Placek v. City of Sterling Heights, Docket No. 59710

• Court: Supreme Court of Michigan
• Writing for the Court: WILLIAMS; Similarly; KAVANAGH
• Citation: 275 N.W.2d 511,405 Mich. 638
• Decision Date: 08 February 1979
• Docket Number: No. 1,Docket No. 59710
• Parties: Patricia PLACEK and Joseph R. Placek, Plaintiff-Appellants, v. CITY OF STERLING HEIGHTS and Richard Milton Ernst, jointly and severally, Defendant-Appellees. Calendar405 Mich. 638, 275 N.W.2d 511

Page 511

275 N.W.2d 511 Patricia PLACEK and Joseph R. Placek, Plaintiff-Appellants,
v.
CITY OF STERLING HEIGHTS and Richard Milton Ernst, jointly
and severally, Defendant-Appellees. Docket No. 59710.
Calendar No. 1.
405 Mich. 638, 275 N.W.2d 511 Supreme Court of Michigan. Argued May 2, 1978.
Decided Feb. 8, 1979.

Page 513

[405 MICH 649] Lopatin, Miller, Bindes, Freedman & Bluestone by Michael Gagleard and Sheldon L. Miller, Detroit, for plaintiff-appellants.

Coticchio, Zotter & Sullivan, P. C. by Walter J. Zotter, Detroit, for defendant-appellees; Sommers, Schwartz, Silver & Schwartz, P. C. by Richard D. Toth, Southfield, of counsel.

[405 MICH 650] Bodman, Longley & Dahling by Theodore Souris and James J. Walsh, Detroit, for State Farm Auto. Ins. Co., amicus curiae.

[405 MICH 649] Foster, Swift, Collins & Coey, P. C. by David W. McKeague, James D. Adkins,

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Lansing, for amici curiae American Ins. Ass'n, Alliance of American Insurers and National Ass'n of Independent Insurers.

[405 MICH 650] WILLIAMS, Justice.

In this case we consider whether to adopt a rule of comparative negligence in Michigan. The factual circumstances involve a close question of the negligence of one or both of two drivers: driver Placek, a layperson who was traveling on a through street and the other, Police Officer Ernst on an emergency run traveling past a stop sign. We do not sit as trier of fact as to whether either, neither or both of these drivers were negligent.

We hold, in the interest of justice for all litigants in this state, that the doctrine of comparative negligence hereby replaces the doctrine of contributory negligence ¹ and that the standards of comparative negligence are to be applied by the court on remand for new trial in the instant case and on a limited retroactive basis.

I. FACTS

On April 8, 1970, plaintiff, Patricia Placek was traveling east on Plumbrook, a two-lane highway, at 30-35 miles per hour. It is uncontested that this was the speed at which plaintiff was traveling and that the posted speed limit was 35 miles per hour.

Plaintiff was following the car of Cabell and Virginia Woods, also traveling east on Plumbrook. As the Woods' car approached Schoenherr, the driver of that vehicle slowed to execute a right[405 MICH 651] -hand turn. At this point Ms. Placek moved her vehicle into the left lane to go around the Woods' vehicle and pass through the Schoenherr intersection. She collided with the right side of the vehicle driven by Police Officer Ernst a little more than half way across Schoenherr. Ms. Placek testified that she had only become aware of the police vehicle when it was too late to avoid the collision.

Defendant Police Officer Ernst was traveling south on Schoenherr on an emergency run. As he approached the Plumbrook intersection, both his siren and flasher were in operation. Defendant testified that he was aware of the Woods' vehicle but did not see plaintiff's vehicle. Defendant further testified that he slowed down before he approached the Plumbrook intersection but had begun to speed up again as he entered the intersection. There is disputed testimony as to the speed at which defendant was traveling; defendant told Officer James Porter, the investigating officer at the scene of the accident, however, that he was traveling at 30 miles per hour.

Nothing at the intersection obstructed the view of either driver.

The only non-party witnesses to the accident were Cabell and Virginia Woods. As stated above, their vehicle was traveling east on Plumbrook in front of plaintiff's vehicle, and had begun execution of a right-hand turn onto Schoenherr. Virginia Woods, the passenger, noticed the approaching police car and called it to her husband's attention. Mr. Woods then brought his vehicle to a stop. Mr. Woods testified that he thought the police vehicle was traveling at 40 miles per hour. Ms. Woods testified that the officer was traveling faster than the posted 35 miles per hour speed limit.

Plaintiff originally filed suit against defendants [405 MICH 652] Ernst and the city of Sterling Heights on July 28, 1970. A trial was held in October, 1972, and resulted in a verdict of no cause of action against plaintiff. This verdict was reversed and remanded for new trial by the Court of Appeals on the basis that the trial court had erred in allowing plaintiff to be questioned as to whether she wore a seat belt. Placek v. City of Sterling Heights, 52 Mich.App. 619, 217 N.W.2d 900 (1974). The second trial took place in May, 1975, and again resulted in a verdict of no cause of action against plaintiff. This verdict

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was affirmed by the Court of Appeals in an unpublished memorandum opinion. Leave to appeal was granted by this Court on November 23, 1977.

II. ISSUES

We granted leave to appeal to consider three issues: (1) whether a comparative negligence standard should be adopted in this state, (2) whether the trial court's instruction as to plaintiff's duty of care was prejudicially erroneous and (3) whether reasonable minds can differ as to whether defendant Ernst was negligent.

III. COMPARATIVE OR CONTRIBUTORY NEGLIGENCE

There is little dispute among legal commentators that the doctrine of contributory negligence has caused substantial injustice since it was first invoked in England in 1809. ² Of significance in this regard is that almost every common-law jurisdiction outside the United States has discarded contributory negligence and has adopted in its place a more [405 MICH 653] equitable system of comparative negligence. ³ Even in this country, considered the only remaining primary location employing contributory negligence, ⁴ 32 states and the United States Supreme Court in the case of admiralty law have discarded or rejected it in favor of some form of comparative negligence. ⁵ This precedent is so compelling that the question before remaining courts and legislatures is not whether but when, how and in what form to follow this lead. Therefore, to the properly raised question ⁶ of whether a comparative negligence[405 MICH 654] standard should be substituted

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for contributory negligence in Michigan, we answer in the affirmative. ⁷

In July, 1977, three Justices on this Court would have established comparative negligence as the [405 MICH 655] rule in this state. ⁸ Kirby v. Larson, 400 Mich. 585, 256 N.W.2d 400 (1977), involved a factual situation typical of the potential injustice of the doctrine of contributory negligence.

In Kirby, a defendant, driving north, approached an intersection passing by a car also traveling north which had already come to a stop at the intersection for a changing light. Plaintiff Christine Kirby was a passenger in a car which had been proceeding south on the same street and was stopped at the intersection waiting to make a left-hand turn. Both Kirby and the driver saw the first vehicle come to a stop and anticipated that defendant, then about three or four car lengths back from the intersection would do the same.

Plaintiff suggested completion of the turn to the driver, although there was some disputed testimony as to whether this suggestion was made after the driver was already turning the wheel of the car, and the driver proceeded to turn. Defendant's car, traveling at 25-30 miles per hour, struck the right rear of the car in which plaintiff was a passenger; plaintiff was thrown from the car and seriously injured.

The trial court instructed the jury on contributory negligence:

" * * * if you find that Christine Kirby was personally and contributorily negligent and such negligence was a proximate cause of the injury and damages alleged by her and in that event Christine Kirby cannot recover from the defendant and your verdict therefore would be for the defendant." Kirby, supra, 595, 256 N.W.2d 405.

The jury returned a verdict in favor of defendant.

Kirby was heard at this Court by six Justices, ⁹ [405 MICH 656] and the ultimate disposition included two opinions, each one representing the views of three Justices. The Williams

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opinion in Kirby found in part III that instructional errors at the trial level required reversal and remand for new trial. Beyond this, through the Williams opinion, the Chief Justice, Justice Levin and Justice Williams would have adopted comparative negligence as a substitute for contributory negligence in Michigan and would have instituted that doctrine as prevailing on remand.

The three other participating Justices in Kirby concurred in part III of the Williams opinion, finding error below necessitating remand and a new trial. Justice Fitzgerald's opinion, however, signed by Justices Coleman and Ryan, did not find Kirby the appropriate vehicle for adopting comparative negligence. That opinion found the record before this Court inadequate because, unlike the instant case, the parties had not fully briefed and discussed the issue.

Because many aspects of comparative negligence were extensively dealt with in Kirby, only a brief review of certain of these is necessary. The sub-issues specifically discussed under headings "A", "B" and "C", Infra, are those raised by the parties.

A. Judicial Adoption of Comparative Negligence

In part IX of the Williams opinion in Kirby, a brief analysis was made as to the propriety of judicial versus legislative abrogation of contributory negligence and adoption of comparative negligence.

There is no question that both this Court and the Legislature have the constitutional power to change the common law.

"The common law and the statute laws now in force, [405 MICH 657] not repugnant to this constitution, shall remain in force until they expire by their own limitations, or are changed, amended or repealed." Const.1963, art. 3, § 7.

This provision has been construed to authorize both judicial change and legislative amendment or repeal. Myers v. Genesee County Auditor, 375 Mich. 1, 7, 133 N.W.2d 190 (1965).

Further, when dealing with judge-made law, this Court...