Porter v. NORTHEAST GUIDANCE CENTER, INC.

653 N.W.2d 183 (2002)

Sabrina E. PORTER, Personal Representative of the Estate of Richard Irvin Smith, III, Deceased, Plaintiff-Appellee/Cross-Appellant,
v.
NORTHEAST GUIDANCE CENTER, INC., and Mary Ellen Guido, Defendants-Appellants/Cross-Appellees.

Docket No. 120614, COA No. 213190.

Supreme Court of Michigan.

November 20, 2002.

On order of the Court, the application for leave to appeal is considered and, pursuant to MCR 7.302(F)(1), in lieu of granting leave to appeal, we MODIFY the October 5, 2001 judgment of the Court of Appeals, and REMAND to the Wayne Circuit Court for a new trial on all issues. A new trial limited to the issue of damages is disfavored unless the defendant's liability is clear. Trapp v. King, 374 Mich. 608, 611, 132 N.W.2d 640 (1965), Bias v. Ausbury, 369 Mich. 378, 383, 120 N.W.2d 233 (1963). In this case, defendants' liability is not clear, nor is it clear that plaintiff's decedent was not comparatively negligent.

The application for leave to appeal as cross-appellant is also considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

We do not retain jurisdiction.

Cavanagh and Kelly, JJ., would reverse in part the judgment of the Court of Appeals for the reasons stated by the dissenting judge in the Court of Appeals.