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Xu v. Hou6/24/2003
inary negligence claim.
IV.
Plaintiff also argues that the trial court erred in granting summary disposition on his wrongful death claims because the release, even if valid, only precluded a cause of action by Yan, not his family members. We agree that plaintiff's wrongful death claims are not barred, but for a different reason.
MCL 600.2922(1) provides:
Whenever the death of a person or injuries resulting in death shall be caused by wrongful act, neglect, or fault of another, and the act, neglect, or fault is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages, the person who or the corporation that would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death was caused under circumstances that constitute a felony.
The language of the statute is clear. If a decedent could not have maintained the claim, his family members cannot recover under the wrongful death statute.
Indeed, this Court recently stated:
The personal representative ... who asserts a cause of action on behalf of a decedent stands in the decedent's place for all purposes incident to the enforcement of that claim, including the rights and privileges personal to the decedent in his lifetime. Even though the wrongful death act is for the benefit of certain persons, the cause of action is a derivative one under which the personal representative of the decedent stands in the decedent's stead. [Allstate Ins Co v Muszynski, 253 Mich App 138, 142; 655 NW2d 260 (2002) (quotation and citations omitted).]
Here, because Yan, had he survived, would have been able to maintain an ordinary negligence claim against defendant, based on our decision above, plaintiff can maintain an action for damages based upon the ordinary negligence of defendant. Therefore, we find that the trial court erred in granting defendant summary disposition and dismissing plaintiff's wrongful death claims.
Affirmed in part, reversed in part, and remanded. We do not retain jurisdiction.
Michael R. Smolenski
Joel P. Hoekstra
Karen M. Fort Hood
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