Jenkins v. Frison Bldg. Maintenance Co.

• Citation: 421 N.W.2d 275,166 Mich.App. 716
• Decision Date: 07 April 1988
• Docket Number: Docket No. 93758
• Parties: Josephine JENKINS, Plaintiff-Appellant, v. FRISON BUILDING MAINTENANCE COMPANY, Defendant-Appellee.
• Court: Court of Appeal of Michigan (US)

Page 275

421 N.W.2d 275

166 Mich.App. 716

Josephine JENKINS, Plaintiff-Appellant, v. FRISON BUILDING MAINTENANCE COMPANY, Defendant-Appellee.

Docket No. 93758.

Court of Appeals of Michigan.

Submitted Nov. 18, 1987.

Decided March 7, 1988.

Released for Publication April 7, 1988.

Buckfire & Buckfire, P.C. by David Buckfire, Detroit, for plaintiff-appellant.

Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen, P.C., by Deanna E. Hazen, Detroit, for defendant-appellee.

Before WALSH, P.J., and SHEPHERD and DAVIS, ^* JJ.

SHEPHERD, Judge.

Plaintiff filed suit against Advance Chemical Company and Frison Building Maintenance Company alleging that their negligence in manufacturing and applying a floor finishing product to the floor of her employer, Michigan Bell Telephone Company, caused her to slip and fall and sustain injury to her back. Plaintiff and defendant Advance settled before trial. The case against defendant Frison was tried to a jury in June, 1986. The jury returned a verdict of no cause of action. We reverse and remand for a new trial.

On January 18, 1982, plaintiff was working the afternoon shift at the northwest service center of Michigan Bell Telephone Company. As she returned from an area designated as "computer 4" to her own work area, plaintiff slipped and fell backwards on her side and hip, hitting her head on the floor. Several witnesses testified that they inspected the area where plaintiff fell and saw nothing that would have caused her to fall. There was no water, defect or other substance in the area. Plaintiff and several witnesses did testify, however, that the floor appeared to be clean and very shiny. Plaintiff testified to a difference in the surface of the floors between the Friday past and that Monday. On Friday they were dull and dirty and on Monday, the day of her fall, the floors appeared to be clean and shiny as if they had just been waxed.

At trial there was conflicting testimony whether defendant was responsible for the ongoing maintenance of the floors in "A" Building at the time of plaintiff's fall. There was no direct evidence presented that defendant or anyone else performed any specific operation upon the floor over the weekend in question. There was testimony that when the floors were stripped and waxed at the northwest service center they would be done on weekends.

The key issue on appeal was the trial court's ruling, prior to commencement of the trial, to disallow the testimony as to test results of plaintiff's expert witness, Dr. Joseph Ryan. The court granted defendant's motion in limine, finding that the test conducted by Dr. Ryan was dissimilar to the conditions and procedures employed by defendant in applying the floor finish product and that such testimony would not assist the trier of fact.

The admissibility of expert testimony and test results on experiments performed by experts is a matter within the discretion of the trial court. MRE 702. This Court will not reverse such a decision absent an abuse of discretion. Pelley v. Peterbilt Motors Co., 133 Mich.App. 664, 669, 350 N.W.2d 787 (1984). The issue of the admissibility of results from tests conducted by experts has been addressed frequently in the Michigan appellate courts. We believe a holding in an older case most accurately states the law:

" 'It is not necessary, however, that the conditions should be exactly identical, but a reasonable or substantial similarity is sufficient, and the lack of exact identity affects only the weight and not the competency of the evidence, provided always that there is such a degree of similarity that evidence of the experiments made will accomplish the desideratum of assisting the jury to an intelligent consideration of the issues of fact presented.' 22 C J, p 759.

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" 'This similarity need not be precise in every detail. It need include only those circumstances or conditions which might conceivably have some influence in affecting the result in question.' 1 Wigmore on Evidence, Sec. 442.

" 'The facts need not be exactly or in every particular similar; if they are sufficiently similar to accomplish the purpose of assisting the jury to intelligently consider the issue of fact presented in regard to the special point in controversy, the evidence is admissible.' Atlanta [ & W P] R Co v. Hudson, 2 Ga App 352, 354 (58 SE 500) [1907]." Smith v. Grange Mutual Fire Ins. Co. of Michigan, 234 Mich. 119, 126-127, 208 N.W. 145 (1926).

It was the trial court's opinion that the tests involved were so totally dissimilar to the conditions at the time of the fall that it would be "highly prejudicial" to admit the results of the test. In explaining why the three-year time differential between the accident and the test was immaterial, Dr. Ryan stated the following in his deposition:

"But more fundamentally the reason why it doesn't make any difference is because the testing of the floor surface is not done on the vinyl. It's done on the floor wax material which forms a film several thousandth's of an inch thick which is then buffed to a relative hardness so that it has no influence, that is the wear of the tile has no influence at all on the results of the test."

Thus the test itself is conducted on the buffed floor wax material. Although there were some dissimilarities in the method of cleaning the floor and in the method of applying the wax, we believe there was enough evidence that the test bore a "reasonable or substantial similarity" to the actual conditions at the time of the accident for the testimony to be submitted to the jury. Smith, supra at 126, 208 N.W. 145. The testimony of ...