SAZIMA V SHEPHERD BAR & RESTAURANT
No. 136940
Supreme Court of Michigan
December 17, 2008
483 MICHIGAN REPORTS 924
CORRIGAN and YOUNG, JJ. We join the statement of Justice MARKMAN.
SAZIMA V SHEPHERD BAR & RESTAURANT, No. 136940. By order dated December 17, 2008, this Court peremptorily reversed thе ruling of the Workers’ Compensation Appellate Commission, which had found that the plaintiff‘s injury occurred in the course of her employment. 482 Mich 1110 (2008). On order of the Court, the plaintiff-appellee‘s motion for reconsideration is granted. We vacate our order of December 17, 2008. The application for leave to appeal the June 17, 2008, order of the Court of Appeals is denied, because we are no longеr persuaded that the question presented should be reviewed by this Court. Court of Appeals No. 281855.
MARKMAN, J. (dissenting). I dissent from the majority‘s decision to vacate this Court‘s previous order, 482 Mich 1110 (2008), and to deny leave to appeal, effеctively reversing our previous decision. The Workers’ Compensation Appellate Commission (WCAC) erred, in my judgmеnt, by awarding plaintiff benefits for an injury that did not occur “in the course of employment.”
Generally, “injuries that occur while traveling to or coming from work are not compensable.” Camburn v Northwest School Dist, 459 Mich 471, 478 (1999) (quotation marks and citation omitted); see also Simkins v Gen Motors Corp (After Remand), 453 Mich 703, 723 (1996). Known as the “coming and going” rule, this protects employers from incurring liability for injuries occurring in arеas over which they have no control. An employee can avoid this rule only by establishing one of sevеral established exceptions, Camburn, supra at 478, none of which is applicable here.
For the “special benefit” exception to apply, the “spеcial benefit” must be the result of the “activity at the time of the injury.” Id. at 478 (quotation marks and citation omitted). Plaintiff‘s aсtivity at the time of injury was walking to work, which provided no special benefit to defendant. Bowman v RL Coolsaet Construction Co (On Remand), 275 Mich App 188, 191 (2007). Instead, plaintiff was “mаster of [her] own movements upon the street and encountered there a risk incident to any user of the strеet.” Dent v Ford Motor Co, 275 Mich 39, 42 (1936).
For the “excessive risk” exception to apply, “travel itself [must be] the employment.” Chrysler v Blue Arrow Transport Lines, 295 Mich 606, 609 (1940). “[N]ormal traffic hazards encountered while traveling to and from the place of work are deemed to be risks common to all . . . .” Id. The plaintiff in Chrysler drove a truck for the employer. The Court emphasized that his injury was compensable beсause the additional risk that caused the injury was created by the inherent purpose of the
Established law simply does not support the majority‘s decision to reverse our previous order. The only basis for this reversal is supplied in previous statements by justices in the majority: “There is but one answer, the makeup of the Court. The law has not changed. Only the individuals wearing the robes have changed.” Rowland v Washtenaw Co Rd Comm, 477 Mich 197, 256 (2007) (KELLY, J., dissenting in part); “The only change has bеen the composition of this Court.” Paige v City of Sterling Hts, 476 Mich 495, 532-533 (2006) (CAVANAGH, J., dissenting in part). In the context of a motion for reconsideration, and without the benefit of an opinion, the majority effectively reverses precedent. I dissent.
CORRIGAN and YOUNG, JJ. We join the statement of Justice MARKMAN.
PEOPLE V PATILLO, No. 137531; Court of Appeals No. 287523.
PEOPLE V GIBBS, No. 137609; Court of Appeals No. 274003.
KELLY, C.J. (dissenting). I would grant leave to appeal. This may be a case where the erroneous admission of evidence and the misuse of evidence were so offensive to sound judicial process that they cannot be regarded as harmless.
Admittedly, the appearance of defendant‘s guilt was strong, аnd the jury found him guilty of first-degree premeditated murder.1 However, in the course of the trial, the court improperly admitted at least five hearsay statements damaging to defendant. Included was the statement that, before her death, the victim believed that defendant had attempted to kill her.2
The trial court also impropеrly allowed the prosecution to introduce, over defendant‘s objection, a video recording in whiсh a witness recounted that defendant had told her that the victim was dead. The witness claimed that defendant had predicted that he would get “pinned” for her death.3 The trial court then allowed the witness to testify directly about the conversation, erroneously ruling that the conversation constituted a prior inconsistent statement.4
Not only did the judge allow this considerable, inadmissible evidence, the prosecutor intentionally used it еxtensively. The Court of Appeals concluded that there was prosecutorial misconduct. It stated:
[D]еspite . . . clear evidence establishing that the prosecution knew of the limited use of [Louella] Bibbins‘s prior inconsistent statements, the prosecution repeatedly argued the inconsistent statements as substantive evidence of defendant‘s guilt. In its closing statement, the prosecution made the following comments: