Vandonkelaar v. Kourt

• Decision Date: 30 September 2010
• Docket Number: Docket No. 292856.
• Citation: 800 N.W.2d 760,290 Mich. App. 187
• Parties: VANDONKELAARv.KID'S KOURT, L.L.C.
• Court: Court of Appeal of Michigan — District of US

290 Mich.App. 187

800 N.W.2d 760

VANDONKELAAR

v.KID'S KOURT, L.L.C.

Docket No. 292856.

Court of Appeals of Michigan.

Submitted Sept. 8, 2010, at Grand Rapids.Decided Sept. 30, 2010, at 9:00 a.m.

Buckfire & Buckfire, P.C.(by Thomas N. Economy and George G. Burke, III), Southfield, for plaintiff.Smith Haughey Rice & Roegge(by Marilyn S. Nickell Tyree), Grand Rapids, for defendants.Before: MURPHY, C.J., and SAWYER and MURRAY, JJ.MURPHY, C.J.

Defendants appeal by leave granted the trial court's order denying their motions to file a notice of nonparties at fault and to amend their affirmative defenses, along with the court's order denying defendants' motion for reconsideration.This premises-liability case arose from injuries to his finger suffered by plaintiff, Chadwick Vandonkelaar(Chad), a minor, at defendants' daycare center.And defendants, while admitting liability, contended that some fault should be allocated to Chad's parents because they were negligent in failing to follow a prescribed course of medical treatment after surgical repair of the finger.The trial court, relying on Romain v. Frankenmuth Mut. Ins. Co.,483 Mich. 18, 762 N.W.2d 911(2009), held that there could be no allocation of fault in regard to the parents because they were immune from suit, which necessarily meant that they had no “legal duty” to obtain proper medical care, a prerequisite under Romain before any fault could be attributed to them under the comparative-fault statutes.¹We affirm, although for reasons different from those offered by the trial court.We conclude that the comparative-fault statutes have no application in this case because, as a matter of law and indisputably, defendants were the only parties at fault and there were no other tortfeasors with respect to the conduct that was the factual and proximate cause of the injuries to Chad's finger that occurred at the daycare center.Any presumed negligence by the parents in regard to Chad's medical treatment after the injuries occurred at the daycare center did not trigger the need to assess their fault for purposes of the comparative-fault statutes, given that such negligence was not part of the causal chain in regard to his finger's becoming crushed and lacerated in the first place.Rather, any negligent conduct by the parents constituted a subsequent, separate tort that initiated a new causal chain leading to its own set of damages, which, we note, would not be recoverable by Chad because of parental immunity.SeePlumley v. Klein,388 Mich. 1, 8, 199 N.W.2d 169(1972).

I.BACKGROUND

Chad, six years old at the time, sustained injuries while at defendants' daycare center in May 2007.Chad placed his right middle finger into the end of a metal pipe that held a large role of paper, and the pipe dislodged from the paper-roller frame, crushing and lacerating Chad's finger.The preoperative diagnosis indicated that Chad suffered a “middle finger extensor tendon injury” and an “[o]pen distal interphalangeal joint injury.”Surgery on the finger was performed by Dr. Donald Condit, and the surgical procedure entailed repair of the extensor tendon, along with “middle finger debridement and repair with pinning of distal interphalangeal joint injury.”

Defendants admitted their liability in relation to a premises-liability claim pursued by Chad, through his mother, Tonya L. Slager, next friend in October 2008, but defendants contested the extent of the damages.²The trial court limited discovery “to the question of the mechanics of the injury” and to Chad's “reaction, pain, and other damages.”

In April 2009, defense counsel had the opportunity to meet with Dr. Condit, and they discussed the doctor's findings and opinions concerning Chad's injuries, treatment, and prognosis.Defense counsel averred, on the basis of the conversation at this meeting, that Dr. Condit had prescribed physical therapy once a week for four weeks following the surgery, but Chad had only attended an initial evaluation and one therapy session.Defense counsel further averred that Dr. Condit had indicated that it was his intent to have Chad attend at least 8 to 12 physical therapy sessions over a three-month period in order to improve the finger's range of motion as well as to alleviate stiffness and swelling in the fingertip.According to the affidavit filed by defense counsel, Dr. Condit informed counsel that the failure to continue with the therapy had a “very significant” effect on Chad's recovery.

On the basis of this information, defendants moved for leave to file a notice of nonparties at fault and to amend their affirmative defenses.Defendants sought to designate Chad's parents as nonparties at fault for their failure to follow Dr. Condit's advice and failure to ensure Chad's attendance at follow-up physician appointments and physical therapy.Defendants also sought to add affirmative defenses, alleging that Chad's injuries were caused by acts or omissions by his parents that were beyond the control of defendants and reserving the right to have the trier of fact allocate fault under MCR 2.112(K).³

At the hearing on the motions, the parties agreed that Chad's parents were immune from civil liability, considering that their alleged inaction and failures pertained to Chad's medical care.Indeed, in Plumley,388 Mich. at 8, 199 N.W.2d 169, our Supreme Court abolished general intrafamily tort immunity, but with some exceptions, holding:

A child may maintain a lawsuit against his parent for injuries suffered as a result of the alleged ordinary negligence of the parent.Like our sister states, however, we note two exceptions to this new rule of law: (1) where the alleged negligent act involves an exercise of reasonable parental authority over the child; and (2) where the alleged negligent act involves an exercise of reasonable parental discretion with respect to the provision of food, clothing, housing, medical and dental services, and other care.

See alsoSpikes v. Banks,231 Mich.App. 341, 348, 586 N.W.2d 106(1998).⁴

Even though there was agreement that Chad's parents were protected by immunity, the parties vigorously disagreed about the effect of that immunity on the question whether fault could be allocated to the parents as nonparties, thereby potentially minimizing the extent of the damages that could be the responsibility of defendants.More specifically, the crux of the question in the trial court focused on whether a person or entity protected by immunity could nonetheless be named as a nonparty at fault.In answering that question, our Supreme Court's holding in Romain made it necessary to determine whether the nonparty owed a “legal duty” to the injured person.In Romain,483 Mich. at 20–22, 762 N.W.2d 911, the Michigan Supreme Court ruled as follows concerning the comparative-fault statutes:

We write briefly to eliminate a conflict between two published Court of Appeals opinions.Specifically, we overrule the statement in Kopp v. Zigich

[268 Mich.App. 258, 260, 707 N.W.2d 601(2005) ]

that “a plain reading of the comparative fault statutes does not require proof of a duty before fault can be apportioned and liability allocated.”That is an incorrect statement of Michigan law.In Jones v. Enertel, Inc.

[254 Mich.App. 432, 437, 656 N.W.2d 870(2002) ]

, the Court of Appeals held that “a duty must first be proved before the issue of fault or proximate cause can be considered.”Under the “first out”rule of MCR 7.215(J)(1), the Kopp panel should have followed Jones or declared a conflict under MCR 7.215(J)(2).Because the Kopp panel did not declare a conflict, Jones is the controlling precedent and proof of a duty is required “before fault can be apportioned and liability allocated” under the comparative fault statutes, MCL 600.2957andMCL 600.6304.

In addition to being the controlling precedent under the court rules, Jones correctly stated Michigan negligence law; Kopp did not.As noted by this Court in Riddle v. McLouth Steel Products Corp.

[440 Mich. 85, 99, 485 N.W.2d 676(1992) ]

:

“ ‘In a common law negligence action, before a plaintiff's fault can be compared with that of the defendant, it obviously must first be determined that the defendant was negligent.It is fundamental tort law that before a defendant can be found to have been negligent, it must first be determined that the defendant owed a legal duty to the plaintiff.’ ”

The same calculus applies to negligent actors under the comparative fault statutes.A common-law negligence claim requires proof of (1) duty; (2) breach of that duty; (3) causation, both cause in fact and proximate causation; and (4) damages.Therefore, under Michigan law, a legal duty is a threshold requirement before there can be any consideration of whether a person was negligent by breaching that duty and causing injury to another.Thus, when the Legislature refers to the common-law term “proximate cause” in the comparative fault statutes, it is clear that for claims based on negligence “ ‘it must first be determined that the [person] owed a legal duty to the plaintiff.’ ”Additionally, MCL 600.6304(8) includes in the definition of fault “a breach of a legal duty ... that is a proximate cause of damage sustained by a party.”Before there can be “a breach of a legal duty,” there must be a legal duty.Without owing a duty to the injured party, the “negligent” actor could not have proximately caused the injury and could not be at “fault” for purposes of the comparative fault statutes.[Citations omitted; some alteration in original.]

The trial court concluded that the immunity enjoyed by Chad's parents precluded defendants from naming them as nonparties at fault because their immunity exempted them from having any legal duty to obtain medical care for Chad.Accordingly, the trial court denied defendants' motion and the subsequent motion for reconsideration.This Court then granted defendants' application for leave to appeal....