Dedes v. Asch

590 N.W.2d 605, 233 Mich. App. 329

• Court: Michigan Court of Appeals
• Decided: March 12, 1999
• Docket: Docket 200183
• Status: Published

Opinions

Jansen, P.J.

Following a jury trial, the jury returned a verdict in favor of the estate of Adrian Dedes in the amount of $1,095,000, less eighty-five percent comparative negligence attributed to “plaintiff, Estate of Adrian Dedes,” finding defendant Jeanne Asch five percent grossly negligent and defendant Joan Shifferd ten percent grossly negligent. The jury also returned a verdict in favor of Lauren Dedes in the amount of $52,000, finding Asch thirty-five percent grossly negligent and Shifferd sixty-five percent grossly negligent. Plaintiffs appeal as of right from the trial court’s denial of their motion for apportionment of comparative negligence among the claimants to the estate of Adrian Dedes. On cross appeal, defendants appeal as of right from the trial court’s denial of their motion for a directed verdict or judgment notwithstanding the verdict and an order denying their motion to stay interest. We affirm in part, reverse in part, and remand for further proceedings.

This case, which has a long appellate history,¹ arose out of an automobile accident in which eight-year-old Lauren Dedes was injured and ten-year-old Adrian Dedes was killed when they were struck by an automobile while awaiting their school bus on June 2, 1989. The children were waiting for the bus on Ten Mile Road, a divided highway with a posted speed limit of fifty miles an hour, at the top of a hill. The children were required to cross Ten Mile Road to board the school bus. Where the children were told to wait for the bus was disputed below. Apparently, the Dedes children were holding hands and attempting to cross the road when they were struck by an automobile driven by Anthony Neumaier.² Plaintiffs alleged that Asch, the transportation supervisor for the school district, was grossly negligent in that she established the waiting area for the bus stop too close to the roadway, failed to provide for pick-up on the children’s side of Ten Mile Road, and, when she heard complaints about the children standing too close to the road, failed to follow up to assure that the matter had been resolved. Plaintiffs further alleged that Shifferd, the school bus driver, was grossly negligent by instructing the children to wait with their toes touching the pavement of the road or they would not be picked up by the bus.

i

Plaintiffs’ sole issue on appeal is whether the trial court erred in applying the comparative negligence assessed against the estate of Adrian Dedes to all of the claimants to the estate. The claimants to the estate were Adrian’s mother and father, her sister Lauren (also a plaintiff in this matter), and two other siblings. Plaintiffs argue that the trial court should have assessed the eighty-five percent comparative negligence against the parents only, and the siblings’ portion of the award should not have been reduced for comparative negligence because two of them were not even present at the time of the accident and Lauren was specifically found by the jury not to have been comparatively negligent.

We find that plaintiffs have waived this claim for appellate review. In the present case, before the jury instructions were given, the parties discussed the propriety of giving a comparative negligence instruction regarding Adrian’s parents. Plaintiffs’ counsel indicated that there were claims to the estate other than the parents’ claims and, therefore, a comparative negligence instruction should not be given broad application to the estate. In fact, plaintiffs’ counsel did not want the trial court to give an instruction to the jury regarding the comparative negligence of the parents and counsel did not want the trial court to give a jury instruction regarding each party’s comparative negligence. Plaintiffs’ counsel specifically asked for a combined version of comparative negligence, asking only what percentage of the negligence that the estate bore.³

Moreover, plaintiffs’ counsel helped to prepare the special verdict form that was given to the jury. The special verdict form advised the jury that the trial court would “reduce the total amount of the plaintiff, Estate of Adrian Dedes’ damages ... by the percentage of fault attributable to the plaintiff, Estate of Adrian Dedes.” Plaintiffs did not object to the special verdict form. At no time before the jury returned its verdict did plaintiffs request that the trial court instruct the jury to apportion the relative fault among the different parties. Finally, we note that at the post-trial motion requesting that the trial court apportion relative fault to each of the parties, plaintiffs’ counsel conceded that he did not request a verdict form that separated each party’s relative fault.

Under these circumstances, plaintiffs have forfeited any claim of error with respect to the instructions or verdict form concerning the comparative negligence apportionment. MCR 2.516(C) states that a “party may assign as error the giving of or failure to give an instruction only if the party objects on the record before the jury retires to consider the verdict.” Similarly, MCR 2.514(A) states that if a special verdict form is required, the trial court shall settle the form of the verdict in advance of argument and in the absence of the jury. In the present case, plaintiffs have clearly waived the issue of apportionment of comparative negligence with respect to the jury’s instructions and the special verdict form. Plaintiffs should have requested an instruction that the jury apportion negligence separately with regard to the parents and the siblings, but they clearly elected not to do so. Accordingly, plaintiffs have waived this issue. See Phinney v Perlmutter, 222 Mich App 513, 544; 564 NW2d 532 (1997) (“a party may not take a position in the trial court and subsequently seek redress in an appellate court on the basis of a position contrary to that taken in the trial court”).

E

On cross appeal, defendants argue that the trial court erred in denying their motion for judgment notwithstanding the verdict (jnov).⁴ They contend that there was no evidence to support the jury’s finding that they were grossly negligent or that their actions were a proximate cause of the injuries. The standard of review for jnov requires review of the evidence and all legitimate inferences in a light most favorable to the nonmoving party. Orzel v Scott Drug Co, 449 Mich 550, 557; 537 NW2d 208 (1995). Only if the evidence so viewed fails to establish a claim as a matter of law should a motion for jnov be granted. Id., p 558.

A

With respect to Asch, we agree with defendants that there was no evidence presented to indicate that she was grossly negligent. Asch, a governmental employee, is immune from tort liability unless plaintiffs showed that her conduct amounted to gross negligence that is the proximate cause of the injury. MCL 691.1407(2)(c); MSA 3.996(107)(2)(c). The statute defines gross negligence as “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.” Id. The evidence showed that Asch was responsible for establishing bus stops. During the 1988-89 school year, the Dedes children were instructed to wait on a grassy knoll that was off the edge of the road, approximately ten feet on the Dedes’ property. This waiting area was determined initially by Asch and Shifferd.

At a meeting held on November 15, 1988, with Asch, Shifferd, Mr. and Mrs. Dedes, the school principal, the school social worker, and Adrian Dedes, Asch confirmed with Mrs. Dedes where the children were to wait for the bus. The meeting was in response to complaints that Asch had received about the Dedes children standing too close to the road on some mornings while waiting for the bus. At the meeting, Asch also discussed with the Dedes Adrian’s behavior on the bus and her closeness to the road on some mornings. Mrs. Dedes was given a manual that had been prepared concerning the responsibility of the parent as well as the school and the student riding the bus. Mrs. Dedes was also advised of the rules regarding waiting for the bus and staying at least ten feet back from the roadway. Asch told Mrs. Dedes that if the children were unsure about where to stand, then she should paint a line or lay a rope in the yard for them to wait behind. There was additional evidence that Asch personally went to the bus stop to measure distances to ensure that the designated bus stop complied with all laws.

There was really no other evidence concerning Asch’s involvement in this case. Even taken in a light most favorable to plaintiffs and making all reasonable inferences in favor of plaintiffs, this evidence is insufficient to establish that Asch’s conduct was so reckless as to demonstrate a substantial lack of concern for whether an injury resulted in establishing the bus stops for the children. See, e.g., Lindberg v Livonia Public Schools, 219 Mich App 364, 368; 556 NW2d 509 (1996); Vermilya v Dunham, 195 Mich App 79, 83; 489 NW2d 496 (1992). Accordingly, we reverse the jury’s verdict against Asch.

B

With respect to Shifferd, we find that there was sufficient evidence presented such that the jury could find that her conduct was grossly negligent. Evidence was presented by Lauren Dedes that approximately two weeks before the accident, Shifferd told her and Adrian that as soon as they saw the bus coming, to wait on the gravel with their toes touching the road or they would not be picked up. Mrs. Dedes also testified that after the accident, Lauren informed her that about a week or week-and-a-half earlier, the bus stop had been changed so that Lauren and Adrian would be waiting directly across from other children boarding the bus in order to expedite the process. There was additional testimony from Mrs. Dedes that Shifferd had earlier told Mrs. Dedes that she wanted the children to stand by the side of the road so that she could see them in order to stop. There had been problems with the children not being picked up by the bus because the children stood at the top of a hill and the bus driver could not see them. Later, after speaking with Shifferd, Asch, and the school principal about the children not being picked up, Mrs. Dedes was told by Shifferd that Shifferd wanted the children to stand by the mailbox so that she could see them. However, Mrs. Dedes forbade the children from standing so close to the road. Finally, evidence was presented by Asch and defendants’ expert that to instruct a child to stand on the gravel portion of the shoulder of Ten Mile Road would show a reckless disregard for the safety of an individual.

Accordingly, we find that sufficient evidence was presented to create a question of fact with respect to whether Shifferd instructed the children to wait by the road. The trial court did not err in denying Shifferd’s motion for jnov with respect to the gross negligence issue.

m

Defendants also argue that there is no evidence that their conduct was the proximate cause of the injuries suffered. To prove proximate cause, plaintiffs had to prove two separate elements: (1) cause in fact and (2) legal cause. Skinner v Square D Co, 445 Mich 153, 162-163; 516 NW2d 475 (1994). Defendants attack only the cause in fact element. The cause in fact element generally requires a showing that but for the defendant’s actions, the plaintiff’s injury would not have occurred. Id., p 163.

Given our resolution that there was no evidence that Asch’s conduct could be considered grossly negligent, we need only consider whether Shifferd’s conduct could be considered a proximate cause of the children’s injuries. While there was no evidence presented to indicate that the automobile that struck the children left the road, there was evidence that Adrian leaned into traffic and her book bag got caught on the automobile and pulled her into it. But for the children being told to stand on the gravel shoulder with their toes touching the road, Adrian would not have been close enough to the road to be able to lean into traffic such that her book bag would be caught on a passing automobile.

Accordingly, taken in a light most favorable to plaintiffs and making all reasonable inferences in favor of plaintiffs, there was a factual question for the jury to resolve regarding the cause in fact of the injuries. The trial court did not err in denying the motion for jnov on this basis.

w

Lastly, defendants argue that they should not be held responsible for the accrual of prejudgment interest from the entry of the order in the trial court granting their motion for summary disposition and our Supreme Court’s opinion reversing the trial court’s order, a period of over four years. This Court reviews de novo the award of prejudgment interest under MCL 600.6013(1); MSA 27A.6013(1). Phinney, supra, p 540.

MCL 600.6013(1); MSA 27A.6013(1) provides that interest shall be allowed on a money judgment recovered in a civil action and MCL 600.6013(6); MSA 27A.6013(6) provides that prejudgment interest is calculated from the date of the filing of the complaint. The purpose of prejudgment interest is to compensate the prevailing party for expenses incurred in bringing actions for money damages and for any delay in receiving such damages. Phinney, supra, pp 540-541. However, prejudgment interest may be disallowed for periods of delay not the fault of, or caused by, the debtor. Id., p 541.

Here, we find that the fault for the delay was not attributable to defendants. This case concerned at least one issue of such significance that our Supreme Court agreed to rule on it following an application for leave to appeal sought by the plaintiffs. To allow interest to continue to accrue during an appellate process would hinder parties from asserting new and innovative arguments in the trial court for fear that interest will continue to accrue on a claim that may be reversed during the appeal process. Therefore, because the fault for the delay is not properly attributable to defendants, the trial court erred in granting prejudgment interest for the period that the matter was on appeal. We remand to the trial court for it to recalculate interest from the time of the filing of the complaint until the judgment is satisfied, abating the interest for the period that the matter was on appeal.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. Jurisdiction is not retained.

Markey, J., concurred.

1 See Dedes v Asch, 446 Mich 99; 521 NW2d 488 (1994), which reversed Dedes v South Lyon Community Schools, 199 Mich App 385; 502 NW2d 720 (1993).

2 Plaintiffs originally filed suit against Anthony Neumaier, Neumaier’s father James (the owner of the automobile), the Oakland County Road Commission, and the South Lyon School District. Plaintiffs ultimately settled their claims with the Neumaiers and the road commission, and the school district was granted summary disposition by the trial court.

3 We note that it was defendants’ counsel who initially requested that the trial court give a special instruction regarding the comparative negligence of the parents. After further discussing the issue in chambers, the trial court declined to give defendants’ requested instruction regarding the comparative negligence of the parents. This was plaintiffs’ position at the time.

4 The defendants had moved for a directed verdict at the close of plaintiffs’ proofs, but the trial court took the motion under advisement and ruled on it after the jury’s verdict.