Hoag v. Paul C. Chapman & Sons, Inc.

N. J. Kaufman, J. Defendant appeals from a January 23, 1974 interlocutory order by the Washtenaw County Circuit Court which denied its motion for summary judgment. This is a wrongful death action, pursuant to MCLA 600.2922; MSA 27A.2922. Plaintiffs’ decedent, Melbourne J. Hoag, was employed as a salesman by defendant, which operates an automobile sales and leasing company. 1 As part of his compensation, decedent was given the use of a company automobile; According to plaintiffs’ complaint, decedent was killed in an auto accident when, after having consumed a large amount of alcohol, and while driving at a high rate of speed, he failed to *294 negotiate a turn and his auto careened off the road. 2 Plaintiffs admitted decedent’s negligence, but claimed that defendant was liable for his death because it had been negligent in entrusting a company car to him. In their complaint, plaintiffs alleged several grounds in support of their negligent entrustment claim: "(a) Defendants Chapman knew or had reason to know that Melbourne J. Hoag was engaged in the regular consumption of alcohol that would or might render his operation of said vehicle dangerous to himself and others. "(b) Defendants Chapman knew or had reason to know that Melbourne J. Hoag regularly operated the said motor vehicle at unlawful high speeds. "(c) Defendants Chapman knew or had reason to know that Melbourne J. Hoag turned the air filter inside the car engine upside down to increase the maximum speed the car could attain. "(d) Defendants Chapman knew or had reason to know that Melbourne J. Hoag did not have a valid Michigan Operator’s License. "(e) Defendants Chapman were told on numerous occasions that as a result of Melbourne J. Hoag’s high speed driving and drinking, his driving had become extremely reckless and that the said motor vehicle should be taken from him.” Plaintiffs contended that these claims alternatively constituted "gross negligence” or negligent entrustment on the part of defendant. Plaintiffs also alleged that defendant was "strictly liáble” for decedent’s death under the motor vehicle civil liability act, MCLA 257.401; MSA 9.2101. Defendant moved for a summary judgment arguing that, under GCR 1963, 117.2(1), plaintiffs had *295 failed to state a cause of action upon which relief could be granted. In support of its motion, defendant contended that since plaintiffs’ complaint had admitted decedent’s negligence, decedent’s contributory negligence barred plaintiffs’ suit. The court, in denying defendant’s motion, stated: "The general rule is that contributory negligence will not bar recovery if defendant is grossly negligent. However, when the plaintiff has been guilty of conduct of the same nature and quality as that of the defendant, recovery may be barred if plaintiff’s conduct was a proximate cause of the injury. Toomer v Steiner 43 Mich App 12, 14 [202 NW2d 808] (1972). "The existence or absence of gross negligence or of willful and wanton misconduct of [sic] the part of the defendant may be decided as a matter of law if the evidence unquestionably shows, or fails to show, their existence. However, in an action for injury or death, where evidence has been introduced which tends to show negligence or misconduct on the part of the defendant, a determination on such evidence remains a question of fact to be decided by the jury. Shepherd v Barber, 20 Mich App 464, 466 [174 NW2d 163] (1969). On appeal, defendant contends that the trial court erred by failing to grant summary judgment as to (1) plaintiffs’ statutory claim under the automobile civil liability act, supra, and (2) plaintiffs’ common law claim under the negligent entrustment theory. A motion for summary judgment under GCR 1963, 117.2(1) tests only the legal, not factual, sufficiency of the pleadings. Crowther v Ross Chemical and Manufacturing Co, 42 Mich App 426; 202 NW2d 577 (1972). An appellate review accepts as true all of plaintiffs’ factual allegations as well as any reasonable inferences which may be drawn from the allegations. Martin v Fowler, 36 Mich App 725; 194 NW2d 524 (1971). *296 Under the wrongful death act, MCLA 600.2922; MSA 27A.2922, an action may be maintained by the decedent’s personal representatives only if the decedent could have recovered in his own name had he not died. I Before discussing plaintiffs’ common law. and statutory claims, we feel compelled to examine and define the common law and statutory concepts of "gross negligence” and "wilful and wanton misconduct”. These concepts involve a different meaning under the guest passenger portion of the civil liability act than they do at common law. As the Supreme Court stated in LaCroix v Grand Trunk Western R Co, 379 Mich 417, 426; 152 NW2d 656, 660 (1967), "[w]hile the guest passenger cases may be helpful * * * , we do not regard them as controlling in determining the correct concepts of gross negligence and wilful and wanton misconduct at common law”. Under the first portion of the civil liability act, MCLA 257.401; MSA 9.2101, an injured party may recover from the owner of a motor vehicle for injuries caused by the negligent operation of that vehicle. Under the proviso in the last sentence of the act, an injured guest passenger may recover from the operator of the vehicle only if the injuries have resulted from the "gross negligence or wilful and wanton misconduct” of the operator. Although the statute posits these terms in the disjunctive, the Supreme Court has held them to be synonymous. Thayer v Thayer, 286 Mich 273; 282 NW 145 (1938), Pawlicki v Faulkerson, 285 Mich 141; 280 NW 141 (1938). Liability is imposed when the driver’s conduct "manifests a high degree of danger, a manifest probability that harm *297 will result therefrom, and an utter disregard of the probable consequences”. Stevens v Stevens, 355 Mich 363, 371; 94 NW2d 858, 863 (1959). A plaintiff must additionally show that the driver, through his conduct, exhibited "an affirmatively reckless state of mind with intent to depart from careful driving”. Brooks v Haack, 374 Mich 261, 265; 132 NW2d 13, 15 (1965), Hendershott v Rhein, 61 Mich App 83; 232 NW2d 312 (1975). At common law, however, gross negligence and wilful and wanton misconduct are different concepts with different bases and different legal effects. The Supreme Court in LaCroix v Grand Trunk Western R Co, supra, pp 432-424, quoting from Gibbard v Cursan, 225 Mich 311; 196 NW 398 (1923), defined gross negligence: " 'When will gross negligence of a defendant excuse contributory negligence of a plaintiff? In a case where the defendant, who knows, or ought, by the exercise of ordinary care, to know, of the precedent negligence of the plaintiff, by his subsequent negligence does plaintiff an injury. Strictly, this is the basis of recovery in all cases of gross negligence. 20 RCL p 145. Such gross negligence is also sometimes called discovered negligence, subsequent negligence, wanton or wilful or reckless negligence, discovered peril, last clear chance doctrine, and the humanitarian rule. " 'The theory of gross negligence is that the antecedent negligence of plaintiff only put him in a position of danger and was therefore only the remote cause of the injury, while the subsequently intervening negligence of the defendant was the proximate cause. Cooley on Torts (2d ed), p 674; Labarge v Railroad Co, 134 Mich 139 (14 Am Neg Rep 575) [95 NW 1073 (1903)]. " 'If the negligence of a plaintiff is concurrent with the negligence of a defendant, the rule as to antecedent *298 negligence of plaintiff and subsequent negligence of defendant does not apply. The doctrine of gross, subsequent or discovered negligence may not be invoked to excuse concurrent negligence of a plaintiff.’ ” (Citations omitted.) (Emphasis in original.) Thus, for a contributorily negligent plaintiff to recover, his negligence must have ceased to exist as the proximate cause and defendant’s negligence must have continued and have been the proximate cause of plaintiffs injuries. Routt v Berridge, 294 Mich 666; 293 NW 900 (1940). Gross negligence and subsequent negligence are identical concepts. We are not unmindful of the cases which have held that gross negligence is not limited to "subsequent negligence” but also includes "reckless disregard” or "wilful and wanton” conduct. 3 We find, however, that they do not accurately reflect current law. First, the LaCroix opinion clearly stated that, "[t]he charges [for gross negligence and for wilful and wanton misconduct] are not identical”, 379 Mich 417, 422; 152 NW2d 656, 657. Second, adding an element of reckless conduct to the definition of gross negligence would seriously blur the distinction between gross negligence and wilful and wanton misconduct. Adding this element would also involve the introduction of degrees of negligence between gross negligence and wilful and wanton misconduct akin to a comparative negligence theory, one not accepted in this jurisdiction. As the Supreme Court stated in Union *299 Trust Co v Detroit, G H & M R Co, 239 Mich 97, 100; 214 NW 166 (1927), and reiterated in LaCroix, supra, p 425: " 'We do not have gross negligence in the sense of great or much negligence because that would introduce into our law the doctrine of comparative negligence which is foreign to this jurisdiction, and * * * while wilful and wanton acts are frequently designated as gross negligence, such designation is a misnomer, because such wilful and wanton acts are not negligence at all.’ ” Finally, as we will discuss below, it is just that element of recklessness that provides the difference between gross negligence and wilful and wanton misconduct at common law. The common law definition of wilful and wanton misconduct essentially represents the concept of last clear chance, which is embodied in gross negligence, plus an element of recklessness. Wilful and wanton misconduct, at common law, is comprised of the same elements as are both gross negligence and wilful and wanton misconduct under the guest passenger proviso of the civil liability act. In addition to the standards enunciated in Stevens v Stevens, supra, the Supreme Court in Kieft v Barr, 391 Mich 77, 80; 214 NW2d 838, 839 (1974), adopted for statutory purposes the same test which Gibbard v Cursan, supra, p 322, established for common law purposes: " '(1) Knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another; (2) Ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand; (3) The omission to use such care and diligence to avert the threatened danger, when to the ordinary mind it must be apparent that the result is likely to *300 prove disastrous to another.’ Tien v Barkel, [351 Mich 276; 88 NW2d 552 (1958)] 281-282.” The Court in LaCroix, supra, differentiated common law gross negligence from common law wilful and wanton misconduct: " 'If one wilfully injures another, or if his conduct in doing the injury is so wanton or reckless that it amounts to the same thing, he is guilty of more than negligence. The act is characterized by wilfulness, rather than by inadvertence, it transcends negligence— is different in kind. Where recovery is sought on the theory that the injury was caused by wilful, wanton or reckless misconduct of a defendant, as distinguished from negligence, there is no more reason for permitting the defense of contributory negligence than in a case of assault and battery. True, such misconduct in this State and elsewhere usually has been called negligence, the word being qualified by such adjectives as gross, wanton, reckless, or wilful, but this is incorrect and has a tendency to mislead.’ ” (Emphasis in original.) 379 Mich at 424; 152 NW2d at 659, quoting Gibbard v Cursan, supra, pp 320-321. II We turn now to defendant’s first appellate argument, that the trial court should have granted summary judgment on plaintiffs’ claim under the automobile civil liability act. We agree. The act does not apply to plaintiffs’ decedent. He could not have recovered as a guest passenger since he was not one. Nor could he have recovered under the owner’s liability section. That section provides that "[t]he owner of a motor vehicle shall be liable for any injury occasioned by the negligent operation of such motor vehicle”. This statute was intended to permit recovery by injured third parties against *301 the owner, not by the driver. The purpose of the statute is to place the risk of damage upon the person who has ultimate control of the vehicle. Roberts v Posey, 386 Mich 656, 662; 194 NW2d 310, 312 (1972). The owner’s negligence and liability is not original but is derivative, i.e. the negligence of the driver is imputed to him. Ill In examining defendant’s second claim, that the trial court erred in not granting summary judgment on plaintiffs’ negligent entrustment cause of action, we must determine whether, as a matter of law, defendant’s conduct could be categorized as gross negligence or wilful and wanton misconduct. If defendant’s conduct is neither, summary judgment should have been granted. The trial court and plaintiffs on appeal rely on the case of Shepherd v Barber, 20 Mich App 464; 174 NW2d 163 (1969). There, the decedent, a 19-year-old who could neither read nor write and had no driver’s license, was lent a truck by defendant, his employer. Decedent was killed when he drove the truck at a high rate of speed and lost control of it. The parties disputed decedent’s driving competence, and plaintiff presented evidence to show that defendant had been told by the decedent’s parents not to let their son drive the truck. During trial, defendant filed a motion for summary judgment, claiming that only ordinary negligence was involved and that no jury question concerning gross negligence or wilful misconduct was presented. The trial court denied this motion and this Court affirmed the denial. The Shepherd opinion did not discuss the contributory negligence problem nor did it make a specific examination of gross negligence or wilful misconduct. Rather, it framed *302 the issue as "did defendant exercise ordinary care and diligence to avoid injury by loaning the truck?” (Emphasis supplied.) id, p 466. Thus, Shepherd is not especially cogent authority here. Here, it is clear that defendant’s conduct cannot be termed gross, i.e., subsequent, negligence. The allegations in plaintiffs’ complaint, at best, present a case of concurrent, not subsequent, negligence on defendant’s part. There was no point at which we could say that decedent’s negligence had ceased to be a proximate cause of his injuries while defendant’s negligence continued as a proximate cause. Defendant’s negligence would consist of its continuing to allow decedent to use the company car. Decedent’s negligence consisted of consuming a large amount of alcohol and driving. Even assuming, arguendo, that defendant’s negligence continued up to the time of the accident, we must conclude that decedent’s negligence also continued to that time. We also find that, as a matter of law, plaintiffs’ complaint failed to state a cause of action under wilful and wanton misconduct theory. As this Court stated in Toomer v Steiner, 43 Mich App 12, 14; 202 NW2d 808, 809 (1972): "Ordinarily contributory negligence will not prevent recovery when the conduct of the defendant has exceeded the bounds of ordinary negligence. However, when the plaintiff has been guilty of conduct of the same nature and quality as that of the defendant recovery may be barred if the plaintiffs conduct was a proximate cause of the injury. 1 The Restatement of Torts, 2d, § 503(3), pp 592-593, states the rule as follows: " 'A plaintiff whose conduct is in reckless disregard of his own safety is barred from recovery against a defendant whose reckless disregard of *303 the plaintiff’s safety is a legal cause of the plaintiff’s harm.’ We find that, at best, the decedent was guilty of conduct of the same nature and quality as that of defendant. Plaintiffs’ complaint admitted that decedent had consumed a large amount of alcohol, had adjusted his auto’s engine for greater speed and had driven at a high rate of speed while intoxicated. We find that, as a matter of law, plaintiffs’ complaint makes out a case of wilful and wanton misconduct on decedent’s part. Therefore, under the Toomer test, because defendant’s conduct could not be, as a matter of law, of a greater nature and quantity than decedent’s conduct, plaintiffs are barred from recovery. 4 Reversed. Costs to defendant. Footnotes [1] There are two corporate defendants here but, because they are parent and subsidiary, we refer to them in the singular. [2] Plaintiffs also filed an amended complaint. For reasons of clarity we treat both complaints as one. [3] See Denman v Johnston, 85 Mich 387; 48 NW 565 (1891), Wieczorek v Merskin, 308 Mich 145; 13 NW2d 239 (1944), Graves v Dachille, 328 Mich 69; 43 NW2d 64 (1950), Nass v Mossner, 363 Mich 128; 108 NW2d 881 (1961), York v James, 46 Mich App 498; 208 NW2d 185 (1973), lv den 390 Mich 783 (1973), McKeever v Galesburg Speedway Inc, 57 Mich App 59; 225 NW2d 184 (1974). See also Morris, Gross Negligence in Michigan — How Gross Is It? 16 Wayne L Rev 457 (1970); 1974 Annual Survey of Michigan Law, Torts, 21 Wayne L Rev 665, 682-685 (1975). [1] "[fn]1 2 Harper & James, Law of Torts, § 22.6, p 1214.” (Emphasis supplied.) [4] By this opinion we do not, as defendant suggests, hold that an entrustee could never recover from an entrustor. Such a recovery must come within the parameters of our discussion of gross negligence and wilful and wanton misconduct.