Emily Marie Duty v. Mary Free Bed Rehabilitation Hospital

STATE OF MICHIGAN
COURT OF APPEALS
EMILY MARIE DUTY, UNPUBLISHED
September 19, 2017
Plaintiff-Appellant/Cross-Appellee,
v No. 332154
Kent Circuit Court
MARY FREE BED REHABILITATION LC No. 12-007006-NO
HOSPITAL,
Defendant-Appellee/Cross-
Appellant.
Before: TALBOT, C.J., and O’CONNELL and CAMERON, JJ.
PER CURIAM.
Plaintiff, Emily Duty, appeals as of right the January 15, 2016 judgment of no cause of
action on her claim for negligence, which was entered following a jury trial. Defendant, Mary
Free Bed Rehabilitation Hospital (Mary Free Bed), cross-appeals the May 4, 2015 order denying
its motion for summary disposition under MCR 2.116(C)(7) and (C)(10). We affirm the
judgment of no cause of action.
In April 2009, an automobile accident rendered plaintiff a paraplegic. In June 2009,
plaintiff was transferred to Mary Free Bed, a hospital that specializes in a wide range of
rehabilitation services. Tracy Oostema, a physical therapist employed by Mary Free Bed, was
assigned to plaintiff. On July 29, 2009, after plaintiff had already tried several wheelchairs,
Oostema gave plaintiff a wheelchair with a J3 backrest. A J3 backrest is removable. The
backrest, when placed in the brackets on the wheelchair’s back canes, is automatically locked
into place by latches on the brackets. It can only be removed if the latches are moved forward.
Additionally, locking pins can be slid into the latches to prevent the latches from moving
forward. The wheelchair that Oostema gave plaintiff did not have locking pins for the J3
backrest.
On August 12, 2009, when plaintiff woke up, the wheelchair was not in her room at Mary
Free Bed. After plaintiff’s mother inquired at the nurses’ desk about the wheelchair, the
wheelchair was brought to plaintiff’s room. Plaintiff transferred herself to the wheelchair. She
then conducted a “pressure relief,” where she placed her hands on the wheelchair’s wheels and
pushed her body up. Plaintiff did not realize that the backrest fell off the wheelchair as she lifted
herself up. When plaintiff lowered her body, she fell backwards and her head hit the floor.
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Plaintiff did not dispute that the backrest fell off because the latches were not in the secured
position. Oostema did not dispute that, if the wheelchair had locking pins for the backrest and
had the locking pins been used, the backrest could not have fallen off the wheelchair.
Plaintiff sued Mary Free Bed for negligence. She claimed that, because the wheelchair
did not have locking pins for the backrest, Oostema gave her a defective and dangerous
wheelchair. Following a jury trial, a jury found that Mary Free Bed was not negligent, and the
trial court entered a judgment of no cause of action.
On appeal, plaintiff argues that the trial court erred in denying her motion for judgment
notwithstanding the verdict (JNOV) or, in the alternative, a new trial on the ground that the
verdict was against the great weight of the evidence. We review de novo a trial court’s decision
on a motion for JNOV. Sniecinski v Blue Cross & Blue Shield of Mich, 469 Mich 124, 131; 666
NW2d 186 (2003). The evidence and all legitimate inferences must be viewed in the light most
favorable to the nonmoving party. Id. “A trial court should grant a motion for JNOV only when
there was insufficient evidence presented to create an issue for the jury.” Attard v Citizens Ins
Co of America, 237 Mich App 311, 321; 602 NW2d 633 (1999). We review a trial court’s
decision on a motion for a new trial for an abuse of discretion. Wiley v Henry Ford Cottage
Hosp, 257 Mich App 488, 498; 668 NW2d 402 (2003). A trial court abuses its discretion when
its decision falls outside the range of reasonable and principled outcomes. Rental Props Owners
Ass’n of Kent Co v Kent Co Treasurer, 308 Mich App 498, 531; 866 NW2d 817 (2014). When a
party claims that the verdict is against the great weight of the evidence, we may not overturn the
verdict unless the verdict is manifestly against the clear weight of the evidence. Wiley, 257 Mich
App at 498. “The jury’s verdict should not be set aside if there is competent evidence to support
it.” Id.
A negligence claim has four elements: duty, breach, causation, and damages. Fultz v
Union Commerce Assoc, 470 Mich 460, 463; 683 NW2d 587 (2004). The general standard of
care in negligence cases is “ordinary care,” which is the care that a reasonably careful person
would use under the circumstances. Case v Consumers Power Co, 463 Mich 1, 7; 615 NW2d 17
(2000). An employer can be held liable for the negligence of its employees. See Trowell v
Providence Hosp & Med Ctrs, Inc, 316 Mich App 680, 696; 893 NW2d 112 (2016). The parties
do not dispute that the jury, by finding that Mary Free Bed was not negligent, found that
Oostema did not breach her duty to plaintiff.
Oostema could not remember if the wheelchair had locking pins for the backrest when
she gave the wheelchair to plaintiff on July 29, 2009, but she accepted as true testimony from
plaintiff and plaintiff’s parents that the wheelchair did not have locking pins. Oostema
acknowledged that, because the wheelchair did not have locking pins, there was a greater danger
that the backrest would come off the wheelchair and that plaintiff would fall. Oostema also
acknowledged that plaintiff would not have fallen out of the wheelchair had there been locking
pins on the wheelchair and had the locking pins been used.
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However, contrary to plaintiff’s claim, Oostema never admitted that she was negligent in
giving plaintiff a wheelchair that did not have locking pins for the backrest. Oostema testified
that locking pins are a secondary locking mechanism and that the latches, which were not
defective, locked the backrest into place. According to Oostema, because the backrest locked
into place without locking pins, the wheelchair was not unsafe to use. Oostema also testified that
she educated plaintiff about the parts of the wheelchair, including how to check that the backrest
was locked into place. According to Oostema, on at least two occasions, plaintiff was able to
take apart and put together the wheelchair. Plaintiff passed her wheelchair training, and she was
occasionally able to leave Mary Free Bed in her wheelchair with her parents. Additionally,
plaintiff testified that Oostema had shown her on several occasions how to take off and put on
the backrest and that she had practiced taking the backrest off and putting it back on the
wheelchair. Plaintiff knew that if the latches were “back,” the backrest could not come off the
wheelchair. Similarly, plaintiff’s mother testified that she knew that plaintiff had received
training on the backrest, and she herself knew that, if the latches were “down,” the backrest was
locked into place.
Also, contrary to plaintiff’s claim, Diane Patzer, a physical therapist, never conceded that
Oostema was negligent. Patzer testified that J3 backrests come with locking pins and that she
talks with her patients about the pins. But she also testified that she would not recommend that a
patient use locking pins if the patient intended to frequently remove the backrest. Moreover,
upon being read the legal definition of negligence, Patzer testified that she did not believe that
Oostema was negligent. According to Patzer, the wheelchair was not dangerous to use without
locking pins for the backrest. Patzer explained that locking pins are a secondary locking
mechanism, which are generally provided for wheelchair users who do not intend to frequently
take off and put on the backrest, and that the latches are “very safe and absolutely sufficient” to
keep the backrest locked into place.
The trial court did not err in denying plaintiff’s motion for JNOV. The evidence, when
viewed in the light most favorable to Mary Free Bed, does not establish that Oostema was
negligent in giving plaintiff a wheelchair that did not have locking pins for the backrest.
Sniecinski, 469 Mich at 131. Likewise, the trial court did not abuse its discretion in denying
plaintiff’s alternative request for a new trial on the basis that the verdict was against the great
weight of the evidence. Wiley, 257 Mich App at 498. There was competent evidence, the
testimony of Oostema and Patzer, that supported the verdict. Id.
Next, plaintiff argues that the trial court erred in denying her motion for a new trial on the
basis that the presence of Juror Erin Willett materially affected her right to a fair trial. According
to plaintiff, she is entitled to a new trial because (1) the trial court erred in denying her challenge
for cause to Juror Willett, and (2) Juror Willett committed “misconduct” under MCR
2.611(A)(1)(b) when she failed to disclose that two of her Facebook friends were physical
therapists at Mary Free Bed.1 We review a trial court’s decision on a motion for a new trial for
1
Plaintiff also claims that Juror Willett failed to disclose that she was friends on Facebook with
30 physical therapists. However, while the printed Facebook pages that plaintiff presented to the
trial court with her motion for a new trial showed that Juror Willett was friends on Facebook
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an abuse of discretion. Wiley, 257 Mich App at 498. A trial court abuses its discretion when its
decision falls outside the range of reasonable and principled outcomes. Rental Props Owners
Ass’n of Kent Co, 308 Mich App at 531.
MCR 2.611(A)(1) provides in pertinent part:
A new trial may be granted to all or some of the parties, on all or some of
the issues, whenever their substantial rights are materially affected, for any of the
following reasons:
(a) Irregularity in the proceedings of the court, jury, or prevailing party, or
an order of the court or abuse of discretion which denied the moving party a fair
trial.
(b) Misconduct of the jury or of the prevailing party.
Voir dire is the process by which the parties may question prospective jurors so that
challenges to the prospective jurors can be intelligently exercised. Bynum v ESAB Group, Inc,
467 Mich 280, 283; 651 NW2d 383 (2002). It is counsel’s duty to ferret out any potential bases
for excusing prospective jurors. Id. at 284. The parties are entitled to truthful answers from
prospective jurors during jury selection. Gustafson v Morrison, 57 Mich App 655, 663; 226
NW2d 681 (1975). Prospective jurors are subject to challenge for cause by the parties under
MCR 2.511(D). Bynum, 467 Mich at 283. MCR 2.511(D) provides in pertinent part:
The parties may challenge jurors for cause, and the court shall rule on each
challenge. A juror challenged for cause may be directed to answer questions
pertinent to the inquiry. It is grounds for a challenge for cause that the person:
* * *
(2) is biased for or against a party or attorney;
(3) shows a state of mind that will prevent the person from rendering a just
verdict, or has formed a positive opinion on the facts of the case or on what the
outcome should be;
(4) has opinions or conscientious scruples that would improperly influence
the person’s verdict[.]
The decision to grant a challenge for cause is within the trial court’s sound discretion.
Poet v Traverse City Osteopathic Hosp, 433 Mich 228, 236; 445 NW2d 115 (1989). A trial
court’s exercise of discretion
with two physical therapists at Mary Free Bed, the pages did not show that Juror Willett was
Facebook friends with 30 physical therapists.
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should be made with regard for both the parties and their respective claims.
When balancing discretionary power with a litigant’s right to a fair trial, a trial
judge should, in cases where apprehension is reasonable, err on the side of the
moving party. For our purposes, apprehension is “reasonable” when a venire
person, either in answer to a question posed on voir dire or upon his own
initiative, affirmatively articulates a particularly biased opinion which may have a
direct effect upon the person’s ability to render an unaffected decision. [Id. at
238.]
A trial court’s denial of a challenge for cause entitles a party to relief if (1) the trial court
improperly denied the challenge for cause, (2) the party exhausted all peremptory challenges, (3)
the party demonstrated the desire to excuse another subsequently summoned prospective juror,
and (4) the prospective juror whom the party wished later to excuse was objectionable. Id. at
241.
The trial court did not abuse its discretion in denying plaintiff’s challenge for cause to
Juror Willett. Id. at 236. Willett was a physical therapist. She admitted that she probably had a
natural allegiance to physical therapists, explaining that it would be hard to say that she would
not have an allegiance to those people who had the same education and job as her, and that this
allegiance might slightly “impair” her. However, Juror Willett never articulated “a particularly
biased opinion” in favor of physical therapists. Id. at 238. Under further inquiry by the parties
and the trial court, Juror Willett stated that she believed she could judge the case on the merits,
be fair to both parties, and make a fair and impartial decision. The trial court, by denying the
challenge for cause, believed Juror Willett. We defer to a trial court’s superior ability to assess
from a prospective juror’s demeanor whether the juror can be impartial. People v Williams, 241
Mich App 519, 522; 616 NW2d 710 (2000). Under the circumstances, the trial court’s decision
to deny plaintiff’s challenge for cause to Juror Willett fell within the range of reasonable and
principled outcomes. Rental Props Owners Ass’n of Kent Co, 308 Mich App at 531.
Plaintiff also argues that Juror Willett engaged in “misconduct” as stated in MCR 2.611
(A)(1)(b). The term “misconduct” is not defined, but an undefined word in a court rule is to be
given its ordinary meaning, and a dictionary may be consulted to determine that meaning.
Donkers v Kovach, 277 Mich App 366, 380; 745 NW2d 154 (2007). The word “misconduct” is
defined, in pertinent part, as “intentional wrongdoing” or “improper behavior.” Merriam-
Webster’s Collegiate Dictionary (11th ed).
Plaintiff’s argument that Juror Willett committed misconduct by failing to disclose that
two of her Facebook friends worked at Mary Free Bed assumes that the two friends worked there
at the time of trial. But the printed Facebook pages that plaintiff presented to the trial court in
February 2016—when she moved for a new trial—are not dated. Thus, while the printed
Facebook pages showed that two of Juror Willett’s Facebook friends worked at Mary Free Bed,
it is unknown whether they did so in November 2015 when trial was held.
But, even if the two Facebook friends worked at Mary Free Bed in November 2015 and
assuming that Juror Willett was aware of their employment, Juror Willett did not commit
misconduct by failing to disclose that two of her Facebook friends worked at Mary Free Bed. At
the beginning of voir dire, the trial court informed the prospective jurors that the lawyers would
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ask them questions and that the questions were for the purpose of obtaining information that
would allow the parties to choose an impartial jury. The prospective jurors were instructed to
answer the questions truthfully and completely. They were also told not to “hesitate to speak
freely about anything they believe that you believe we should know.” There is no claim that
Willett, by not disclosing that two of her Facebook friends worked at Mary Free Bed, failed to
answer the questions asked of her truthfully and completely. Additionally, the mere fact that
Juror Willett was Facebook friends with two physical therapists at Mary Free Bed did not mean
that Juror Willett, at the time of trial, had a personal relationship with them. Because the extent
of Willett’s relationship with the two Facebook friends at the time of trial is unknown, the record
does not indicate that Juror Willett should have known that the parties would want to know that
two of her Facebook friends worked at Mary Free Bed.
Because the trial court did not abuse its discretion in denying plaintiff’s challenge for
cause to Juror Willett, and because Juror Willett did not commit misconduct in failing to disclose
that two of her Facebook friends worked at Mary Free Bed, the trial court did not abuse its
discretion in denying plaintiff’s motion for a new trial on the basis that Juror Willett’s presence
on the jury affected her right to a fair trial. Wiley, 257 Mich App at 498.
Plaintiff also argues that the trial court erred in denying her motion to adjourn, which she
made immediately upon learning that Dr. Michael Kasten, her treating physician, was not
available to testify at trial. Assuming, but without deciding, that the trial court abused its
discretion in denying the motion to adjourn, Zerillo v Dyksterhouse, 191 Mich App 228, 230;
477 NW2d 117 (1991), the error does not entitle plaintiff to any relief.
A negligence claim has four elements: duty, breach, causation, and damages. Fultz, 470
Mich at 463. Because it found that Mary Free Bed was not negligent, the jury only considered
the elements of duty and breach. In affidavits submitted to the trial court, both Dr. Kasten and
plaintiff’s counsel averred that, if Dr. Kasten was called to testify at trial, he would testify about
causation and damages. “[A]n error in a ruling or order . . . is not ground for granting a new
trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or
order, unless refusal to take this action appears to the court inconsistent with substantial justice.”
MCR 2.613(A). Because the jury did not address the elements on which Dr. Kasten would have
testified had he been called as a witness, failure to grant plaintiff any relief for the trial court’s
assumed error in denying the motion to adjourn does not appear inconsistent with substantial
justice. The assumed error had no effect on the outcome of trial.
On cross-appeal, Mary Free Bed argues that plaintiff’s claim sounded in medical
malpractice, rather than ordinary negligence, and because the two-year period of limitations for
medical malpractice claims expired before plaintiff filed her complaint, the trial court erred in
denying its motion for summary disposition under MCR 2.116(C)(7) and (C)(10). Generally,
this Court does not address moot questions or declare legal principles that have no practical
effect in a case. In re Gerald L Pollack Trust, 309 Mich App 125, 154; 867 NW2d 884 (2015).
“An issue is moot if an event has occurred that renders it impossible for the court to grant relief.
An issue is also moot when a judgment, if entered, cannot for any reason have a practical effect
on the existing controversy.” Gen Motors Corp v Dep’t of Treasury, 290 Mich App 355, 386;
803 NW2d 698 (2010). Because the jury’s verdict led to a judgment of no cause of action, and
because plaintiff is not entitled to a new trial, any decision from this Court that the trial court
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erred in not granting Mary Free Bed’s motion for summary disposition can have no practical
effect in the case. We, therefore, decline to address Mary Free Bed’s argument on cross-appeal.
Affirmed.
/s/ Michael J. Talbot
/s/ Peter D. O'Connell
/s/ Thomas C. Cameron
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