Kubisz v. Cadillac Gage Textron, Inc , 236 Mich. App. 629 ( 1999 )

601 N.W.2d 160 (1999) 236 Mich. App. 629

John KUBISZ and Dorothy Kubisz, Plaintiffs-Appellees,
v.
CADILLAC GAGE TEXTRON, INC., Defendant-Appellant.

Docket No. 200326.

Court of Appeals of Michigan.

Submitted September 1, 1998, at Detroit. Decided August 3, 1999, at 9:00 a.m. Released for Publication October 22, 1999.

Chambers Steiner, P.C. (by Courtney E. Morgan, Jr.), Detroit, and Granzotto & Nicita, P.C. (by Angela J. Nicita), Detroit, for the plaintiffs.

Meganck, Cothorn & Stanczyk, P.C. (by John A. Cothorn, Suzanne C. Stanczyk, and Elizabeth L. Sokol), Detroit, for the defendant.

Before: HOLBROOK, JR., P.J., and MARKEY and WHITBECK, JJ.

PER CURIAM.

Defendant appeals as of right from a judgment for plaintiffs, following a jury trial, in this personal injury case. We affirm.^[1]

I. Background Facts

Plaintiff John Kubisz (hereinafter "plaintiff") was injured while employed by Omni-Tek, an independent contractor with which defendant had contracted to perform modifications and firearms upgrades on a prototype military vehicle. The vehicle was being changed from a light-armored amphibious personnel carrier to a light-armored amphibious tank. The modifications included the removal of twelve seats used to transport personnel, the addition of a firearms turret, and the replacement of the existing diesel fuel tank with a lighter diesel fuel tank made of aluminum. On May 7, 1991, the modified vehicle was tested to see how well it would float.^[2] During the course of the day, the vehicle was driven into the water by plaintiff on three separate occasions. After the first two tests, changes were made to help stabilize the vehicle in the water. After the third test, as plaintiff was driving the vehicle back to the shop, the new fuel tank ruptured along a bottom seam. On May 8, 1991, as plaintiff was attempting to weld the fifteen-inch rupture, the tank exploded, causing severe burns to plaintiff's upper body, including his face, chest, hands and arms, and abdomen.

II. Defendant's Motions for Summary Disposition and a Directed Verdict

Defendant argues that the trial court erred in denying its motions for partial summary disposition and a directed verdict with regard to plaintiff's claim premised on an inherently dangerous activity theory.^[3] Defendant also argues that the trial court erred in denying its motion for a directed verdict with regard to plaintiff's claim premised on a theory of retained control. In each instance we disagree.

A. Summary Disposition

We review a "trial court's denial of summary disposition de novo to determine if the moving party is entitled to judgment as a matter of law." Terry v. Detroit, 226 Mich.App. 418, 423, 573 N.W.2d 348 (1997).

A motion pursuant to MCR 2.116(C)(10),^[4] tests the factual basis underlying a plaintiff's claim. MCR 2.116(C)(10) permits summary disposition when, except for the amount of damages, there is no genuine issue concerning any material fact.... A court reviewing such a motion must consider the pleadings, affidavits, depositions, admissions, and any other evidence in favor of the opposing party and grant the benefit of any reasonable doubt to the opposing party. [Stehlik v. Johnson (On Rehearing), 206 Mich.App. 83, 85, 520 N.W.2d 633 (1994).]

"The inherently dangerous activity doctrine is an exception to the general rule that an employer of an independent contractor is not liable for the contractor's negligence or the negligence of his employees." Bosak v. Hutchinson, 422 Mich. 712, 724, 375 N.W.2d 333 (1985) (citing 2 Restatement Torts, 2d, § 409, p. 370; 41 Am. Jur. 2d, Independent Contractors, § 41, p. 805). Accord Rasmussen v. Louisville Ladder Co., Inc., 211 Mich.App. 541, 548-549, 536 N.W.2d 221 (1995).

Under the doctrine, liability may be imposed when "the work contracted for is likely to create a peculiar risk of physical harm or if the work involves a special danger inherent in or normal to the work that the employer reasonably should have known about at the inception of the contract." The risk or danger must be recognizable in advance, i.e., at the time the contract is made. The Court in Bosak emphasized that liability should not be imposed where a new risk is created in the performance of the work and the risk was not reasonably contemplated at the time of the contract. [Szymanski v. K mart Corp., 196 Mich.App. 427, 431, 493 N.W.2d 460 (1992), vacated and remanded on other grounds 442 Mich. 912, 503 N.W.2d 449 (1993) (citations omitted).]

After reviewing the relevant documentary evidence in a light most favorable to plaintiff, we agree with the trial court that with respect to defendant's motion for summary disposition, there existed a question of fact regarding whether the welding of the fuel tank was an inherently dangerous activity. Plaintiff presented deposition testimony by a welding expert that the welding of the fuel tank was inherently dangerous, and that defendant should have anticipated the activity and the special dangers of the activity at the time the project began. Additionally, there was evidence that defendant was aware that the activity of welding a fuel tank, which previously held diesel fuel, carried a special danger inherent to the very nature of the task. There was also evidence that known and applicable relevant safety precautions— including the use of qualified personnel— were not followed. Finally, the documents indicate that defendant knew that the process of refitting the vehicle could include unanticipated on-site adjustments.

B. Directed Verdict

"This Court reviews de novo the trial court's decision on a motion for a directed verdict." Braun v. York Properties, Inc., 230 Mich.App. 138, 141, 583 N.W.2d 503 (1998). "When evaluating a motion for a directed verdict, a court must consider the evidence in the light most favorable to the nonmoving party, making all reasonable inferences in favor of the nonmoving party. Directed verdicts are appropriate only when no factual question exists upon which reasonable minds may differ." Meagher v. Wayne State Univ., 222 Mich.App. 700, 708, 565 N.W.2d 401 (1997) (citations omitted).

1. Inherently Dangerous Activity

After reviewing the record, we conclude that plaintiff presented sufficient evidence at trial to preclude a directed verdict for defendant. Undisputed evidence was presented that the activity of welding containers that previously held diesel fuel carried a serious risk of injury and involved a peculiar risk to workers unless a high degree of care was taken. In addition, there was evidence that because the blueprints were designed and drawn by defendant and the project involved removal and replacement of the diesel fuel tank, defendant should have anticipated that such welding might occur. Further, both Peter Krawiecki, defendant's prototype shop manager, and plaintiff testified there were several instances in the past when Omni-Tek employees had to weld fuel tanks that previously held diesel fuel while working on prototype vehicles. Plaintiff's expert witness also explained that the very existence of a variety of industry and government standards addressing the special hazard of welding a closed vessel that previously contained flammables or combustibles illustrated the inherently dangerous nature of that activity. There was also evidence that plaintiff had no formal training with welding and that defendant was aware that plaintiff had no formal training or instruction with regard to welding.

2. Retained Control

A second main exception to the general rule of nonliability for the negligence of an independent contractor is "where the general contractor ... effectively retains control over the work involved." Phillips v. Mazda Motor Mfg. (USA) Corp., 204 Mich.App. 401, 408, 516 N.W.2d 502 (1994) (citation omitted).

Here, viewed in a light most favorable to plaintiff, the evidence was sufficient to create a question of fact with regard to whether defendant retained sufficient control over the work. At the time the motion for a directed verdict was made, there was testimony that during the time the vehicle at issue was being modified, Krawiecki had control of the daily operations at Omni-Tek, including those involving the vehicle. For example, there was evidence that Krawiecki controlled Omni-Tek's budget, made daily work assignments, and reported directly to defendant's chief engineer. Indeed, Krawiecki admitted that it was his job to manage the development and manufacture of prototype vehicles. Therefore, the trial court did not err in denying defendant's motion for a directed verdict.

III. Admission Into Evidence of Various Safety Regulations and Standards

Defendant also claims that the trial court committed error requiring reversal by admitting into evidence various safety regulations and standards. Defendant contends that because those regulations and standards were not used for impeachment purposes,^[5] and because their probative value is substantially outweighed by their prejudicial effect,^[6] this Court should remand the case for a new trial. We do not agree. Defendant has failed to properly preserve this issue for appellate review because its objection was based on grounds not asserted below. MRE 103(a)(1). At trial, defendant objected to their admission on the ground of relevancy. "Objections based on one ground are insufficient to preserve an appellate review based on other grounds." In re Leone Estate, 168 Mich.App. 321, 326, 423 N.W.2d 652 (1988). Therefore, because we find no plain error and are unconvinced that defendant's substantial rights were adversely affected, we see no reason to review this unpreserved issue. Meagher, supra at 724, 565 N.W.2d 401. See MRE 103(d).^[7]

IV. Alleged Improper Arguments Made by Plaintiff's Counsel

Finally, defendant argues that it was denied a fair trial when plaintiff's counsel made several comments during closing argument that were designed to improperly appeal to the sympathy of the jurors, and to prejudice them against defendant.

When reviewing asserted improper comments by an attorney, we first determine whether the attorney's action was error and, if it was, whether the error requires reversal. An attorney's comments usually will not be cause for reversal unless they indicate a deliberate course of conduct aimed at preventing a fair and impartial trial. Reversal is required only where the prejudicial statements of an attorney reflect a studied purpose to inflame or prejudice a jury or deflect the jury's attention from the issues involved. [ Hunt v. Freeman, 217 Mich.App. 92, 95, 550 N.W.2d 817 (1996) (citations omitted).]

We note that defendant did not ask the trial court to give a curative instruction addressing any of the alleged improper remarks.

A. Allegation that Plaintiff's Counsel Impugned the Integrity of Defense Counsel

Defendant argues that plaintiff's counsel acted improperly when making the following comments during his closing argument:

Plaintiff's Counsel: One of [plaintiff's]... co-workers Red Mason, Randy Mason... told him ["]you ought to flush the tank out.["] Now, I know we had some statements by defense counsel about that and I know he asked Mr. Whitaker [,"]didn't you see a statement.["] But there is a difference isn't there between being at the— at your place of employment with your boss standing right over you with his boss standing right over him and saying ["] it was his fault, I told him not to do that[,"] and walking through the courtroom doors coming up here, swearing to tell the truth and stating it on the witness stand. You know what the difference is? Making a statement out to the boss under duress in order to cover yourself doesn't come with the little thing called perjury. But you come in here and you say it and there's a penalty of perjury that goes along with it if you're not telling the truth. Maybe that's why defense didn't present the testimony of Red Mason.

Defense Counsel: Judge, I don't normally object in closing argument but when counsel makes that kind of a representation to this jury that I would thwart perjury from a witness—

Plaintiff's Counsel: Actually, I said exactly the opposite, that he would never do such a thing and that's why he didn't bring in the witness.

Defense Counsel: That's what I'm saying—

Trial Court: All right, go on.

Defense Counsel: — making edifications is totally improper.

We disagree with defendant that the statements made by plaintiff's counsel impugned the integrity of defense counsel by implying that defense counsel had suborned perjury. To the contrary, plaintiff's counsel was making the exact opposite point. Rather than impugning the integrity of defense counsel, plaintiff was theorizing that the reason Mason was not produced as a defense witness to ratify statements he allegedly made was because any such ratification would be perjurious. Such commentary is proper in closing arguments. See Reetz v. Kinsman Marine Transit Co., 416 Mich. 97, 109, 330 N.W.2d 638 (1982) (observing that "it is legitimate to point out that an opposing party failed to produce evidence that it might have, and consequently the jury may draw an inference against the opposing party").

B. Allegation that Plaintiff's Counsel Improperly Challenged Krawiecki's Credibility

Defendant also argues that plaintiff's counsel acted improperly by suggesting to the jury that defendant had pressured Krawiecki to blame plaintiff for the accident. Defendant cites the following remark as evidence of counsel's improper conduct: "That's Cadillac Gage at work here pure and simple. CYA." We believe it is important to examine the context in which this singular comment was made.

Went to the hospital ... right after the accident. Walked in on Mr. Kubisz where he blurted out responsibility for the accident. Just blurted it out. ["]I'm sorry, I should have listened to them, should of done what they said.["] Why would [Krawiecki] ... do a thing like that: Come in here and tell you a cockamamie story like that? Under pressure from the boss back there in May of 1991? ["]Krawiecki, what the hell happened over there?["] ["]Well, he didn't—its all his fault, not my fault, not my fault.["] That's Cadillac Gage at work here pure and simple. CYA. But what a ridiculous story for a man to tell. Can't remember whether or not there were any other nursing personnel present.... Can't remember whether or not they were pouring saline solution on Mr. Kubisz to try and stop the burning or the continuing burning deeper.... And here's this poor boy laying there with skin hanging off of him like some sort of a ghoul ... with his throat swelling and beginning to close off his air pipe ... and here's Pete Krawiecki dashing in for a mad 30 seconds to get the goods. Oh yeah, it's all your fault. Come on. Absolutely ridiculous. [Emphasis added.]

Initially, we note that defendant failed to preserve this matter for appellate review by raising a specific and timely objection to the challenged comments. Further, the matter was not raised in defendant's motion for judgment notwithstanding the verdict, new trial, or remittitur.

In context, it is clear that plaintiff's counsel was attempting to explain the differences that existed between plaintiff's testimony and Krawiecki's testimony regarding the matter of whether plaintiff had ever admitted fault to Krawiecki while plaintiff was initially being treated for his injuries. Counsel is allowed to "try to persuade the jury to believe their witnesses and disbelieve witnesses of the adverse party" when a conflict in testimony exists. Wheeler v. Grand Trunk W. R. Co., 161 Mich.App. 759, 765, 411 N.W.2d 853 (1987).

Hence, we conclude that the remarks cited by defendant did not have the effect of denying it a fair and impartial trial.^[8]

C."Voice of the Community"

Defendant also argues that plaintiff's counsel acted improperly when he commented to the jurors that they were acting as "the voice of the community." The record reveals that the remark came at the end of plaintiff's closing argument, as counsel was concluding his remarks concerning damages:

Mr. Kubisz today earns about $30,000.00 a year at 15 bucks an hour which is what he testified he's currently earning times 40 times 52. It's a little bit more than $30,000.00 per year. Is half that amount reasonable and fair for pain and suffering and scarring and disfigurement into the future—half that amount per year, 15,000? A third of that amount perhaps, 10,000, is that reasonable and fair? I think so. But again, it is up to you. You, ladies and gentlemen are the voice of the community. You decide what the damages shall be. You decide what the—whether or not the law of negligence should be enforced against Cadillac Gage. You decide whether or not the community will tolerate this kind of conduct of not ever having even read an OSHA regulation.... [Emphasis added.]

It was at this point that defendant objected, arguing that plaintiff was making an improper "conscience of the community" argument.

We are not persuaded by defendant's argument. The "voice of the community" reference did not "appeal to the fears and prejudices of" the jury, People v. Bahoda, 448 Mich. 261, 285, 531 N.W.2d 659 (1995), nor did it "inject issues into the trial broader than those pled and brought out by the testimony below." Joba Constr. Co., Inc. v. Burns & Roe, Inc., 121 Mich.App. 615, 637, 329 N.W.2d 760 (1982). Therefore, we see no error requiring reversal.

Affirmed.

NOTES

[1] Although defendant mentions that it moved for remittitur in its brief, defendant does not argue the merits of the trial court's decision or provide any argument on appeal that it was entitled to remittitur. Accordingly, that issue is not properly before this Court. A party may not merely announce a position and leave it to this Court to discover and rationalize the basis for the claim. Joerger v. Gordon Food Service, Inc., 224 Mich.App. 167, 178, 568 N.W.2d 365 (1997).

[2] The record indicates that as of the May 7, 1991, tests, the seats had been removed and the aluminum fuel tank attached. The firearms turret had not yet been attached.

[3] Defendant's question presented on the first issue includes a reference to its motion for judgment notwithstanding the verdict, new trial, or remittitur. In that motion, however, defendant did not argue that there was insufficient evidence to support the jury's verdict under the theories of inherently dangerous activity or retained control. Therefore, those issues are not properly before this Court. Auto Club Ins. Ass'n v. Lozanis. 215 Mich.App. 415, 421, 546 N.W.2d 648 (1996).

[4] Although defendant's motion for partial summary disposition was premised on MCR 2.116(C)(8) and (10), because both parties and the trial court relied on matters outside the pleadings, this issue will be reviewed under MCR 2.116(C)(10). Driver v. Hanley (After Remand), 226 Mich.App. 558, 562, 575 N.W.2d 31 (1997).

[5] This portion of defendant's argument is based on MRE 707, which reads:

To the extent called to the attention of an expert witness upon cross-examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice, are admissible for impeachment purposes only. If admitted, the statements may be read into evidence but may not be received as exhibits.

[6] This portion of defendant's argument is based on MRE 403, which reads in pertinent part:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice....

[7] In addition, because defendant does not address the issue of relevancy on appeal, we decline to review that issue. See Samuel D Begola Services, Inc. v. Wild Bros., 210 Mich.App. 636, 642, 534 N.W.2d 217 (1995).

[8] Furthermore, many of these remarks are simply a legitimate characterization of Krawiecki's testimony. De Voe v. C A Hull Inc., 169 Mich.App. 569, 581, 426 N.W.2d 709 (1988).