While a remand for a determination of damages only is generally disfavored by this Court, see Garrigan v. LaSalle Coca-Cola Bottling Co, 373 Mich 485, 489; 129 NW2d 897 (1964), such remand is proper "when liability is clear." Burns v. Detroit, 468 Mich 881; 658 NW2d 468 (2003), citing Bias v. Ausbury, 369 Mich 378, 383; 120 NW2d 233 (1963). See, also, Peisner v. Detroit Free Press, Inc, 421 Mich 125, 129; 364 NW2d 600 (1984); Smith v. Chippewa Co Bd of Co Rd Comm'rs, 381 Mich 363, 381; 161 NW2d 561 (1968).
Harrington v Velat, 395 Mich. 359, 360; 235 N.W.2d 357 (1975), quoting 66 CJS, New Trial, § 66, pp 197-198. See also Bias v Asbury, 369 Mich. 378; 120 N.W.2d 233 (1963); 58 Am Jur 2d, New Trial, § 129, pp 335-336; Bartholomew v Walsh, 191 Mich. 252, 261-262; 157 N.W. 575 (1916). The first jury in this case rendered such a verdict.
An exception to this general rule is made in cases where liability is clear. Trapp v King, 374 Mich. 608; 132 N.W.2d 640 (1965); Bias v Ausbury, 369 Mich. 378; 120 N.W.2d 233 (1963). Unlike the situation in the Bias and Trapp cases, the affirmative defense of Mr. Hardy's contributory negligence was very much at issue here.
Gumienny v Hess, 285 Mich. 411; 280 N.W. 809 (1938). Compare Bias v Ausbury, 369 Mich. 378, 380; 120 N.W.2d 233 (1963) (Ohio law). The Court alludes in this regard to Wycko v Gnodtke, 361 Mich. 331; 105 N.W.2d 118 (1960), but as it acknowledges, that case concerned the measurement of the "pecuniary loss" recoverable under the wrongful death act by the parents of a deceased minor child, not the damages recoverable by the parents of a child who survives negligently inflicted injury.
The following decisions uphold recovery: Drayton v. Jiffee Chemical Corp. (N.D.Ohio 1975) 395 F. Supp. 1081 (Ohio law); Miller v. Subia (Colo.App. 1973) 514 P.2d 79; Yordon v. Savage (Fla. 1973) 279 So.2d 844; Stephens v. Weigel (1948) 336 Ill. App. 36 [ 82 N.E.2d 697]; Rosenau v. City ofEstherville (Iowa 1972) 199 N.W.2d 125 (by implication); Bias v. Ausbury (1963) 369 Mich. 378 [ 120 N.W.2d 233] (Ohio law); Shockley v. Prier (1975) 66 Wis.2d 394 [ 225 N.W.2d 495]. Three states provide for the cause of action by statute.
66 CJS, New Trial, § 66, pp 197-198. Accord, Bias v Ausbury, 369 Mich. 378; 120 N.W.2d 233 (1963); 58 Am Jur 2d, New Trial, § 129, pp 335-336. See Bartholomew v Walsh, 191 Mich. 252, 261-262; 157 N.W. 575 (1916).
On remand, because the amount of damages under the contract is disputed, the issue of Vista's damages should be submitted to a trier of fact notwithstanding the fact that Northwood Hills's liability is clear. See Bias v Ausbury, 369 Mich 378, 383; 120 NW2d 233 (1963). Given our resolution, we need not consider Vista's argument that the trial court erred by instructing the jury on first breach and denying Vista's request for an instruction on anticipatory breach.
This is permissible only where defendant's liability is clear. Garrigan v. LaSalle Coca-Cola Bottling Co, 373 Mich. 485, 489; 129 N.W.2d 897 (1964); Brewster v. Martin Marietta Aluminum Sales, Inc, 145 Mich. App. 641, 669; 378 N.W.2d 558 (1985); 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). Here, defendant's liability was not clear. There was evidence from which another jury might have concluded that the brake cylinder was in acceptable condition, but the Muffler Man shop improperly installed it. Under these circumstances, we cannot order a new trial on the issue of damages alone.
We conclude that ACIA's reliance on these cases is misplaced. Whereas a claim of loss of consortium is contingent upon the injured person's recovery of damages, Biasv Ausbury, 369 Mich. 378, 382; 120 N.W.2d 233 (1963); Morrison v Grass, 314 Mich. 87, 106; 22 N.W.2d 82 (1946); Hilla v Gross, 43 Mich. App. 648, 652; 204 N.W.2d 712 (1972), a claim of negligent or intentional infliction of emotional distress may be maintained as a separate, independent cause of action and is not dependent upon actual injury to, or recovery by, another person. Barnes v Double Seal Glass Co, Inc, 129 Mich. App. 66, 75-76; 341 N.W.2d 812 (1983); Campos v General Motors Corp, 71 Mich. App. 23, 25; 246 N.W.2d 352 (1976). In Barnes, the plaintiffs' son died in a work-related accident. The plaintiffs sued their son's employer and coemployees for wrongful death, alleging claims of negligence as well as intentional tort.
The "ambiguity" could only be resolved by ignoring one of the answers. Faced with inconsistent verdicts as to separate parties, the Supreme Court ordered a new trial in Bias v Ausbury, 369 Mich. 378; 120 N.W.2d 233 (1963). We believe that the same remedy must be used where answers on a special verdict form are unambiguously inconsistent and are not resolved prior to the jury's discharge.