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### STATE OF MICHIGAN

COURT OF APPEALS

DOUGLAS MELROSE,

Plaintiff-Appellee, UNPUBLISHED August 2, 2016

v No. 325717 Saginaw Circuit Court
RICKY WARNER and WARNER TRUCKING & EXCAVATING, INC., LC No. 13-020555-NI

Defendants-Appellants.

Before: F ORT HOOD
, P.J., and R ONAYNE K RAUSE and G ADOLA , JJ.

G ADOLA
, J. ( dissenting ).

I respectfully dissent because I believe that the trial court failed to properly determine whether the evidence of each alleged statutory violation was re levant to the issue of proximate

cause.

In Michigan, evidence of violation of a penal statute may be i ntroduced in a negligence action to create a rebuttable presumption of negligence. Klanseck v Anderson Sales & Service,

Inc , 426 Mich 78, 86; 393 NW2d 356 (1986); Zeni v Anderson , 397 Mich 117, 128-129; 243 NW2d 270 (1976); Poch v Anderson , 229 Mich App 40, 48; 580 NW2d 456 (1998). To be admissible, however, the relevance of the evidence of the statu tory violation must be specifically
established. Klanseck , 426 Mich at 87. The factors necessary to such a determinatio n of relevance are (1) whether the statute was intended to protect a gainst the result of the violation, (2) whether the plaintiff was within the class intended to be p rotected, and (3) whether the evidence would support a finding that the violation was a proxi mate contributing cause of the event in the negligence case. Id . If these factors are met, the evidence of statutory violatio n may be introduced, and the presump tion of negligence created may th ereafter be rebutted by evidence of a legally sufficient excuse for the violation. Id . at 86. The determination of whether the violation of the statute was a proximate cause of the event in the negligence case is then left to the jury to decide. Id. ; Rodriguez v Solar of Mich, Inc , 191 Mich App 483, 488; 478 NW2d 914 (1991).

In this case, plaintiff’s Amended Complaint alleged that defen dants had failed to inspect the vehicle and that defendant Ricky Warner had failed to posse ss a valid health card and a valid
commercial driver’s license at the time of the accident. In re sponse to these allegations, defendants filed a motion in limine in the trial court seeking to exclude any evidence that-2- defendants had allegedly violated any regulations or statutes. Specifically, defendants sought to exclude any evidence that defe ndants had violated any law by al legedly failing to inspect the vehicle, by defendant Ricky Warner failing to have a valid medi cal card, by defendant Ricky Warner having an invalid commerc ial driver’s license, or that d efendants had violated any federal safety regulations pursuant to the Federal Motor Carrie r Safety Act, 49 USC 31100 et

seq

.
In response to the motion in limine, plaintiff argued that he should be permitted to
introduce evidence that defendants had violated several section s of the Federal Motor Carrier Safety Regulations, specificall y, 49 CFR 390.35 (falsification/ alteration of reports), 49 CFR 391.41 (operating without a medical card), 49 CFR 392.60 (unaut horized person in vehicle), 49 CFR 396.3 (improper inspection), 49 CFR 396.7 (unsafe operation s), 49 CFR 396.11 (improper
and fraudulent driver vehicle i nspection report), 49 CFR 396.13 (improper driver inspection), 49 CFR 396.17 (numerous violations of the required periodic inspec tion), 49 CFR 396.19 (annual inspector unqualified), 49 CFR 396.21 (violation of record keep ing requirements), and 49 CFR 396.25 (brake inspecto r unqualified).

In ruling upon defendants’ motion in limine, the trial court a ccurately noted that the test
in Klanseck was determinative, and also accurately noted that the determin ation of the relevance of evidence of a statutory violation is one of law to be determ ined by the court. The trial court, however, did not then specifically determine the relevance of e ach alleged violation. Instead, the trial court simply concluded that any evidence of a statutory v iolation alleged by plaintiff was admissible, reasoning that the determination of proximate cause is ordinarily left to the trier of fact. In other words, the trial court did not distinguish betw een the role of the jury in determining proximate cause and the role of the trial court in determining whether the plaintiff had sufficiently established the relevance of a particular stat utory violation for it to be submitted to the jury. In this, t he trial court erred.

In Klanseck our Supreme Court specifically i dentified a trial court’s deci sion to permit
the introduction of evidence of a regulatory violation as a que stion of law. Our Supreme Court
stated:

The foregoing discussion of the relevancy determination involv es a decision to be made by the court as a matter of law that, accor ding to the evidence presented, the jury could find a causal connection betw een the statutory violation
and the accident. The determination should not be confused wit h the jury’s duty to decide, as a matter of fact, whether the violation was a proximate cause of the accident. [ Klanseck , 426 Mich at 90.]

Here, the trial court failed to make a specific determination regarding each alleged violation, and simply allowed ev idence of any and all alleged s tatutory violations to be submitted to the jury, reasoning that the jury makes the decision regardi ng proximate cause. The trial court
therefore failed to follow the directive of Klanseck that requires the trial court to make a specific relevancy determination regardi ng any alleged statutory violati on before submitting such evidence to the jury.-3- Questions of law are reviewed by this Court de novo. Cardinal Mooney High School v Mich High School Athletic Ass’n , 437 Mich 75, 80; 467 NW2d 21 (1991); Smith v Jones , 246 Mich App 270, 274; 632 NW2d 509 (2001). Because the trial cour t’s determination was one of law, we review de novo the trial court’s decision regarding the admission of the evidence of alleged statutory violations. Here, a review of the record ind icates that at least some of the alleged statutory violations wer e not relevant to the issue of proximate cause 1 , that is, evidence of the alleged violations would not support a finding that the violations were proximate contributing causes of the accident. See Klanseck , 426 Mich at 87.

Plaintiff’s theory of defendants’ liability essentially is two fold: First, plaintiff alleges that the accident was caused by a tire blowout, that the tire b lowout might have been caused by a worn or defective tire, that defendants may have failed to iden tify the potentially worn or defective tire because they failed to inspect the truck as requ ired by certain federal regulations, and that defendants’ failure to comply with the regulations was therefore relevant because inspection might have revealed the tire’s worn or defective con dition (that may or may not have existed). Therefore, argues plaintiff, defendants’ failure to comply with federal regulations related to inspection of the truck was a proximate cause of the accident.

Plaintiff’s second theory of liability is that once the tire b lew out, defendant Ricky Warner’s handling of the truck w as negligent. Plaintiff reason s that defendant Ricky Warner should have taken different steps to attempt to maintain contro l of the truck, and if he had, the accident may have been averted or lessened in severity. Plaint iff reasons that defendants’ failure to comply with certain federal regulations, such as having a va lid medical card at the time of the accident, demonstrates that defendants failed in a component of being properly licensed, that being properly licensed is relevant to one’s driving competence , and that evidence of failure to comply with regulations, such as having a valid medical card, i s relevant to whether defendant is a competent driver. All of which, plaintiff contends, is relev ant to whether defendant was negligent in his respon se to the tire blowout.

Although an argument can be made that violating a regulation t hat requires inspection of
the vehicle is relevant to the issue of the condition of the ve hicle, it is a stretch of reasoning to say that failure to comply with a licensing requirement, for ex ample, failure to have a valid medical card, is relevant to the issue of whether defendant Ric ky Warner properly responded when the tire blew out. If it is relevant, then it would seem that all licensing violations are

1 For example, there appears to be no relevance to the issue of proximate cause of plaintiff’s contention that defendant Ricky Warner failed to possess a vali d medical card while driving the truck as required by 49 CFR 391.41, that defendant Ricky Warner as the driver failed to obtain from himself as defendant Warner Trucking & Excavating, Inc., t he motor carrier, written permission to have plaintiff as a passenger in the truck as req uired by 49 CFR 392.60, nor to the allegation that defendant Ricky Warner as the driver failed to provide to himself as defendant Warner Trucking & Excavating, Inc ., the motor carrier, a writte n report at the end of each day’s work regarding the status of t he vehicle as required by 49 CFR 396.11.-4- relevant, and that is a result that Klanseck cautions against. Rather, our Supreme Court in
Klanseck stated:

While we hold today that, in certain cases, the fact that a pe rson has violated the motorcycle licensing statute may be used as eviden ce of negligence, we caution that relevance must be specifically established. As the Supreme Court
in Florida stated in Brackin v Boles , 452 So 2d 540, 545 (Fla, 1984): Relevancy is usually inherently established when the traffic regulation w hich was violated
concerns the manner in which an automobile was operated. Relev ancy is not so easily established when the tra ffic regulation which was violat ed concerns a licensing requirement. [ Klanseck , 426 Mich at 87-88 (quotation marks omitted).]

I therefore would hold that the trial court failed to properly determine the relevance of the specific alleged statutory violat ions before permitting evidenc e of those alleged violations to be submitted to the jury. As a result, evidence that had not been determined to be relevant was submitted to the jury. Ordinarily, an error in the admission o f evidence does not warrant appellate relief unless refusal to do so is inconsistent with s ubstantial justice or affects a substantial right of a party. Badiee v Brighton Area Schs , 265 Mich App 343, 356; 695 NW2d 521 (2005). In this case, the trial court permitted plaintiff to introduce evidence regarding alleged violations of eleven fed eral regulations pertaining to two different theories of liability
without the trial court determini ng the relevance of that evide nce. The jury responded with a substantial award to plaintiff. It is impossible to say upon w hich of plaintiff’s two theories the jury based its award or to say that the jury did not rely upon irrelevant evidence in making the
award. I therefore cannot conclude that the erroneous admissio n of the evidence was consistent with substantial justice or di d not affect the substantial righ ts of a party.

I further conclude that defendant s were entitled to a directed verdict on the issue of lost earnings. At the conclusion of t he proofs before the trial cou rt, defendants moved for a directed
verdict on the issue of lost ea rnings, arguing that the only ev idence presented on that issue was plaintiff’s unsubstantiated te stimony that he an ticipated earni ng between $17,000 and $25,000 annually in the coming years. The trial court denied defendant s’ motion. The jury award thereafter included $16,000 annually in lost future earnings. Defendants argue on appeal that the only evidence of anticipated earni ngs was plaintiff’s own testi mony, which was so speculative that plaintiff failed to carr y his burden of proof. I agree.

Appellate review of a trial court’s decision on a motion for d irected verdict is de novo. Sniecinsky v Blue Cross & Blue Shield of Mich , 469 Mich 124, 131; 666 NW2d 186 (2003). A motion for directed verdict should be granted only if the evide nce and all legitimate inferences arising from that evidence, when viewed in a light most favorab le to the nonmoving party, fail to
establish a claim as a matter of law. Id

.
In a tort action, damages are not compensable if they are remo te, contingent, or speculative. Hannay v Dep’t of Transp , 497 Mich 45, 78; 860 NW2d 67 (2014). A plaintiff is not precluded from recovery simply because the damages lack pre cise proof, however, and mathematical precision is not required. Id . In this case, the parties agree that the only evidence supporting the award of future income was plaintiff’s own testi mony that, but for his injuries, he believed he would be working and earning between $17,000 and $2 5,000 annually. By contrast,-5- plaintiff also testified that he had become disabled by his hea lth in 2007 and had therefore not been employed from 2007 until six weeks before the accident, wh en plaintiff began to work as a self-employed “scrapper.” Plaintiff had applied for Social Sec urity Disability benefits in 2007, and continued to have health problems just weeks before the acc ident 2 . To summarize, not only is there virtually no evidence to support the award, there is e vidence that prior to the accident, plaintiff was not earning wages a nd had been unable to earn wag es due to his health since 2007. Given the lack of evidence in support of the award and the exis tence of evidence weighing against the award, the trial cour t should have granted the moti on for directed verdict on this
issue.

For these reasons, I would vaca te the jury verdict and remand for new trial.

/s/ Michael F. Gadola

2 Plaintiff testified that prior to the accident, he had experien ced myriad injuries and health difficulties that had affected his ability to work. Plaintiff testified that he had suffered nine heart attacks. In 1991, plaintiff was injured when he fell down a fl ight of steps. That same year, plaintiff accidentally shot himself in the leg, shattering his left femur. In 1995, plaintiff was beneath a jacked-up truck when the truck fell, fracturing his a rm and bruising his ribs. In 1999, he was involved in a fight that resulted in injuries to his spi ne and left wrist. In 2005, plaintiff fell from a boat dock injuring his left shoulder. In 2006, pla intiff sustained injuries in a bus accident. In 2007, plaintiff was involved in another fight res ulting in a head injury. And from 1994 until 2007, plaintiff was disabled by pulmonary embolisms, for which he ultimately sought Social Security Disability benefits in 2007. On August 2, 2010 , about two weeks before the truck accident in this case, plaintiff was diagnosed with deep vein thrombosis in his legs and hospitalized with blood clots. In February 2014, after the tru ck accident but before trial, plaintiff again fell and suffered an acute closed-head injury and an acut e lumbar strain.