Auto negligence; Owner liability; MCL 257.401(1); Intentional torts committed by the driver; Berry v Kipf; The wrongful conduct rule; Orzel by Orzel v Scott Drug Co; Aiding & abetting

Concluding that there was a fact question whether defendant-Gafken was carjacked by plaintiff and others, the court reversed summary disposition for defendants and remanded. Plaintiff sought to hold defendant-Dawson, the vehicle owner, liable for his injuries sustained in an auto accident. It was uncontested that he “gave Gafken permission to use his motor vehicle before the accident occurred.” Viewed in the light most favorable to plaintiff, the evidence supported “that, while driving Dawson’s vehicle with his express permission, Gafken—free of any coercion—fled from the police, drove well in excess of the speed limit, ran a red light, and crashed into other cars causing plaintiff’s injuries. Gafken’s conduct was clearly negligent[.]” Thus, a question of fact existed as to “whether Dawson was liable under MCL 257.401 for Gafken’s conduct while driving his car.” He contended he could not be liable for her conduct because it constituted an intentional tort. He seemed to assert that because the jury in Gafken’s criminal case found her actions showed “the intent necessary for second-degree murder,” the court had to conclude that she “had the intent necessary to commit an intentional tort.” But he did not specify the intentional tort she was supposed to have committed. Further, his belief that, if she “had the intent necessary to commit second-degree murder, she necessarily had the intent necessary to commit an (unidentified) intentional tort” was incorrect. Given that it was “unclear which ‘intent’ the jury” found she had when it convicted her, it was “impossible to determine that, as a matter of law, Gafken had the intent necessary to commit an (unidentified) intentional tort. Lastly, even if (1) the ‘intent’ that the jury determined Gafken had in her criminal case was discernable and (2) that intent was sufficient to conclude that plaintiff was injured as a result of” her intentional tort, Dawson failed to identify the legal principle under which her “second-degree murder conviction would establish that she committed an intentional tort as a matter of law in plaintiff’s action against Dawson.” The court also rejected the reasons the trial court gave for granting defendants summary disposition – (1) there was a carjacking that was an intervening cause, (2) plaintiff could not show the permissive use required under the statute, (3) the complaint was barred by MCL 600.2955a and 600.2959, and (4) the wrongful conduct rule.