Cleary v. Turning Point

• Decision Date: 13 January 1994
• Docket Number: 133317,Docket Nos. 131858
• Citation: Cleary v. Turning Point, 512 N.W.2d 9, 203 Mich.App. 208 (Mich. App. 1994)
• Parties: Margaret CLEARY and Durwood Cleary, Plaintiffs-Appellants, v. THE TURNING POINT, Defendant-Appellee.
• Court: Court of Appeal of Michigan

Page 9

512 N.W.2d 9

203 Mich.App. 208

Margaret CLEARY and Durwood Cleary, Plaintiffs-Appellants, v.THE TURNING POINT, Defendant-Appellee.

Docket Nos. 131858, 133317.

Court of Appeals of Michigan.

Submitted March 11, 1993, at Lansing.

Decided Sept. 29, 1993.

Approved for Publication

Jan. 13, 1994, at 9:00 a.m.

Released for Publication March 4, 1994.

Eames, Wilcox, Mastej, Bryant, Swift & Riddell by Jerry R. Swift and Keith M. Aretha, Detroit, for plaintiffs-appellants.

Kohl, Secrest, Wardle, Lynch, Clark & Hampton by Janet G. Callahan, Farmington Hills, for defendant.

Before BRENNAN, P.J., and HOOD and TAYLOR, JJ.

PER CURIAM.

Plaintiffs appeal as of right from an order of judgment and an order awarding costs and attorney fees.We affirm.

Plaintiffs claim on appeal that the trial court erred in precluding testimony that revealed that defendant was in violation of certain regulations promulgated pursuant to OSHA ¹ and MIOSHA.²Plaintiffs argue that the proffered testimony concerning the alleged violations of administrative rules was admissible even though plaintiffMargaret Cleary was a volunteer at the retail establishment run by the defendant when she was injured.The decision whether to admit certain evidence is within the trial court's sound discretion and will not be disturbed absent an abuse of discretion.Meek v. Michigan Bell Telephone Co., 193 Mich.App. 340, 345, 483 N.W.2d 407(1992).An abuse of discretion is found only if an unprejudiced person, considering the facts on which the trial court acted, would say there was no justification or excuse for the ruling.Gore v. Rains & Block, 189 Mich.App. 729, 737, 473 N.W.2d 813(1991).On the basis of our review of the record, we cannot find that the trial court's decision to preclude the proffered testimony regarding defendant's alleged OSHA and MIOSHA violations was an abuse of its discretion.However, even if we had found that the trial court had erred in excluding the proffered testimony, we are convinced that, in light of the other evidence presented, the jury verdict would not have been different had the proffered testimony actually been admitted.SeeDella Pella v. Wayne Cty., 168 Mich.App. 362, 370-371, 424 N.W.2d 50(1988).

Plaintiffs next claim that the trial court erred in denying their motion for a directed verdict.In deciding whether the trial court erred in denying plaintiffs' motion for a directed verdict, this Court must review all the evidence in a light most favorable to the nonmoving party to determine whether sufficient evidence was presented to create an issue for the jury.Howard v. Canteen Corp., 192 Mich.App. 427, 431, 481 N.W.2d 718(1992).We will not disturb the trial court's decision unless there has been a clear abuse of discretion.Id.Upon reviewing the entire record, we believe that the trial court was correct in denying plaintiffs' motion for a directed verdict.

Plaintiffs also claim that the trial court erred in permitting defendant's counsel to comment upon the particular nature of defendant's business.Specifically, plaintiffs contend that the trial court should have prevented any reference by defendant to the charitable nature of its business operations.On the basis of our careful review, and considering plaintiffs' own references to the charitable nature of defendant's business during its closing arguments, we cannot conclude that plaintiffs were prejudiced by defense counsel's limited references to the nature of defendant's business operations.We believe that defense counsel's comments did not have the effect of diverting the jury's attention from the issues or otherwise affect the verdict.Knight v. Gulf & Western Properties, Inc., 196 Mich.App. 119, 132-133, 492 N.W.2d 761(1992);Wilson v. General Motors Corp., 183 Mich.App. 21, 26, 454 N.W.2d 405(1990).

Plaintiffs finally claim that the trial court erred in its award of attorney fees to defendant.An award of attorney fees will be upheld on appeal absent an abuse of discretion.Antiphon, Inc. v. LEP Transport, Inc., 183 Mich.App. 377, 454 N.W.2d 222(1990).Plaintiffs argue that the trial court abused its discretion in awarding defendant attorney fees that were based upon an hourly rate that exceeded the actual hourly rate...