Michigan Court of Appeals; Docket #301175; Unpublished
Judges Gleicher, Cavanagh, and O'Connell; unanimous; per curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion 
STATUTORY INDEXING:
Not Applicable
TOPICAL INDEXING:
Motor Vehicle Code (Civil Liability of Owner)
CASE SUMMARY:
In this unanimous unpublished per curiam Opinion, the Michigan Court of Appeals reversed the grant of summary disposition in favor of the defendant on the issue of whether or not the owner of an ATV that caused injury to Michael Flowers was liable under the owner liability statute, MCL 257.401, pursuant to a claim of implied permission to use the ATV.
Michael Flowers sustained severe injuries resulting in a partial leg amputation as a result of being struck by an all-terrain vehicle driven by a party guest of the daughter of the owner of that vehicle, Sandra Williams. Sandra's daughter, Renee, was having a party, and the ATV owned by her mother was located at her lake property where the party was being held. The party guest who caused the injury claimed that the owner's son impliedly allowed him to use it by pointing to it and telling him that the "keys are in them." The owner and the son both contended that no express or implied consent was given to allow the guest to use the ATV.
Because it was undisputed that no express consent was granted, the court stated that the issue boiled down to whether or not implied permission was given. The court noted that the burden of establishing implied consent is lightened by the operation of a "rebuttable common law presumption" that the operator was driving the vehicle with the express or implied consent of the owner. Fout v Dietz, 401 Mich 403 (1977). To rebut the presumption, the vehicle owner must produce "positive, unequivocal, strong and credible evidence" negating implied consent. Michigan Mut Liability Co. v. Staal Buick, 41 Mich App 625 (1972). The court stated that in Krisher v Duff, 331 Mich 669, 710 (1951), further held that "that if any doubt has been cast on the testimony . . . either by evidence in rebuttal or by question as to the witnesses' credibility, the evidence is not clear, positive and credible, and the issue of whether or not the presumption of consent has been overcome should be submitted to the jury."
In this case, Flowers presented evidence that Jeffrey, the owner's son, explicitly invited the party guests to ride the ATV and effectuated his offer by allowing the vehicle to remain in the midst of the parties' water front action with its keys at the ready. Based upon such testimony, the court held that a trier of fact could readily conclude that the owner's son had made the ATV available to the guests and acquiesced in its use. Viewed in the light most favorable to the plaintiff, a reasonable trier of fact could find that the owner surrendered control of the ATV to her son, and that her son allowed the guest to ride it. Accordingly, the grant of summary disposition on the owner liability claim was reversed.
