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May v. City of Detroit6/12/2003
UNPUBLISHED
Defendant appeals as of right from an order awarding plaintiff $5,250,000 and an order awarding $946.65 taxable costs and $213,800 attorney fees in case evaluation sanctions in this automobile negligence and case evaluation sanctions case. We affirm.
Around 10:15 p.m. on August 1, 1998, James Braswell and Wanda Cottrell [hereinafter "decedent"] were crossing bumper-to-bumper traffic at Jefferson Avenue and Riopelle heading for a party store on the south side of Jefferson that was diagonal from their 1523 Somerset Apartment on East Jefferson, and were hit in the center turn lane by a patrol car driven by Detroit Police Officer Fred Scott. Decedent flew up in the air, and landed on the ground. Braswell ended up through the windshield of the patrol car suffering a closed head injury and injuries to his arms and legs. Decedent died on August 25, 1998 as a result of injuries suffered in the accident.
Defendant's first issue on appeal is that a new trial is required because the trial court legally erred in interpreting MCL 257.10 of the Motor Vehicle Code. We disagree.
It is difficult to ascertain from defendant's brief on appeal whether defendant is arguing instructional error, or arguing that the trial court made an erroneous evidentiary ruling. Defendant appears to be arguing instructional error. To preserve an instructional issue for appeal, a party must request the instruction before instructions are given and must object on the record before the jury retires to deliberate. MCR 2.516(C), Hunt v Deming, 375 Mich 581, 584-585; 134 NW2d 662 (1965); Leavitt v Monaco Coach Corp, 241 Mich App 288, 300; 616 NW2d 175 (2000). The objection must specifically state the objectionable matter and the ground for the objection. MCR 2.516(C), Hammack v Lutheran Social Services, 211 Mich App 1, 10; 535 NW2d 215 (1995). Defendant did not request an instruction on or object to the trial court's failure to instruct the jury that no crosswalk existed, as matter of law, at the Jefferson and Riopelle intersection, and thus, this issue is not preserved for appellate review. Failure to timely and specifically object precludes appellate review absent a showing of plain error that affected the claimant's substantial rights, i.e., plaintiffs must show a clear or obvious error that affected the outcome of the case. Shinholster Est v Annapolis Hospital, 255 Mich App 339, 350; 660 NW2d 361 (2003); Kern v Blethen-Coluni, 240 Mich App 333, 336; 612 NW2d 838 (2000).
Regardless of whether there was a crosswalk at the intersection of Jefferson and Riopelle, there was no error that affected the outcome of the trial. The jury was not instructed that the intersection at Jefferson and Riopelle was a crosswalk. Defendant never requested that the jury be instructed that the intersection of Riopelle and Jefferson was not a crosswalk. The only reason for a crosswalk instruction would be comparative negligence. Pedestrians crossing outside of a crosswalk face the hurdle of comparative negligence. See Mason v Wayne Co Bd of Comm'rs, 447 Mich 130, 137; 523 NW2d 791 (1994). The jury found that decedent was twenty-five percent negligent. Additionally, defendant never contended that it made a difference whether or not plaintiff was in a crosswalk, and the question was whether defendant was negligent. For this reason, there was no plain error that affected defendant's substantial rights.
Defendant's second issue on appeal is that a new trial is required because the trial court legally erred in interpreting the emergency statutes, MCL 257.603 and MCL 257.632, in a manner which permitted the jury to infer negligence from violation of the statutes inconsistent with Michigan law.
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