Wysocki v. Kivi

• Decision Date: 05 February 2002
• Docket Number: Docket No. 221989.
• Citation: 639 N.W.2d 572,248 Mich. App. 346
• Parties: Patrick WYSOCKI, Plaintiff-Appellant, v. Ruth KIVI, Defendant, and Kenneth Felt, Personal Representative of the Estate of David Felt, Defendant-Appellee, and Mark Sutinen, Defendant.
• Court: Court of Appeal of Michigan — District of US

639 N.W.2d 572

248 Mich. App. 346

Patrick WYSOCKI, Plaintiff-Appellant, v. Ruth KIVI, Defendant, and Kenneth Felt, Personal Representative of the Estate of David Felt, Defendant-Appellee, and Mark Sutinen, Defendant.

Docket No. 221989.

Court of Appeals of Michigan.

Submitted May 23, 2001, at Marquette.

Decided November 20, 2001, at 9:00 a.m.

Released for Publication February 5, 2002.

David M. Gemignani, Houghton, for Patrick Wysocki.

Garan Lucow Miller, P.C., (by Rosalind Rochkind), Detroit, for Kenneth Felt.

Before: SAWYER, P.J., and SMOLENSKI and WHITBECK, JJ.

WHITBECK, J.

Plaintiff Patrick Wysocki appeals as of right a jury verdict of no cause of action. Wysocki sued defendants, alleging negligent design and construction and premises liability after he suffered injuries when, while intoxicated, he broke through a deck railing and fell. The jury found that Wysocki was fifty percent or more at fault because of intoxication, barring his recovery under M.C.L. § 600.2955a. We affirm.

I. Basic Facts And Procedural History

The parties have entered into a stipulated statement of facts for the purposes of this appeal, a practice that we strongly encourage and for which we commend them. We summarize those facts here. In mid-May of 1997, Wysocki was injured while on premises owned by Ruth Kivi and leased by David Felt. Wysocki's injury involved a home deck and railing that was constructed in 1993 on those premises. Specifically, Wysocki was leaning on the railing, which had been constructed in 1993 by carpenter Mark Sutinen at the request of Kivi. Apparently, the railing gave way. At the time of the accident, Wysocki had a blood alcohol content of 0.21 percent.

Wysocki sued Kivi on a premises liability theory, Felt on a premises liability theory, and Sutinen on a negligence theory. The case went to trial in early August of 1999. Defendants proposed a jury instruction to the trial court, based upon the intoxication statute.¹ The intoxication statute reads as follows:

It is an absolute defense in an action for the death of an individual or for injury to a person or property that the individual upon whose death or injury the action is based had an impaired ability to function due to the influence of intoxicating liquor or a controlled substance, and as a result of that impaired ability, the individual was [fifty percent] or more the cause of the accident or event that resulted in the death or injury. If the individual described in this subsection was less than [fifty percent] the cause of the accident or event, an award of damages shall be reduced by that percentage.²

The first question on the verdict form was "Did [Wysocki] have an impaired ability to function due to the consumption of alcohol?" The second question on the verdict form read, "Was [Wysocki's] impaired ability due to the influence of intoxicating liquors [fifty percent] or more the cause of the accident that [Wysocki] claims resulted in his injury?" and "If your answer is yes, do not answer any further questions." The jury answered "yes" to each of these questions and returned a no cause of action verdict. Wysocki now appeals.

II. Equal Protection And Due Process

A. Overview

The Equal Protection Clauses of the United States and Michigan Constitutions provide that no person shall be denied the equal protection of the law.³ In this regard, the Michigan and federal Equal Protection Clauses offer similar protection.⁴ This constitutional guarantee requires that persons similarly situated be treated alike.⁵ Indeed, this Court has held that the equal protection provisions of the federal and state constitutions are coextensive.⁶

Conversely, however, the federal constitution does not require things that are different in fact or opinion to be treated in law as though they were the same.⁷ Stated differently, the courts have not interpreted the federal constitution to require "absolute equality." Similarly, it is well established that the equal protection guarantee is not a source of substantive rights or liberties; rather, it is a measure of our constitutions' tolerance of government classification schemes.⁸ We review due process claims similarly to equal protection claims.⁹

B. Strict Scrutiny

When state legislation creates a classification scheme that is based on suspect factors, such as race,¹⁰ national origin,¹¹ ethnicity or alienage,¹² or that affects a fundamental interest,¹³ courts apply a high standard of review, labeled "strict scrutiny."¹⁴ When courts review a statute under this strict standard, they uphold the statute only "if the state demonstrates that its classification scheme has been precisely tailored to serve a compelling governmental interest."¹⁵ Courts have rarely sustained legislation under this standard of review.¹⁶ Justice Brennan, writing for the majority, laid out the rationale underlying the strict scrutiny analysis in Plyler v. Doe:

Several formulations might explain our treatment of certain classifications as "suspect." Some classifications are more likely than others to reflect deepseated prejudice rather than legislative rationality in pursuit of some legitimate objective. Legislation predicated on such prejudice is easily recognized as incompatible with the constitutional understanding that each person is to be judged individually and is entitled to equal justice under the law. Classifications treated as suspect tend to be irrelevant to any proper legislative goal. See McLaughlin v. Florida, 379 U.S. 184, 192, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964); Hirabayashi v. United States, 320 U.S. 81, 100, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943). Finally, certain groups, indeed largely the same groups, have historically been "relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process." San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 28, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973); Graham v. Richardson, 403 U.S. 365, 372, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971); see United States v. Carolene Products Co., 304 U.S. 144, 152-153, n. 4, 58 S.Ct. 778, 82 L.Ed. 1234 (1938). The experience of our Nation has shown that prejudice may manifest itself in the treatment of some groups. Our response to that experience is reflected in the Equal Protection Clause of the Fourteenth Amendment. Legislation imposing special disabilities upon groups disfavored by virtue of circumstances beyond their control suggests the kind of "class or caste" treatment that the Fourteenth Amendment was designed to abolish.[¹⁷]

C. The "Traditional" or "Rational Basis" Test

The "traditional" or "rational basis" test represents the other polar extreme. Under this standard, courts will not strike down a statute if the classification scheme it creates is rationally related to a legitimate governmental purpose. Justice Stewart articulated the test in Dandridge v. Williams:

If the classification has some "reasonable basis," it does not offend the Constitution simply because the classification "is not made with mathematical nicety or because in practice it results in some inequality." Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 55 L.Ed. 369 (1911). "The problems of government are practical ones and may justify, if they do not require, rough accommodations—illogical, it may be, and unscientific." Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 69-70, 33 S.Ct. 441, 57 L.Ed. 730 (1913). "A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it." McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961).[¹⁸]

In Michigan, courts have applied the rational basis test principally to economic and social legislation.¹⁹ Under the traditional or rational basis test, a classification will stand unless it is shown to be "essentially arbitrary."²⁰ Stated differently, one who attacks an enactment must show that it is "arbitrary and wholly unrelated in a rational way to the objective of the statute."²¹ "Few statutes have been found so wanting in `rationality' as to fail to satisfy the `essentially arbitrary' test."²² Stated positively, the test is that courts must uphold a statutory classification where it is rationally related to a legitimate government purpose.²³ The rational basis test "`reflects the judiciary's awareness that "it is up to legislatures, not courts, to decide on the wisdom and utility of legislation."'"²⁴

D. "Heightened" Or "Intermediate" Scrutiny: The "Substantial Relationship" Test

The Michigan Supreme Court has adopted the United States Supreme Court's definition of "heightened" or "intermediate" scrutiny, which involves the "substantial relationship" test:

Under this level of scrutiny, there are two determinations that must be made. The first question is whether the classification serves an important governmental interest. The second question is whether the classification is substantially related to the achievement of the important governmental objective. Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976), reh. den. 429 U.S. 1124, 97 S.Ct. 1161, 51 L.Ed.2d 574 (1977).[²⁵]

E. The Principles of Judicial Deference

There is almost universal agreement that the power of the Legislature is not without limits. "[T]hat those limits may not be mistaken, or forgotten, the Constitution is written."²⁶ And, as the Michigan Supreme Court stated in Manistee Bank, "[T]hat those limits not be exceeded, the courts are entrusted with the responsibility to review and the power to nullify legislative acts which are repugnant to the constitution."²⁷

Nevertheless, courts are to use this authority sparingly. "[U]nder established rules of statutory construction, statutes are presumed constitutional, and courts have a duty to construe a statute as constitutional unless unconstitutionality is clearly apparent."²⁸ As the Michigan Supreme Court stated in Council of Organizations &...