Falkner v. John E. Fetzer, Inc.

• Decision Date: 06 April 1982
• Docket Number: Docket No. 47033
• Citation: 317 N.W.2d 337,113 Mich. App. 500
• Parties: Kathy Lynn FALKNER and David Falkner, Plaintiffs-Appellees, v. JOHN E. FETZER, INC., a Michigan corporation, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 337

317 N.W.2d 337

113 Mich.App. 500

Kathy Lynn FALKNER and David Falkner, Plaintiffs-Appellees, v.JOHN E. FETZER, INC., a Michigan corporation, Defendant-Appellant.

Docket No. 47033.

Court of Appeals of Michigan.

Submitted April 15, 1981.

Decided Feb. 19, 1982.

Released for Publication April 6, 1982.

Zemke, Hirschhorn & Tuckel, P. C., Southfield, and Fahrner & Steingold, Ann Arbor, for plaintiffs-appellees.

Dice, Sweeney, Sullivan & Feikens, P. C. by Robert A. Tyler, Detroit, for defendant-appellant.

Before MAHER, P. J., and R. B. BURNS and KELLY, JJ.

PER CURIAM.

Defendant appeals as of right the trial court's denial of defendant's motions for a directed verdict, judgment notwithstanding the verdict, and a new trial.Plaintiffs' complaint was filed on September 18, 1975, and alleged that plaintiffKathy Falkner had been struck by a batted ball while attending a baseball game at Tiger Stadium on May 11, 1975, that plaintiff had sustained damages as a result, and that defendant was negligent in that it had breached its duty to make its baseball stadium reasonably safe by:

"(a) Failing to provide protective screening in the area in which PlaintiffKATHY FALKNER was a spectator.

"(b) Failing to inform PlaintiffKATHY FALKNER of the availability of seats in areas protected by screening.

"(c) Failing to offer PlaintiffKATHY FALKNER a choice between protected and unprotected seats.

"(d) Failing to provide a sufficient number of protected seats in areas of particularly high hazard.

"(e) Failing to warn PlaintiffKATHY FALKNER by signs (or other reasonable means) of the high hazard to her from batted balls."

A jury trial of the case commenced on August 12, 1979.After plaintiffs rested their case, the trial court granted defendant's motion for a directed verdict on all but one of plaintiffs' five specific allegations of negligence.On the remaining count, negligent failure to warn plaintiffKathy Falkner of the high hazard to her from batted balls, the jury returned a special verdict finding: (1) that defendant was negligent, (2) that defendant's negligence was a proximate cause of the injuries or damages to plaintiffs, (3) that the total amount of damages was $273,000, (4) that plaintiffKathy Falkner was negligent, (5) that plaintiffKathy Falkner's negligence was a proximate cause of plaintiffs' injury or damages, and (6) that plaintiffKathy Falkner's negligence amounted to 5% of the total negligence that had proximately caused plaintiffs' injuries or damages.After delivering this verdict, the jury was directed to deliberate further in order to clarify the award.The jury then determined that $250,000 was the amount of damages sustained by plaintiffKathy Falkner, that $23,000 was the amount of damages sustained by plaintiffDavid Falkner, and that both of those amounts should be reduced by 5%; hence, defendant's ultimate liability came to a total of $258,850.

It is a generally accepted proposition that there is no duty to warn of the risk of being hit by batted balls when attending a baseball game, because the risk is obvious.Felgner v. Anderson, 375 Mich. 23, 45, fn. 6, 133 N.W.2d 136(1965).Nevertheless, we do not believe that defendant was entitled to a directed verdict, judgment notwithstanding the verdict, or a new trial in the instant case on the theory that it had no duty to warn.Plaintiffs presented an apparently unique record in an attempt to demonstrate that the magnitude of the risk involved is much greater than commonly believed.Therefore, it was proper to submit to the jury the question of whether it would be reasonable to require defendant to warn spectators of the unexpectedly high degree of risk.SeeGraham v. Ryerson, 96 Mich.App. 480, 292 N.W.2d 704(1980).

Defendant contends that even if it owed a duty to warn, that duty was fulfilled by the disclaimer printed on the back of each ticket and by the announcement at the beginning of the game.We disagree.Plaintiffs correctly point out that neither statement amounts to a warning as such.In any event, the adequacy of a warning is a jury question where reasonable minds could differ as to whether a defendant's conduct was reasonable.Simonetti v. Rinshed-Mason Co., 41 Mich.App. 446, 200 N.W.2d 354(1972);seeGraham, supra.

Nevertheless, defendant is entitled to reversal on the ground that plaintiffs failed to present any evidence to show that if a proper...