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290 Mich. App. 512

Beebe v. Hartman

Michigan Court of Appeals

Decided November 9, 2010

Michigan Court of Appeals · decided 2010-11-09

Applies MI 600 § 600.2955a

Decided 2010-11-09

Bandstra, J.

¶1(concurring). I concur with the decision of the majority because, as explained in part 111(A) of its opinion, for purposes of MCL 600.2955a(l), the relevant “event that resulted in the . . . injury” here was not the snowmobile accident and leg fractures suffered by plaintiff but, as alleged, the malpractice and resulting pain and contracture of plaintiffs right foot. Accordingly, the majority correctly concludes that the defense provided by the statute is unavailable to defendants.

¶2There is thus no need to further consider whether the defense is unavailable because of the language in *529the statute concerning the causal relationship between plaintiffs alleged injury and his liquor-impaired ability to operate the snowmobile. To do so, as the majority does in part III(B) of its opinion, results in dicta. Further, the majority incorrectly says that “[f]or the absolute defense of impairment provided by the statute to apply, plaintiffs impairment from alcohol must also have been the one proximate cause of plaintiffs injuries suffered as a result of compartment syndrome.” Ante at 523. Unlike the statute at issue in Robinson v Detroit, 462 Mich 439; 613 NW2d 307 (2000), which apparently provides the majority the logical basis for this conclusion, the statute here does not refer to “the proximate cause.” Instead, MCL 600.2955a(l) limits its protection to situations in which the plaintiff “was 50% or more the cause of the ... event that resulted in the ... injury.” MCL 600.2955a(l). Thus, for the statute to apply, a plaintiffs alcohol impairment need not he “the one proximate cause” of the event giving rise to an injury; it is sufficient if a plaintiffs impairment, considered alongside any other proximate causes, constituted 50 percent or more of the cause of the event resulting in the injury.

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