Beals v. Walker
Beals v. Walker
Opinion of the Court
This is a slip and fall case which raises issues under the law of premises liability.
We are required to decide whether the plaintiff was entitled to the requested instruction on com
On January 18, 1974, plaintiff Renold L. Beals, Jr., fell from a roof of the Kingston Farm Service building in Kingston, Michigan, onto the railroad grade below and then forward onto the tracks, striking his left elbow and face against the railroad tracks. He suffered a cut lip, a broken tooth, and an injury to his right foot which was later diagnosed as a multiple fracture of the right heel bone. The plaintiff and his spouse, Joyce E. Beals, filed suit on February 19, 1975, against the defendant, Richard Walker, the owner and operator of Kingston Farm Service. Amended complaints were later filed, alleging medical malpractice by defendant Dr. John Williamson in the treatment of the plaintiffs injured foot.
The trial began on June 6, 1978. At the close of the plaintiffs proofs, defendant Walker filed a motion for a directed verdict of dismissal. The trial judge took the motion under advisement. At the close of the case, the court refused to give the plaintiffs requested charge on comparative negligence and instructed the jury that plaintiffs con
A timely claim of appeal as of right was filed in the Court of Appeals on October 26, 1978. Defendant Walker filed a cross-appeal, arguing that his motion for a directed verdict should have been granted. A majority of the Court of Appeals panel affirmed the judgment for defendant Walker on the basis of the issues raised in the cross-appeal, namely that certain safety regulations issued by the Michigan Department of Labor were not violated and therefore the motion for a directed verdict should have been granted. The judgment in favor of defendant Williamson was also affirmed. Beals v Walker, 98 Mich App 214; 296 NW2d 828 (1980). Judge M. J. Kelly dissented only as to defendant Walker, finding sufficient evidence to allow the premises liability claim to go to a jury.
The plaintiff applied for leave to appeal against only defendant Walker. We granted leave to appeal. 411 Mich 900 (1981).
The evidence adduced during the plaintiffs case in chief tended to show the following facts:
The plaintiff had been employed as a millwright for ten years prior to the accident.
The morning of January 18, 1974, was cold and misty, the type of day that required the use of windshield wipers when driving an automobile. Sometimes the sun would come out and then disappear again. The plaintiff and a fellow employee, John Wilson, arrived at the defendant’s grain elevator in response to Walker’s call for
The "man-lift” used to reach the top of the elevator was capable of carrying only one person; the lift could not be sent down in order to carry up a second person because it was counterbalanced for the weight of one person. Since the repair required the attention of both of the men, it was necessary that another means be found to enable both Beals and Wilson to reach the headhouse.
The plaintiff initially looked for an inside ladder adjacent to the lift. The plaintiff and John Wilson testified that every other grain elevator they had ever worked on had an inside ladder. The plaintiff’s safety expert also testified that this was the only grain elevator he had ever seen without an inside ladder. The plaintiff’s employer provided a list of grain elevators he had worked on, all having inside ladders. Finding no inside ladder, the plaintiff asked one of the defendant’s employees how a second man could get to the headhouse. The employee said that a stationary outside ladder, which was permanently affixed to the outside of the elevator and extended from the roof of a lower building to the top of the elevator, could be used.
The plaintiff obtained the portable ladder from the warehouse and placed it against the side of the building in order to obtain access to the roof of the
I
The plaintiff’s initial assignment of error concerns the trial court’s instructions on contributory negligence as a total bar to recovery and the court’s concomitant refusal to instruct under the doctrine of comparative negligence. This Court adopted the doctrine of comparative negligence in
The defendant does not contest the fact that the issue was properly preserved and that this case falls within the limited rule of retroactivity announced in Placek, p 667, namely,
"any case presently pending on appeal in which application of the doctrine was requested at the trial court and the issue preserved for appeal.”
We are constrained to apply the rule of retroactivity adopted by a majority in Placek, despite the view of some of the justices that prospective application of comparative negligence would have been preferable. Placek, p 683 (opinion by Coleman, C.J., concurring in part and dissenting in part). If the plaintiff submitted evidence at trial sufficient to avoid the defendant’s motion for a directed verdict, see part III, then the plaintiff is entitled to a new trial under the principles of comparative negligence.
II
The plaintiff also objected to the trial court’s contributory negligence instructions on the ground that the defense of contributory negligence was unavailable under our decision in Funk v General Motors Corp, 392 Mich 91; 220 NW2d 641 (1974). Despite the fact that this case does not involve a construction worker alleging negligence against the general contractor in the failure to provide adequate safety devices on the job, the plaintiff argued that the Funk decision could be extended to cover the facts of this case. While the Funk rationale could have been extended to completely
In any event, we deem it unnecessary to ascertain the precise contours of the Funk doctrine, since the Funk doctrine has been overruled in light of the adoption of comparative negligence. Hardy v Monsanto Enviro-Chem Systems, Inc, 414 Mich 29; 323 NW2d 270 (1982). The plaintiffs assertions on appeal that Funk survived the adoption of comparative negligence in Placek were decided adversely to the plaintiff in Hardy and need not be reconsidered. Even if we extended the Funk doctrine to the facts of this case, the defense of comparative negligence would be available upon retrial. Thus, the trial court’s refusal to apply Funk to this case was not erroneous and does not justify a new trial.
Ill
The majority of the Court of Appeals held that the trial court erred in denying the defendant’s
The defendant, as a business invitor, owed the plaintiff, as a business invitee, the duty
"of maintaining its premises in a reasonably safe condition and of exercising due care to prevent and to obviate the existence of a situation, known to it or that should have been known, that might result in injury.” Torma v Montgomery Ward & Co, 336 Mich 468, 476; 58 NW2d 149 (1953).
The Court of Appeals majority reasoned that "to the extent that the icy condition was obvious, due to the temperature, climate, and time of year, defendant cannot be held to have a duty to warn plaintiff of such a condition”. Beals, p 226. This conclusion is directly contrary to this Court’s decision in Quinlivan v Great Atlantic & Pacific Tea Co, Inc, 395 Mich 244; 235 NW2d 732 (1975).
Further support for the plaintiffs case was provided by evidence tending to show the violation of two safety regulations issued by the Michigan Department of Labor. Violations of administrative rules and regulations are evidence of negligence. Douglas v Edgewater Park Co, 369 Mich 320, 328; 119 NW2d 567 (1963); see also Zeni v Anderson, 397 Mich 117, 142; 243 NW2d 270 (1976). The defendant argues that safety regulations in the workplace do not apply to employees of independent contractors; we reject that argument on the authority of Hardaway v Consolidated Paper Co, 366 Mich 190, 197; 114 NW2d 236 (1962).
The Court of Appeals majority found that the alleged violation of safety regulations was irrelevant and should not have been admitted. We disagree. As to the regulations requiring the use of guardrails and barriers on "runways”, there was evidence sufficient to support the inference that the roof was used as a "passageway for persons elevated above the surrounding floor or ground level”. Of course, should the jury conclude that the roof was so rarely used that it was not a. "passage
Finally, the plaintiff introduced evidence sufficient to create a factual question whether the defendant violated the industry custom of providing an interior rather than an exterior ladder. Our review of the record convinces us that the trial judge correctly submitted this issue to the jury as well.
The trial judge correctly denied the defendant’s motion for a directed verdict. The Court of Appeals majority erroneously concluded that a directed verdict should have been granted. The decision of the Court of Appeals is reversed, and the case is remanded for a new trial.
Funk v General Motors Corp, 392 Mich 91; 220 NW2d 641 (1974).
The plaintiff claims that he was denied a fair trial by the admission of a complete written statement by defendant Walker and by a jury instruction that injected a false issue into the case. These issues were not reached by the Court of Appeals, are not necessary to our decision today, and need not arise upon retrial. Accordingly, we decline to address them.
Plaintiffs exhibit No. 13 (next page) illustrates the situation.
Hardy v Monsanto Enviro-Chem Systems, Inc, 414 Mich 29, 38, fn 3; 323 NW2d 270 (1982).
Hardy, fn 4 supra, p 71, fn 45 (opinion by Moody, J., dissenting in part).
Hardy, fn 4 supra, pp 63-65, 69, fn 41.
Hardy, fn 4 supra, pp 42-43.
"For reasons adequately stated by the Alaska Court, we reject the prominently cited notion that ice and snow hazards are obvious to all and therefore may not give rise to liability. While the invitor is not an absolute insurer of the safety of the invitee, the invitor has a duty to exercise reasonable care to diminish the hazards of ice and snow
" 'The mere fact that snow and ice conditions prevail for many months throughout various locations in Alaska is not in and of itself sufficient rationale for the insulation of the possessor of land from liability to his business invitee. Nor do such climatic conditions negate the possibility that the possessor should have anticipated harm to the business invitee despite the latter’s personal knowledge of the dangerous snow and ice conditions or the general obviousness of such conditions.
" 'What acts will constitute reasonable care on the part of the possessor of land will depend on the particular variables of each case.’ ” Quinlivan, p 260, quoting Kremer v Carr’s Food Center, Inc, 462 P2d 747 (Alas, 1969).
Concurring Opinion
We concur in the majority opinion except for part II which speaks of the "Funk rationale” and the "Funk doctrine” (Funk v Gen
The majority opinion does not describe the "Funk rationale” or the “Funk doctrine”. In Hardy v Monsanto Enviro-Chem Systems, Inc, 414 Mich 29, 38-39; 323 NW2d 270 (1982), the opinion of the Court states that "the precise limits of this Court’s opinion in Funk, supra, are unclear”, but that "[u]nder Funk, the defense of contributory negligence is unavailable when a construction worker alleges negligence in the failure to provide adequate safety devices on the job”, and that "[i]n Funk, this Court found the total bar of contributory negligence to be inconsistent with the public policy of promoting safety in the workplace”.
Funk did not, however, declare that the defense of contributory negligence is unavailable merely because the plaintiff "alleges negligence in the failure to provide adequate safety devices on the job”. (Emphasis supplied.) Nor did this Court in Funk in adverting to and quoting from the opinion
In Funk, pp 113-114, in stating the question, we said "we have considered whether the defense of contributory negligence bars recovery where the trier of fact may reasonably ñnd that the failure to provide necessary safety equipment was the cause in fact of the injury”. (Emphasis supplied.) We concluded that there was no reason why the concept that the defense of ordinary contributory negligence is "inapposite to a claim predicated on a breach of a legislatively-imposed safety regulation”, declared in Koenig and other cases, "should not govern if the trier of fact finds that the employer-defendant’s breach of a common-law duty to provide safety equipment is the cause in fact of plaintiff’s injury”. (Emphasis supplied.)
Thus, Funk did not hold that the defense of contributory negligence could not be interposed merely because the worker "alleges negligence in the failure to provide adequate safety devices”. As stated in Funk, the defense of contributory negligence is not available (i) "where the trier of fact may reasonably find that the failure to provide necessary safety equipment was the cause in fact of the injury”, and (ii) "if the trier of fact finds that the employer-defendant’s breach of a common-law duty to provide safety equipment is the cause in fact of plaintiff’s injury”.
In Hardy v Monsanto, supra, p 40, this Court said that "it would be 'anomalous’ to hold a defendant liable for damages in excess of the amount causally related to his negligence”. That was indeed precisely the point that was made in Funk.
In Hardy, this Court did not say that where there is evidence of the plaintiff’s negligence, the jury must apportion some amount in respect to the plaintiff’s comparative fault. Hardy said rather "that negligence in the failure to provide an 'adequate safety device’ in the workplace is therefore subject to the comparative negligence defense, assuming that any evidence of the plaintiff’s negligence exists”. (Emphasis supplied.)
The introduction of evidence tending to establish plaintiff’s fault does not require the assessment of some amount of comparative fault against the plaintiff. While the plaintiff’s claim is "subject to the comparative negligence defense”, it is ultimately for the jury to determine whether to credit the evidence of plaintiff’s fault and to determine whether, if it finds that the plaintiff was at fault, plaintiff’s fault was a cause in fact of plaintiff’s injury. If the jury rejects the evidence tending to show that the plaintiff was at fault or determines
As set forth in Funk, supra, p 113, "[t]he question of contributory negligence is generally one of fact, not of law”. It is for the trier of fact to decide whether the defendant, in violation of a statutory or common-law duty, failed to provide a safety device or an adequate safety device and whether such a failure was the cause in fact or a contributory cause of plaintiff’s injury.
Where the plaintiff alleges and evidentially supports his claim that the failure to provide a safety device or an adequate safety device was a cause in fact of his injury, the jury should be instructed that if it finds that the defendant failed to provide a safety device or an adequate device in violation of a statutory or common-law duty, then if that failure was the cause in fact of plaintiff’s injury, the amount of any damages assessed should not be reduced on account of asserted fault of the plaintiff — in such a case, fault of the plaintiff was not a contributory cause; that if it finds that the asserted failure to provide a safety device or an adequate safety device was not a cause in fact of
In Tulkku v Mackworth Rees Division of Avis Industries, Inc, 406 Mich 615, 619; 281 NW2d 291 (1979), the plaintiffs hand was severely injured when a safety device malfunctioned. The trial court refused to instruct the jury that contributory negligence is not a defense "where the defendants have failed to provide a proper, adequate and suitable safety device” and "[y]ou may not consider contributory negligence if you find that there was such a failure on the part of the defendants to provide a proper, adequate and suitable safety device and that such failure was a proximate cause of the plaintiffs injuries”. (Emphasis supplied.)
This Court’s decision in Tulkku went further than Funk and even beyond the requested instruction. It did not merely state that if the trier finds that there was a breach by the defendant and such failure was "the cause in fact” (Funk) or "a proximate cause” (the requested instruction in Tulkku) of plaintiffs injury contributory negligence was not a defense, it declared that "contributory negligence is no bar to recovery where evidence has been presented of defendant’s causal negligence in the design or manufacture of a safety device”. Tulkku, p 623. See also Tulkku v Mackworth Rees Division of Avis Industries, Inc (On Remand), 101 Mich App 709; 301 NW2d 46 (1980), Iv den 411 Mich 897 (1981).
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