Hilla v. Gross , 43 Mich. App. 648 ( 1972 )

43 Mich. App. 648 (1972) 204 N.W.2d 712

HILLA
v.
GROSS.

Docket No. 11778.

Michigan Court of Appeals.

Decided November 27, 1972.

Goodman, Eden, Robb, Millender, Goodman & Bedrosian (by William H. Goodman and James A. Tuck), for plaintiffs.

Michael N. Freel, for defendant Erwin J. Gross.

Henry, Knapp, Boyce & Yahne, for defendant George Patzer.

Before: J.H. GILLIS, P.J., and McGREGOR and BORRADAILE,^[*] JJ.

J.H. GILLIS, P.J.

Plaintiffs sued George Patzer as owner and Erwin J. Gross as builder for damages sustained when the sun deck at Patzer's cottage fell on plaintiff Leo Hilla.

The jury returned a verdict of $75,000 in favor of Leo Hilla and against defendant Gross; "zero" damages to Mrs. Hilla on her derivative action for loss of consortium; and no cause of action in favor of defendant Patzer.

Defendant Gross, in building the sun deck, had substituted aluminum support columns for the steel columns specified in the original plans. Mr. Patzer had no knowledge of the substitution. Approximately 2-1/2 years after completion, owner Patzer decided to have a social gathering at the cottage. He and a Mr. Lamb went onto the sun deck to shovel snow while plaintiff Hilla worked below. The sun deck collapsed, causing Mr. Hilla's injuries. Mr. Patzer testified that several weeks before the accident, he noticed that the support columns were slightly bowed from the weight of ice and snow. He had no fear, however, that the sun deck would collapse, and would not have climbed up on it had he thought there was any danger.

On appeal, defendant Gross raises two allegations of error.

First, he contends that the trial judge erred in refusing to give his requested instruction to the effect that if owner Patzer had discovered or should have discovered the dangerous condition of the sun deck, "then as a matter of law Erwin Gross cannot be liable to the plaintiffs Hilla".

Defendant Gross apparently labors under the delusion that Michigan still adheres to the "accepted-work" doctrine. Under that theory, a contractor is absolved from all liability for his own negligence once his work has been completed and accepted by the contractee.

That this is no longer the law in Michigan was clearly stated in Kapalczynski v Globe Construction Co, 19 Mich App 396 (1969); cited for that precise proposition in Hargis v Dearborn Heights, 34 Mich App 594, 601-602 (1971).

The consequence is that the contractor continues to be liable for his negligent work subject to the usual requirements of proof in tort litigation as to negligence and proximate cause.

"[T]he failure of an owner to inspect or to act to prevent harm after discovering that work has been done improperly is not necessarily a superseding cause. Such a failure of an owner subjects him to a liability which is concurrent with that of the contractor, but does not, as a matter of law, absolve the contractor of his negligence." Kapalczynski, supra, p 404, paraphrasing with approval the holding by the New Mexico Supreme Court in Baker v Fryar, 77 NM 257; 421 P2d 784 (1966).

Indeed, it is the rare case where the owner's failure will absolve the contractor of his negligence. It is illogical to thus terminate the possibility of liability of the person basically at fault. The subsequent inaction of the owner simply adds him as another possible tortfeasor. See Totten v Gruzen, 52 NJ 202, 211; 245 A2d 1, 6 (1968); 2 Restatement of Torts, 2d, § 452, pp 486-490.

It is for the jury to determine, then, under proper instructions, the question of negligence and proximate cause as to each defendant.

In the case before us, the trial judge instructed the jury generally as to the meanings of these and other pertinent terms, as to the duty of each of the defendants to the plaintiffs, and as to contributory negligence. In other words, he instructed the jury as to the essential elements of the case. The trial judge is not required to give a requested instruction which is an incorrect statement of the law. Landon v Shepherd, 353 Mich 500 (1958); Elias v Hess, 327 Mich 323 (1950); Moss v Shreve, 278 Mich 665 (1937). Therefore, it was not error for the trial judge to refuse to give defendant's requested instruction which incorrectly stated the law as to a contractor's liability in Michigan.

Defendant's second contention is that by awarding damages to Leo Hilla for his personal injuries, but awarding nothing to Mrs. Hilla on her derivative claim for loss of consortium, the jury rendered inconsistent verdicts and a new trial as to all parties and issues is required. He cites Bias v Ausbury, 369 Mich 378 (1963), as authority for this proposition. In the Bias case, the jury found no cause of action on the principal claim, and awarded damages for the derivative claim. Those verdicts were clearly inconsistent, because an action for loss of consortium is contingent upon the injured person's recovery of damages. The converse is not true, and the Bias case is inapposite in the context of the instant case, where the injured person recovered damages, but none were awarded for the derivative claim.

The rest of defendant's authorities are cases which consider the adequacy of verdicts for injured parties. All of those appeals were, as might be expected, brought by aggrieved plaintiffs. Defendant has not shown himself prejudiced by the allegedly inadequate verdict awarded Mrs. Hilla, nor why said inadequate verdict should require a new trial as to all parties and issues, instead of merely as to Mrs. Hilla's damages.

In any case, the question whether Mrs. Hilla had suffered any damages was for the jury. They were free to disbelieve her testimony. The verdictswere not, therefore, inconsistent, and they will not be disturbed on appeal.

Affirmed. Costs to appellees.

All concurred.

NOTES

[*] Former circuit judge and now probate judge, sitting on the Court of Appeals by assignment.