Poch v. Anderson

• Decision Date: 27 March 1998
• Docket Number: Docket No. 198938
• Parties: Jeremy Louis POCH, Plaintiff-Appellant, v. Billy Joe ANDERSON, Jr., Billy Joe Anderson, Sr., and Billy Joe Anderson, d/b/a BJ's Classic Autos and BJ's Maxi Muffler, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 456

580 N.W.2d 456

229 Mich.App. 40

Jeremy Louis POCH, Plaintiff-Appellant, v. Billy Joe ANDERSON, Jr., Billy Joe Anderson, Sr., and Billy

Joe Anderson, d/b/a BJ's Classic Autos and BJ's

Maxi Muffler, Defendants-Appellees.

Docket No. 198938.

Court of Appeals of Michigan.

Submitted Sept. 4, 1997, at Grand Rapids.

Decided March 27, 1998, at 9:00 a.m.

Released for Publication July 14, 1998.

Thomas R. Lewis, Rogers City, for Plaintiff-Appellant.

Christopher F. Lindsay, Cheboygan, for Defendants-Appellees.

Before O'CONNELL, P.J., and MacKENZIE and GAGE, JJ.

GAGE, Judge.

In this action arising out of a one-vehicle automobile accident, plaintiff appeals as of right from an order granting summary disposition to defendants pursuant to MCR 2.116(C)(10). We reverse and remand.

Plaintiff, aged twenty-one, and nineteen-year-old defendant Billy Joe Anderson, Jr., (hereinafter the singular word "defendant" refers to Billy Joe Anderson, Jr.) started drinking together at a bar around 9:30 p.m. on the night of the automobile accident that forms the basis of plaintiff's lawsuit. Before meeting plaintiff at the bar, defendant had already consumed a few beers that he had brought from home. The two young men later proceeded together to a second bar. Defendant drove both parties in an automobile owned by his father.

While at the first bar, plaintiff bought several beers and mixed drinks for both himself and defendant. In their depositions, the parties disagreed about whether plaintiff paid for all of the drinks or whether defendant also purchased alcohol. At the second bar, they each drank two more beers. Plaintiff recalled that he paid for only one round. Defendant again testified that plaintiff bought both rounds. The parties left the second bar together. Defendant was driving at a high rate of speed when he lost control of the automobile, which skidded 107 feet, jumped the curb, and hit a tree. Plaintiff was severely injured.

As a result of the accident, defendant was charged with operating a motor vehicle while under the influence of intoxicating liquor (OUIL) and being a minor in possession of alcohol in a motor vehicle. Plaintiff filed the complaint underlying this suit, in which he alleged that defendant acted negligently and in violation of Michigan law in driving at an excessive rate of speed, driving without due care and caution and with wilful and wanton disregard for the safety of other people and property, and driving under the influence of liquor. The complaint further alleged that defendant drove the vehicle with the implied consent and knowledge of his father, Billy Joe Anderson, Sr., the owner of the automobile.

The defendants moved for summary disposition pursuant to MCR 2.116(C)(10). They argued that although Billy Joe, Jr., had violated several traffic laws, plaintiff admitted that he had bought alcohol for the nineteen-year-old in violation of M.C.L. § 436.33(1); M.S.A. § 18.1004(1). Plaintiff's furnishing of alcohol to a minor, defendants contended, contributed to Billy Joe, Jr.'s intoxication and the subsequent accident and deprived plaintiff of a cause of action. Citing this Court's holding in Larrow v. Miller, 216 Mich.App. 317, 548 N.W.2d 704 (1996), the circuit court held that plaintiff's active participation in defendant's intoxication barred his claim.

Plaintiff moved for reconsideration, arguing that the circuit court incorrectly relied on Larrow in granting defendants' motion because the "non-innocent party doctrine" applies only to cases brought under the dramshop act, M.C.L. § 436.22; M.S.A. § 18.993. Larrow was a dramshop case in which only the defendants who were tavern owners and operators were granted summary disposition. Further, plaintiff argued that his furnishing of alcohol to a minor was not the sole cause of his injuries, that defendant's careless, drunken driving also contributed to the accident, and therefore the apportionment of fault among the parties should be left to the finder of fact. The circuit court denied plaintiff's motion for reconsideration. The court noted that, while plaintiff correctly asserted that Larrow was a dramshop case and therefore not binding precedent in the present suit, plaintiff nonetheless could not assert a cause of action because his illegal act in furnishing alcohol to a minor barred his claim under the wrongful-conduct rule.

Michigan has long followed a common-law maxim that when a plaintiff's action is based on his own illegal conduct, the claim is generally barred. Orzel v. Scott Drug Co., 449 Mich. 550, 558-559, 537 N.W.2d 208 (1995). This maxim, known as the wrongful-conduct rule, has its exceptions. The mere fact that a plaintiff engaged in illegal conduct at the time of his injury does not mean that his claim is automatically barred. Id. at 561, 537 N.W.2d 208. To fall under the bar of the rule, the plaintiff's conduct must be prohibited or almost entirely prohibited under a penal or criminal statute. Id. There must also be a sufficient causal nexus between the plaintiff's illegal conduct and the plaintiff's asserted damages. Id. at 564, 537 N.W.2d 208. Another possible exception to the wrongful conduct rule is where both the plaintiff and the defendant have engaged in illegal conduct, but the defendant's culpability for the damages is greater than the plaintiff's culpability. Id. at 569, 537 N.W.2d 208. This may occur, for example, where the plaintiff has acted "under circumstances of oppression, imposition, hardship, undue influence, or great inequality of condition or age." Id. (citation omitted). Finally, a plaintiff's claim is not barred by his wrongful conduct if a statute violated by the defendant explicitly authorizes recovery by a person similarly situated as the plaintiff. Id. at 570, 537 N.W.2d 208. If the statute is silent regarding recovery, courts are left to infer whether the Legislature clearly intended persons similarly situated as the plaintiff to seek recovery. Id.

On appeal, plaintiff argues that the circuit court erred in granting summary disposition to defendants because the court confused the wrongful-conduct rule with the "non-innocent party doctrine" that applies only to cases brought under the dramshop act, M.C.L. § 436.22; M.S.A. § 18.993. Plaintiff further argues that the court erroneously failed to apply the proximate cause requirement of the wrongful-conduct rule and that the court failed to consider an exception to the wrongful-conduct rule that allows a plaintiff to pursue an action if the defendant's culpability is greater than the plaintiff's. Finally, plaintiff argues that the circuit court erred in not finding that the owner's liability statute, M.C.L. § 257.401(1); M.S.A. § 9.2101(1), provided plaintiff with a cause of action.

We agree that the circuit court erred in applying the wrongful-conduct rule to the facts of the present case. We reverse on the ground that the issue of the parties' degrees of negligence was a question of fact for the factfinder to determine under Michigan's comparative negligence law, and the circuit court therefore erred in granting summary disposition to defendants.

This Court reviews an order granting summary disposition de novo. Pinckney Community Schools v. Continental Casualty Co., 213 Mich.App. 521, 525, 540 N.W.2d 748 (1995). A motion brought under MCR 2.116(C)(10) tests the factual basis underlying a plaintiff's claim. Radtke v. Everett, 442 Mich. 368, 374, 501 N.W.2d 155 (1993). The circuit court may grant a motion brought pursuant to MCR 2.116(C)(10) when, "[e]xcept as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law." Id.

We first note that plaintiff correctly asserts that the circuit court's initial application of the noninnocent party doctrine was in error. That doctrine, which prevents a person who contributed to a defendant's intoxication from recovering for injuries caused by that intoxication, applies only to actions brought against licensed alcohol retail establishments under the dramshop act. Arbelius v. Poletti, 188 Mich.App. 14, 21-23, 469 N.W.2d 436 (1991). The circuit court clearly erred in initially granting summary disposition on this ground. The doctrine "developed in relation to a statutory cause of action" and "applies only to dramshop actions and not to actions for common-law negligence based in part upon a violation of M.C.L. § 436.33; M.S.A. § 18.1004." Id. at 22-23, 469 N.W.2d 436.

The present action, as the circuit court correctly noted in its ruling on plaintiff's motion for reconsideration, is not based on the dramshop act. Plaintiff based his complaint on common-law and statutory negligence principles, specifically on Billy Joe, Jr.'s alleged negligence in driving at an excessive rate of speed under the prevailing conditions, failing to drive with due care and caution, failing to keep his automobile constantly under control, driving in a manner that showed a wilful or wanton disregard for the safety of persons or property, and driving while under the influence of intoxicating liquor or controlled substances.

Plaintiff also alleged that Billy Joe, Jr., was negligent in failing to obey and conform to the Michigan Vehicle Code, noting violations of the statutes concerning driving under the influence of intoxicating liquor, M.C.L. § 257.625; M.S.A. § 9.2325, operation of a vehicle after impairment of ability due to consumption of intoxicating liquor, M.C.L. § 257.625(3); M.S.A. § 9.2325(3), reckless driving, M.C.L. § 257.626; M.S.A. § 9.2326, careless driving, M.C.L. § 257.626b; M.S.A. § 9.2326(2), violation of speed restrictions, M.C.L. § 257.627; M.S.A. § 9.2327, violation of speed limits, M.C.L. § 257.628; M.S.A. § 9.2328, and the owner's liability statute, M.C.L. § 257.401; M.S.A. § 9.2101. Plaintiff further alleged that the violation of the above common-law and statutory duties proximately caused plaintiff...