Byrne v. Schneider's Iron & Metal, Inc.

• Decision Date: 08 July 1991
• Docket Number: Docket No. 122540
• Citation: Byrne v. Schneider's Iron & Metal, Inc., 475 N.W.2d 854, 190 Mich.App. 176 (Mich. App. 1991)
• Parties: Jack D. BYRNE, personal representative of the estate of Michael Robert Byrne, deceased, Plaintiff-Appellee, Cross-Appellant, v. SCHNEIDER'S IRON & METAL, INC., and East Kingsford Iron & Metal Co., Defendants-Appellants, Cross-Appellees. 190 Mich.App. 176, 475 N.W.2d 854
• Court: Court of Appeal of Michigan

Page 854

475 N.W.2d 854

Jack D. BYRNE, personal representative of the estate of Michael Robert Byrne, deceased Plaintiff-Appellee, Cross-Appellant, v. SCHNEIDER'S IRON & METAL, INC., and East Kingsford Iron &amp Metal Co., Defendants-Appellants Cross-Appellees.

Docket No. 122540.

190 Mich.App. 176, 475 N.W.2d 854

Court of Appeals of Michigan.

Submitted Oct. 3, 1990, at Marquette.

Decided July 8, 1991, at 9:20 a.m.

Released for Publication Oct. 28, 1991.

[190 MICHAPP 177] Petrucelli & Petrucelli, P.C., by Vincent R. Petrucelli, Iron River, for plaintiff-appellee, cross-appellant.

Kitch, Saurbier, Drutchas, Wagner & Kenney, P.C., by Mark D. Willmarth and Susan Healy Zitterman, Detroit, for defendants-appellants, cross-appellees.

Before: MURPHY, P.J., and BRENNAN and MARILYN J. KELLY, JJ.

MARILYN J. KELLY, Judge.

Defendants appeal as of right from a judgment entered for plaintiff. This is a wrongful death action which is based on the theory of attractive nuisance.

Defendants raise issues regarding the adequacy of plaintiff's proof of notice and the sufficiency of the evidence of decedent's pain and suffering. They allege error in the admission of "prejudicial" evidence and in the use of certain jury instructions. Finally, they object to the court's refusal to grant them a remittitur of the jury award. Plaintiff has filed a cross-appeal, claiming the trial court erred in submitting the issue of the parents' comparative negligence to the jury. We affirm.

[190 MICHAPP 178]

I

On August 21, 1987, eight-year-old Michael Byrne died while playing in a sandpit located in defendants' junkyard. Michael and two friends had gained access to the yard through a hole in the fence. Apparently Michael was trying to dig under a large boulder located near the bottom of the sandpit. The boulder slid or rolled on top of him. He died of asphyxiation.

The jury awarded plaintiff $100,000 for Michael's conscious pain and suffering. This award was reduced by ten percent, representing his comparative negligence. Michael's parents and two sisters were each awarded $500,000. Both awards to the parents were reduced by twenty-five percent, representing the parents' comparative negligence.

II

On appeal, defendants argue that the trial court erred in denying their motion for judgment notwithstanding the verdict, because plaintiff failed to prove two elements of the attractive nuisance claim. They assert that plaintiff failed to show that defendants knew or had reason to know that children were likely to trespass in the area of the sandpit. They contend, also, that there was no proof they knew or had reason to know that the sandpit and boulder involved an unreasonable risk of death to children.

We review a trial court's denial of a motion for JNOV to determine whether there are material issues of fact upon which reasonable minds might differ. Lester N. Turner, P.C. v. Eyde, 182 Mich.App. 396, 398, 451 N.W.2d 644 (1990). The nonmoving party is given the benefit of every reasonable [190 MICHAPP 179] inference that can be drawn from the evidence. If reasonable minds could differ as to whether the plaintiff has met his burden of proof, a judgment notwithstanding the verdict is inappropriate. May v. William Beaumont Hosp., 180 Mich.App. 728, 765-766, 448 N.W.2d 497 (1989).

The plaintiff must prove five elements in an attractive nuisance claim. One is that the possessor knows or has reason to know that children are likely to trespass on the location where the condition exists. Rand v. Knapp Shoe Stores, 178 Mich.App. 735, 740-741, 444 N.W.2d 156 (1989).

In this case, a neighbor had told someone working on the property that children were playing in the pit. Defendants offered evidence that the person was not their employee. They argue that his knowledge could not be imputed to them. However, that is insufficient; actual notice is not required. It is enough that defendants have reason to know that children are likely to trespass. Two of defendants' owners admitted that they knew children were attracted to the sandpit. Therefore, there was adequate evidence on this element.

Defendants also argue that there was insufficient proof that they knew or had reason to know of the condition. They claim inadequate proof was offered that they realized or should have realized the sandpit or boulder would involve an unreasonable risk of death or serious bodily harm to children. Rand, supra. They contend that plaintiff had to establish that actual notice was given them that children were playing on the sand and digging under or around the boulder.

In both of the cases cited by defendants in support of their argument, the conditions involved were not, in themselves, dangerous. Rather, it was children's use of the conditions that made them dangerous. See Rand, supra, and Murday v. Bales [190 MICHAPP 180] Trucking, Inc., 165 Mich.App. 747, 419 N.W.2d 451 (1988). Before a defendant can be said to have tolerated or acquiesced in the conduct of a third party unrelated to him, he must know or have reason to know of the conduct. Murday, at 753, 419 N.W.2d 451.

In this case, however, defendants created the dangerous condition by placing the boulder in the sandpit. The testimony of one of the owners confirms that he was aware a precariously placed boulder could be dangerous. The boulder in this case was dangerous no matter what action the decedent took. The boy's activity goes only to the question of comparative negligence. Since defendants themselves caused the perilous condition to exist, proof of actual notice that children were digging around the boulder is not required. Therefore, plaintiff met the burden of proving that defendants had reason to know of a condition that involved an unreasonable risk of death or serious bodily harm to children.

III

Next, defendants contend that plaintiff failed to introduce evidence of Michael's conscious pain and suffering.

A jury may award reasonable compensation for the pain and suffering undergone by the decedent while conscious during the intervening time between the injury and death. M.C.L. Sec. 600.2922(6); M.S.A. Sec. 27A.2922(6). The existence of a decedent's conscious pain and suffering may be inferred from other evidence that does not explicitly establish the fact. Riordan v. Gould Engineering, Inc., 74 Mich.App. 292, 294, 253 N.W.2d 736 (1977).

The pathologist testified that Michael died of suffocation; his breathing passages were obstructed by sand. When the supply of oxygen is cut off, a [190 MICHAPP 181] person loses consciousness within minutes. This is followed by brain damage, then death. Michael's consciousness and resulting pain and suffering could be inferred from this evidence. Reasonable jurors could have reached different conclusions regarding whether the boy was conscious. McAtee v. Guthrie, 182 Mich.App. 215, 220-221, 451 N.W.2d 551 (1989). We find no error.

IV

Defendants contend the court abused its discretion when it admitted the testimony of a neighbor regarding whether they were given notice of the danger of their sandpit to neighborhood children. They claim it was irrelevant and that its probative value was outweighed by its prejudicial effect.

Joan Maierle testified that she had seen children playing on defendants' property and exiting through a hole in the fence. She informed a person who was working on the fence. She thought the person was an employee of defendants. Other testimony indicated that he was an employee of an independent fence contractor.

This testimony was relevant to the issue of whether defendants had reason to know they were harboring an attractive nuisance. Moreover, its probative value outweighed its prejudicial effect. "Prejudicial" is not synonymous with "damaging." Sclafani v. Peter S. Cusimano, Inc., 130 Mich.App. 728, 735, 344 N.W.2d 347 (1983). Evidence that tends to prove an element of the opposing party's claim is damaging; this does not necessarily mean it is prejudicial or unfairly damaging. We find no abuse of discretion.

V

Next, defendants argue that jury instructions on [190 MICHAPP 182] attractive nuisance, trespass and the standard of care did not adequately inform the jurors of the applicable law.

The determination whether a jury instruction is applicable and accurately states the law is within the discretion of the trial court. In order for the court to give an instruction, sufficient evidence must be presented by the party to warrant it. We review instructions in their entirety and do not extract them piecemeal. Reversal is not required if, on balance, the theories of the parties and the applicable law are adequately and fairly presented to the jury. Wiegerink v. Mitts & Merrill, 182 Mich.App. 546, 548, 452 N.W.2d 872 (1990).

Defendants objected to the instructions on the duty to use ordinary care, conduct required for the safety of a child, and the duty of a possessor of land. SJI2d 10.05, 10.07, 19.07 and 19.10. They contend that an instruction on attractive nuisance alone would have been sufficient to apprise the jury of plaintiff's theory of liability. The instruction on the defendants' duty of ordinary care, they argue, offered the jury a broader theory of liability.

Attractive nuisance law is essentially negligence law. Rosario v. City of Lansing, 403 Mich. 124, 139, 268 N.W.2d 230 (1978). It places an affirmative duty on landowners to carry on activities involving a risk of death or serious bodily harm with reasonable care for the safety of known trespassing children. Lyshak v. Detroit, 351 Mich. 230, 249, 88 N.W.2d 596 (1957).

The standard of reasonable care is essentially equivalent to the ordinary care standard used in SJI2d 10.05. It does not impose broader liability, but merely states the duty and appropriate standard of care in an attractive nuisance case. Likewise SJI2d 10.07 represents a statement of existing [190 MICHAPP 183] attractive nuisance precedent and does not contradict or broaden the attractivenuisance instructi...