Lipsitz v. Schechter , 1 Mich. App. 137 ( 1965 )

1 Mich. App. 137 (1965) 134 N.W.2d 849

LIPSITZ
v.
SCHECHTER.

Docket No. 229.

Michigan Court of Appeals.

Decided May 17, 1965. Leave to appeal granted July 20, 1965.

Charles Rubinoff, for plaintiff.

Ward, Plunkett, Cooney, Rutt & Peacock (John D. Peacock and Charles T. McGorisk, of counsel), for defendants.

Leave to appeal granted by Supreme Court July 20, 1965.

J.H. GILLIS, J.

Plaintiff, Florence Lipsitz, was employed as a nurse-housekeeper by a tenant in defendants' apartment building and lived with her employer in her employer's apartment.

On the afternoon of June 28, 1962, plaintiff and her employer left defendants' apartment building by a rear door. As she was closing the door, plaintiff was struck by a screen which fell from a window of apartment 402 on the fourth floor. There was no claim that there was anyone in the apartment at the time the screen fell. The lessees of apartment 402 are not parties to this action.

Plaintiff sued the lessor-owners for the injuries sustained when struck by the falling screen. At trial after plaintiff completed her case defendants moved for a directed verdict. The trial court reserved decision on the motion.^[1] The defendants rested without offering evidence. The jury returned a verdict of $10,000 for plaintiff. Defendants' motions for directed verdict and judgment notwithstanding the verdict were denied and the court entered judgment on the verdict. Defendants appeal, contending that the trial court erred in denying their motions.

Plaintiff's declaration alleged that defendants, as owners of the building, exercised control over the entrances and exits of the building, the sidewalks and grounds around it, and the equipment, such as fixtures, screens, and appurtenances of the building. The declaration charged that defendants failed to maintain the apartment building, its fixtures, and the areas around the apartment building in a reasonably safe and proper manner.

The specific act of negligence alleged in the declaration was defendants' failure to properly fasten the screen which permitted it to fall from apartment 402 causing the injuries complained of.

A thorough review of the transcript of testimony has convinced us that plaintiff has proved no more than the happening of an unfortunate accident. The burden of proof of defendants' alleged negligence was on plaintiff. Proof of the accident alone was not sufficient. The rule of res ipsa loquitur is not followed in this jurisdiction. Mitchell v. Stroh Brewery Company (1944), 309 Mich 231. In the absence of competent evidence that the falling screen resulted from or was proximately caused by some negligent act or omission for which defendants were responsible, plaintiff was not entitled to have her case submitted to a jury. Otto v. Hansen Lumber Corp. (1951), 331 Mich 37.

Plaintiff's witnesses testified to the condition of the screens in plaintiff's employer's first floor apartment only. The testimony disclosed that plaintiff's employer hired her own window washers who lifted or removed the screens when the windows were washed.

There is no testimony in the record before us that would indicate any defective condition existing in the screen which struck the plaintiff nor is there any testimony to indicate defective fasteners attached to the screen or to the building. There is no testimony from the occupants of apartment 402, from the person or persons who washed the windows or from the janitor of the apartment building, who perhaps could have shed more light on this case. There are no depositions from any of the above parties and this Court is left to speculate as to the reasons for this unfortunate accident.

The trial court should have directed a verdict for the defendants.

Judgment reversed. Costs to appellants.

LESINSKI, C.J., and WATTS, J., concurred.

NOTES

[1] At the time of trial (February 17-24, 1964), the Empson act (CL 1948, § 691.691 et seq. [Stat Ann § 27.1462 et seq.]) had been repealed by section 9901 (CLS 1961, § 600.9901 [Stat Ann 1962 Rev § 27A.9901]) of the revised judicature act, PA 1961, No 236 (CLS 1961, § 600.101 et seq. [Stat Ann 1962 Rev § 27A.101 et seq.]), which became effective January 1. 1963. The former practice of reserving decision of motions for directed verdict under the Empson act is continued under GCR 1963, 515.2. See extensive comments on this rule in 2 Honigman & Hawkins, Michigan Court Rules Annotated, Rule 515.