Opinion
Docket No. 46034.
Decided August 5, 1981.
Richard M. Goodman (Gromek, Bendure Thomas, of counsel), for plaintiff.
Harvey, Kruse Westen, P.C. (by Phillip G. Alber), for defendant.
Before: R.M. MAHER, P.J., and M.J. KELLY and R.B. BURNS, JJ.
Plaintiff filed suit against defendant on May 30, 1978, alleging negligence and breach of express and implied warranties as a result of an interior car fire which severely burned her three-year-old child on February 19, 1973. Defendant moved to dismiss plaintiff's individual cause of action under GCR 1963, 116.1(5), raising the statute of limitations as an affirmative defense.
Plaintiff filed the affidavit of Colette Belanger, a qualified psychologist, wherein she stated:
"12. On the basis of my examination of Mrs. Carver, on January 10, 1979, it is my professional opinion that Mrs. Joann Carver suffered from a severe depression reaction syndrome which has been characterized by classic signs, including primarily profound impairment of judgment and that this depression reaction was directly and causally connected to the fire episode of February 19, 1973.
"13. It is my further opinion that Mrs. Carver's impaired mental condition fully disabled her between February, 1973 and April, 1978 from either comprehending her attorney's advise [sic] and certainly from acting upon it in any rational way throughout this period of time."
GCR 116.3 provides:
"Any defense or objection raised under this rule, whether in a responsive pleading or by motion, may be noticed for hearing by either party as if raised by motion. Affidavits or other evidence may be submitted by either party to support or oppose the grounds asserted in the pleading or motion * * *."
GCR 16.4 provides:
"Supporting and opposing affidavits shall be made on personal knowledge and shall set forth with particularity such facts as would be admissible as evidence to establish or deny the grounds stated in the pleading or motion."
In our opinion the affidavit of Colette Belanger was sufficient to oppose the defendant's motion and submit the issue to a jury. Davidson v BakerVanderVeen Construction Co, 35 Mich. App. 293; 192 N.W.2d 312 (1971).
Defendant raised, as a second ground for dismissal of plaintiff's cause of action, her failure to file answers to interrogatories pursuant to GCR 1963, 313.4. The record shows that plaintiff did answer the interrogatories of the defendant, albeit not as thoroughly as defendant would have preferred. As the case had not been set for pretrial and discovery had not been completed, in our opinion the trial judge abused his discretion by dismissing the case.
As stated in Jack's Factory Outlet v Pontiac State Bank, 95 Mich. App. 174, 179-180; 290 N.W.2d 114 (1980):
"`The authority of the circuit judge to take the most drastic step of dismissal of plaintiff's complaint with prejudice is clear. However, we believe that such measures should be exercised cautiously. This is not a case where the failure to respond to discovery requests extends over substantial periods. E.g., Krim v Osborne, 20 Mich. App. 237; 173 N.W.2d 737 (1969). Nor is it a case in which the failure to provide discovery is in violation of a direct order of the trial court. E.g., Humphrey v Adams, 69 Mich. App. 577; 245 N.W.2d 167 (1976). In this case, in view of the relatively short time that elapsed between the failure to appear and the motion to dismiss, and the ambiguous showing of willfulness on the part of the plaintiff's agent, we conclude that the trial judge should have chosen less drastic measures to compel discovery.' (Emphasis added.) MacArthur Patton Christian Ass'n v Farm Bureau Ins Group, 403 Mich. 474, 477; 270 N.W.2d 101 (1978)."
Reversed and remanded for trial.