Cornforth v. Borman’s, Inc

148 Mich. App. 469 (1986) 385 N.W.2d 645

CORNFORTH
v.
BORMAN'S, INC.

Docket No. 80325.

Michigan Court of Appeals.

Decided January 22, 1986.

Thomas J. Bertino, for plaintiffs.

Denenberg, Tuffley & Bocan (by Susan Tukel), for defendant.

Before: R.S. GRIBBS, P.J., and HOOD and A.T. DAVIS,^[*] JJ.

PER CURIAM.

This case involves a personal injury action by plaintiffs, Ruth and Robert Cornforth, involving injuries Ruth sustained when she slipped and fell in a Farmer Jack's Supermarket owned by defendant, Borman's, Inc. At the jury trial, plaintiff Ruth Cornforth, age 50, testified that on Saturday, May 17, 1980, at about 4:30 p.m., her daughter dropped her off at the Farmer Jack's supermarket. According to her, it had been raining steadily all day. She entered the store by stepping on the black "electric eye mat" that opened the door. As she stepped onto the floor inside the store, she slipped and fell, sustaining several injuries to her legs, hip and head. She saw mud mixed with water on the tile floor where she fell.

Plaintiff Ruth Cornforth testified that she had been to the Farmer Jack's store on other occasions and had noticed a red mat placed in front of the black entrance mat inside the store during rainy weather. On the day that she fell, the red mat was five or six feet away from the black mat. While the manager of the store was assisting her after the fall, she asked him why the red mat was not in its usual place. The manager said that four or five hundred people came into the store a day and it was impossible to keep the red mat where it belonged.

As Ruth Cornforth was in considerable pain, she sat in a chair near the manager's office for approximately half an hour after the fall. Then she purchased a few items in the store and left with her daughter.

The following Monday, two days after the fall, she went to see defendant's doctor, Dr. Poppa, at the manager's suggestion. Dr. Poppa became upset and told her to see her own doctor right away. Her left leg felt terrible, but she did not see a doctor for two days because she was in shock and did as the manager had told her to. She then saw her own doctor, and was hospitalized for four or five days, and wore a brace on her left leg for one year. At the time of the trial, she still experienced pain in her knee and hip, and because of the weakness in her left leg had trouble bending and would fall easily. She had difficulty doing household chores and was unable to work as she had done prior to the fall.

On cross-examination, Ruth Cornforth testified that she was wearing rubber shower thongs when she fell at the Farmer Jack's. She further testified that she had continued weakness in her left leg as a result of childhood polio. In addition, plaintiff had picked up a South American parasite while in Colombia in 1979 and was treated for it while she was in the hospital directly after the fall.

Donald Suida testified as follows. On the day Ruth Cornforth fell, he was the manager of the Farmer Jack's supermarket in question. On rainy days, a red mat was normally placed inside the store one to six inches in front of the black mat. This would absorb some of the wetness from people's shoes as they entered. Employees would periodically mop the floor as necessary.

Suida's further testimony was as follows. Suida was told that someone had fallen in the store entrance. He then observed Ruth Cornforth kneeling on the floor picking up things that had fallen out of her purse. He helped Ruth Cornforth up and offered her a chair, where she sat for a few minutes. She complained about her left leg, indicating that it had been broken in the past. He offered the services of the company doctor and told her she could go to her own doctor or a hospital if she preferred. She indicated that she was a little sore but that she would wait and see how she felt later on. He claimed that she did not ask about the red mat. It was his responsibility to see that the red mat was in place. However, he could not recall the position of the red mat at the time Ruth Cornforth fell.

At the close of all proofs, the jury returned a verdict of no cause of action. Plaintiffs appeal as of right.

I

Plaintiffs' first contention on appeal is that the trial court's failure to give any of the applicable and accurate standard jury instructions requested by plaintiffs mandates reversal. Plaintiffs' argument is predicated on GCR 1963, 516.6(2), now MCR 2.516(D)(2), which provides:

"Pertinent portions of Michigan Standard Jury Instructions (SJI) published under authority of this subrule shall be given in each civil case in which jury instructions are given if (a) they are applicable and (b) they accurately state the applicable law."

In Javis v Ypsilanti Bd of Ed, 393 Mich. 689, 702-703; 227 NW2d 543 (1975), our Supreme Court sought to give teeth to the court rule by announcing the following strict standard for SJI errors:

"Where there is an omission of, or deviation from an applicable and accurate SJI [Standard Jury Instruction], prejudicial error will be presumed; provided that the erroneously omitted SJI was properly requested at trial; and, provided that in those cases where error is charged as a result of a deviation from a SJI, said deviation was brought to the attention of the trial court prior to the commencement of jury deliberations."

This rule was reaffirmed in Socha v Passino, 405 Mich. 458; 275 NW2d 243 (1979). However, recently in Johnson v Corbet, 423 Mich. 304; 377 NW2d 713 (1985), the Supreme Court reevaluated the automatic reversal rule and modified it. The Court noted that the purpose of the Javis rule was to force compliance with Rule 516.6(2) at a stage when some, if not many, trial judges were not yet regularly using the then relatively new SJIs. The Court then concluded that the goals sought to be accomplished by the Javis rule have largely been realized and that its "continued application is too often counterproductive of fairness". 423 Mich 324-325. Therefore, the Court announced a return to the harmless error standard set forth in GCR 1963, 529, now MCR 2.613A. Pursuant to GCR 1963, 516.6(2), a trial court is still duty bound to give a properly requested SJI where it determines, in its discretion, that the instruction is applicable. However, noncompliance with the rule is no longer a basis for reversal unless the noncompliance resulted in "such unfair prejudice to the complaining party that the failure to vacate the jury verdict would be `inconsistent with substantial justice'". 423 Mich. 327.

With this standard in mind, we now review plaintiffs' assignments of error. First, plaintiffs contend that the trial court erred in failing to give SJI2d 19.03, which provides:

"It was the duty of the possessor of the [land/premises/place of business] to exercise reasonable care for the protection of an invitee. [He/She] must warn the invitee of dangers of which [he/she] knows or has created, and must inspect the [land/premises/place of business] to discover possible dangerous conditions of which [he/she] does not know. [He/She] must take reasonable precautions to protect the invitee from dangers that are foreseeable.

"However, the possessor is not an insurer of the safety of an invitee, and [his/her] duty is only to exercise reasonable care for an invitee's protection. The mere existence of a defect or danger is not enough to establish liability unless it is shown to be of such a character or of such duration that it would have been discovered by a reasonably careful person."

The trial court instructed the jury in this regard as follows:

"Now, when a proprietor — and that's Borman's or any store — expressly or by implication invites others to enter his premises, whether for business or any other purpose, it is his duty to be reasonably sure that he is not inviting them into danger and to that end he must exercise ordinary care and prudence to render the premises reasonably safe for the visit. A storekeeper or proprietor is not an insurer of his customer's safety, but must use reasonable care to provide a reasonably safe place for them on his premises."

We conclude that the trial court's deviation from SJI2d 19.03 resulted in unfair prejudice to the plaintiffs and mandates reversal. Whether or not defendant was negligent was a crucial issue in this case. The requested SJI was applicable and an accurate statement of the law. See Powers v Huizing, 9 Mich. App. 437, 441-442; 157 NW2d 432 (1968). The trial court's instruction failed to include language concerning defendant's duty to warn of known dangers and to inspect the premises to discover dangerous conditions. While the question of defendant's duties was not made an issue in this case, it would be difficult if not impossible for the jury to accurately decide whether or not the defendant had breached its duties if those duties had not been set forth before the jury. See generally, Moning v Alfono, 400 Mich. 425, 438; 254 NW2d 759 (1977). Therefore, the failure to include such language amounted to an incomplete and misleading statement of the law which substantially prejudiced the plaintiffs and was inconsistent with substantial justice.

We disagree with defendant that plaintiffs' failure to specifically inform the trial court of its deviation precludes appellate review of this error. In general, a party must object to the giving of an instruction before the jury retires for deliberation on the verdict and must specifically state the matter to which the objection is directed and the specific grounds for objection in order to preserve the assignment of error on appeal. GCR 1963, 516.2, now MCR 2.516(C). Absent such specific objections, allegations of instructional errors are reviewed on appeal only where a complaining party has suffered a manifest injustice. Kotila v McGinty, 28 Mich. App. 396; 184 NW2d 462 (1970).

In the case sub judice, the lack of a specific objection to this instruction appears to be the result of the trial court's advice to plaintiffs' counsel to simply place on the record a general objection to the trial court's failure to give plaintiff's requested instructions in order to "save time". This streamlined procedure effectively short-circuited any specific objections that plaintiffs were prepared to make. Moreover, as we have indicated, we feel the deviations from this particular SJI amounted to an inaccurate statement of the law which severely prejudiced the plaintiffs and amounted to a manifest injustice. Therefore, we feel it is appropriate to reach the substantive merit of this issue on appeal.

Plaintiffs also contend that the court erred in failing to give SJI2d 50.10 (defendant takes plaintiff as it finds her) and SJI2d 50.04 (aggravation of preexisting condition as an element of damages). We note that the trial court did give SJI2d 50.11 (inability to determine extent of aggravation of injuries) and conclude that this instruction was more applicable to the case at bar and essentially subsumes the substance of SJI2d 50.04. We further find that SJI2d 50.10 was applicable and should have been given to the jury. However, this particular instruction goes to the issue of damages, an issue which was never reached by the jury in this case. Therefore, the absence of either of these alleged errors would not have changed the result and reversal on this basis is not required. See Pelley v Peterbilt Motors, 133 Mich. App. 664, 667; 350 NW2d 787 (1984).

Finally, plaintiffs assert error with regard to the trial court's failure to give SJI2d 4.01 (credibility of witnesses). After a review of the entire instructions, we conclude that the substance of SJI2d 4.01 was not adequately covered by the trial court. The jury was not instructed that a witness's testimony was to be evaluated in light of: (1) the witness's ability and opportunity to observe; (2) the witness's memory; (3) the witness's manner while testifying; (4) the witness's interests, bias or prejudice; and (5) the reasonableness of the witness's testimony considered in light of all of the evidence.

In this case, plaintiffs' right to recovery hinged upon whether or not the jury chose to believe plaintiffs' version of the facts or defendant's. Thus, SJI2d 4.01 was not only applicable, it went to a critical issue in this case. Where such a clearly applicable and vital standard jury instruction is refused, we have no difficulty in determining that such an error is not consistent with substantial justice. Therefore, we conclude that the trial court's failure to give this properly requested instruction also compels vacation of the jury verdict.

Finally, plaintiffs list the following requested instructions, citing error in the trial court's refusal to include them in the charge to the jury: SJI2d 3.09 (jury to consider all of the evidence); SJI2d 3.11 (jurors may take into account ordinary experiences and observations); SJI2d 3.10 (circumstantial evidence); SJI2d 5.01 (impeachment of a witness, not a party, by a prior inconsistent statement); SJI2d 7.01 (issues for the jury and theories of the parties); SJI2d 50.08 (elements of damages — miscellaneous expense); and SJI2d 53.04 (interest as part of the damages). While some of these instructions may well be applicable, plaintiffs offer no arguments why these instructions were applicable nor how the fact that they were omitted prejudiced their case. "It is not enough for an appellant in his brief simply to announce a position or assert an error and then leave it up to this Court to discover and rationalize the basis for his claims." Mitcham v Detroit, 355 Mich. 182, 203; 94 NW2d 388 (1959). See also; Beaumont v Brown, 125 Mich. App. 464, 466; 336 NW2d 26 (1983); Hull & Smith Horse Vans, Inc v Carras, 144 Mich. App. 712; 376 NW2d 392 (1985).

II

Plaintiffs next contend that the trial court committed error when it failed to give one of plaintiff's requested nonstandard jury instructions. This instruction was taken verbatim from Perry v Hazel Park Harness Raceway, 123 Mich. App. 542, 546; 332 NW2d 601 (1983), in which the trial court instructed:

"I further charge you, members of the jury, that a proprietor of a building may be found negligent in failing to employ adequate slip-preventing devices in connection with common areas that have become slippery as a result of foreseeable tracking or accumulation of water. If you find from the evidence that a reasonably prudent person in the position of the defendant would have realized the benefits of such devices, and equipped the common areas with such devices, I instruct you that the proprietor of a building may be found negligent for failure to employ these devices, if you find that such devices would be of benefit insofar as safety is concerned." 123 Mich. App. 542.

GCR 1963, 516.6(4), now MCR 2.516(D)(4), permits a trial court to give instructions that are not included in the standard jury instructions. The trial court is obligated to grant written requests for additional jury instructions where the instructions properly instruct on applicable case law. The failure to do so is error. Kovacs v Chesapeake & O R Co, 134 Mich. App. 514, 530; 351 NW2d 581 (1984); Device Trading, Ltd v Viking Corp, 105 Mich. 517, 522; 307 NW2d 362 (1981), lv den 414 Mich. 960 (1982).

We conclude that the requested instruction was applicable and accurately stated the law. Issues in this case included whether the defendant should have employed a slip-preventing device, i.e., the red mat in the entrance way of the store, and if so, whether the defendant failed to do so. These are issues directly covered by the requested charge.

We also find that the omission of the charge was not harmless error in this case, given that the trial court also failed to accurately instruct on the general duty of a landowner to warn of known dangers and to inspect the premises. Therefore, this error also compels reversal.

III

Plaintiffs next contend that the trial court's failure to present plaintiffs' theory of the case or an edited version thereof mandates reversal.

GCR 1963, 516.7, now MCR 2.516(A) and (B), provides that upon a proper request, the trial court shall give a party's written theory of the case or an edited version thereof which presents to the jury the material substance of the theory. In Moody v Pulte Homes, Inc, 423 Mich. 150; 378 NW2d 319 (1985), our Supreme Court held that the court rule "requires the trial court to include in its statement of a party's theory of the case, at the minimum, all legally relevant facts to the party's theories of recovery". 423 Mich. 167. Failure to do so is error. 423 Mich. 167.

Initially, we note that plaintiff did not make this objection below. In general, where a party fails to object at trial to the court's failure to present the party's theory of the case, appellate review is precluded absent manifest injustice. GCR 1963, 516.7, now MCR 2.516(A) and (B). See also Kotila v McGinty, supra. Our review of the instructions in the instant case indicates that the trial court did not even minimally comply with the court rule by instructing the jury concerning the legally relevant facts supporting plaintiffs' theory of recovery. This omission not only constitutes error but also resulted in a manifest injustice given the trial court's failure to properly instruct on the applicable law. Therefore, we reverse on this basis also.

IV

Plaintiffs also argue that the trial court erred in refusing to grant plaintiffs' motion for a new trial. The bases for plaintiffs' motion were that the jury verdict was against the overwhelming weight of the evidence and that plaintiffs were prejudiced by the failure of the trial court to give certain requested instructions.

We have already reversed the jury verdict based on the latter issue. However, we are not persuaded that the jury's verdict was against the great weight of the evidence.

It is within a trial court's sound discretion to grant or deny a motion for new trial on the basis that a jury's verdict was against the overwhelming weight of the evidence. Wigginton v Lansing, 129 Mich. App. 53, 60; 341 NW2d 228 (1983), lv den 419 Mich. 880 (1984). This Court affords deference to a trial court's decision because a trial court, having heard the witnesses, is in a better position to evaluate a jury's assessment of their credibility. May v Parke, Davis & Co, 142 Mich. App. 404, 410; 370 NW2d 371 (1985); Drouillard v Metropolitan Life Ins Co, 107 Mich. App. 608, 623; 310 NW2d 15 (1981), lv den 413 Mich. 874 (1982). "This Court will not substitute its judgment for that of the jury unless a review of the record reveals a miscarriage of justice." May v Parke, Davis & Co, supra, pp 410-411; Groth v DeGrandchamps, 71 Mich. App. 439, 446; 248 NW2d 576 (1976).

We note that again, plaintiffs have failed to do any more than assert a position on appeal and have not established any merit to their claim. See Hull & Smith Horse Vans, Inc v Carras, supra. However, our review of the record indicates that the verdict was not against the overwhelming weight of the evidence. Therefore, the trial court did not abuse its discretion in denying plaintiffs' motion for new trial on this ground.

V

Plaintiffs' next argument is that the trial court erred in the admission of Suida's testimony as to the nonexistence of prior accidents. Plaintiffs did not object to the admission of this testimony at trial. Therefore, absent manifest injustice, appellate review is precluded. Herring v Golden State Ins Co, 114 Mich. App. 148, 157; 318 NW2d 641 (1982). Plaintiffs have failed to establish manifest injustice resulting from the challenged testimony and we will not further address this issue.

Plaintiffs' final argument is that the court erred in allowing defendant to ask plaintiff Ruth Corn-forth on cross-examination whether her doctor at St. Joseph Hospital recommended that she be hospitalized for delusions. This alleged error was preserved for review by a continuing hearsay objection placed earlier on the record.

Hearsay is an out-of-court statement offered in evidence to prove the truth of the matter asserted. MRE 801(C). Crucial to the determination of whether a statement is hearsay is the purpose for which the statement is offered. People v Haney, 86 Mich. App. 311, 316; 272 NW2d 640 (1978). The admission of out-of-court statements of persons is not improper as hearsay where the statements are introduced to prove that they were made, not to prove the truth or falsity of the statements. Matthews v Aluminum Acceptance Corp, 1 Mich. App. 570; 137 NW2d 280 (1965).

In the case at bar, this statement was introduced to impeach plaintiff Ruth Cornforth's testimony by proving that she was hospitalized at St. Joseph's for the treatment of delusions, not the treatment of parasites as she had testified at trial. Therefore, the statement was offered for the truth of the matter asserted, and was hearsay and improperly admitted. However, in light of defendant's impeachment of Ruth Cornforth on several other points, we conclude that this error was harmless.

Reversed and remanded for a new trial.

NOTES

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