SHANTI PICCALO V GILLIAN NIX
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STATE OF MICHIGAN
COURT OF APPEALS
SHANTI PICCALO,
FOR PUBLICATION
May 15, 2001
9:10 a.m.
Plaintiff-Appellant,
v
No. 212752
Oakland Circuit Court
LC No. 96-527301-NI
GILLIAN NIX,
Defendant-Appellee.
Updated Copy
July 20, 2001
Before: Zahra, P.J., and Hood and McDonald, JJ.
ZAHRA, P.J. (dissenting).
I respectfully dissent. I disagree with the majority's conclusion that the impairment
defense statute, MCL 600.2955a, should be ignored because its application in this case renders an
absurd or unjust result. I conclude that the majority has impermissibly utilized the "absurd or
unjust result" method of statutory avoidance to substitute its judgment for that of the Legislature.
I also disagree with the majority's conclusion that the trial court erred in failing to strike
plaintiff 's testimony regarding her percentage of fault. Finally, I do not conclude that the
cumulative effect of the remaining errors alleged in this case warrants setting aside the judgment
rendered below and ordering a new trial.
I do not subscribe to a method of statutory construction that allows deviation from the
express language of a statute merely because a reviewing court may conclude that application of
the statute renders an absurd or unjust result. People v McIntire, 461 Mich 147, 155-156, n 2;
599 NW2d 102 (1999) (explaining that departure from the literal construction of a statute where
application may render an absurd or unjust result invites impermissible judicial law making). To
the extent this method of statutory avoidance remains viable after our Supreme Court's
condemnation of it in McIntire, application of the impairment defense statute to this case is
neither absurd nor unjust.
The impairment defense statute was enacted as part of the tort reform package of 1996.
In reforming our state's tort system, our Legislature enacted laws that promote personal
responsibility for one's conduct. While both plaintiff and Burnham, the intoxicated driver of the
van in which plaintiff was injured, were not legally permitted to consume alcohol, they were
adults (over the age of eighteen) at the time of this accident. Certain duties attach to a person
who reaches the age of majority. The most obvious duty attaching to the legal status of
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adulthood is the duty to obey the laws of the land. Failure to act within the law will result in the
imposition of adult sanctions. I do not conclude that it is absurd for the Legislature to enact a
law that prohibits an adult from bringing suit for injuries that are the result of that adult's illegal
activities. This is the result reached in this case if the impairment defense is applied. Both
plaintiff and Burnham knew or should have known they were precluded by law from consuming
alcohol or illegal drugs.
It is also not absurd that this defense applies even where the illegal conduct is facilitated
by the alleged tortfeasor. Rather, it is a policy choice made by the Legislature. Principles of
separation of powers preclude us from rendering the Legislature's action void merely because we
disagree with the result of its application. Tyler v Livonia Public Schools, 459 Mich 382, 393, n
10; 590 NW2d 560 (1999) (providing: "Our role as members of the judiciary is not to determine
whether there is a 'more proper way,' that is, to engage in judicial legislation, but is rather to
determine the way that was in fact chosen by the Legislature. It is the Legislature, not we, who
are the people's representatives and authorized to decide public policy matters . . . ."). For these
reasons, I conclude that the absurd or unjust result method of statutory avoidance has no
application to the present case.
I also disagree with the majority's conclusion that the trial court erred in failing to strike
plaintiff 's testimony regarding her percentage of fault. The trial court was never asked to strike
this testimony. Plaintiff 's counsel failed to preserve this issue with a proper objection. Thus,
appellate review is waived. We may review unpreserved error where manifest injustice results
from our failure to review the issue. Winters v Dalton, 207 Mich App 76, 79; 523 NW2d 636
(1994). However, I conclude no manifest injustice results from our failure to review this claim
of unpreserved error. When defense counsel entered this area of questioning, plaintiff 's counsel
asserted a general objection, without offering an evidentiary basis for the objection. The trial
court asked defense counsel to rephrase the question. The question was then restated, without
objection from plaintiff 's counsel. Plaintiff 's counsel was keenly aware of the sensitive nature of
the questioning and consciously chose not to object to it. Under these circumstances we should
conclude plaintiff 's counsel chose not to pursue his objection as a matter of trial strategy. It is
improper for this Court to find manifest injustice from an unpreserved error where it appears
clear from the record that the decision not to preserve the issue was a matter of trial strategy.1
Finally, having rejected the above two arguments, I cannot conclude that the cumulative
effect of plaintiff 's remaining claims of error is sufficient to set aside the verdict rendered in this
case. I would affirm.
/s/ Brian K. Zahra
1
I also conclude that the majority has misapplied the manifest injustice standard. The manifest
injustice needed to ignore a litigant's failure to preserve an issue for appellate review should
emanate from the claim of unpreserved error. Winters, supra. In this case, the majority finds
manifest injustice, not from the fact that plaintiff testified that she was fifty percent at fault for
her injuries, but from "the cumulative error present in this case." Ante, p ___, n 6.
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