KAREN SANDLIN V LARRY MOORE
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STATE OF MICHIGAN
COURT OF APPEALS
KAREN SANDLIN, as Next Friend of AMBER
SANDLIN, a Minor,
UNPUBLISHED
August 1, 2000
Plaintiff-Appellee,
v
LARRY MOORE and NORTHEAST MICHIGAN
COMMUNITY SERVICE AGENCY, INC.,
No. 214061
Clare Circuit Court
LC No. 97-900433-NO
Defendants,
and
CLARE COUNTY TRANSIT CORPORATION,
Defendant-Appellee.
Before: Zahra, P.J., and White and Hoekstra, JJ.
PER CURIAM.
Plaintiff appeals as of right from a judgment for defendant Clare County Transit Corporation
entered following a jury trial, and an order denying plaintiff’s motion for new trial,1 judgment
notwithstanding the verdict, or to set aside the verdict. We affirm.
I
Four-year-old plaintiff Amber Sandlin was enrolled in the Harrison Head Start program and
was transported to and from the program on a bus owned and operated by Clare County Transit
Corporation (CCTC). Former defendant Northeast Michigan Community Service
1
Although the title of plaintiff’s motion stated “mistrial” instead of “new trial,” plaintiff’s written motion
sought as relief a new trial. See n 9, infra. The trial court’s order denying plaintiff’s post-trial motions,
filed August 11, 1998, stated “mistrial.”
-1
Agency, Inc. (NEMSCA),2 conducted the Harrison Head Start program and, pursuant to a
transportation agreement with CCTC, CCTC was responsible for transporting students enrolled in the
program. CCTC did so using a public bus in which it also transported “Dial-A-Ride” passengers while
transporting the pre-schoolers. CCTC advertised using the words “safely, safety and security” and
stated a commitment to assure that children attend their activities safely. On the afternoon of March 23,
1994, former defendant Larry Moore,3 then twenty-seven years old, boarded the bus and sat in a front
seat. At the time, Amber was seated in the rear-most row of seats, next to a window, with her seat-belt
buckled. There were no adult passengers on the bus at the time, other than Moore, and there were two
children, Amber and another child. While the bus was moving, Moore left his front row seat, and sat
next to Amber in the last row. At trial, it was disputed whether the bus driver saw Moore leave his seat
and sit next to Amber, or whether she saw Moore once he was already sitting next to Amber. The
driver testified that she saw Moore sitting next to Amber, that Amber had a surprised look on her face,
and that when her eyes met Moore’s he raised his hands in the air. The driver neither said anything to
Moore or stopped the bus, and continued driving to the next stop. When Amber got off the bus soon
after, she told her mother that the “boy on the bus had hurt her tummy and touched her potty,” and was
taken to an emergency room, where abrasions from her navel to pubic area were observed. Moore
was convicted as a result.
The jury returned a verdict of no cause of action, and the trial court denied plaintiff’s post-trial
motion seeking a new trial. This appeal ensued.
II
Plaintiff first argues that the trial court abused its discretion by denying her request to give SJI2d
10.07, which requires a defendant to exercise “greater vigilance” when he knows or should have known
that children will be in the vicinity. Plaintiff argues that CCTC should have maintained “greater
vigilance” of the Head Start children it transported by sitting them up close to the driver or by employing
a bus aide. Plaintiff argues that the trial court “disregarded the frozen inaction of a child while she was
being approached and assaulted by a man in the back of a bus and disregarded the fact that Amber
could not even be seen over the seat in front of her.” Plaintiff asserts that the jury instructions on
ordinary care, without the additional language of SJI2d 10.07, gave the impression that the law required
no more vigilance from CCTC than was required in transporting an adult, and thus misstated Michigan
law. Plaintiff argues that the degree of vigilance required of CCTC and its driver was clearly critical to
her entire case.
A
SJI2d 10.07 is entitled “Conduct Required for Safety of Child,” and states:
2
NEMSCA was dismissed after reaching a settlement agreement with plaintiff on the first day of trial.
3
Plaintiff voluntarily dismissed Moore on the first day of trial.
-2
The law recognizes that children act upon childish instincts and impulses. If you find the
defendant knew or should have known that a child or children were or were likely to be
in the vicinity, then the defendant is required to exercise greater vigilance and this is a
circumstance to be considered by you in determining whether reasonable care was used
by the defendant.
The “Note on Use” and “Comment” following SJI2d 10.07 state:
This instruction is to be used in appropriate cases where the plaintiff seeks damages for
injury to a minor. If the conduct of a person, e.g., agent, driver, etc., other than
defendant was involved in the occurrence, substitute name or other descriptive term in
the instruction. This instruction should be given immediately after SJI2d 10.03.
See Bolser v Davis, 62 Mich App 731; 233 NW2d 845 (1975), where defendant’s
knowledge that there were homes along the road on which she was driving was a fact
from which a jury could infer that she knew or should have known that a child or
children were or were likely to be in the vicinity, and therefore the evidence was
sufficient to make this instruction appropriate.
Comment
The law recognizes that children, wherever they go, must be expected to act upon
childish instincts and impulses. Powers v Harlow, 53 Mich 507, 515; 19 NW 257,
260 (1884); Edgerton v Lynch, 255 Mich 456, 460; 238 NW 322, 323-324 (1931).
Michigan law requires greater vigilance toward children than toward adults, although the
degree of care does not change. See Comment, SJI2d 10.02.4
4
SJI2d 10.02, entitled Negligence of Adult—Definition, states:
Negligence is the failure to use ordinary care. Ordinary care means the care a
reasonably careful person would use. Therefore, by “negligence,” I mean the failure to
do something that a reasonably careful person [business] would do, or the doing of
something that a reasonably careful person [business] would not do, under the
circumstances that you find existed in this case.
The law does not say what a reasonably careful person [business] using ordinary care
would or would not do under such circumstances. That is for you to decide.
The Comment states in pertinent part:
Under Michigan law, the standard of conduct required may differ depending on the
activity, trade, occupation, or profession, but the degree of care does not change. It is
always what a reasonably careful person engaged in a particular activity, trade,
occupation or profession would do or refrain from doing under the circumstances then
(continued...)
-3
The jury instructions read included SJI2d 10.02,5 10.056, 13.08,7 and 13.09.8 The trial court
denied plaintiff’s request for SJI2d 10.07, stating:
The record should indicate that the Court opted not to give that because it did not feel
that it applied in this particular situation. That applies to when the child is likely to do
something that an adult would not do, and in this particular situation, all the evidence just
simply indicates that the child was sitting in her seat at the time and she wasn’t doing
anything that children otherwise would not do. That’s the reason why the Court did not
give that instruction.
Under MCR 2.516(D)(2), a trial court must give a standard jury instruction if: (1) it is
applicable, (2) it accurately states the applicable law, and (3) a party requests the instruction. Pontiac
School Dist v Miller Canfield Paddock & Stone, 221 Mich App 602, 622; 563 NW2d 693 (1997),
lv gtd in part on other grounds, 457 Mich 871 (1998). We review a trial court’s determination whether
an instruction is accurate and applicable based on the characteristics of a case for abuse of discretion.
Stevens v Veenstra, 226 Mich App 441, 443; 573 NW2d 341 (1997). An appellate court should
vacate a jury verdict “only when the failure to comply with MCR 2.516 amounts to an ‘error or defect’
(...continued)
existing.
The general rule for a child as set forth in Restatement (Second) of Torts, § 283A, is
that “the standard of conduct to which he must conform to avoid being negligent is that
of a reasonable person of like age, intelligence, and experience under like
circumstances.” However, there is an exception to this rule where the child is engaging
in an adult activity. The exception is set forth in comment c to § 283A, which states as
follows:
An exception to the rule stated in this Section may arise where the child
engages in an activity which is normally undertaken only by adults, and
for which adult qualifications are required. . . .
5
See n 4, supra.
6
The court stated:
It was the duty of the Defendant in connection with this occurrence to use ordinary care
for the safety of the Plaintiff.
7
The court stated:
You must not consider whether there was negligence on the part of Amber Sandlin
because under the law a child of her age cannot be charged with negligence.
8
The court stated:
You must not consider whether there was negligence on the part of Amber Sandlin’s
parent or parents because under the law any negligence on the part of the parents
cannot affect a claim on behalf of the child.
-4
in the trial so that the failure to set aside the verdict would be ‘inconsistent with substantial justice.’”
Johnson v Corbet, 423 Mich 304, 326; 377 NW2d 713 (1985), quoting from MCR 2.613.
We have found no cases, and plaintiff cites none, in which SJI2d 10.07 has been applied
outside the attractive nuisance or sudden impulse settings. See Laney v Consumers Power Co, 418
Mich 180, 182-183 n 2; 341 NW2d 106 (1983) (holding in a wrongful death case involving a sixteen
year-old who was electrocuted when he climbed a tree in his front yard and came in contact with a
power line, that the trial court did not err by refusing to instruct that “high degree of care” standard was
applicable); Byrne v Schneider’s Iron, Inc, 190 Mich App 176, 182-183; 475 NW2d 854 (1991)
(noting in a wrongful death case in which decedent died while playing in sand pit located on defendant’s
property, that “SJI2d 10.07 represents a statement of existing attractive nuisance precedent and does
not contradict or broaden the attractive nuisance instruction.”); Tibitoski v Macomb Disposal Service,
Inc, 136 Mich App 259, 261-262; 356 NW2d 15 (1984) (fourteen-year-old ran past front of truck
turning into driveway, tripped, and her leg was run over by truck); Hunter v Szumlanski, 124 Mich
App 521, 528-529; 335 NW2d 75 (1983), rev’d on other grounds 418 Mich App 958 (1984) (child
struck and killed after darting between parked cars into path of defendant’s car); Isom v Farrugia, 63
Mich App 351, 356; 234 NW2d 520 (1975) (child struck and killed as he ran across road); Bolser v
Davis, 62 Mich App 731, 734; 233 NW2d 845 (1975) (holding trial court erred in denying request for
SJI2d 10.07, where plaintiff’s daughters were struck and killed by defendant’s car where there was
testimony that homes were present in vicinity of accident); and Ivy v Binger, 39 Mich App 59, 60; 197
NW2d 133 (1972) (six-year-old struck when he darted into traffic at a school crossing).
Under the circumstance that no Michigan case has applied SJI2d 10.07 outside the attractive
nuisance or sudden impulse settings, and that plaintiff did not raise below the argument that the child’s
frozen response or inaction was a childish instinct or impulse, we are unable to conclude that the trial
court’s determination that SJI2d 10.07 was not applicable to the instant case was an abuse of
discretion, or that the trial court misstated the law by not reading the instruction. The instructions given
directed the jury to evaluate defendant’s conduct in light of the circumstances of the case, which, the
plaintiff stressed in argument, included the age and vulnerability of the child.
III
Plaintiff’s second argument is that the trial court abused its discretion by comments it made to
the jury, after deliberations had begun, when the jury requested clarification of several instructions.
Plaintiff did not object to the challenged comments at the time, but did so in a post-trial motion seeking a
new trial.9
9
Defendant incorrectly argues that plaintiff did not specifically raise this issue in her post-trial motion.
Plaintiff’s post-trial motion stated in pertinent part:
6. The most egregious manifest error of all was the Judges [sic] unsolicited comments
to the Jury wherein he emphatically advised them that all of the evidence relating to the
contract was irrelevant.
(continued...)
-5
Because plaintiff did not object to the trial court’s comments before the jury returned to
deliberate, the issue is not preserved for appellate review. MCR 2.516(C) provides:
A party may assign as error the giving of or the failure to give an instruction only if the
party objects on the record before the jury retires to consider the verdict (or, in the
case of instructions given after deliberations have begun, before the jury
resumes deliberations), stating specifically the matter to which the party objects and
the grounds for the objection. Opportunity must be given to make the objection out of
the hearing of the jury. [Emphasis added.]
GCR 1963, 516, the predecessor rule to MCR 2.516, provided that objections to jury instructions
made after deliberations had begun could be raised in a motion for new trial: “[w]hile the jury is
deliberating the court may in its discretion further instruct the jury, in the presence of or after notice to
counsel. Objections thereto shall be made in a motion for new trial.” See, e.g., Seaton v State Farm
Life Ins, 75 Mich App 252, 260; 254 NW2d 858 (1977), citing GCR 1963, 516.4. However, MCR
2.516 omitted the latter provision. See Dean & Longhofer, Michigan Court Rules Practice, Staff
Comments to MCR 2.516, p 236.
We review jury instructions in their entirety, rather than piecemeal. Jennings v Southwood
(After Remand), 224 Mich App 15, 22; 568 NW2d 125 (1997), vacated in part on other grounds
457 Mich 884 (1998). A trial court may give additional instructions on applicable law not covered by
the SJI, but any additional instructions “must be modeled as nearly as practicable after the style of the
SJI, and must be concise, understandable, conversational, unslanted, and nonargumentative.” MCR
2.516(D)(4); Jennings, supra at 22. “While the appellate court should not hesitate to reverse for a
violation of Rule 2.516, it should not do so unless it concludes that noncompliance with the rule resulted
in such unfair prejudice to the complaining party that the failure to vacate the jury verdict would be
“inconsistent with substantial justice.” Johnson, supra at 327.
The challenged remarks by the trial court began a short time after jury deliberations started,
when the jury sent the court a note:10
(...continued)
7. That the Judge’s unsolicited comment followed hours of deliberation, when the jury
had stated they were divided, after Plaintiff had offered evidence and had extensively
argued the presence of the contract to transport minors as circumstances under which to
consider negligence in the treatment of minor Amber Sandlin.
The record indicates that plaintiff’s counsel contacted the court and advised that he was in trial in
Wayne County and would be unable to appear to argue plaintiff’s post-trial motions on the date
scheduled. Defendant’s counsel argued his motion for mediation sanctions, and no argument was heard
on plaintiff’s post-trial motion. The trial court stated on the record that it had reviewed and was denying
plaintiff’s motion because it found it to be meritless. See also n 1, supra.
10
The jury was excused to deliberate at 3:23 p.m., and proceedings reconvened at 4:08 p.m. to
address the jury’s first note.
-6
THE COURT: We have a note from the jurors indicating that they would like to have
all of the evidence possible, plus a copy of the Court’s instructions, and also a
dictionary. I intend to tell them that I’m not going to give them a dictionary. If they
have a specific word that they would like defined, I will consider that, number one.
Number two, as far as the instructions are concerned, if there’s a specific instruction
that they want, maybe we’ll type that up or have it read to them, and we’ll simply give
them all of the exhibits.
***
THE COURT: Any problem with that procedure?
MS. ROFFMAN [plaintiff’s counsel]: None, Your Honor.
MR. ALLEN: No, Your Honor.
***
(4:10 p.m. - Jury entered the courtroom.)
THE COURT: You may be seated.
Members of the jury, we have this note from you indicating you would like to view all of
the pieces of evidence, and I’ll have all of the exhibits sent with you back into the jury
room with you.
You also have indicated that you would like to have a copy of the instructions that were
given to you, and, unfortunately, they have not been typed up in acceptable form. If
there is a specific instruction or instructions that you would like to have, I would
consider having that typed up, or I would simply reread them to you, whichever you
would find to be appropriate.
You have also indicated that you would like to have a dictionary, and I’m not going to
give you a dictionary. That’s not appropriate. And the reason why is simply that
different words have different meanings for different purposes, and we’re in court, and
so I would have to know what words you would want defined. If you wanted to
indicate to the Court what words you wanted defined, then I would consider whether or
not that would be appropriate to give you a dictionary.
Okay. So I’m going to ask you just simply to go back into the jury room and decide
and tell me what you would like concerning the instructions, and also if there are certain
words that you do want to have defined by way of a dictionary.
And, Ms. Green, would you just hand them then the exhibits, also.
THE CLERK: Certainly.
-7
THE COURT: And why don’t you just take a moment to do that, and then come back
into the courtroom and tell me what you would like to do on those other two matters.
(4:12 p.m. - Jury returned to jury room.)
THE COURT: Well, we’re going to recess. I assume that they don’t want anything
more, and if they knock on the door, then we’ll consider it at that point. So if you’ll
stay in the vicinity.
MR. SILVERMAN: Thank you, Your Honor.
(4:15 p.m. - Recess.)
(5:00 p.m. - Proceedings reconvened.)
THE COURT: All right. Bring in the jury, please.
(Jury returned to the courtroom.)
THE COURT: You may be seated. Members of the jury, you’ve given us a note, this
note indicating, “We would like your instructions reviewed to verify several points.”
Which instructions are you –
JUROR ARMENTROUT: We’re not certain where it is in the order of your
instructions. Um, somewhere near the front half. It’s very possible that we can get –
THE COURT: On which subject is it that you wanted?
JUROR GENOW: Your Honor, we are discussing what safely and secure means on
the bus. We are at a point where we are – all have an opinion, and which we have
listened to the evidence, but it is not –what safe and secure means. Reasonable.
JUROR BOIKE: Well, not, that wasn’t in his instructions.
definitions. As far as –
Them [sic] are the
THE COURT: You have to go one at a time. You can talk all the time you want to
when you’re back there, but –
JUROR ARMENTROUT: All right. But in the first half somewhere, it states the
definition of negligence.
THE COURT: Yes.
JUROR ARMENTROUT: And then it also states something about reasonable. And I
believe that was stated in two different spots.
-8
THE COURT: Okay.
JUROR ARMENTROUT: We didn’t take good notes the first time around. We felt
that we were probably going to have a copy to refer back to.
There was also something, and I can’t remember the wording of it at all, that – about
ordinary care.
THE COURT: All right. Let me do this. I’m going to read to you these definitions.
JUROR ARMENTROUT: Yes, that would help.
THE COURT: And let’s see if this takes care of it. And if it does, great; if it doesn’t,
then I’ll hear what else you have to say. And before I read these definitions, I’m going
to say this again. This is a negligence case. The claim in this case is that the Defendant
was negligent in some way that caused the –that caused injury to Amber. That’s what
the claim is in this particular situation. It’s not a contract claim. It is not a contract case.
This is not some other kind of case. This is a negligence case, and that’s what you are
to determine, whether or not there was negligence and whether or not this negligence
proximately caused injury. Okay, this is the context of what the case is.
So the definitions that are relevant to a negligence claim are as follows:
[court re-instructs on negligence, ordinary care, and proximate cause]]
JUROR ARMENTOURT: Would you read that one again, please?
THE COURT: Sure. When I use the word proximate cause , I mean, first . . . .
[court reads burden of proof instruction and reviews negligence and ordinary care
instructions]
And when you use the words like security or safety, they just have ordinary meaning.
There’s nothing special to them one way or another. It’s just what you would use in
your common everyday parlance.
Anything else?
JUROR GENOW: I don’t believe so.
JUROR BOIKE: I think that cleared it up.
JUROR MANN: Thank you.
JUROR GENOW: Thank you very much.
-9
The jury then returned to deliberate at 5:12 p.m., and at 5:30 p.m. proceedings reconvened after the
jury indicated it had reached a verdict.
Plaintiff argues that, contrary to the court’s statements, this was a case which involved an
important contract. Plaintiff argues that the court supplied its own conceptualization and framework of
the case to the jury and told the jury what to emphasize, that the jury had not asked the court whether
this was a contract case, that the court did not explain what it meant by “contract case” to the lay panel
of jurors, and that this major error occurred a few hours into deliberations and essentially admonished
those on the jury then supporting plaintiff’s case. Plaintiff argues that the thematic core of her case,
articulated in opening statement, was that CCTC had taken on a duty of care to the Head Start children
when it made a contract, made statements ensuring “safety and security” and had publicized and
advertised their promises of safety, and that the court negated her case with its comments.
A general standard of care - - reasonable conduct under the circumstances - - is law provided
by the court in a negligence action, and the specific standard of care is to be decided by the jury. See
Moning v Alfono, 400 Mich 425, 449 n 27; 254 NW2d 759 (1977):
The trier of fact decides whether reasonable precautions have been taken and thereby
establishes the specific standared [sic] of care:
“The common formula for the negligence standard is the conduct of a
reasonable man under like circumstances. In applying this standard
under the instructions of the court, the jury normally is expected to
determine what the general standard of conduct would require in the
particular case, and so to set a particular standard of its own within the
general one. This function is commonly said to be one of the
determination of a question of fact, and not of law.” [Id., quoting 2
Restatement Torts, 2d, § 328 C, comment on clause (b).]
“The circumstances of the particular case are always to be taken into consideration in determining
whether the person sought to be charged with liability for an injury to another. . . has exercised the care
which the law requires of him.” 65 CJS, Negligence, § 11(3), p 577. “The existence of a contract is
ordinarily a relevant factor, competent to be alleged and proved in a negligence action to the extent of
showing the relationship of the parties and the nature and extent of the common-law duty on which the
tort is based.” Clark v Dalman, 379 Mich 251, 261; 150 NW2d 755 (1967); see also Antoon v
Community EMS, 190 Mich App 592, 595; 476 NW2d 479 (1991).
In opening statement,11 during examination of witnesses, and in closing argument, plaintiff’s
counsel referred to the contract between CCTC and NEMSCA and to CCTC advertisements, without
11
Plaintiff’s counsel stated in opening statement:
We’re here because four-year-olds cannot be left in public by themselves. And the
mother, Karen, did not leave her in public by herself. The bus company made a
contract to take infant passengers, children, to and from nursery school. We put our
(continued...)
-10
objection. Several CCTC advertisements admitted as exhibits at trial12 stated regarding the transport of
the Head Start pre-schoolers, “[p]arents with busy schedules know their children will be able to attend
their events and activities safely,” and “Safety and security. We hire responsible and experienced
drivers. Busy parents, bring your children to us. We’ll make sure they attend their activities safely.”
Evidence of the contract was admitted at trial through testimony, including that of the bus driver, who
testified that she was aware that CCTC had agreed to act as the transportation system for the
preschoolers going to and from Head Start, and that she understood that pursuant to the contract, she
had responsibility to the children on the bus for safety. In addition, Karen Sandlin testified that the bus
(...continued)
children on a school bus, and if someone threatens them, we expect that they’re
supervised by an adult; that someone will do something. That no one will let them be
invaded, be assaulted, and be hurt and not stop it. And we expect when we leave
children on a bus that if you’re gonna [sic] let the common public, who may have any
kind of history that we don’t know about and we wouldn’t trust our children with, if
you’re going to let them on the bus with her, that you’re going to have these children
together in an area where you can see them, not mixed in with anybody who wants to
prey upon these children.
They made a contract to do that. They made a deal. And by doing that, they said your
children will be safe. We can take them to preschool.
There’s more than that, though. Clare County Transit Corporation advertised. When
Karen Sandlin came to Harrison, she got an advertisement. The advertisement said:
“Safety and security. We hire responsible and experienced drivers. Busy parents,
bring your children to us. We’ll make sure they attend their activities safely.”
That’s what they advertised.
Now, Karen still never sent Amber alone on the bus until the bus company had made a
contract and assured her that these children would be close to the bus driver, watched,
and that the bus driver would take care of her. They broke this promise.
***
Why did they have a duty to protect Amber? Why was it their responsibility? There
are several reasons. Number one, a bus is a common carrier, and a common carrier –
a bus, a train, a plane –they undertook a duty to transport the passengers safely and
securely. They had a duty based on promises they made and advertisements that your
children will attend activities safely if you’re too busy to take them there.
They had a duty by contract. Most of all, they had a plain, common-sense duty to use
ordinary care to protect a four-year-old in their care.
12
The exhibits are not before us, but portions of the advertisement were read into the record at trial.
-11
driver had assured her that the children are always placed at the first forward-facing seats behind the
driver.
The contract between CCTC and NEMSCA was a circumstance the jury could properly
consider when determining the specific standard of care and whether negligence existed in this case.
Given that evidence of the contract was admitted at trial without objection, and considering the
prominence of the contract in plaintiff’s opening statement and closing argument, we consider it unlikely
that the jury would have interpreted the trial court’s comments during deliberations as an admonition to
ignore the contract entirely, rather than consider it as a relevant circumstance, especially since the
court’s final clarifying instructions were directed to the words “security” and “safety.” Although the trial
court’s comments were unsolicited and perhaps less than prudent, counsel made no objection at the
time and sought no curative or explanatory instruction directing the court’s attention to the jury’s
possible interpretation that the contract should be disregarded, and the instructions, read in their entirety,
provided an accurate statement of the applicable law to the jury. Murdock v Higgins, 454 Mich 46,
60; 559 NW2d 639 (1997). Under these circumstances, we cannot conclude that failure to vacate the
jury verdict would be “inconsistent with substantial justice.” Johnson, supra at 327.
Affirmed.
/s/ Brian K. Zahra
/s/ Helene N. White
/s/ Joel P. Hoekstra
-12
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