Francisco v. Manson, Jackson & Kane, Inc , 145 Mich. App. 255 ( 1985 )

145 Mich. App. 255 (1985) 377 N.W.2d 313

FRANCISCO
v.
MANSON, JACKSON & KANE, INC.

Docket No. 73393.

Michigan Court of Appeals.

Decided July 22, 1985.

Pelavin, Pelavin & Powers, P.C. (by Michael A. Pelavin and Frumeth Brenda Hirsh), and J. Dallas Winegarden, P.C. (by J. Dallas Winegarden, Jr.,), for plaintiff.

Martin, Bacon & Martin, P.C. (by James N. Martin, John W. Crimando, and Robert Patrick George), for defendant.

Before: WAHLS, P.J., and R.M. MAHER and R.E. NOBLE,^[*] JJ.

PER CURIAN.

Plaintiff's ten-year-old son, Todd Gerald Francisco, died as the result of injuries suffered in a fall from a three-meter diving stand at the Kuehn-Haven Middle School in Montrose, Michigan. Defendant was the architectural firm that designed the swimming facility at the school. In this action for architectural malpractice, a verdict for plaintiff was returned after a jury trial. Plaintiff's damages were assessed at $980,328, but were reduced by 15% to reflect comparative negligence. A judgment was entered for plaintiff for $788,278.80 plus interest, and defendant appeals as of right.

Defendant argues that the trial court erred by permitting an expert witness called by plaintiff, Dr. M.A. Gabrielson, to read from certain safety standards for diving stands promulgated by the Council for National Cooperation in Aquatics. The witness was the chairman of the committee of the council which formulated the standards at issue, and he prepared the first draft of the standards himself.

Ordinarily, use of learned treatises is limited to impeachment. Bivens v Detroit Osteopathic Hospital, 403 Mich. 820; 282 NW2d 926 (1978), rev'g 77 Mich. App. 478; 258 NW2d 527 (1977). The admissibility of safety publications drafted by safety organizations is governed by the rules applicable to learned treatises. Fletcher v Ford Motor Co, 128 Mich. App. 823, 826-827; 342 NW2d 285 (1983). In Stachowiak v Subczynski, 411 Mich. 459, 463-465; 307 NW2d 677 (1981), the Court held that learned treatises and other professional literature were admissible for any nonhearsay purpose if the trial court determined in the exercise of its sound discretion that their probative value was not substantially outweighed by their prejudicial effect. See also Fletcher v Ford Motor Co, supra, pp 828-829.

The witness here was one of the authors of the standards and was available for cross-examination. One of the theories advanced by defendant at trial was that it had acted in compliance with applicable nongovernmental safety standards and was therefore not negligent. Plaintiff could have introduced the safety standards at issue here to rebut this theory; any error, therefore, involved not whether evidence of the safety standards should have been admitted at all, but whether the evidence should have been saved for a rebuttal rather than introduced in plaintiff's case in chief. Any error in admitting this evidence was harmless.

Defendant also complains that an expert witness called by plaintiff, Ronald Reno, was permitted to use the pronoun "I" in discussing the applicable standard of care. Expert testimony in a malpractice case should be based on how a reasonable similarly-situated practitioner would act, not on how the witness himself would act. See Rytkonen v Lojacono, 269 Mich. 270, 274; 257 N.W. 703 (1934), and Carbonell v Bluhm, 114 Mich. App. 216, 224; 318 NW2d 659 (1982). Defendant, however, made no objection to the admission of this testimony at trial, and under such circumstances an appellate court will not afford the defendant any relief absent manifest injustice. See, for example, Deeb v Berri, 118 Mich. App. 556, 562; 325 NW2d 493 (1982). Examination of the testimony of this witness in context shows that, despite the occasional use of the pronoun "I", the witness was testifying as to the applicable standard of care, not merely his personal practices. No manifest injustice is presented.

Defendant also argues that plaintiff failed to produce expert testimony to establish a breach of the applicable standard of care. This argument, however, is without merit, because it is premised on the erroneous assumption that Ronald Reno gave no admissible testimony concerning the applicable standard of care. The record shows that, even if testimony by Reno containing the pronoun "I" is disregarded, Reno's testimony supports an inference that the applicable standard of care was breached.

Defendant points to Owens v Allis-Chalmers Corp, 414 Mich. 413, 429-431; 326 NW2d 372 (1982), and argues that plaintiff failed to establish a prima facie case by failing to produce sufficient evidence of alternatives to the diving board and stand selected by defendant. In Owens, the Court held that plaintiff had failed to present a prima facie case showing that the design of a forklift was unreasonably dangerous in light of the foreseeable risk because the plaintiff presented no evidence concerning the magnitude of the risk involved and the reasonableness of the proposed alternative designs. Application of Owens to this case is unwarranted because this case involves architectural malpractice, while Owens was a products liability case. Moreover, plaintiff produced evidence satisfying the requirements of Owens. Plaintiff's expert, Dr. Gabrielson, explained that a 3-meter board and stand like that at issue here was an unacceptable risk for use in a facility where middle-school-aged children engaged in recreational swimming. Dr. Gabrielson pointed to various feasible design changes that would have increased the safety of the board and stand, including adding a bed under the springboard, changing the diameter and position of the guardrails, changing the materials of which the guardrails were made to a less slippery material, changing the height and rise of the steps, and adding a plexiglass or canvas enclosure at the top of the board. No error in this connection is presented.

Defendant argues that it owed no duty to the school district running to the benefit of plaintiff's decedent to warn of the risks involved in the use of the diving board and stand. The existence of the legal duty is a question of law for resolution by the court. Moning v Alfono, 400 Mich. 425, 436-437; 254 NW2d 759 (1977). An architect owes a duty of care similar to that owed by other professionals like attorneys or physicians. Ambassador Baptist Church v Seabreeze Heating & Cooling Co, 28 Mich. App. 424, 426; 184 NW2d 568 (1970). The duty of the architect is owed to any person lawfully on the premises; privity of contract is not required. Estate of Clark, 33 Mich. App. 395, 401; 190 NW2d 373 (1971). rev'd on other grounds sub nom Smith v Detroit 388 Mich. 637; 202 NW2d 300 (1972). See also Anno: Architect's Liability for Personal Injury of Death Allegedly Caused by Improper or Defective Plans or Design, 97 ALR3d 455.

Defendant argues that the danger of a fall from the diving board or stand was open and obvious and that it therefore had no duty to warn of such danger. This argument really relates to the applicable standard of care rather than to the existence of a legal duty. See Moning v Alfono, supra, pp 437-438. In the products liability case of Owens v Allis-Chalmers Corp, supra, p 425, the Court explained that the obviousness of the risks that inhere in some simple tools or products is a factor contributing to a conclusion that such tools or products are not unreasonably dangerous, but that the test is not whether the risks were obvious, but whether they were unreasonable in light of the foreseeable injuries.

Defendant's argument fails to focus on the precise theory of liability advanced by plaintiff. Plaintiff claimed, and evidence introduced by the parties showed, that the diving board and stand at issue were appropriate for use in high-level competitive diving but were unreasonably dangerous when used for recreational swimming by middle-school-aged children. Defendant knew that the board and stand would be installed in a middle school pool and that the pool's intended uses included recreational swimming. Defendant did not warn of a potential danger and did not inquire into any possible alternate less dangerous designs.

The risk at issue was not simply open and obvious danger of a fall from the diving board or stand, but, rather, the risk of using one particular type of board and stand rather than various alternatives. The latter risk was not open and obvious and, on this record, we have no hesitation in characterizing the risk of using the board and stand at issue as unreasonable in light of the foreseeable injuries.

Defendant's reliance on Antcliff v State Employees Credit Union, 414 Mich. 624; 327 NW2d 814 (1982), is misplaced. In Antcliff, the Court held that a scaffold manufacturer did not breach the applicable standard of care by failing to provide instructions on use of the scaffold. The Court noted that the manufacturer designed his product for use by professionals who, the manufacturer could presume, had mastered basic operations involving use of the product. 414 Mich. 640. Defendant here was not a manufacturer selling to professionals, but instead was a professional dealing with nonprofessionals who hired defendant to advise them about the very matter at issue.

Defendant also argues that it should be relieved from liability due to intervening negligence by the school district. Whether an intervening negligent act of a third party constitutes a superseding proximate cause so as to relieve the defendant from liability is ordinarily a question of fact for the jury. See, for example, Young v E W Bliss Co, 130 Mich. App. 363, 369; 343 NW2d 553 (1983). Intervening negligence by a third party will not relieve the defendant from liability if the intervening event was foreseeable. Davis v Lhim, 124 Mich. App. 291, 307; 335 NW2d 481 (1983); Gorelick v Dep't of State Highways, 127 Mich. App. 324, 334; 339 NW2d 635 (1983).

Defendant was retained as a professional architect to advise the school district about matters including the selection of an appropriate diving board and stand. It was highly foreseeable that the school district would follow defendant's advice under the circumstances, and we cannot see how the district's failure to disregard defendant's advice could constitute intervening negligence sufficient to relieve defendant from liability under these circumstance. The trial court did not err by declining to direct a verdict for defendant on this issue.

Defendant argues that the trial court erred by declining to give a requested instruction on vicarious liability. The trial court instructed the jury that defendant could not be liable except for negligence by defendant's employee, Herbert Iverson, at the time and during the course of his employment. Defendant has failed to explain why it claims this instruction was inadequate to convey the applicable legal concepts to the jury. No error in this connection is presented.

Defendant also argues that the trial court erred by declinging to instruct the jury that it could consider compliance with governmental and industrial standards in determining whether defendant was negligent. Compliance with governmental and industrial standards does not necessarily prevent a finding of negligence. Owens v Allis-Chalmers Corp, supra, p 422. Extensive evidence and argument was presented here concerning compliance with governmental and industrial standards; nothing at trial could have suggested that the jury could not consider compliance with governmental and industrial standards. Defendant's requested instructions contained misleading language focusing on the manufacture and design of the diving board and stand rather than on whether the board and stand were appropriate for use under the circumstances. No error in this connection is presented.

Defendant argues that the damages awarded were excessive and that the trial court committed an abuse of discretion by denying its motion for a new trial or remittitur. Where there are no other errors at trial, remittitur can be ordered only if the verdict was so excessive as to shock the judicial conscience. Burnett v Mackworth G Rees, Inc, 109 Mich. App. 547, 552; 311 NW2d 417 (1981); May v Grosse Pointe Park, 122 Mich. App. 295, 297; 332 NW2d 411 (1982). We cannot say that the valuation placed by the jury here on the life of a child was so excessive as to shock our consciences.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.