                           STATE OF MICHIGAN

                           COURT OF APPEALS



DOUGLAS MELROSE,                                                    UNPUBLISHED
                                                                    August 2, 2016
               Plaintiff-Appellee,

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

               Defendants-Appellants.


Before: FORT HOOD, P.J., and RONAYNE KRAUSE and GADOLA, JJ.

GADOLA, 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 relevant to the issue of proximate
cause.

        In Michigan, evidence of violation of a penal statute may be introduced 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 statutory violation must be specifically
established. Klanseck, 426 Mich at 87. The factors necessary to such a determination of
relevance are (1) whether the statute was intended to protect against the result of the violation,
(2) whether the plaintiff was within the class intended to be protected, and (3) whether the
evidence would support a finding that the violation was a proximate contributing cause of the
event in the negligence case. Id. If these factors are met, the evidence of statutory violation may
be introduced, and the presumption of negligence created may thereafter 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 defendants had failed to inspect
the vehicle and that defendant Ricky Warner had failed to possess a valid health card and a valid
commercial driver’s license at the time of the accident. In response to these allegations,
defendants filed a motion in limine in the trial court seeking to exclude any evidence that

                                                -1-
defendants had allegedly violated any regulations or statutes. Specifically, defendants sought to
exclude any evidence that defendants had violated any law by allegedly failing to inspect the
vehicle, by defendant Ricky Warner failing to have a valid medical card, by defendant Ricky
Warner having an invalid commercial driver’s license, or that defendants had violated any
federal safety regulations pursuant to the Federal Motor Carrier 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 sections of the Federal Motor Carrier
Safety Regulations, specifically, 49 CFR 390.35 (falsification/alteration of reports), 49 CFR
391.41 (operating without a medical card), 49 CFR 392.60 (unauthorized person in vehicle), 49
CFR 396.3 (improper inspection), 49 CFR 396.7 (unsafe operations), 49 CFR 396.11 (improper
and fraudulent driver vehicle inspection report), 49 CFR 396.13 (improper driver inspection), 49
CFR 396.17 (numerous violations of the required periodic inspection), 49 CFR 396.19 (annual
inspector unqualified), 49 CFR 396.21 (violation of record keeping requirements), and 49 CFR
396.25 (brake inspector unqualified).

        In ruling upon defendants’ motion in limine, the trial court accurately noted that the test
in Klanseck was determinative, and also accurately noted that the determination of the relevance
of evidence of a statutory violation is one of law to be determined by the court. The trial court,
however, did not then specifically determine the relevance of each alleged violation. Instead, the
trial court simply concluded that any evidence of a statutory violation 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 between 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 statutory violation for it to be submitted
to the jury. In this, the trial court erred.

        In Klanseck our Supreme Court specifically identified a trial court’s decision to permit
the introduction of evidence of a regulatory violation as a question of law. Our Supreme Court
stated:

               The foregoing discussion of the relevancy determination involves a
       decision to be made by the court as a matter of law that, according to the evidence
       presented, the jury could find a causal connection between the statutory violation
       and the accident. The determination should not be confused with 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 evidence of any and all alleged statutory violations to be submitted
to the jury, reasoning that the jury makes the decision regarding proximate cause. The trial court
therefore failed to follow the directive of Klanseck that requires the trial court to make a specific
relevancy determination regarding any alleged statutory violation before submitting such
evidence to the jury.



                                                -2-
       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 court’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 indicates that at least some of the
alleged statutory violations were not relevant to the issue of proximate cause1, 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 twofold: First, plaintiff alleges
that the accident was caused by a tire blowout, that the tire blowout might have been caused by a
worn or defective tire, that defendants may have failed to identify the potentially worn or
defective tire because they failed to inspect the truck as required 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 condition (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 blew out, defendant Ricky
Warner’s handling of the truck was negligent. Plaintiff reasons that defendant Ricky Warner
should have taken different steps to attempt to maintain control of the truck, and if he had, the
accident may have been averted or lessened in severity. Plaintiff reasons that defendants’ failure
to comply with certain federal regulations, such as having a valid 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, is relevant to whether defendant is
a competent driver. All of which, plaintiff contends, is relevant to whether defendant was
negligent in his response to the tire blowout.

       Although an argument can be made that violating a regulation that requires inspection of
the vehicle is relevant to the issue of the condition of the vehicle, it is a stretch of reasoning to
say that failure to comply with a licensing requirement, for example, failure to have a valid
medical card, is relevant to the issue of whether defendant Ricky 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 valid 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., the motor carrier, written
permission to have plaintiff as a passenger in the truck as required 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 written report at the end of each day’s
work regarding the status of the vehicle as required by 49 CFR 396.11.


                                                -3-
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 person has
       violated the motorcycle licensing statute may be used as evidence 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 which was violated
       concerns the manner in which an automobile was operated. Relevancy is not so
       easily established when the traffic regulation which was violated 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 violations before permitting evidence 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 of evidence does not warrant
appellate relief unless refusal to do so is inconsistent with substantial 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 federal regulations pertaining to two different theories of liability
without the trial court determining the relevance of that evidence. The jury responded with a
substantial award to plaintiff. It is impossible to say upon which 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 admission of the evidence was consistent
with substantial justice or did not affect the substantial rights of a party.

        I further conclude that defendants were entitled to a directed verdict on the issue of lost
earnings. At the conclusion of the proofs before the trial court, defendants moved for a directed
verdict on the issue of lost earnings, arguing that the only evidence presented on that issue was
plaintiff’s unsubstantiated testimony that he anticipated earning between $17,000 and $25,000
annually in the coming years. The trial court denied defendants’ motion. The jury award
thereafter included $16,000 annually in lost future earnings. Defendants argue on appeal that the
only evidence of anticipated earnings was plaintiff’s own testimony, which was so speculative
that plaintiff failed to carry his burden of proof. I agree.

        Appellate review of a trial court’s decision on a motion for directed 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 evidence and all legitimate inferences
arising from that evidence, when viewed in a light most favorable 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 remote, 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 precise 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 testimony that, but for his injuries, he
believed he would be working and earning between $17,000 and $25,000 annually. By contrast,

                                                -4-
plaintiff also testified that he had become disabled by his health in 2007 and had therefore not
been employed from 2007 until six weeks before the accident, when plaintiff began to work as a
self-employed “scrapper.” Plaintiff had applied for Social Security Disability benefits in 2007,
and continued to have health problems just weeks before the accident2. To summarize, not only
is there virtually no evidence to support the award, there is evidence that prior to the accident,
plaintiff was not earning wages and had been unable to earn wages due to his health since 2007.
Given the lack of evidence in support of the award and the existence of evidence weighing
against the award, the trial court should have granted the motion for directed verdict on this
issue.

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



                                                               /s/ Michael F. Gadola




2
 Plaintiff testified that prior to the accident, he had experienced 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 flight 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 arm and bruising his ribs. In 1999,
he was involved in a fight that resulted in injuries to his spine and left wrist. In 2005, plaintiff
fell from a boat dock injuring his left shoulder. In 2006, plaintiff sustained injuries in a bus
accident. In 2007, plaintiff was involved in another fight resulting 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 truck accident but before trial, plaintiff
again fell and suffered an acute closed-head injury and an acute lumbar strain.


                                                 -5-
