Murphy v. Muskegon County

• Decision Date: 15 October 1987
• Docket Number: Docket No. 75979
• Citation: 162 Mich.App. 609,413 N.W.2d 73
• Parties: Audrey Jean MURPHY and Melvin P. Whitten, III, and Glenda C. Whitten, Plaintiffs-Appellants, v. MUSKEGON COUNTY and Muskegon County Board of Public Works, Wastewater System # 1, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 73

413 N.W.2d 73

162 Mich.App. 609

Audrey Jean MURPHY and Melvin P. Whitten, III, and Glenda C Whitten, Plaintiffs-Appellants, v. MUSKEGON COUNTY and Muskegon County Board of Public Works Wastewater System # 1, Defendants-Appellees.

Docket No. 75979.

Court of Appeals of Michigan.

Submitted May 6, 1987.

Decided Sept. 8, 1987.

Released for Publication Oct. 15, 1987.

James J. Kobza, P.C. by James J. Kobza, Muskegon, for plaintiffs-appellants.

Knudsen, Wasiura & Associates, P.C. by Harry J. Knudsen, Muskegon, for defendants-appellees.

Before CYNAR, P.J., and SAWYER and THORBURN, ^* JJ.

CYNAR, Presiding Judge.

Plaintiffs appeal as of right from a January 9, 1984, judgment and order denying their motion for a new trial or judgment notwithstanding the verdict (JNOV). In addition, plaintiffs appeal from a June 3, 1986, order and judgment which granted defendants' motion for summary disposition on the basis that the instant suit was barred by governmental immunity. We affirm.

The events giving rise to the instant cause of action occurred in the late evening hours of September 29, 1979, and the early morning hours of September 30, 1979. Plaintiff Audrey Murphy was a passenger on a motorcycle driven by plaintiff Melvin Whitten. They drove from a restaurant parking lot to the Muskegon County Wastewater System, a comprehensive sewage treatment facility, which was located on Hall Road. The wastewater system had installed some twenty-five gates and entrances around the facility's twenty-five-mile perimeter. Approximately twelve to thirteen of these entrances were placed on vacated roads. Hall Road was one of these vacated roads. Apparently, the gates had been constantly vandalized.

At the time Murphy and Whitten were driving at the Hall Road location of the wastewater system, a wire cable was connected to two posts, stretching across Hall Road. As they proceeded on Hall Road, they struck the cable and suffered injuries.

As a result of the accident, Murphy and Whitten and his wife, Glenda Whitten, filed separate complaints which were consolidated by a stipulation and order dated June 22, 1983. Subsequently, on November 21, 1983, defendants moved for accelerated judgment, alleging immunity from suit. Defendants' motion was denied on December 7, 1983, and the case proceeded to trial.

Using a special verdict form, on December 15, 1983, the jury found defendants negligent and that defendants' negligence constituted a proximate cause of plaintiffs' injuries. The jury also found that defendants' conduct did not create an intentional nuisance. The jury found $100,000 in damages for Melvin Whitten, $50,000 for Glenda Whitten and $50,000 for Murphy. The jury concluded that Melvin Whitten was ninety-six percent negligent while Murphy was found ninety-nine percent negligent. In accordance with this jury finding, the trial court reduced the damage award.

Thereafter, on December 27, 1983, plaintiffs filed a motion for JNOV or a new trial, which was denied. On January 9, 1984, judgment was entered on the jury verdict.

On January 17, 1984, plaintiffs appealed from the January 9, 1984, order and judgment. Defendants therefater cross-appealed from the denial of their motion for accelerated judgment on the basis of governmental immunity. Following the filing of the appeals, the trial court entered a stipulation and order regarding settlement of the record and which also, with the parties' agreement, reopened the case to redecide defendants' summary disposition motion on immunity in light of Ross v. Consumers Power Co (On Rehearing), 420 Mich. 567, 363 N.W.2d 641 (1984). Defendants' motion was granted on June 3, 1986, and defendants' cross-appeal was dismissed pursuant to a stipulation of the parties.

Plaintiffs raise six issues on appeal, none of which merit reversal of the lower court's rulings. First, plaintiffs argue that the jury's allocation of plaintiffs Murphy and Melvin Whitten's negligence was so grossly disproportionate as to contravene the concept of comparative negligence. We do not agree.

The doctrine of comparative negligence was adopted by our Supreme Court in Placek v. Sterling Heights, 405 Mich. 638, 650, 275 N.W.2d 511 (1979), reh den. 406 Mich. 1119 (1979). Comparative negligence replaced the doctrine of contributory negligence because the latter doctrine barred plaintiffs from recovery even if they were minimally negligent. In the interest of fairness, the Supreme Court, in Placek, supra, declared that the better approach would be to apply a "pure" comparative negligence approach rather than the hybrid fifty percent rule which prevents recovery if a plaintiff's negligence exceeds fifty percent of the total fault. Id., p. 660, 275 N.W.2d 511. "Only pure comparative negligence truly distributes responsibility according to fault of the respective parties." Schwartz, Comparative Negligence (Indianapolis: Allen Smith Co, 1974), Sec. 21.3, p 347, cited in Placek, supra, p. 660, 275 N.W.2d 511.

Quoting from Kirby v. Larson, 400 Mich. 585, 644, 256 N.W.2d 400 (1977), the Supreme Court in Placek, supra, 405 Mich. p. 661, 275 N.W.2d 511, stated as follows regarding the nature of the "pure" comparative negligence doctrine:

"The doctrine of pure comparative negligence does not allow one at fault to recover for one's own fault, because damages are reduced in proportion to the contribution of that person's negligence, whatever that proportion is. The wrongdoer does not recover to the extent of his fault, but only to the extent of the fault of others. To assume that in most cases the plaintiff is more negligent than the defendant is an argument not based on equity or justice or the facts. What pure comparative negligence does is hold a person fully responsible for his or her acts and to the full extent to which they cause injury. That is justice."

The above language suggests that the jury has discretion to determine the percentage of comparative fault on the part of plaintiffs. We reject plaintiffs' contention that pure comparative negligence in this case would effectively bar their recovery even though the jury found defendants negligent. The comparative negligence doctrine was implemented as a means of avoiding the inequities and unfairness of the contributory negligence doctrine, which, if applicable to this case, would have completely barred plaintiffs from any recovery. As further support for our conclusion, we note that in Placek, supra, p. 662, 275 N.W.2d 516, the Court indicated that a special verdict form shall be used in negligence cases where the negligence of the plaintiff is at issue. We construe this finding as an indication that the jury would be empowered to allocate the percentage of comparative fault in these types of cases. Therefore, we find no error in the allocation of the amount of negligence to plaintiffs Murphy and Melvin Whitten.

Next, plaintiffs argue that the grossly disproportionate allocation of comparative negligence was against the great weight of the evidence. In Slanga v. Detroit, 152 Mich.App. 220, 224, 393 N.W.2d 487 (1986), this Court stated that when a trial court is deciding a motion for a JNOV, the court must view the evidence in a light most favorable to the nonmoving party, giving the nonmoving party the benefit of every reasonable inference that could be drawn from the evidence. If the evidence is such that reasonable persons could differ, the question is one for the jury and JNOV is improper. A JNOV may be granted only where there is insufficient evidence, as a matter of law, to make an issue for the jury. Willoughby v. Lehrbass, 150 Mich.App. 319, 344, 388 N.W.2d 688 (1986).

Regarding the grant of a new trial motion, in May v. Parke, Davis & Co, 142 Mich.App. 404, 410-411, 370 N.W.2d 371 (1985), lv. den. 424 Mich. 878 (1986), this Court stated:

"It is within the trial court's sound discretion to grant or deny a motion for new trial. The standard of review is whether the jury's verdict was against the overwhelming weight of evidence. A reviewing court affords deference to the trial judge's decision since the trial judge, having heard the witnesses, is uniquely qualified to judge the jury's assessment of their credibility. This Court will not substitute its judgment for that of the jury unless a review of the record reveals a miscarriage of justice." (Citations omitted.)

See also Bosak v. Hutchinson, 422 Mich. 712, 737, 375 N.W.2d 333 (1985). A trial court does not have an "unlimited power to grant a new trial merely because it does not agree with the verdict. The court may not substitute its judgment for that of the finders of fact." Bell v. Merritt, 118 Mich.App. 414, 422, 325 N.W.2d 443 (1982), lv. den. 417 Mich. 954 (1983).

After reviewing the record, we conclude that there was considerable evidence to determine whether plaintiffs Murphy and Melvin Whitten were negligent. There was ample testimony indicating that they may have been intoxicated and that their intoxication proximately caused their injuries or prohibited them from exercising the care of a reasonably prudent person under the circumstances.

Further, as defendants contend, there was sufficient evidence to permit a jury determination on whether there was a "No Trespassing" sign on the cable and whether plaintiffs Murphy and Melvin Whitten were negligent in not seeing the sign in time to stop. The finding by the jury on these issues was not against the great weight of the evidence and the trial court's ruling which denied plaintiffs' motion for JNOV or new trial did not constitute an abuse of discretion.

Plaintiffs' third claim of error is the issuance by the trial court of several standard jury instructions on trespassers.

MCR 2.516(D)(2)(a)-(c), formerly GCR 1963, 516.6(2), states that pertinent portions of the Michigan Standard Jury Instructions must be given if they are applicable, accurately state the applicable law, and are requested by a party. See also Guider v. Smith, 157...