A drunk driver with a .30 blood alcohol level slams head-on into the oncoming car of an 11-year-old boy. The drunk driver walks away. The boy, Anthony, doesn’t walk away at all. Anthony isn’t able to walk again for at least another month after the car accident, due to multiple fractures to his foot, wrist, hand and ribs. He also loses consciousness and requires in-home nursing care while recovering from his injuries. He misses two more months from school, and has to drop out of the many activities he participated in before the car crash, such as playing on the football team.
How does a drunk driver, who is speeding and barrels into another car, injuring a child, face no civil consequences whatsoever for his actions?
It’s because of a law in Michigan; a law that most Michigan lawyers and judges feel is badly broken and needs fixing. This law now shields drunk drivers who cause car and truck accidents and hurt people. And people who drink and drive now have civil immunity if they don’t injure their victims enough.
This stems from a 2004 Michigan Supreme Court decision called Kreiner v. Fischer. Kreiner establishes the medical precondition plaintiffs must meet before they can sue for non-economic damages in such a way that many people who suffer serious injuries have virtually zero rights. In Kreiner, the Court interpreted the Michigan No-Fault Law’s definition of “serious impairment of body function,” and said that an accident victim’s injuries must seriously affect his or her general ability to lead a normal life. Cases since Kreiner have raised the bar higher each year; causing cases of people who have suffered fractures and surgeries, and who have missed months from work and school, to be thrown out of court.
These are cases like young Anthony Kelsey’s. On June 23, 2009, the Michigan Court of Appeals dismissed Anthony’s case, Wayne Cottrill v. Craig Kenneth Senter (No. 285216). In Cottrill, Craig Senter was speeding with a blood alcohol level of .30, crossed the center lane, and struck a car carrying Anthony Kelsey, an eighth grader. Anthony’s family filed a civil lawsuit for his many personal injuries.
The Michigan Court of Appeals threw it out.
The Court held that Anthony’s injuries and impairments were not serious enough according to Kreiner, and that therefore, Senter was given immunity for the injuries he caused Anthony. In other words, Senter, a drunk driver, gets civil immunity for getting behind the wheel intoxicated and Anthony, an innocent and badly injured victim, gets nothing.
Sadly, Michigan’s auto accident law has evolved (most lawyers and judges would say devolved) to protect drunk drivers like Senter. The public policy and message this sends to Michigan drivers could not be worse.
Senter’s disregard for others could have killed someone that day. As it was, Anthony couldn’t walk for an entire month while he was recovering, and yet Senter walked away without any civil penalty. This is because we have lost our focus. In Michigan, the courts only focus on the victim. Yet drivers who cause these injuries – no matter how egregious the drivers’ choices and actions are before they get behind the wheel – are ignored.
We’ve lost our common sense. By focusing only on the accident victim, and not the perpetrator, the courts say that drunk drivers like Senter get immunity because Anthony was not “impaired enough.” We are continuinung to protect drunk drivers like Senter from civil lawsuits. Will it take another accident, where he injures someone so badly or kills someone, to finally hold him accountable?
Imagine a rape case, where the law required exclusive focus on the victim, not the rapist. Imagine a rape case where the rapist may actually be let off the hook, escaping any penalty, if the rape victim is not found “traumatized” enough after the rape. How is Senter being given civil immunity from drunk driving and injuring Anthony any different? We give Senter immunity because his actions are not subject to judicial inquiry, only those of his victim.
Our Michigan auto accident law was not supposed to create results like this one. It was originally created to protect drivers from clearly “frivolous” and “de minimus” injuries; not to shield drunk drivers who cause serious injuries.
Contact your legislators. Tell them you want this law changed so drunk drivers can be held accountable in court for the injuries they cause.
— Steven M. Gursten is recognized as one of the nation’s top experts in serious car and truck accident injury cases and automobile insurance no-fault litigation. Steve has received the largest jury verdict for an automobile accident case in Michigan in four of the past seven years, including 2008, according to Michigan Lawyers Weekly.
— Photo courtesy of Creative Commons, by Steve Kallestad
Michigan Auto Law is the largest law firm exclusively handling car accident, truck accident and motorcycle accident cases throughout the entire state. We have offices in Farmington Hills, Detroit, Ann Arbor, Grand Rapids and Sterling Heights. If you have been in a car accident at the hands of a drunk driver, call (800) 777-0028 for a free consultation with an auto accident lawyer.