Ferguson v. Delaware Intern. Speedway

• Decision Date: 22 December 1987
• Docket Number: Docket No. 80671
• Citation: 416 N.W.2d 415,164 Mich.App. 283
• Parties: Ann FERGUSON and William Ferguson, Plaintiffs-Apellants, v. DELAWARE INTERNATIONAL SPEEDWAY, Defendant-Appellee, and ABC Corporation, Defendant. 164 Mich.App. 283, 416 N.W.2d 415
• Court: Court of Appeal of Michigan — District of US

Page 415

416 N.W.2d 415

Ann FERGUSON and William Ferguson, Plaintiffs-Apellants, v. DELAWARE INTERNATIONAL SPEEDWAY, Defendant-Appellee and ABC Corporation, Defendant.

Docket No. 80671.

164 Mich.App. 283, 416 N.W.2d 415

Court of Appeals of Michigan.

Submitted March 16, 1987.

Decided Nov. 3, 1987.

Released for Publication Dec. 22, 1987.

[164 MICHAPP 285] Cummings, McClorey, Davis & Acho, P.C., by Susan D. Nelson and Robert L. Blamer, Livonia, for plaintiffs-appellants.

Puleo, Noeske & Tarnavsky by Peter J. Lyons, Troy, and Gromek, Bendure & Thomas, by John A. Lydick, Detroit, of counsel, for defendant.

Before SHEPHERD, P.J., and GILLIS and LATREILLE, ^* JJ.

SHEPHERD, Presiding Judge.

Following a three-day trial, the jury returned a verdict of no cause of action in favor of defendant Delaware International Speedway (defendant). We affirm.

This is a slip-and-fall personal injury action. On July 1, 1978, plaintiff Ann Ferguson (plaintiff), and her grandson traveled to defendant's race track in [164 MICHAPP 286] Delaware, Ontario, to watch her oldest son race. They arrived at approximately 4:00 or 5:00 p.m. and followed the flow of traffic to obtain a parking space.

After pulling into the race track area, plaintiff paid for parking at a ticket booth. She asked the attendant where to park and he replied, "Just pull right in here to the left, follow the rest of the cars." Plaintiff parked her car in a gravel area located at the bottom of a hill. Afterwards, she asked the same attendant how to reach the grandstand and he stated, "Go up this hill; when you get up to the top of the hill you turn right and there will be a ticket booth there and then you will pay your admission and get in, the stands are up to the right of the hill." Plaintiff, holding her grandson by the hand, proceeded up the hill with other spectators on both sides of her. It was broad daylight.

Plaintiff testified that the hill was rather steep, grassy, and patchy in spots. There was no designated path on the hill and plaintiff did not look around for another means of reaching the stands while walking up. It took her ten minutes to walk up the hill. Plaintiff testified that on the way up she did not notice the hill's steepness.

At the top, plaintiff paid for admission and went into the stands. She watched the races and bought hot dogs and coffee, but no alcohol. The races ended at approximately 11:00 p.m. Plaintiff decided to return to her car and wait for her husband and two sons because the weather was getting colder.

Plaintiff left the grandstand and proceeded down the same way she had come up. When plaintiff reached the hill, however, there were no lights and the grass was wet and slippery. Plaintiff testified that the hill had approximately a forty-five-degree incline. Before going down the hill, she did not [164 MICHAPP 287] look for an alternate route to reach her car since it was dark. Plaintiff stated that there were no instructions to spectators leaving the stands.

While walking down the hill, plaintiff slipped and landed on her buttocks in a sitting position. She tried to stand up, but her right leg was hurting. Plaintiff scooted down the hill on her buttocks. At the bottom of the hill, plaintiff scooted herself to the car and waited inside for her family. While waiting for her family, plaintiff noticed that only one light post was near the entrance at the ticket booth and no other lights were on the hill.

When her family arrived at the car, plaintiff was transported by ambulance to London University Hospital where she received pain medication and was told she needed surgery. Plaintiff decided to undergo surgery at Mt. Carmel Hospital in Detroit.

Plaintiff underwent surgery and remained hospitalized for two weeks. A long cast was placed on her right leg. Plaintiff wore the cast for two to 2 1/2 months and then wore a short leg cast for six weeks. Plaintiff returned to work sometime in 1979 and continues to work. Plaintiff testified that she suffers from pain in her ankle and back.

Carl Lave, president of defendant Speedway, testified that in 1978 he was in charge of running the concessions at the track and maintaining the grounds. He personally cut the grass at the track at least two or three times that summer. He noticed no irregularities on the hill such as holes or the like. Lave hired outside help to maintain the premises during the other times.

On cross-examination, Lave testified that no signs indicated parking areas and the hill had no lights other than the one near the booth. Lave was aware that people parked at the bottom of the hill. [164 MICHAPP 288] He stated that the hill had a twenty-degree incline. The hill had no sidewalk, but there were paths made in the grass where people had previously walked.

The jury returned a verdict of no cause of action in defendant's favor. At the hearing on plaintiffs' motion for a new trial, plaintiffs argued five grounds: (1) the verdict was against the great weight of the evidence; (2) defendant's photographic evidence was improperly admitted; (3) the court erred in instructing the jury on comparative negligence; (4) the court erred in setting aside a previously entered default judgment against defendant, and (5) the costs assessed by the trial court were improper.

After hearing arguments, the trial court determined that the verdict was neither contrary to law nor against the great weight of the evidence, since the jury decided that defendant was not negligent. There was testimony that plaintiff had her grandson with her and the issue of whether plaintiff's or defendant's conduct was the cause of the accident constituted a jury question. The trial court's ruling was incorporated into an order.

GCR 1963, 527.1(5), now MCR 2.611(A)(1)(e), provided:

"A new trial may be granted to all or any of the parties and on all or part of the issues whenever their substantial rights are materially affected, for any of the following causes:

* * *

"(5) That the verdict or decision is against the great weight of the evidence, or is contrary to law."

In Carden v. General Motors Corp., 156 Mich.App. 202, 206, 401 N.W.2d 273 (1986), quoting May v. Parke, Davis & Co., 142 Mich.App. 404, 410-411, 370 N.W.2d 371 (1985), this Court stated:

[164 MICHAPP 289] "It is within the trial court's sound discretion to grant or deny a motion for new trial. The standard of review is whether the jury's verdict was against the overwhelming weight of evidence. A reviewing court affords deference to the trial judge's decision since the trial judge, having heard the witnesses, is uniquely qualified to judge the jury's assessment of their credibility. This Court will not substitute its judgment for that of the jury unless a review of the record reveals a miscarriage of justice."

In the instant case, the verdict was not against the great weight of the evidence. Plaintiffs' evidence indicated that the hill was steep, dark, and unlit. While walking down the hill, plaintiff was holding her grandson's hand and simply "slipped." Defendant's evidence revealed that the hill was not as steep as plaintiff claimed and the hill was not totally dark since there was a light near the booth and some lighting at the top of the hill. Furthermore, defendant's president stated that the track grounds were kept up and the grass was mowed regularly. There were no defects or obstructions on the hill. There was even a path of sorts from patrons who had previously traversed the hill. We are unable to find that the verdict of no cause of action was against the great weight of the evidence. The jury apparently did not find that the nature of the hill or defendant's acts or omissions constituted a breach of any duty. The jury may not have believed that the hill was as steep as plaintiff claimed. Thus, the trial court did not abuse its discretion by not granting plaintiffs a new trial on this ground.

Plaintiffs argue that the trial court erred by admitting certain photographs. This Court has held that the decision of a trial court concerning the admissibility of evidence will not be disturbed on appeal unless that decision is clearly erroneous. [164 MICHAPP 290] People v. McKinney, 88 Mich.App. 715, 720-721, 278 N.W.2d 728 (1979). Other panels have stated that the standard of review is for an abuse of discretion. See, e.g., Gagnon v. Dresser Industries Corp., 130 Mich.App. 452, 463, 344 N.W.2d 582 (1983), aff.'d 424 Mich. 166, 380 N.W.2d 440 (1985). Errors in the admission or exclusion of evidence shall not be disturbed on appeal unless "refusal to take this action appears to the court inconsistent with substantial justice." MCR 2.613(A).

As a general premise, evidence must be relevant before it may be admitted. Relevancy is defined in MRE 401:

" 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."

Questions of relevance are left to the discretion of the trial court. McClaine v. Alger, 150 Mich.App. 306, 314, 388 N.W.2d 349 (1986). MRE 403 provides, however:

"Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."

Specifically, the introduction of photographs into evidence is a matter of discretion with the trial judge. Kolcon v. Smewing, 28 Mich.App. 237, 242, 184 N.W.2d 244 (1970), lv den 384 Mich 830 (1971). Before a photograph may be admitted into evidence, it must satisfy MRE 901, which provides in pertinent part:

[164 MICHAPP 291] "(a) General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is...