Francisco v. Manson, Jackson & Kane, Inc.

• Decision Date: 11 December 1985
• Docket Number: Docket No. 73393
• Citation: 377 N.W.2d 313,145 Mich.App. 255
• Parties: Gerald L. FRANCISCO, personal representative of the Estate of Todd Gerald Francisco, deceased, Plaintiff-Appellee, v. MANSON, JACKSON & KANE, INC., a Michigan corporation, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 313

377 N.W.2d 313

145 Mich.App. 255

Gerald L. FRANCISCO, personal representative of the Estate of Todd Gerald Francisco, deceased, Plaintiff-Appellee, v. MANSON, JACKSON & KANE, INC., a Michigan corporation Defendant-Appellant.

Docket No. 73393.

Court of Appeals of Michigan.

Submitted Nov. 13, 1984.

Decided July 22, 1985.

Released for Publication Dec. 11, 1985.

Pelavin, Pelavin & Powers, P.C. by Michael A. Pelavin and Frumeth Brenda Hirsh, Flint, and J. Dallas Winegarden, P.C. by J. Dallas Winegarden, Jr., Flushing, for plaintiff-appellee.

Martin, Bacon & Martin, P.C. by James N. Martin, John W. Crimando, and Robert Patrick George, Mount Clemens, for defendant-appellant.

Before WAHLS, P.J., and MAHER and NOBLE ^*, JJ.

PER CURIAM.

Plaintiff's ten-year-old son, Todd Gerald Francisco, died as the result of injuries suffered in a fall from a three-meter diving stand at the Kuehn-Haven Middle School in Montrose, Michigan. Defendant was the architectural firm that designed the swimming facility at the school. In this action for architectural malpractice, a verdict for plaintiff was returned after a jury trial. Plaintiff's damages were assessed at $980,328, but were reduced by 15% to reflect comparative negligence. A judgment was entered for plaintiff for $788,278.80 plus interest, and defendant appeals as of right.

Defendant argues that the trial court erred by permitting an expert witness called by plaintiff, Dr. M.A. Gabrielson, to read from certain safety standards for diving stands promulgated by the Council for National Cooperation in Aquatics. The witness was the chairman of the committee of the council which formulated the standards at issue, and he prepared the first draft of the standards himself.

Ordinarily, use of learned treatises is limited to impeachment. Bivens v. Detroit Osteopathic Hospital, 403 Mich. 820, 282 N.W.2d 926 (1978), rev'g. 77 Mich.App. 478, 258 N.W.2d 527 (1977). Admissibility of safety publications drafted by safety organizations is governed by the rules applicable to learned treatises. Fletcher v. Ford Motor Co., 128 Mich.App. 823, 826-827, 342 N.W.2d 285 (1983). In Stachowiak v. Subczynski, 411 Mich. 459, 463-465, 307 N.W.2d 677 (1981), the Court held that learned treatises and other professional literature were admissible for any nonhearsay purpose if the trial court determined in the exercise of its sound discretion that their probative value was not substantially outweighed by their prejudicial effect. See also Fletcher v. Ford Motor Co., supra, 128 Mich.App. pp. 828-829, 342 N.W.2d 285.

The witness here was one of the authors of the standards and was available for cross-examination. One of the theories advanced by defendant at trial was that it had acted in compliance with applicable nongovernmental safety standards and was therefore not negligent. Plaintiff could have introduced the safety standards at issue here to rebut this theory; any error, therefore, involved not whether evidence of the safety standards should have been admitted at all, but whether the evidence should have been saved for a rebuttal rather than introduced in plaintiff's case in chief. Any error in admitting this evidence was harmless.

Defendant also complains that an expert witness called by plaintiff, Ronald Reno, was permitted to use the pronoun "I" in discussing the applicable standard of care. Expert testimony in a malpractice case should be based on how a reasonable similarly-situated practitioner would act, not on how the witness himself would act. See Rytkonen v. Lojacono, 269 Mich. 270, 274, 257 N.W. 703 (1934), and Carbonnell v. Bluhm, 114 Mich.App. 216, 224, 318 N.W.2d 659 (1982). Defendant, however, made no objection to the admission of this testimony at trial, and under such circumstances an appellate court will not afford the defendant any relief absent manifest injustice. See, for example, Deeb v. Berri, 118 Mich.App. 556, 562, 325 N.W.2d 493 (1982). Examination of the testimony of this witness in context shows that, despite the occasional use of the pronoun "I", the witness was testifying as to the applicable standard of care, not merely his personal practices. No manifest injustice is presented.

Defendant also argues that plaintiff failed to produce expert testimony to establish a breach of the applicable standard of care. This argument, however, is without merit, because it is premised on the erroneous assumption that Ronald Reno gave no admissible testimony concerning the applicable standard of care. The record shows that, even if testimony by Reno containing the pronoun "I" is disregarded, Reno's testimony supports an inference that the applicable standard of care was breached.

Defendant points to Owens v. Allis-Chalmers Corp., 414 Mich. 413, 429-431, 326 N.W.2d 372 (1982), and argues that plaintiff failed to establish a prima facie case by failing to produce sufficient evidence of alternatives to the diving board and stand selected by defendant. In Owens the Court held that plaintiff had failed to present a prima facie case showing that the design of a forklift was unreasonably dangerous in light of the foreseeable risk because the plaintiff presented no evidence concerning the magnitude of the risk involved and the reasonableness of the proposed alternative designs. Application of Owens to this case is unwarranted because this case involves architectural malpractice, while Owens was a products liability case. Moreover, plaintiff produced evidence satisfying the requirements of Owens. Plaintiff's expert, Dr. Gabrielson, explained that a 3-meter board and stand like that at issue here was an unacceptable risk for use in a facility where middle-school-aged children engaged in recreational swimming. Dr. Gabrielson pointed to various feasible design changes that would have increased the safety of the board and stand, including adding a bed under the springboard, changing the diameter and position of the guardrails, changing the materials of which the guardrails were made to a less slippery material, changing the height and rise of the steps, and adding a plexiglass or canvas enclosure at the top of the board. No error in this connection is presented.

Defendant argues that it owed no duty to the school district running to the benefit of plaintiff's decedent to warn of the risks involved in the use of the diving board and stand. The existence of the legal duty is a question of law for resolution by the court. Moning v. Alfono, 400 Mich. 425, 436-437, 254 N.W.2d 759 (1977). An architect owes a duty of care similar to that owed by other professionals like attorneys or physicians. Ambassador Baptist Church v. Seabreeze Heating & Cooling Co, 28 Mich.App. 424, 426, 184 N.W.2d 568 (1970). The duty of the architect is owed to any person lawfully on the premises; privity of contract is not required. Estate of Clark, 33 Mich.App. 395, 401, 190 N.W.2d 373 (1971), rev'd. on other grounds sub nom. Smith v. Detroit, 388 Mich. 637, 202 N.W.2d 300 (1972). See also Anno: Architect's Liability for Personal Injury or Death Allegedly Caused by Improper or Defective Plans or Design, 97 ALR3d 455.

Defendant argues that the danger of a fall from the diving board or stand was open and obvious and that it therefore had no duty to warn of such danger. This argument really relates to the applicable standard of care rather than to the existence of a legal duty. See Moning v. Alfono, supra, 400 Mich. pp. 437-438, 254 N.W.2d 759. In the products liability case of Owens v. Allis-Chalmers Corp., supra, 414 Mich. p. 425, 326 N.W.2d 372, the Court explained that the obviousness of the risks that...