' motion for summary disposition, the trial court expressly relied on Harder v. Harder, 176 Mich.App. 589, 440 N.W.2d 53 (1989), and concluded that the front-end loader came within the definition of "motor vehicle" under the owner's liability statute.

The owner's liability statute provides 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 or her agent or servant. The owner of a motor vehicle shall be liable for any injury occasioned by the negligent operation of the motor vehicle whether the negligence consists of a violation of the provisions of the statutes of the state or in the failure to observe such ordinary care in the operation of the motor vehicle as the rules of the common law requires. The owner shall not be liable, however, unless the motor vehicle is being driven with his or her express or implied consent or knowledge. [M.C.L. Sec. 257.401(1); M.S.A. Sec. 9.2101(1). Emphasis added.]

In determining whether the front-end loader meets the definition of a motor vehicle under the owner's liability statute, this Court must attempt to ascertain and give effect to the intent of the Legislature. Joy Management Co. v. Detroit, 176 Mich.App. 722, 730, 440 N.W.2d 654 (1989); Harder, supra, 176 Mich.App. at p. 591, 440 N.W.2d 53.

In Frazier v. Rumisek, 358 Mich. 455, 457, 100 N.W.2d 442 (1960), the Court reviewed the owner's liability statute in effect at that time, which was substantially the same as the present statute, and stated:

The owner liability statute before us was passed in response to an overwhelming public need. Common-law liability, circumscribed as it was by the doctrine of bailment, respondeat superior, agency, and the like, was unable to cope with the rising tide of injuries resulting from the use of the new mechanism, the automobile. Principal among the legislative answers were the owner liability laws. Their purpose, as Mr. Justice Edwards held in Moore v. Palmer, 350 Mich. 363 [86 N.W.2d 585 (1957) ], was to extend and complement the common law. The legislative theory was simple to state and broadly applicable: An owner was liable for the negligent operation of the machine owned by him when he had consented to its use.

See also Dale v. Whiteman, 388 Mich. 698, 703, 202 N.W.2d 797 (1972), and Calladine v. Hyster Co, 155 Mich.App. 175, 178-179, 399 N.W.2d 404 (1986).

In Roberts v. Posey, 386 Mich. 656, 662, 194 N.W.2d 310 (1972), the Court construed the owner's liability statute and stated:

The purpose of the statute is to place the risk of damage or injury upon the person who has the ultimate control of the vehicle.

Where a statute supplies its own glossary, this Court must apply the meaning of the terms as expressly defined. Harder, supra. The owner's liability statute is part of the Vehicle Code, M.C.L. Sec. 257.1 et seq.; M.S.A. Sec. 9.1801 et seq. The Vehicle Code expressly defines "motor vehicle" as "every vehicle which is self-propelled and every vehicle which is propelled by electric power obtained from over-head trolley wires, but not operated upon rails." M.C.L. Sec. 257.33; M.S.A. Sec. 9.1833. Section 79 of the Vehicle Code also defines the term "vehicle." It states in pertinent part:

"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.]

The dispositive question in resolving this issue is whether the front-end loader is a "vehicle" under the above definition.

In Calladine, supra, 155 Mich.App. at pp. 180-181, 399 N.W.2d 404, this Court defined the meaning of the "is or may be" language found in M.C.L. Sec. 257.79; M.S.A. Sec. 9.1879, stating:

Where a device is not actually transported or drawn upon a highway and where it cannot lawfully be operated on a highway, it is not a vehicle within the purview of the owner's liability statute. That is the meaning of the "is or may be" language found in MCL 257.79; MSA 9.1879. This reading of the statute comports with the legislative design to deal primarily with injuries occasioned by automobiles, as set out in Frazier, supra. [Emphasis added.]

The vehicle involved in Calladine was a forklift that was not equipped with a windshield, headlights or taillights, turn signals, seat belts, back-up lights, hazard warning flashers, or a rearview mirror. The Court in Calladine concluded that because the forklift could not lawfully be driven upon a highway and because it was never driven upon a highway, it was not a motor vehicle under the owner's liability statute. Calladine, supra, 155 Mich.App. at p. 181, 399 N.W.2d 404.

Jones v. Cloverdale Equipment Co., 165 Mich.App. 511, 419 N.W.2d 11 (1987), also involved the issue whether a forklift was a vehicle under the owner's liability statute. The Jones Court concluded that, because the forklift had no headlights or taillights, no turn signals, no windows or doors, and lacked registration or licensing, under Calladine, it was not a "vehicle"--and therefore not a "motor vehicle"--for purposes of the owner's liability statute. Id., at p. 514, 419 N.W.2d 11.

If we were to apply the analyses set...