Opinion
No. 351271
10-15-2020
ESTATE OF BLAKE L. BIBBINS, by ASHLYNN R. BIBBINS, Personal Representative, Plaintiff-Appellant, v. SHAUN D. SWETLAND and TRACI L. SWETLAND, Defendants-Appellees.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Lenawee Circuit Court
LC No. 18-006173-NO Before: SWARTZLE, P.J., and JANSEN and BORRELLO, JJ. PER CURIAM.
Plaintiff, acting as personal representative for the estate of the decedent, Blake L. Bibbins, appeals as of right the trial court's order granting summary disposition in favor of defendants under MCR 2.116(C)(10). For the reasons set forth in this opinion, we affirm.
I. BACKGROUND
This case arises out of the decedent's death from a self-inflicted gunshot wound incurred at the residence of defendants, husband and wife Shaun and Traci Swetland. On the night of the incident, defendants were hosting a small gathering at their home when the decedent called Shaun, stating that he had been in an argument with plaintiff (the decedent's wife) and was on his way to defendants' residence. The decedent called again about eight minutes later and repeated the same story. Defendants were concerned about the decedent, so defendants and two other friends took defendants' car and went out to look for the decedent. While they were out, the decedent called Shaun again and told him that he was at defendants' house. Defendants and their other friends returned to defendants' house, where defendants and their guests continued to pass the evening talking, drinking, and playing games.
It appears from the record that there are some discrepancies in defendants' accounts regarding whether they believed that the decedent had been drinking before he arrived at defendants' house and when the decedent began drinking after arriving at their house. However, there is no dispute that the decedent consumed alcohol that night and that the autopsy revealed that the decedent's blood-alcohol level was 0.29.
Later that evening, while at defendants' home, Shaun and the decedent began discussing hunting, fishing, and firearms. Traci got out three handguns to show to the decedent, which consisted of a .40-caliber handgun, a nine-millimeter handgun, and a .38-caliber revolver. Traci indicated that she removed the magazines from the .40-caliber and nine-millimeter handguns before handing them to the decedent. Traci indicated in her affidavit that she told the decedent when she handed him the .38-caliber handgun that it was still loaded. Shaun indicated in his affidavit and deposition testimony that he informed the decedent and Traci that the .38-caliber handgun was still loaded when Traci handed the weapon to the decedent. Traci and Shaun each claimed in their respective depositions to have told the decedent to unload the weapon. Both Traci and Shaun stated in their affidavits and deposition testimony that they watched the decedent unload the .38-caliber handgun after receiving it from Traci. The decedent handed the bullets from the .38-caliber weapon to Traci, and she put them in her pocket without counting them. According to plaintiff, the decedent had been a "scout sniper" in the United States Marine Corps and had been trained in the use of firearms. Shaun averred that he "knew [the decedent] to be a very experienced person with respect to gun handling and gun safety, based on his military training and experience in combat, as well as his hunting experience."
Shaun claimed in his deposition that he had removed the magazines from these weapons.
According to Traci, the decedent was standing in the kitchen while holding the .38-caliber handgun when he suddenly spun the cylinder closed and announced, "Russian Roulette." The decedent then proceeded to pull the trigger multiple times, eventually resulting in the weapon discharging a bullet while the decedent was pointing the weapon at his head. Traci stated in her affidavit and in her deposition that the decedent had first "dry-fired" into the ground, after which he pointed the gun at his head and fired the weapon. Shaun indicated that he was putting away the nine-millimeter firearm when he heard the gunshot. He did not hear the decedent say anything before the gun discharged. He turned and saw the decedent on the floor with a gunshot wound to his head.
Traci averred that "[d]uring the course of the evening, [the decedent] did not ever express a plan or desire to kill himself" and that "[i]f he had, [she] would never have brought out our guns." Shaun also averred that "[a]t no time during the evening did [the decedent] express any suicidal thoughts or plans." However, Traci also testified in her deposition that the decedent complained that night about being unable to secure a full-time job due to his PTSD and being a "suicide risk." Plaintiff testified that during the year leading up to the incident at issue, the decedent had not shown any indications that he would harm himself or die by suicide.
Plaintiff had heard from the decedent's father that the decedent had attempted suicide once a few years earlier, but she did not know if this actually true.
The decedent was pronounced dead at the scene. After conducting an autopsy, the medical examiner determined that the cause of death was a single gunshot wound to the head and that the manner of death was suicide. The autopsy also revealed that the decedent's blood-alcohol level was 0.29.
Plaintiff initiated this lawsuit, alleging that defendants negligently provided a loaded firearm to the decedent despite knowing that he was "impaired by alcohol and in a highly emotional state" and that defendants' negligence was the direct and proximate cause of the decedent's fatal gunshot wound.
Defendants moved for summary disposition under MCR 2.116(C)(10). Following a hearing, the trial court granted the motion. As pertains to the dispositive issue on appeal, the trial court ruled that plaintiff's action was barred by MCL 600.2955a(1). The court explained:
It's an accurate defense in an action for the death of other individuals that the individual upon whose death or injury the action is based had an impaired ability to function due to the influence of alcohol or some other controlled substance, and as a result of that impaired ability, they were 50 percent or more the cause of the action that caused the injury.The trial court specifically determined that the decedent was at least 50% or more the cause of his own death because he announced "Russian Roulette," pointed the gun at his own head, and pulled the trigger of the firearm.
II. STANDARD OF REVIEW
"Appellate review of the grant or denial of a summary disposition motion is de novo, and the court views the evidence in the light most favorable to the party opposing the motion." West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). Summary disposition is warranted under MCR 2.116(C)(10) if "[e]xcept as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law." MCR 2.116(C)(10). "A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ." West, 469 Mich at 183. We review de novo the interpretation and application of statutes. Mueller v Brannigan Bros Restaurants & Taverns LLC, 323 Mich App 566, 571; 918 NW2d 545 (2018).
III. ANALYSIS
MCL 600.2955a provides in relevant part as follows:
(1) It is an absolute defense in an action for the death of an individual or for injury to a person or property that the individual upon whose death or injury the action is based had an impaired ability to function due to the influence of intoxicating liquor or a controlled substance, 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 death or injury. If the individual described in this subsection was less than 50% the cause of the accident or event, an award of damages shall be reduced by that percentage.
(2) As used in this section:
* * *
(b) "Impaired ability to function due to the influence of intoxicating liquor or a controlled substance" means that, as a result of an individual drinking, ingesting, smoking, or otherwise consuming intoxicating liquor or a controlled substance, the individual's senses are impaired to the point that the ability to react is diminished from what it would be had the individual not consumed liquor or a controlled substance. An individual is presumed under this section to have an impaired ability to function due to the influence of intoxicating liquor or a controlled substance if, under a standard prescribed by section 625a of the Michigan vehicle code, Act No. 300 of the Public Acts of 1949, being section 257.625a of the Michigan Compiled Laws, a presumption would arise that the individual's ability to operate a vehicle was impaired.
In order to successfully establish the "absolute defense" contained in MCL 600.2955a, defendants must show "that (1) the decedent had an impaired ability to function due to the influence of intoxicating liquor or a controlled substance, and (2) that as a result of that impaired ability, the decedent was fifty percent or more the cause of the accident or event that resulted in his death." Harbour v Correctional Med Servs, Inc, 266 Mich App 452, 456; 702 NW2d 671 (2005). At the time of the incident that caused the decedent's death, the relevant legal intoxication limit was 0.08. MCL 257.625a(7)(b), as amended by 2017 PA 153.
In this case, there was no dispute that the decedent's blood-alcohol content was 0.29—more than three times the legal limit. See id. Hence, the decedent is presumed to have had an "impaired ability to function due to the influence of intoxicating liquor" for purposes of MCL 600.2955a. MCL 600.2955a(2)(b); MCL 257.625a(7)(b), as amended by 2017 PA 153. Plaintiff has provided no evidence to rebut this presumption. Defendants thus established the first requirement of this defense. Harbour, 266 Mich App at 456.
Regarding the degree of fault attributable to the decedent, there is no genuine dispute of fact that the decedent had significant experience and training regarding firearms, that the decedent was warned that the .38-caliber firearm was loaded when it was handed to him, and that the decedent undertook the task of unloading the weapon. Given the decedent's firearms background, defendants could reasonably have assumed that the decedent was competent to unload the weapon himself. There is no evidence that anybody other than the decedent handled the .38-caliber firearm after it was handed to him. There was no evidence presented that anyone forced the decedent to consume alcohol. The evidence is also undisputed that the decedent, without any prompting or encouragement pointed the firearm at his head and pulled the trigger.
Rather, the uncontradicted evidence shows that the decedent chose to consume alcohol, aim a firearm at his head, and pull the trigger. The tragic result of these actions was that the decedent died from a fatal gunshot wound to his head. The record evidence does not permit us to conclusively determine whether the decedent harbored an actual intent to cause his own death, was simply acting recklessly with respect to the firearm, or failed to realize that he did not competently unload the weapon due to his intoxicated state. However, regardless of which of these potential mental states animated the decedent's actions that night, and heartbreaking as the facts of this case are, the record evidence nevertheless leads to the inescapable conclusion that the decedent was responsible for each of the crucial, material actions that caused his death.
Although defendants initially handed the gun to the decedent, reasonable minds could not differ on the fact that the decedent's subsequent and much more materially significant actions constituted 50% or more of the cause of the accident or event that resulted in his death. The decedent, despite his significant experience with firearms, failed to ensure that all of the bullets had been removed from the gun after having been warned that it was loaded and then, without prompting or encouragement, pointed the firearm at his head and pulled the trigger multiple times, resulting in his death. Thus, defendants also successfully established the second requirement of the absolute defense in MCL 600.2955a. Harbour, 266 Mich App at 456.
Because plaintiff's action was barred by the application of MCL 600.2955a, the trial court did not err by granting defendants' motion for summary disposition.
In light of this conclusion, plaintiff's additional arguments regarding the duty and proximate cause elements of this negligence action are moot. Plaintiff essentially seems to argue that defendants had a duty to take various other actions with respect to the loaded .38-caliber weapon and that their failure to do so was both a but-for and proximate cause of the decedent's death.
However, a defendant's negligence, if less than 50% the cause of the injured party's injuries, is "irrelevant under the intoxication statute," i.e., MCL 600.2955a. Harbour, 266 Mich App at 462 (quotation marks and citation omitted). "A defendant's negligence would only be useful in determining proportional fault if a plaintiff's intoxication was less than fifty percent the cause of the accident and the plaintiff was, therefore, allowed limited recovery under the intoxication statute." Id. (quotation marks and citation omitted).
Here, the absolute defense in MCL 600.2955a operated to completely bar plaintiff's action, with there being no genuine issue of material fact that the decedent was 50% or more the cause of the accident or event that resulted in his injury and death. Accordingly, the nature of defendants' duty and issues of proximate causation are irrelevant to resolution of this case since they are issues bearing on the negligence of defendants that was less than 50% the cause of the decedent's injury and death. Harbour, 266 Mich App at 462. Plaintiff therefore cannot establish entitlement to any relief on the basis of arguments related to duty and proximate cause, and these issues are therefore moot. Garrett v Washington, 314 Mich App 436, 449; 886 NW2d 762 (2016) ("A matter is moot if this Court's ruling cannot for any reason have a practical legal effect on the existing controversy.") (quotation marks and citation omitted). This Court generally does not decide moot issues. Id.
This is true, even assuming that plaintiff is correct about the nature of the duty owed by defendants and that defendants' act of handing the weapon to the decedent was a but-for and a proximate cause of the decedent's death. Because MCL 600.2955a operates as a complete bar to recovery under the circumstances of this case, we offer no opinion about plaintiff's duty and causation arguments or whether plaintiff would otherwise be entitled to relief if not for the operation of MCL 600.2955a in this case. We note, however, that for purposes of MCL 600.2955a, the relevant proximate cause analysis focuses on "the most immediate, efficient, and direct cause" of the injury and not other circumstances that may constitute a cause. Harbour, 266 Mich App at 462-463 (quotation marks and citation omitted; emphasis added). --------
Moreover, plaintiff does not advance any argument explaining how the operation of the intoxication statute does not render her duty and proximate cause arguments moot, nor does plaintiff cogently develop her duty and proximate cause arguments with respect to how they apply in this case. Plaintiff has instead presented a laundry list of general legal principles regarding duty and proximate cause. Thus, these arguments are abandoned. Houghton v Keller, 256 Mich App 336, 339-340; 662 NW2d 854 (2003) ("An appellant's failure to properly address the merits of his assertion of error constitutes abandonment of the issue."). "An appellant may not merely announce his position and leave it to this Court to discover and rationalize the basis for his claims, nor may he give issues cursory treatment with little or no citation of supporting authority." Id. at 339 (citations omitted).
Affirmed. We decline to award costs in this matter. MCR 7.219(A).
/s/ Brock A. Swartzle
/s/ Kathleen Jansen
/s/ Stephen L. Borrello