CHRISTOPHER MILLER V PM ENTERTAINMENT INC
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STATE OF MICHIGAN
COURT OF APPEALS
CHRISTOPHER MILLER,
UNPUBLISHED
November 30, 2001
Plaintiff/CounterDefendant/Appellant,
v
PM ENTERTAINMENT, INC., a/k/a ROCKMAN
ENTERPRISES, INC., d/b/a SHARKS CLUB,
No. 225073
Wayne Circuit Court
LC No. 98-800007-NO
Defendant/Cross-Plaintiff/Appellee,
and
MICHAEL MAZZA,
Defendant/CrossDefendant/Appellee,
and
BRIAN BURGESS,
Defendant/Counter-Plaintiff,
and
ROBERT KIDD and DOUGLAS ELLISON,
Defendants.
Before: Saad, P.J., Bandstra, C.J., and Whitbeck, J.
PER CURIAM.
In this case arising from a bar brawl, plaintiff Christopher Miller appeals as of right from
the circuit court’s order reflecting a jury verdict of no cause of action. We affirm.
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I. Basic Facts And Procedural History
The evidence indicates that defendants Burgess, Kidd, and Ellison were patronizing the
Sharks Club, but were asked by the latter’s employees to leave after tensions arose between the
three and another patron. Miller and two companions, who were also patronizing the bar at the
time, ended up fighting with those defendants in the bar’s parking lot. Miller sustained serious
injuries to his face requiring reconstructive surgery. Miller sued, stating various claims, but in
time Burgess, Kidd, and Ellison, were dismissed, along with defendant Mazza in his personal
capacity. The jury was called upon to decide only Miller’s negligence claim against the
defendant Sharks Club and its corporate parents.1
II. Affirmative Defenses
A. Standard Of Review
Miller asserts that the trial court erred in allowing the jury to consider an affirmative
defense pursuant to MCL 600.2955a, on the grounds that the defense was not adequately set
forth in the pleadings and did not appear in the final pretrial order. We review a trial court’s
general conduct of a trial for an abuse of discretion.2 We also review a trial court’s evidentiary
decisions for an abuse of discretion.3
B. MCL 600.2955a(1)
MCL 600.2955a(1) provides, in pertinent part, as follows:
It is an absolute defense in an action . . . for injury to a person . . . that the
individual upon whose . . . injury the action is based had an impaired ability to
function due to the influence of intoxicating liquor . . . 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 . . . injury.
The trial court instructed the jury in accordance with this legislation and also admitted a copy of
the above statutory language into evidence.
C. MCR 2.111(F)(2) and (3)
MCR 2.111(F)(2) requires that “[a] party against whom a cause of action has been
asserted . . . must assert in a responsive pleading the defenses the party has against the claim”
and further that “[a] defense not asserted in the responsive pleading . . . is waived[.]” MCR
2.111(F)(3) in turn governs affirmative defenses specifically:
1
For the remainder of this opinion the phrase “the Sharks Club” will refer collectively and
exclusively to those business entities.
2
In re King, 186 Mich App 458, 466; 465 NW2d 1 (1990).
3
Price v Long Realty, Inc, 199 Mich App 461, 466; 502 NW2d 337 (1993), citing to Rodriguez v
Solar of Michigan, 191 Mich App 483, 487; 478 NW2d 914 (1991).
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Affirmative defenses must be stated in a party’s responsive pleading,
either as originally filed or as amended . . . . Under a separate and distinct
heading, a party must state the facts constituting
(a)
an affirmative defense, such as contributory negligence; . . .
assumption of risk . . . .
***
(c) a ground of defense that, if not raised in the pleading, would be likely
to take the adverse party by surprise.
D. Miller’s Amended Complaint
The answer to Miller’s original complaint included among its affirmative defenses that
“the Plaintiff may have assumed the risk of injury by his actions,” and that “the damages of the
Plaintiff may be limited in whole or in part by the Statutes and Common Laws of the State of
Michigan.” The Sharks Club also stated that it reserved the right to add any affirmative defenses
that the process of discovery brought to light.
However, Miller filed an amended complaint in order to increase the demand for
damages, and, in answering the first amended complaint, the Sharks Club’s enumerated
affirmative defenses include the following: “Pursuant to the Tort Reform Act, MCL 600.2955a,
if it is shown that Plaintiff was impaired by alcohol . . . and use or consumption of the . . .
alcohol was 50% or more responsible for the accident, Plaintiff is by law not entitled to recovery
of damages from these Defendants.” Because the original answer alleged that Miller might face
a statutory bar to recovery, and also reserved the right to add defenses as discovery brought them
to light, and because the first responsive pleading to Miller’s first amended complaint expressly
set forth the affirmative defense here at issue, Miller’s argument that the trial court should have
disallowed that defense for failure to present it in the pleadings must fail.
E. The Final Pretrial Order
Miller’s framing of this issue additionally asserts that the affirmative defense in question
should have been kept from the jury because it was not included within the final pretrial order.
However, Miller does not otherwise develop this issue, and thus offers no authority for the
proposition that a pleaded defense that does not appear in the final pretrial order is extinguished.4
Miller’s failure to cite authority or provide cogent argument in support of this claim of error
waives this Court’s consideration.5 As the First Circuit has put it, “It is not enough merely to
4
We note that the order includes, among the Sharks Club’s defenses, that “the proximate caus
[sic] of the plaintiff’s injuries were as a result of his own belligerent, drunken, volitional acts,”
and that “the sole and proximate cause of anyages [sic] sustained by the Plaintiff were as a direct
and proximate result of his own intoxicated belligerence.”
5
In re Toler, 193 Mich App 474, 477; 484 NW2d 672 (1992), citing to Goolsby v Detroit, 419
Mich 651, 655, n 1; 358 NW2d 856 (1989).
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mention a possible argument in the most skeletal way, leaving the court to do counsel’s work,
create the ossature for the argument and put flesh on its bones.”6
In any event, we observe that the verdict form in this instance included special inquiries
concerning the extent of Miller’s negligence and intoxication as contributors to his injuries, but
that the jury never reached those questions because it concluded initially that the Sharks Club
was not negligent at all. Thus, even if the affirmative defense at issue had been introduced in
error, we conclude that the error was harmless.
III. Discovery Violations
A. Standard Of Review
Miller argues that the trial court abused its discretion by denying his motion for a default
judgment as a remedy for a discovery violation by Sharks Club. This Court reviews a lower
court’s decisions concerning discovery for an abuse of discretion.7 Similarly, we review a trial
court’s decision on whether to hold an evidentiary hearing for an abuse of discretion.8
B. The Sharks Club’s Discovery Violations
The Sharks Club rebuffed Miller when he sought to depose one of its employees. The
Sharks Club explained that it could not produce the witness because she had moved away to
Canada, but on the eve of trial Miller discovered that the witness had moved back to Michigan
and was again working for the Sharks Club. The trial court correctly ruled that this was a
violation of the Sharks Club’s continuing discovery obligations. To remedy the violation, the
trial court did not allow the defense to call that witness, allowed Miller to depose the witness,
and additionally offered to let Miller depose another employee of the Sharks Club whom the
witness indicated had been on duty on the night in question. Because the trial court afforded
Miller every opportunity to gain the information that he needed from those two belatedly
disclosed employees, and additionally did not allow the Sharks Club, the violating party, to use
to its advantage the one witness whom it wished to call, we are satisfied that the trial court fairly
remedied the discovery violation. We conclude that the trial court did not abuse its discretion in
eschewing the drastic remedy of default.
IV. Jury Instructions
A. Standard Of Review
Miller takes issue with several of the trial court’s decisions concerning jury instructions.
“There is some dispute in the case law concerning what standard of review applies to
6
United States v Sannino, 895 F2d 1, 17 (CA 1, 1990) (dismissing appellant’s claim of error
below).
7
Baker v Oakwood Hosp Corp, 239 Mich App 461, 478; 608 NW2d 823 (2000), citing to Mercy
Mt Clemens Corp v Auto Club Ins Ass’n, 219 Mich App 46, 50; 555 NW2d 871 (1996).
8
Bielawski v Bielawski, 137 Mich App 587, 592-593; 358 NW2d 383 (1984).
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instructional issues. However, the Supreme Court has most recently stated that review de novo
is the standard of review that applies to ‘claims of instructional error.’”9 Nonetheless, “[a] trial
court may be entitled to some level of deference under the abuse of discretion standard of review
if the decision to give or withhold a certain jury instruction depends on a factual determination,
i.e., whether the evidence will support the instruction.”10 We review jury instructions in their
entirety to determine whether the parties’ theories and the applicable law were fairly presented.11
B. Legal Standards
Jury instructions “should not omit material issues, defenses, or theories if the evidence
supports them.”12 “The trial court has discretion to give additional instructions not covered by
the standard jury instructions as long as they are applicable and accurately state the law . . . .”13
However, “[a] supplemental instruction need not be given if it would add nothing to an otherwise
balanced and fair jury charge and would not enhance the ability of the jury to decide the case
intelligently, fairly, and impartially.”14
C. Duty Of A Tavern Owner
Miller argues that the trial court erred in declining to instruct the jury specifically that
when a fight breaks out in a tavern, the tavern operator has a specific duty to call the police and
stop the fight. Although such an instruction would have comported with the evidence and
theories before the jury, the trial court was nonetheless within its rights in eschewing such a
specific instruction in favor of the standard jury instructions concerning a business invitor’s
duties to invitees.15 Having delivered the latter, and having further summarized the rules of the
state Liquor Control Commission against a tavern operator allowing an intoxicated person to
loiter, fight or brawl on the premises, we conclude that the trial court adequately covered the
subject matter concerning which Miller requested the supplemental instruction.
D. Consent
Miller argues that the trial court should have instructed the jury to consider the possibility
that his drunkenness prevented him from being able to consent to a fight. The public policy of
this state favors holding persons responsible for the results of their voluntary intoxication. As
9
Hilgendorf v St John Hospital & Medical Center Corp, 245 Mich App 670, 694; 630 NW2d
356 (2001), quoting Case v Consumers Power Co, 463 Mich 1, 6; 615 NW2d 17 (2000).
10
Hilgendorf, supra at 694-695, citing Isagholian v Transamerica Ins Corp, 208 Mich App 9,
16; 527 NW2d 13 (1994).
11
Zinchook v Turkewycz, 128 Mich App 513, 520-521; 340 NW2d 844 (1983).
12
Case, supra at 6.
13
Mull v Equitable Life Assurance Soc, 196 Mich App 411, 422-423; 493 NW2d 447 (1992),
aff’d 444 Mich 508 (1994), citing to Houston v Grand Trunk W R Co, 159 Mich App 602, 609;
407 NW2d 52 (1987).
14
Mull, supra at 422-423.
15
Mills v White Castle Systems, Inc, 199 Mich App 588, 592; 502 NW2d 331 (1992).
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discussed above, MCL 600.2955a imposes a limitation on a plaintiff’s ability to collect damages
for injuries to which the plaintiff contributed through intoxication. Further, the trial court
correctly instructed the jury as follows, mirroring SJI2d 13.02:
Now, according to the law, one who voluntarily impaired his or her
abilities by drinking is held to the same standard of care as a person who’s [sic]
abilities have not been impaired by drinking.
It’s for you to decide whether plaintiff, . . . whether his conduct was, in
fact, affected by drinking and whether as a result he failed to exercise the care of a
reasonably careful person under the circumstances which you find existed in this
case.
Miller relies on Hollerud v Malamis16 in which this Court held that a jury should have been
allowed to consider whether intoxication negated consent where the plaintiff was injured in an
“Indian wrestling contest” with a bartender.17 To the extent that this 1970 case is at variance
with the other authorities that militate against excusing a party from responsibility for the
consequences of that party’s voluntary intoxication, we conclude that the former must yield to
the latter.18
E. Reasonableness Of Conduct And Self-Defense
Miller argues that the trial court should have instructed the jury to consider the
reasonableness of his conduct in entering the affray. Miller admits that no Michigan authority
requires such an instruction, and we decline the invitation to take a new direction in this regard.
Miller points to no evidence to suggest that he became involved in the fight at the request of an
employee of the Sharks Club or that he was acting in his own or another’s defense. Miller
himself had no memory in the matter and the tavern’s manager testified that he never asked
Miller or any other patron to intervene. Conversely, two of the participants in the affray testified
that Miller himself started the physical altercation. Because the evidence is either ambivalent in
this regard or suggests that Miller had acted with undue aggression, the question of his having
acted reasonably was a matter of speculation. The evidence thus did not support an instruction
on Miller’s reasonableness and we conclude the trial court did not abuse its discretion in
declining to provide one. Miller was similarly not entitled to an instruction on self-defense.
Only by speculating beyond the evidence could one suppose that Miller was compelled to fight
in his own defense.
F. Mutual Affray
Miller argues that the trial court should have denied the Sharks Club’s request for an
instruction on mutual affray. The trial court instructed the jury as follows:
16
Hollerud v Malamis, 20 Mich App 748, 763; 174 NW2d 626 (1969).
17
Id. at 751.
18
Because Hollerud was issued before November 1, 1990, this Court need not follow it. MCR
7.215(I)(1).
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Now, where a plaintiff and the defendant or a non party — A non party
being like people who are not named in this lawsuit. Where a plaintiff and a
defendant or a non party engage in a mutual affray, you may properly find that the
plaintiff’s injuries were attributable to the plaintiff and or to the defendant and or
to Brian Burgess, Robert Kidd, of [sic] Douglas Ellison.
You may mitigate and apportion the fault for the injuries using the
principals [sic] of comparative fault among them.
Miller argues that the court erred in granting the Sharks Club’s request for an instruction on
mutual affray while denying the various instructions of which he here makes issue. Miller does
not argue that the instruction on mutual affray was not supported by the evidence or theories
before the jury. Because on its face the instruction on mutual affray was reflective of the
evidence of record and the law of comparative negligence, we reject Miller’s summary assertion
that it was error to deliver it.
Affirmed.
/s/ Henry William Saad
/s/ Richard A. Bandstra
/s/ William C. Whitbeck
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