Symons v. Prodinger

768 N.W.2d 317, 484 Mich. 851

• Court: Michigan Supreme Court
• Decided: July 28, 2009
• Docket: 137768
• Status: Published

Opinion

768 N.W.2d 317 (2009)

Kelly Sue SYMONS, Personal Representative of the Estate of Daniel A. Symons, Plaintiff-Appellant,
v.
Dr. Robert J. PRODINGER, Dale Russell, P.A., and Battle Creek Emergency Room Physicians, P.C., Defendants-Appellees, and
Battle Creek Health Systems, Defendant.

Docket No. 137768. COA No. 269663.

Supreme Court of Michigan.

July 28, 2009.

Order

On order of the Court, the application for leave to appeal the November 13, 2008 judgment of the Court of Appeals is considered and, pursuant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we REVERSE the judgment of the Court of Appeals, and we REINSTATE the Calhoun Circuit Court's order denying defendant Dr. Robert Prodinger's motion for judgment notwithstanding the verdict. The trial court instructed the jury that its decision as to defendant Dale Russell's negligence would also determine Dr. Prodinger's responsibility. Because Dr. Prodinger failed to object to that jury instruction, he cannot now disclaim vicarious liability for Russell's negligence. Although the plaintiff did not plead a cause of action based on vicarious liability against Dr. Prodinger in the complaint, the Court of Appeals dissent correctly noted that under MCR 2.118(C)(1), issues that are tried by express or implied consent of the parties, even though they are not raised in the pleadings, are treated as if they had been raised by the pleadings.