Osner v. Boughner

• Decision Date: 26 October 1989
• Docket Number: Docket No. 106942
• Citation: 180 Mich.App. 248,446 N.W.2d 873
• Parties: Sharon OSNER, Personal Representative of the Estate of Clarence Osner, Plaintiff-Appellant and Cross-Appellee, v. Anthony BOUGHNER, Defendant-Appellee, and Pamela Timm and Kenneth Timm, Defendants-Appellees and Cross-Appellants.
• Court: Court of Appeal of Michigan — District of US

Page 873

446 N.W.2d 873

180 Mich.App. 248

Sharon OSNER, Personal Representative of the Estate of Clarence Osner, Plaintiff-Appellant and Cross-Appellee, v. Anthony BOUGHNER, Defendant-Appellee, and Pamela Timm and Kenneth Timm, Defendants-Appellees and Cross-Appellants.

Docket No. 106942.

Court of Appeals of Michigan.

Submitted June 13, 1989.

Decided Sept. 18, 1989.

Released for Publication Oct. 26, 1989.

Sumpter & Perry, P.C. by Thomas E. McDonald, Cheboygan, for plaintiff-appellant and cross-appellee.

Taylor, Carter, Butterfield, Riseman, Clark & Howell, P.C. by Carl M. Riseman, Lapeer, for Anthony Boughner.

Kohl, Secrest, Wardle, Lynch, Clark & Hampton by Michael L. Updike, Farmington Hills, for Pamela and Kenneth Timm.

Before BEASLEY, P.J., and McDONALD and MURPHY, JJ.

MURPHY, Judge.

INTRODUCTION

Plaintiff appeals as of right from a 1988 judgment of no cause of action entered following a jury trial on her suit brought pursuant to the motor vehicle owners' civil liability statute, M.C.L. Sec. 257.401; M.S.A. Sec. 9.2101. Plaintiff's husband died in a trucking accident in March, 1980, after he permitted seventeen-year-old defendant Anthony Boughner to drive the truck. The long delay between the date of the accident and trial was due to an unrelated issue appealed to this Court. See Osner v. Boughner, 152 Mich.App. 744, 394 N.W.2d 411 (1986), lv. den. 428 Mich. 856 (1987). Although plaintiff raises nine issues, we need only address two of them as the remainder are without merit. However, since we reverse and remand on those two issues, we also address the issues raised on cross appeal by Pamela and Kenneth Timm, the owners of the truck involved in the accident. We reverse the judgment of no cause of action and remand for a new trial.

STATEMENT OF THE ISSUES

I. Did the trial court commit error requiring reversal when it instructed the jury that defendant Anthony Boughner's conduct was to be evaluated by a minor's standard of care? We answer yes.

II. Did the trial court err when it refused to allow the investigating officer to give his opinion both as to the speed of the truck at the time of the accident and the relationship between the skid marks and the overturned truck? We answer yes.

III. Did the trial court err in denying defendants Timm's motion for summary disposition based on the exclusive remedy provision of the Workers' Disability Compensation Act, M.C.L. Sec. 418.131; M.S.A. Sec. 17.237(131)? We answer no.

IV. Did the trial court err in denying defendants Timm's motion for summary disposition based upon the motor vehicle owners' civil liability statute? We answer no.

V. Is plaintiff precluded from pursuing her claim under the motor vehicle owners' civil liability statute because her husband was not an innocent third party? We answer no.

FACTS

This cause of action arose out of a March 15, 1980, accident in which the decedent, Clarence Osner, was killed. The only vehicle involved in the accident was a tractor-trailer rig owned by defendants Pamela and Kenneth Timm. The Timms leased the truck to R-W Service System, Inc., which hired the driver, Clarence Osner.

On the evening before the accident, Clarence Osner was transporting rolled steel from Gary, Indiana, to Alpena, Michigan. During the trip, at approximately 11:30 p.m., Osner stopped at a tavern in Bronson, Michigan, where he had arranged to meet with another of R-W's drivers, the father of defendant Anthony Boughner, and Anthony Boughner, who was seventeen years old. Anthony's father had asked Osner to give Anthony a ride from Bronson to Hale, Michigan, and Osner agreed. Mr. Boughner and Osner talked and drank, while Anthony played shuffleboard, until the tavern closed at approximately 2:00 a.m. Clarence Osner and Anthony Boughner then left in the truck. Osner had been driving for approximately 1 1/2 hours when he started to get sleepy and began nodding off. Osner then recalled a previous conversation with Anthony's father concerning Anthony's experience driving trucks. Osner asked Anthony if he would drive for a while and Anthony agreed. Osner watched Anthony drive for about five minutes, then went to sleep. Later, Anthony stopped the truck twice to check with Osner to see if he was traveling in the right direction. Both times, Osner said yes and went back to sleep.

Eventually the road on which they were traveling came to an end at M-24 in Lapeer, Michigan. The highway was barricaded with traffic being directed onto an exit ramp from I-69 to M-24. When Boughner entered the exit ramp, he believed he was traveling about thirty-five to forty-five miles per hour. He noticed a flashing red light at the end of the ramp where it intersected with M-24. Boughner then attempted to brake the truck but it went off beyond the paved shoulder of the exit ramp and rolled over, killing Osner. There were no witnesses to the accident; however, measurements of skid marks at the scene indicated that the truck had skidded on the pavement for about 350 feet, then skidded upside down for another 150 feet before coming to a rest. Suit was eventually filed by plaintiff, the decedent's widow, and following a jury trial in February, 1988, a judgment of no cause of action was entered in defendants' favor. Plaintiff appeals, and defendants Timm cross appeal as of right.

DISCUSSION

ISSUE I

Plaintiff first contends that the trial court erred in instructing the jury that Anthony Boughner's conduct in driving the truck was to be evaluated by a minor's standard of care. Plaintiff argues that, since Boughner was engaged in an adult activity, his conduct should have been evaluated as would that of an adult. We agree.

Although not addressed in a formal opinion, our Supreme Court in Constantino v. Wolverine Ins. Co., 407 Mich. 896, 284 N.W.2d 463 (1979), in lieu of granting leave to appeal, reversed an unpublished decision of this Court and remanded for a new trial on a similar instruction issue. The circuit court in Constantino instructed that a minor driver was not to be held to the same standard of conduct as an adult. The Supreme Court disagreed and stated:

When a minor engages in a dangerous and adult activity, e.g., driving an automobile, he is charged with the same standard of conduct as an adult. [Id. ]

Thereafter, this Court in Cornack v. Sweeney, 127 Mich.App. 375, 378, 339 N.W.2d 26 (1983), lv. den. 418 Mich. 917 (1984), citing Constantino, supra, stated:

There is no doubt that a minor driver is held to the same standard of conduct as an adult.

The trial court in this case, over plaintiff's objections, instructed the jury pursuant to SJI2d 10.06, Ordinary Care--Minor--Definition, that defendant Boughner's conduct in driving the truck was to be evaluated under an ordinary standard of care for a minor. The court stated:

A minor is not held to the same standard of conduct as an adult. When I use the words "ordinary care" with respect to the minor, Mr. Boughner, I mean the degree of care which a reasonably careful minor of the age, the mental capacity, the experience of the minor, Mr. "Bone"-ner--Boughner would use under the circumstances which you find existed in the case. It is for you, once again, to decide what a reasonably careful minor would do or not do under such circumstances.

Plaintiff had requested that the jury be instructed pursuant to SJI2d 10.03, Ordinary Care--Adult--Definition. That instruction states:

When I use the words "ordinary care," I mean the care a reasonably careful person would use under the circumstances which you find existed in this case. The law does not say what a reasonably careful person would do or would not do under such circumstances. That is for you to decide.

The comment section to the adult standard of care instruction states:

The general rule for a child as set forth in 2 Restatement Torts, 2d, Sec. 283 A, p 14, is that "the standard of conduct to which he must conform to avoid being negligent is that of a reasonable person of like age, intelligence, and experience under like circumstances." However, there is an exception to this rule where the child is engaging in an adult activity. This exception is set forth in the "An exception to the rule stated in this Section may arise where the child engages in an activity which is normally undertaken only by adults, and for which adult qualifications are required. As in the case of one entering upon a professional activity which requires special skill (see Sec. 299 A), he may be held to the standard of adult skill, knowledge, and competence, and no allowance may be made for his immaturity. Thus, for example, if a boy of fourteen were to attempt to fly an airplane, his age and inexperience would not excuse him from liability for flying it in a negligent manner. The same may be true where the child drives an automobile. In this connection licensing statutes, and the examinations given to drivers, may be important in determining the qualifications required; but even if the child succeeds in obtaining a license he may thereafter be required to meet the standard established primarily for adults." [Emphasis added.]

Comment on Sec. 283 A, p 16, which states as follows:

In this case, Anthony Boughner was within five months of his eighteenth birthday when the accident occurred. Although still a minor, we believe that there is no question that Boughner was engaged in an adult activity at the time of the accident. If the Supreme Court has clearly stated that driving an automobile is an adult activity, we have no question that driving a fully loaded semitrailer, which requires a state-issued chauffeur's license, is likewise an adult activity. Therefore, Boughner's conduct in driving the truck should have been evaluated under an adult standard of care. Since this instruction was central to plaintiff's case, and one which could have easily misled the jury, we conclude that the trial court's failure to instruct the jury on the adult standard of care is inconsistent...