Opinion
No. 120874.
October 22, 2002.
COA: 222502, Macomb CC: 93-4415-NP
On order of the Court, the delayed application for leave to appeal from the November 30, 2001 decision of the Court of Appeals is considered and, pursuant to MCR 7.302(F)(1), in lieu of granting leave to appeal, we VACATE the judgment of the Court of Appeals and REMAND this case to that court for reconsideration and clarification. On p 6 of its opinion, the Court of Appeals states its disagreement with plaintiff's contention that the trial court erred in permitting the officer to provide lay opinion testimony regarding whether plaintiff was wearing a seatbelt at the time of the accident, but on p 7 the opinion states, "We will assume without deciding that Officer Scweble's [sic] testimony was improperly admitted and instead determine whether any error in admitting Officer Schweble's testimony was harmless. Lukity, supra; Mateo, supra. We conclude that it was."
Lukity and Mateo were criminal cases in which it was observed that the harmless-error rule there at issue was primarily embodied in a statute expressly applicable to criminal cases, MCL 769.26. See 453 Mich. 212; 460 Mich. 491. We direct the Court of Appeals to clarify whether or not it found error in the trial court's evidentiary ruling in question and, if so, to determine whether the error was harmless under the appropriate harmless-error test applicable to civil cases, i.e., whether declining to grant a new trial, set aside a verdict, or vacate, modify, or otherwise disturb a judgment or order "appears to the court inconsistent with substantial justice." See MCR 2.613(A). Also see Cox v Flint Board of Hospital Managers, 467 Mich. 1, 15 (2002).
We do not retain jurisdiction.