JULIE MALLISON V STATE FARM INSAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
JULIE A. MALLISON,
August 11, 2005
November 17, 2005
Gogebic Circuit Court
LC No. 03-000004-NI
RANDY SCRIBNER and DOROTHIE RUTH
LACK, a/k/a DOROTHIE RUTH GRAVES,
Official Reported Version
Before: Whitbeck, C.J., and Sawyer and Fitzgerald, JJ.
In this negligence action stemming from an automobile accident, plaintiff Julie A.
Mallison appeals by right the circuit court's order granting summary disposition to defendants
Randy Scribner and Dorothie Lack under MCR 2.116(I)(2). Mallison had sought partial
summary disposition regarding the affirmative defense of impairment. We affirm. We decide
this appeal without oral argument under MCR 7.214(E).
I. Basic Facts And Procedural History
The basic facts of this case are not in dispute. On November 5, 2000, Mallison and Lack
went to a local bar, where they shared a pitcher of 12 beers over approximately 2 1/2 hours.
Lack testified that the two women then decided to go see a waterfall. Although both women's
vehicles were at the bar, Lack testified that they decided to take the truck Lack had borrowed
from her boyfriend, Scribner, because it had four-wheel-drive capabilities. Lack stated that when
they left the bar, neither woman had any physical signs of intoxication.
Lack testified that during the drive to the waterfall, she asked Mallison if she wanted to
go "four-wheeling." When Mallison agreed, Lack drove the truck off into the ditch on the right
side of the road and then back onto the highway. Lack then asked Mallison if she wanted to do it
again. Lack testified that Mallison again agreed but told Lack to put her seatbelt on first, which
Lack did. Lack stated that Mallison was already wearing her seatbelt. Lack then drove into the
ditch on the left side of the road. According to Lack, as she was driving back onto the highway,
she reached down to retrieve a compact disc that had fallen to the floor, and the truck tires
apparently hit the edge of the highway. The truck flipped over and came to rest upside down in
the ditch. Mallison suffered a broken neck, which required surgery to fuse the bones. Both
women were found to have had a blood alcohol level above the legal limit at the time of the
accident, with Lack having a blood alcohol level of 0.14 grams per 100 milliliters and Mallison
having a level of 0.229 grams per 100 milliliters.
Mallison filed a complaint alleging negligence by Lack and Scribner.1 Lack and Scribner
each filed affirmative defenses of impairment based on MCL 600.2955a(1), which provides that
a plaintiff is absolutely barred from recovery if the plaintiff had an impaired ability to function
due to the influence of intoxicating liquor and, as a result of that impaired ability, was 50 percent
or more the cause of the accident or event giving rise to the plaintiff 's injuries.
Mallison moved for partial summary disposition challenging the impairment defense.
After hearing arguments, the trial court granted summary disposition to defendants pursuant to
MCR 2.116(I)(2). Mallison then moved to set aside the trial court's order of dismissal; however,
the trial court denied the motion after concluding that Mallison had not raised any new grounds
not previously argued in the motion for partial summary disposition.
II. Summary Disposition
A. Standard Of Review
We review de novo a trial court's grant or denial of summary disposition.2
B. MCL 600.2955a(1)
Mallison's sole argument on appeal is that the trial court erred in granting summary
disposition to defendants because the trial court erred in finding that Mallison was 50 percent or
more the cause of the accident giving rise to her injuries. MCL 600.2955a(1), the statute on
which the challenged affirmative defense is based, provides in pertinent part as follows:
It is an absolute defense in an action for the death of an individual or for
injury to a person or property that the individual upon whose death or injury the
action is based had an impaired ability to function due to the influence of
intoxicating liquor or a controlled substance, and as a result of that impaired
ability, the individual was 50% or more the cause of the accident or event that
resulted in the death or injury.
The complaint initially named Scribner's insurance company, State Farm Mutual Automobile
Insurance Company, as a defendant, but the trial court later dismissed it by stipulation of the
Spiek v Dep't of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998).
This Court has held that if a plaintiff chooses to drink and become intoxicated, and chooses to
ride with an intoxicated driver, the plaintiff is 50 percent or more the cause of any accident that
occurs, and the defendant is entitled to the absolute defense provided by MCL 600.2955a(1).3
In the present case, the evidence shows that Mallison voluntarily became intoxicated, had
a blood alcohol level of 0.229 grams per 100 milliliters,4 voluntarily chose to ride with Lack
when she knew Lack had been drinking, and voluntarily chose to participate in the "fourwheeling" that resulted in the accident. Accordingly, the trial court properly found that there was
no genuine issue of material fact regarding whether Mallison was 50 percent or more the cause
of the accident that gave rise to her injuries.5 As a result, we find that the trial court properly
granted summary disposition to defendants pursuant to MCR 2.116(I)(2).
/s/ William C. Whitbeck
/s/ David H. Sawyer
/s/ E. Thomas Fitzgerald
See Piccalo v Nix (On Remand), 252 Mich App 675, 680; 653 NW2d 447 (2002).
At this level, MCL 257.625a(9)(c) raises a presumption that Mallison was under the influence
of intoxicating liquor at the time of the accident. See also MCL 600.2955a(2)(b).