West v. Cyril J. Burke, Inc., Docket No. 68296

• Citation: 357 N.W.2d 856,137 Mich.App. 191
• Decision Date: 09 November 1984
• Docket Number: Docket No. 68296
• Parties: Raymond WEST and Carroll West, Plaintiffs-Appellees, Cross-Appellants, v. CYRIL J. BURKE, INC., Defendant-Appellant, Cross-Appellee. 137 Mich.App. 191, 357 N.W.2d 856
• Court: Court of Appeal of Michigan (US)

Page 856

357 N.W.2d 856

Raymond WEST and Carroll West, Plaintiffs-Appellees Cross-Appellants, v. CYRIL J. BURKE, INC., Defendant-Appellant, Cross-Appellee.

Docket No. 68296.

137 Mich.App. 191, 357 N.W.2d 856

Court of Appeals of Michigan.

Submitted Jan. 4, 1984.

Decided Sept. 5, 1984.

Released for Publication Nov. 9, 1984.

[137 MICHAPP 193] Kelman, Loria, Downing, Schneider & Simpson by Nicholas J. Rine, Detroit, for plaintiffs-appellees, cross-appellants.

Harvey, Kruse, Westen & Milan, P.C. by Michael F. Schmidt, Detroit, for defendant-appellant, cross-appellee.

Before J.H. GILLIS, P.J., and T.M. BURNS and ROBINSON, ^* JJ.

PER CURIAM.

This suit arises out of an injury that occurred on February 26, 1979, to the plaintiff Raymond West while he was employed by the Robert Carter Corporation and performing work at Ford Motor Company's Rouge complex. Plaintiffs' amended complaint alleged that Cyril J. Burke, Inc., and/or Burke Rental Service was the owner of a mobile crane and was liable to the plaintiffs for the negligent operation of the crane by the Robert Carter Corporation, to which the crane was leased.

A third-party complaint filed against the Robert Carter Corporation by Burke on October 29, 1980, alleged that the Robert Carter Corporation, plaintiff's employer, was liable to Burke for indemnity. That complaint was amended pursuant to an order of the court dated April 10, 1981, to include five counts, all alleging indemnity. At the time of trial, the Robert Carter Corporation agreed to take over [137 MICHAPP 194] the defense of Cyril J. Burke, Inc., and plaintiff stipulated to dismiss Burke Rental Service as a defendant.

This matter proceeded to trial in September, 1982, on the theory that Robert Carter Corporation employees were negligent in the operation of the crane and that Cyril J. Burke, Inc., was liable for such negligent operation under the owner's liability statute, M.C.L. Sec. 257.401; M.S.A. Sec. 9.2101. The jury returned a verdict in favor of plaintiff Raymond West in the amount of $75,000. This award was reduced by plaintiff's comparative negligence, found by the jury to have been 45%. The jury found against plaintiff Carroll West on her loss of consortium claim. On November 12, 1982, the trial court denied defendant's motion for judgment notwithstanding the verdict and/or a new trial.

Prior to trial, this matter was mediated. The mediators awarded $15,000 against the primary defendants, Cyril J. Burke, Inc., and Burke Rental Service, and $50,000 against third-party defendant Robert Carter Corporation. The Robert Carter Corporation accepted the mediation award, as did the plaintiffs, but Burke rejected it. The defendant appeals the court's finding of liability and the award of attorney's fees. The plaintiffs cross-appeal the jury's findings of comparative negligence on the part of Raymond West and of no damages as to Carroll West.

Raymond West, hereinafter referred to as plaintiff, was a pipefitter. At the time of the accident, he was working with a mobile crane which consisted of a truck-type vehicle having four tires with a crane boom approximately 30 feet long mounted on top of it. The operator controlled the crane function from a control station located at the left center of the vehicle.

[137 MICHAPP 195] Plaintiff's job was to assist in unloading bundles of pipe from a truck. Plaintiff was to stand on top of the bundles of pipe located on the truck. The unloading operation consisted of a sequence of events in which the mobile crane operator drove up to the truck being unloaded and extended outriggers to stabilize the mobile crane. The plaintiff's job was to attach a bundle of pipe from the truck being unloaded to the line on the boom of the mobile crane. The driver of the crane was to lift the bundle of pipe, retract the outriggers, and transport the load to a designated storage area. It was plaintiff's job to direct the operation of the crane by giving standardized hand signals to the operator. The plaintiff was approximately 20 feet away from the operator at the time of the accident.

When the accident occurred, the outriggers were down and the crane was beginning to lift a load of pipe. The plaintiff had his right hand raised to signal the crane operator to lift the load. He felt the glove on his right hand get caught between the load line and the sheave at the end of the boom. He used a standard hand signal with his left hand to signal the crane operator to stop the operation of the crane. The crane operator stopped the crane. It was a disputed issue at trial whether the plaintiff, whose right hand was caught but uninjured, then started to panic and gave an unorthodox signal to the crane operator. The plaintiff testified that he gave verbal instructions to the operator four times to let the load down. The crane operator instead took the load line up, and plaintiff's hand was run between the load line and the sheave and crushed. The plaintiff testified to undergoing surgery and a long period of therapy and having a continuing disability.

[137 MICHAPP 196] On appeal, defendant contends that the trial court erred by denying defendant's motion for judgment notwithstanding the verdict and/or a new trial when it found, as a matter of law, that the crane which injured the plaintiff was a motor vehicle for purposes of the owner's liability statute.

We agree that the trial court erred by denying defendant's motion.

The owner's liability statute, M.C.L. Sec. 257.401; M.S.A. Sec. 9.2101, reads, in total:

"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 agent or servant. The owner of a motor vehicle shall be liable for any injury occasioned by the negligent operation of such motor vehicle whether such negligence consists of a violation of the provisions of the statutes of the state or in the failure to observe such ordinary care in such operation as the rules of the common law requires. The owner shall not be liable, however, unless said motor vehicle is being driven with his or her express or implied consent or knowledge. It shall be presumed that such motor vehicle is being driven with the knowledge and consent of the owner if it is driven at the time of said injury by his or her father, mother, brother, sister, son, daughter, or other immediate member of the family: Provided, however, That no person, transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such owner or operator for injury, death or loss, in case of accident, unless such accident shall have been caused by the gross negligence or wilful and wanton misconduct of the owner or operator of such motor vehicle and unless such gross negligence or wilful and wanton misconduct contributed to the injury, death or [137 MICHAPP 197] loss for which the action is brought." ¹ (Emphasis supplied.)

In the instant case, the crane was not being driven at the time the accident occurred but was being used as a piece of stationary construction equipment. As such, we hold that the statute does not apply to the instant situation. To hold otherwise is to ignore the statutory requirement that the vehicle be driven with the owner's consent and driven at the time of the injury.

We believe it is essential, in this type of case, to recognize that some vehicles, such as construction equipment, may have a dual nature. In some situations, they can be classified as motor vehicles and covered by the statute, such as where the equipment is being driven, under its own power, to or from a construction site. In other situations, such as in the instant case, where the vehicle is made stationary and thus unable to be driven at all, the statute would not apply.

We express no opinion as to the correctness of the decision by this Court in Johnston v. Hartford Ins. Co., 131 Mich.App. 349, 346 N.W.2d 549 (1984).

We, therefore, reverse the decision of the trial court and hold that the owner's liability statute does not apply in the instant situation.

Our resolution of the above issue makes it unnecessary for us to address the other...