RYAN R HELVIE V JEFF P HIDDEMA
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STATE OF MICHIGAN
COURT OF APPEALS
RYAN R. HELVIE,
UNPUBLISHED
December 28, 2004
Plaintiff-Appellee,
v
No. 250417
Court of Claims
LC No. 01-018144-CM
STATE OF MICHIGAN, DEPARTMENT OF
NATURAL RESOURCES,
Defendant-Appellant.
Before: Cooper, P.J., and Fitzgerald and Hoekstra, JJ.
HOEKSTRA, J., (dissenting).
I respectfully dissent.
To establish entitlement to compensation for his injuries plaintiff must establish that
defendant was at least 50% at fault for the crash. MCL 500.3135(2)(b). Because the evidence
failed to establish fault on the part of defendant’s employee, Jeff P. Hiddema, I would vacate the
judgment of the trial court and remand for entry of a judgment of no cause for action.
A determination of comparative negligence generally constitutes a question for the fact
finder. Rodriguez v Solar of Michigan, Inc, 191 Mich App 483, 488; 478 NW2d 914 (1991).
Factual determinations made by a trial court sitting without a jury are reviewed for clear error.
Lamp v Reynolds, 249 Mich App 591, 595; 645 NW2d 311 (2002). Such findings are clearly
erroneous when, upon review of the entire record, “the appellate court is left with a definite and
firm conviction that a mistake was made.” Westlake Transp, Inc v Public Service Com'n, 255
Mich App 589, 611; 662 NW2d 784 (2003).
A duty, the breach of which may give rise to a cause of action for negligence, can arise
from a statute, a contract, or “by application of the basic rule of common law.” Hampton v
Waste Management of Michigan, Inc, 236 Mich App 598, 602; 601 NW2d 172 (1999). In the
instant case, the collision between plaintiff and Hiddema took place in an open area used by offroad vehicles (ORVs) that permitted travel in any direction. Because this area does not
constitute a highway, the traffic laws set forth in the motor vehicle code do not apply. MCL
257.601. MCL 324.81133(a) imposes an obligation on persons driving ORVs to not operate
“[a]t a rate of speed greater than is reasonable and proper, or in a careless manner having due
regard for conditions then existing.” But under MCL 324.81101(m), vehicles used for “fire,
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emergency, or law enforcement purposes” are excluded from the definition of ORV and it is
undisputed that Hiddema was responding to an emergency in his capacity as a park ranger.
Consequently, no statutory duty governs Hiddema’s operation of a motor vehicle where the
accident occurred. Because no statutory duties are at issue, the general common law duty of care
applies. This “imposes on every person engaged in the prosecution of any undertaking an
obligation to use due care, or to so govern his actions as not to unreasonably endanger the person
or property of others." Riddle v McLouth Steel Products Corp, 440 Mich 85, 95; 485 NW2d 676
(1992), quoting Clark v Dalman, 379 Mich 251, 261; 150 NW2d 755 (1967). To the extent that
the trial court imposed a duty greater than this on Hiddema, it erred as a matter of law.
On the facts of this case, I conclude that the trial court committed clear error in finding
that Hiddema breached the duty owed by him to plaintiff. Hiddema proceeded through the area
across the customary flow of traffic, but at the very moderate rate of speed of approximately 20
miles per hour. He understood that cross traffic could be approaching and remained on the
lookout for other vehicles. No evidence supports the conclusion that he merely relied on his
lights and sirens without attempting to observe and avoid cross traffic. Because Hiddema
operated his vehicle at a reasonable speed and with proper regard for the traffic conditions, he
did not fail to use due care or act in an unreasonably dangerous manner. Clearly, Hiddema did
not breach the standard of care for operation of a motor vehicle in this area. To conclude
otherwise would unjustifiably impose a duty requiring him to observe and avoid all other traffic.
Hiddema had no more of an obligation to do this than plaintiff had an obligation to observe and
avoid him. Each failed to observe the other. But failing to observe a vehicle or avoid all
collisions is not a duty imposed upon drivers in this area open to largely unregulated use by
ORVs.
/s/ Joel P. Hoekstra
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