Beals v. Walker

• Decision Date: 16 June 1980
• Docket Number: Docket No. 78-4454
• Parties: Renold L. BEALS, Jr., and Joyce E. Beals, Plaintiffs-Appellants Cross-Appellees, v. Richard J. WALKER, individually and d/b/a Kingston Farm Service, Defendant-Appellee Cross-Appellant, and John F. Williamson, M. D., Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 828

296 N.W.2d 828

98 Mich.App. 214

Renold L. BEALS, Jr., and Joyce E. Beals, Plaintiffs-Appellants Cross-Appellees, v. Richard J. WALKER, individually and d/b/a Kingston Farm

Service, Defendant-Appellee Cross-Appellant,

and

John F. Williamson, M. D., Defendant-Appellee.

Docket No. 78-4454.

Court of Appeals of Michigan.

June 16, 1980.

Released for Publication Sept. 24, 1980.

Eugene D. Mossner, William S. Pearson, Saginaw, for plaintiffs-appellants cross-appellees.

Frank M. Quinn, Bay City, for Richard Walker.

Richard G. Smith, Bay City, for J. Williamson, M. D.; Thomas A. Connolly, Saginaw, of counsel.

Before J. H. GILLIS, P. J., and ALLEN and KELLY, JJ.

ALLEN, Judge.

On January 18, 1974, plaintiff Renold L. Beals, Jr., suffered personal injuries when he fell from a roof of the Kingston Farm Service building in Kingston, Michigan, owned and operated by defendant Walker. As a result of this fall, plaintiff received medical treatment from several doctors, including Dr. Williamson. A complaint was filed, alleging defendant Walker's breach of various duties with respect to safety on the premises, proximately causing plaintiff's fall and resulting injuries. Amended complaints were filed, alleging medical malpractice by defendant Dr. Williamson in the treatment of plaintiff's injured foot. A trial was held on June 6, 1978, and ended with a jury verdict of no cause of action in favor of both defendants on June 17, 1978. Plaintiff's motion for a new trial was denied by the trial court on October 6, 1978. He appeals as of right.

Since plaintiff's claims ¹ arose out of two distinct wrongs, albeit deriving from his fall from Walker's roof, and allege two distinct causes of action against the defendants, we consider separately the appeal and cross-appeal of the parties.

I Claims Between Plaintiff and Defendant Walker: Premises Liability

At the time of his injury, plaintiff had been a millwright for about ten years and had been working for the same employer for about four years. All of his work as a millwright had involved grain elevators, silos and other farm structures. Plaintiff had worked at defendant's Kingston Farm Service elevator previously. Normally, plaintiff worked with his own tools and tools provided by his employer. The employer also provided scaffolding, where needed, and rope, safety harnesses and chains were standard equipment. The millwrights would generally decide what needed to be done on the job and the method of doing it without supervision from their employer.

On January 17, 1974, Walker telephoned plaintiff's employer to arrange for repair of a broken "leg" on his grain elevator. Walker explained that he thought the problem was with the "reducer gear". The employer contacted plaintiff and another millwright, John Wilson, and told them to make the repairs the next day. Ordinarily, when millwrights were called in to make repairs on a grain elevator, they brought their own equipment and were not supervised or directed by the elevator operator, who would attempt to define the problem and would be billed for the job.

On the morning of January 18, 1974, plaintiff and Mr. Wilson picked up the needed parts in Saginaw and drove to defendant's place of business. The temperature was near freezing, and there was a hazy sky and a fine misty rain. When they arrived at Kingston Farm Service, Mr. Wilson went to the office to speak with defendant about the kind of repair needed. Defendant explained that he thought that the problem was with the reducer, which was in the headhouse at the top of the grain elevator.

At trial, neither plaintiff nor defendant recalled any discussion with Mr. Wilson concerning means of access to the headhouse. However, defendant's deposition testimony and written statement indicated that he told Mr. Wilson that there were two ways of getting to the headhouse, a man-lift and an outside ladder.

The man-lift was a manually operated one-man lift inside the grain elevator, which was the only inside access to the headhouse. Defendant testified that routine maintenance and repair in the headhouse area did not require more than one person and that there had not been a similar breakdown in the grain elevator while he worked there.

After the initial contact with the millwrights, defendant gave no further instructions and left the premises to keep an appointment. Plaintiff and Mr. Wilson decided that the repair required two men and, since the lift only carried one, looked for a second means of access to the headhouse. Plaintiff initially looked for an inside ladder adjacent to the lift. He testified that such ladders existed in all other grain elevators that he had worked on. This elevator did not have one, and plaintiff asked one of defendant's employees how a second person could reach the headhouse. The employee pointed out an outside ladder leading from a lower roof to the headhouse and a portable ladder that could be used to get from the ground to the lower roof.

Mr. Wilson went up in the interior lift, and plaintiff decided to use the outside route. Plaintiff leaned the portable ladder against the building to reach the lower roof. He climbed the ladder and felt the roof for ice and wetness before climbing onto it and found none. He got on the roof and started toward the second ladder. The roof peaked a few feet before the ladder to the headhouse, and plaintiff did not feel the roof on the other side of the peak but testified that it looked like the rest of the roof. Without stopping, he stepped over the peak and slipped on a "glare of ice" and slid down the roof and over the edge, landing on railroad tracks below. During the climb, he had not used a safety line or belt or roof cleats.

Plaintiff struck the railroad tracks with his left elbow and face, causing a cut lip, broken tooth and broken glasses. He also felt pain in his right foot, later determined to be a comminuted fracture. The alleged mistreatment of the fracture by defendant Dr. Williamson was the basis of the malpractice portion of the lawsuit.

At trial, plaintiff offered evidence establishing that defendant failed to comply with various state safety regulations relating to the use of guardrails and barriers on stairways and runways. Defense counsel objected to the admissibility of this evidence, claiming that it was irrelevant to the matter on trial. The objection was overruled. In addition, plaintiff introduced evidence tending to show that it was the custom and practice of the industry to provide ladders inside grain elevators. At the close of plaintiff's proofs, defendant Walker moved for a directed verdict on the basis that plaintiff failed to establish, as a matter of law, that defendant breached his duty to provide reasonably safe premises for the plaintiff. This motion was taken under advisement by the trial judge and subsequently denied. Defendant cross-appeals on the denial of his motion for directed verdict and the introduction of plaintiff's evidence concerning state safety regulations.

Defendant Walker's position at trial was that (1) he was not negligent, since he did not breach his duty of care to plaintiff, and (2) plaintiff was contributorially negligent and, therefore, barred from any recovery, even if defendant was negligent.

The issue of defendant's negligence and the plaintiff's contributory negligence was submitted to the jury with appropriate instructions. However, plaintiff objected to the instruction on contributory negligence, claiming that the case should be decided on the doctrine of comparative negligence. The trial judge rejected this claim, and the jury returned a verdict of no cause of action in favor of the defendant.

On appeal from this verdict and a subsequent denial of plaintiff's motion for a new trial, the plaintiff claims that the trial court erred in refusing to submit the case to the jury under the doctrine of comparative negligence. Both parties to this appeal acknowledge that this case is governed by the Michigan Supreme Court's decision in Placek v. City of Sterling Heights, 405 Mich. 638, 275 N.W.2d 511 (1979).

In Placek, the Supreme Court held that the doctrine of contributory negligence was henceforth replaced by the doctrine of comparative negligence. The decision was given limited retroactive effect to "any case presently pending on appeal in which application of the doctrine was requested at the trial court, and the issue preserved for appeal". Placek, supra, 667, 275 N.W.2d 522. Since in the case at bar, plaintiff properly raised the issue and preserved it for appeal, we would, under normal circumstances, be required to reverse for a new trial. Rivers v. Ford Motor Co., 90 Mich.App. 94, 97, 280 N.W.2d 875 (1979).

It is not clear from the jury verdict whether it concluded that defendant Walker was not negligent or that the plaintiff was contributorially negligent. Faced with this ambiguity, we would ordinarily reverse the judgment, since it is just as likely that the jury based its verdict on the finding that plaintiff was contributorially negligent, which conclusion would now be impermissible in light of Placek. However, since, for the reasons hereinafter set forth, we conclude that the trial judge erred in failing to grant defendant's motion for directed verdict on the issue of defendant's negligence, there is no need to remand for a new trial.

In order to avoid a directed verdict for the defendant, plaintiff must make out a prima facie case of negligence, which includes proofs of the four elements of negligence:

"1) that the defendant owed a legal duty to the plaintiff;

"2) that the defendant breached or violated the legal duty it owed to the plaintiff;

"3) that the defendant's breach of duty was a proximate cause of the damages suffered by the plaintiff; and

"4) that the plaintiff suffered damages." Crews v. General Motors Corp., 400 Mich. 208, 224, 253 N.W.2d 617, (1977), (opinion by Williams, J.)

See also, Roulo v. Automobile...