Friedman v. Farmington Tp. School Dist.

• Decision Date: 26 April 1972
• Docket Number: No. 2,Docket No. 11159,2
• Parties: Anne FRIEDMAN and Jerome Friedman, Plaintiffs-Appellants, v. FARMINGTON TOWNSHIP SCHOOL DISTRICT et al., Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 785

198 N.W.2d 785

40 Mich.App. 197

Anne FRIEDMAN and Jerome Friedman, Plaintiffs-Appellants, v. FARMINGTON TOWNSHIP SCHOOL DISTRICT et al., Defendants-Appellees.

Docket No. 11159.

Court of Appeals of Michigan, Division No. 2.

April 26, 1972.

Released for Publication July 3, 1972.

Robert G. Schwartz, Corley & Schwartz, Jackson, for plaintiffs-appellants.

Benjamin W. Dajos, Jr., Coldwater, for defendants-appellees.

Before R. B. BURNS, P.J., and HOLBROOK and QUINN, JJ.

HOLBROOK, Judge.

Plaintiffs appeal simultaneously from the trial court's order for accelerated judgment in favor of defendant Farmington Township School District entered under GCR 1963, 116.1(5) granted June 4, 1969, and entered June 16, 1969, and from the court's trial ruling excluding the answer of plaintiffs' expert witness to a posed hypothetical question.

On November 5, 1968, plaintiff Anne Friedman allegedly slipped and fell in the hallway of the Fairview Elementary School in Farmington Township School District, thereby fracturing her wrist, breaking two ribs and suffering other injuries. The cause of the injury was attributed to the slippery condition of the floor caused by cleaning ingredients applied to the floor and excessive wax and to the failure of those charged with cleaning the floor to position warning signs. Plaintiffs consequently brought suit against the above-named defendants April 4, 1969.

May 15, 1969, defendant Farmington Township School District filed a motion for accelerated judgment under GCR 1963, 116.1(5). The motion claimed that insofar as the event complained of occurred November 5, 1968, and defendant is a political subdivision of the state and no verified notice was received within 60 days of the event, plaintiffs' claim was barred by reason of M.C.L.A. § 691.1406; M.S.A. § 3.996(106). Arguments were heard and the motion was granted June 4, 1969, and filed June 16, 1969.

During trial of the suit against the remaining defendants, who were employees of the Farmington Township School District, testimony was given by plaintiffs' expert witness, Sanford Smith, concerning janitorial and maintenance practices. Objection was raised by counsel for defendants to a hypothetical question directed to the maintenance practices of defendants on the day of the alleged injury. The question was ruled improper by the trial court.

A verdict of no cause of action was returned by the jury.

Plaintiffs raise three issues on appeal for consideration by the Court.

I.

Whether an expert witness's opinion testimony concerning the ultimate question can be excluded as improper under GCR 1963, 605?

At trial, counsel for plaintiffs asked the following question of the expert witness:

'Q. Assume, sir, that on November 5, 1968, that approximately three to five minutes that the plaintiff was in the washroom of this school--about three or five minutes--that while she was in the washroom, in the hallway outside two defendants were involved in mopping down the floor. That's defendant Walter Ogier and defendant Julia Ritchie, and that they were using mops and water. Assume that while they were doing this, that the elections in this school that Mrs. Friedman was there for was still in process, that people were coming in and out of the school, elections were taking place in the gym, and that there was a general accentuation of activity within the school building of that building in that area. Assume further when defendant Ogier and defendant Richie (sic) started their procedure of washing with this mop, that they put up no signs, no warnings, no what you know, these little caution signs or anything of that sort nor did anyone go into at least the women's room and warn anyone in there that if you come out 'watch out, it's slippery.' Do you have an opinion as to whether or not washing down the floors as I have described it by those defendants would constitute good maintenance in November of 1968?'

In ruling to exclude the question on the objection of counsel for defendants the trial court said:

'The Court: First of all, it is argumentative. Second, you are asking the witness the ultimate question that will have to be presented to the jury. The question is improper.'

On appeal, plaintiffs claim the trial court erred in its ruling insofar as GCR 1963, 605 provides in part:

'Testimony of expert witness in the form of opinions or inferences otherwise admissible is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of the fact.'

Defendants reply that such conclusional expert testimony is admissible under GCR 1963, 605 only when 'otherwise admissible.' They argue that an expert's testimony is limited to areas peculiarly within his area of expertise and outside the general competence of the jury. Where the testimony is well within the area of jury competence the expert's testimony is not admissible. The defendants argue further that judgments concerning floor-washing techniques are well within the jury's realm of experience and therefore expert testimony would be unnecessary. If unnecessary, the expert's testimony would be inadmissible as irrelevant opinion evidence and therefore objectionable as directed to the 'ultimate question,' as well.

No contest is made by defendants as to whether the question was improperly argumentative.

GCR 1963, 605 reads:

'Questions calling for the opinion of an expert witness need not be hypothetical in form unless the judge, in his discretion, so requires. The witness may state his opinion and reasons therefor without first specifying data on which it is based, but upon cross-examination, he may be required to specify such data. The judge, in his discretion, may require that a witness, before testifying in terms of opinion or inference, be examined first concerning the data upon which the opinion or inference is founded. Testimony of expert witness in the form of opinions or inferences otherwise admissible is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of the fact.'

In Dudek v. Popp, 373 Mich. 300, 305--306, 129 N.W.2d 393, 396 (1964), it was stated:

'The danger involved in receiving the opinion of a witness is that the jury may substitute such opinion for their own. Accordingly, where all the relevant facts can be introduced in evidence and the jury are competent to draw a reasonable inference therefrom, opinion evidence will not be received. When the conclusion to be drawn from the facts depends on professional or scientific knowledge or skill, the conclusion may be stated. (32 C.J.S. Evidence § 446, pp. 74, 75).'

See also, Snyder v. New York Central Transport Co., 4 Mich.App. 38, 46, 143 N.W.2d 791 (1966).

And in Washburn v. Lucas, 373 Mich. 610, 621, 130 N.W.2d 406 (1964) Justice Souris spoke for the majority in saying:

'Moreover, we would go further, and commit this Court anew to the established rule that opinions of causation in negligence cases, 'where the subject matter of the inquiry is of such a character that it may be presumed to lie within the ordinary experience of all men of common education' (quotation from American Jurisprudence, as quoted in Kelso v. Independent Tank Co., Okl., 348 P.2d 855 (,857 (1960)), more fully quoted and cited Post , whether offered by experts or lay witnesses, are uniformly excluded as invasive of the province of the jury. See Smith v. Sherwood Township, 62 Mich. 159, 28 N.W. 806 (1886); Ireland v. (Cincinnati W. & M.) Railroad Co., 79 Mich. 163, 44 N.W. 426 (1890); Kelley v. (Detroit L. & N.) Railroad Co., 80 Mich. 237, 45 N.W. 90 (20 Am.St.Rep. 514) (1890); Hertzler v. Manshum, 228 Mich. 416, 200 N.W. 155 (1924); Riffel v. Union Truck Co., Ltd., 180 Mich. 673, 147 N.W. 522 (1914); Derrick v. Blazers, 355 Mich. 176, 93 N.W.2d 909, 69 A.L.R.2d 1143 (1959); McNelley v. Smith, 149 Colo. 177, 181, 182, 368 P.2d 555 (1962); Lee v. Dickerson, 133 Ind.App. 542, 183 N.E.2d 615 (1962); Smith v. Clark, 411 Pa. 142, 147, 190 A.2d 441 (1963); Lewis v. Schaffer (Okl.), 369 P.2d 639 (1962); Flores v. M-K-TR. Co. (Tex.Civ.App.), 365 S.W.2d 379 (1963); Kelso v. Independent Tank Co. (Okl.), 348 P.2d 855 (1960); Ordner v. Reimold (CCA 10), 278 F.2d 532 (1960); Womack v. Banner Bakery, Inc., 80 Ariz. 353, 297 P.2d 936 (1956); Rettler v. Ebreck (N.D.), 71 N.W.2d 759 (1955); Swink v. Colcord (CCA 10), 239 F.2d 518 (1956), and 'Admissibility of opinion evidence as to the cause of an accident or occurrence,' 38 A.L.R.2d 13.'

Justice, Souris went on later to say:

'As for GCR 1963, 605, the concluding sentence thereof does not stand in conflict with the cases and authorities cited in the body of this division of the foregoing opinion. The cited testimony of Trooper Wade was not 'otherwise admissible.' Any other construction of the rule would raise at once serious question as to the constitutionality of its concluding sentence. See Const.1908, Art. II, § 13, and Const.1963, Art. I, § 14.

'For prejudicial error of instruction, we would reverse and remand for retrial with costs to defendant.' Washburn, supra, p. 626, 130 N.W.2d p. 414.

The view expressed in Washburn has been followed in Rockey v. General Motors Corp., 1 Mich.App. 100, 104, 134 N.W.2d 371 (1965); Campbell v. Menze Construction Co., 15 Mich.App. 407, 411, 166 N.W.2d 624 (1968). And in People v. Zimmerman, 12 Mich.App. 241, 246, 162 N.W.2d 849 (1968) oblique reference was made to the restrictions on expert opinion testimony explicit in Washburn. On appeal to the Supreme Court, the result in Zimmerman was affirmed and the rule in Washburn and Dudek continued to receive the support of a majority. People v. Zimmerman 385 Mich. 417, 189 N.W.2d 259 (1971). However, a wide range of opinion as to application of the rule was expressed by the members of the Court. The case involved the admissibility of a non-eyewitness accident-reconstruction expert's opinion testimony on the speed of codefendant Mukalla's car. Justice Black with Chief...