noting the distinction between "a proximate cause" and "the proximate cause"
How later courts described this case
- noting the distinction between "a proximate cause" and "the proximate cause"
- chemical analysis of blood urine or breath to determine alcohol content
Written by the judges who cited it.
The opinion
*597 D. F. Walsh, P.J.
(dissenting). Respectfully, I dissent.
The majority finds reversible error in the trial court’s references to "the proximate cause”.
In Kirby v Larson, 400 Mich 585, 600-607 ; 256 NW2d 400 (1977), the Supreme Court found that instructions concerning the proximate cause were erroneous. Reviewing the instructions as a whole to determine their adequacy, the Court found that, given the facts in Kirby , the error was reversible. Those facts included the crucial significance of the issue of proximate cause, the jury’s repeated demonstrations of confusion concerning proximate cause, and the judge’s repetition of the erroneous instructions in response to the jury’s request for assistance.
In my judgment, the Kirby decision does not mandate reversal in the instant case. On the contrary, review of the instructions and the record in their entirety persuades me that no reversible error occurred in this regard in this case.
In contrast to Kirby , the instant case was submitted to the jury under the recently adopted rule of comparative negligence. The jury was thoroughly instructed concerning comparative negligence and was thus made fully aware of the possibility that there may be more than one proximate cause of the plaintiffs damages. 1
In further significant contrast to Kirby , the *598 instant record contains no indication of juror confusion. No need for clarification concerning proximate cause was indicated by the jury in this case, and the verdict form, which accurately reflects the appropriate inquiries, suggests the jurors’ understanding of the elements of plaintiffs negligence claim. 2
*599 I find no reversible error in the trial court’s occasional references to the, as opposed to a, proximate cause.
Second, the majority finds reversible error in the following instruction to the jury:
"Now, we come down to the violation of statutes. If you find that the defendant, or anybody else for that matter, violated the statute before or at the time of the occurrence, then the defendant was prima facie negligent. However, you must then decide whether such negligence was a proximate cause of the occurrence and may be rebutted.
"Now, it may be that you do not know what prima facie means. In Black’s Law Dictionary, it defines it as follows: 'Evidence which suffices for the proof of a particular fact until contradicted or overcome by other evidence.’ ”
I agree with the majority that violation of MCL 691.1402; MSA 3.996(102), and MCL 224.21; MSA *600 9.121, establishes negligence. But in this case I find no reversible error in the court’s reference to "prima facie” negligence. I do not agree with the majority that the plaintiffs burden of proof was increased by reason of this instruction. The court’s reference to "prima facie” negligence was made in connection with its initial consideration of the issue of proximate cause. As I read the instruction, the court was merely telling the jurors that plaintiff first had to establish defendant’s breach of duty but that plaintiff could not recover unless she also established that defendant’s conduct was a proximate cause of plaintiffs damages. 3 There was no mention of "prima facie” negligence when the court later read to the jury the statutes upon which plaintiffs negligence claim was based. As I read the instructions as a whole, I am persuaded that plaintiff suffered no prejudice and that the jurors were adequately instructed concerning the relevant legal principles. Finding no inconsistency with substantial justice, I would not disturb the jury verdict because of the challenged instruction. GCR 1963, 529.1.
Next, the majority addresses plaintiffs claim that the trial court erred "in ruling that, as a matter of law, the defendant did not have a duty to remove the tree near the shoulder of the roadway”.
The challenged ruling was that plaintiffs expert witness would be able to testify concerning guardrails and the shoulder of the roadway ("the improved portion of the highway designed for vehicular travel”, MCL 691.1402; MSA 3;996[102]) but *601 would not be allowed to testify that it was defendant’s duty to remove trees located "along the side of the highway”. The court further ruled, however, that the witness would be allowed to "testify to his opinion as to the interpretation of the statute in relation to the highway”.
In subsequent examination of the witness, plaintiff explored in depth the question of whether the tree with which plaintiff’s decedent’s car collided constituted an obstacle in front of which a guardrail should have been installed in the interest of motorist safety. Plaintiff’s claim, as presented to the jurors by the court in final instructions, included an allegation of defendant’s negligence in the presence of "a clump of trees located within the highway right-of-way only 10 feet from the pavement edge”. There was no claim that plaintiff’s decedent’s car was completely on the shoulder, which had a maximum width of eight feet, when it collided with the tree.
In my judgment, the issue of whether the tree affected the safety of motorists using the shoulder of the road was adequately presented to the jury. I am not persuaded of reversible error in the court’s ruling.
Finally, the majority finds reversible error in the court’s exclusion of certian opinion testimony offered by plaintiff’s expert, Sergeant Capman. Again, I find no reversible error. I am not persuaded that the testimony would have necessarily aided the jury. Cook v City of Detroit, 125 Mich App 724 ; 337 NW2d 277 (1983). Given the facts in this case, I do not perceive a denial of substantial justice in exclusion of this testimony. GCR 1963, 529.1.
I would affirm.
The jury was instructed that:
"The plaintiff has the burden of proof on each of the following propositions:
"(a) That the plaintiff sustained damage;
"(b) That the defendant was negligent in violation of its statutory duty to maintain the roadway;
"(c) That the negligence of the defendant was a proximate cause of the plaintiffs injuries and damages.
"The defendant has the burden of proof on its claim that the plaintiff decedent was negligent in one or more of the ways claimed *598 by the defendant, as it is stated to you in these instructions, and that such negligence was a proximate contributing cause of the damages to the plaintiff.
"If you find the defendant was not negligent or that the defendant’s negligence was not a proper cause of plaintiffs injuries and plaintiffs damages, you will find for the defendant.
"If you find that the defendant was negligent and that defendant’s negligence was a proximate cause of plaintiff’s injury, then you should determine the total amount of plaintiffs damages.
"You must then determine whether plaintiff decedent was also negligent and whether plaintiff decedent’s negligence was a proximate cause of his death.
"If you find that the decedent was not negligent or if decedent’s negligence was not a proximate cause of his death, then you will render a verdict for plaintiff in the full amount for damages.
"If you find that each party was negligent and that the negligence of each party was a proximate cause of the plaintiffs injuries or damages, then you must determine the degree of such negligence expressed as a percentage attributable to the plaintiff.
"Negligence on the part of the plaintiff does not bar recovery by plaintiff against the defendant. However, the percentage of negligence attributable to the plaintiff will be used by the Court to reduce the amount of damages which you find to have been sustained by the plaintiff.”
"Verdict Form
"We, the jury, make the following answers to the questions submitted by the court:
"Question #1: Was the defendant road commission negligent in that it did not maintain Red Arrow Highway reasonably safe and convenient for public travel?
"Answer: No (Yes or No)
"Question #2: Was the defendant road commission guilty of maintaining an intentional nuisance?
"Answer: Yes (Yes or No)
"If the answers are "No” to Questions #1 & #2, do not answer any further questions.
"Question #3: Was the defendant road commission’s negligence a proximate cause of injury or damage to the plaintiffs decedent?
"Answer: No (Yes or No)
*599 "Question #4: Was the intentional nuisance a proximate cause of injuries or damages to plaintiff’s decedent?
"Answer: No (Yes or No)
"Question #5: What is the total amount of plaintiff’s damages?
"Answer: $None
"What is that portion which is attributable to loss of companionship and society?
"Answer: $None
"Question #6: Was the plaintiff’s decedent Ronald Moerman negligent?
"Answer: Yes (Yes or No)
"Question #7: Was the plaintiff’s negligence a proximate cause of the injury or damage to that plaintiff? "Answer: Yes (Yes or No)
"If the answer is no, do not answer any further questions.
"Question #8: Using 100% as the total combined negligence of the parties which proximately caused the injury or damage to the plaintiff, what percentage of such negligence is attributable to the plaintiff, Ronald Moerman?
"Answer: 100%”
The court repeated reference to "prima facie” negligence when, at a later point in the instructions, it read to the jurors the various traffic safety statutes relevant to the conduct of plaintiffs decedent. Again, the gist of the instruction was that plaintiffs decedent’s conduct had to have proximately caused the accident.