Hunt v. C.H.A.D. Enterprises, Inc., Docket No. 109977

• Decision Date: 09 May 1990
• Docket Number: Docket No. 109977
• Citation: 454 N.W.2d 188,183 Mich.App. 59
• Parties: Jon HUNT and Sherry Hunt, Plaintiffs-Appellees Cross-Appellants, v. C.H.A.D. ENTERPRISES, INC., d/b/a McDonald's of Charlotte, a Michigan corporation for profit, Joseph R. Fix, an individual; and Delaware McDonald's Corporation, a foreign corporation for profit, Delaware McDonald's Corporation, a Michigan corporation for profit, jointly, individually, and severally, Defendants-Appellants Cross-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 188

454 N.W.2d 188

183 Mich.App. 59

Jon HUNT and Sherry Hunt, Plaintiffs-Appellees Cross-Appellants, v. C.H.A.D. ENTERPRISES, INC., d/b/a McDonald's of Charlotte, a Michigan corporation for profit, Joseph R. Fix, an individual; and Delaware McDonald's Corporation, a foreign corporation for profit, Delaware McDonald's Corporation, a Michigan corporation for profit, jointly, individually, and severally, Defendants-Appellants Cross-Appellees.

Docket No. 109977.

Court of Appeals of Michigan.

Submitted Feb. 7, 1990.

Decided April 2, 1990.

Released for Publication May 9, 1990.

Lawrence P. Nolan & Associates, P.C. by Lawrence P. Nolan, Eaton Rapids, and Bendure & Thomas by Mark R. Bendure and Amy R. Snell, Detroit, for plaintiffs-appellees cross-appellants.

Sullivan, Ward, Bone, Tyler, Fiott & Asher, P.C. by Michelle A. Thomas and Ronald S. Lederman, Southfield, for defendants-appellants cross-appellees.

Before WEAVER, P.J., and SHEPHERD and GRIFFIN, JJ.

GRIFFIN, J.

Defendants appeal as of right from a jury verdict of $243,750 in favor of plaintiffs in this premises liability action. Plaintiffs cross appeal as of right. We affirm.

I

Plaintiff Jon Hunt was injured on October 6, 1985, at a McDonald's restaurant located at 207 Lansing Road in Charlotte, Michigan. Hunt had parked his pickup truck in a parking space to the right of the restaurant. In front of his truck was a four-foot wide sidewalk that is also the top of a retaining wall. As one moves up the sidewalk from Lansing Road, the difference in height increases gradually to a maximum of thirty-nine inches. The result is a ninety degree drop-off from the 207 Lansing Road property to that at 211 Lansing Road.

After parking, Hunt walked to the front of the truck to check his radiator. He then took a step backward and fell off the retaining wall. Hunt suffered permanent damage to his left leg and knee, has had two operations for the knee, and faces the possibility of further surgery. Hunt is a mailman, and lost approximately five months of work.

Plaintiffs' complaint named as defendants Joseph R. Fix, the McDonald's franchisee, who is the owner and sole shareholder in C.H.A.D. Enterprises, Inc., doing business as McDonald's of Charlotte, Delaware McDonald's Corporation, a foreign corporation for profit, Delaware McDonald's Corporation, a Michigan corporation for profit, and A.R.S. Builders, Inc. A.R.S., who is alleged to have built the restaurant and parking lot and who apparently went out of business before the present incident occurred, was dismissed from the case before trial and is not a party to this appeal. Plaintiffs' amended complaint alleged five counts: nuisance, nuisance per se, negligence, defective parking lot, and negligent design or construction.

On January 8, 1987, plaintiffs entered a default against Delaware McDonald's Corporation, a Michigan corporation for profit; however, the trial court ultimately denied plaintiffs' request for entry of a default judgment.

Defendants moved for a directed verdict after plaintiffs presented their case in chief. The court denied defendants' motion but did strike the counts dealing with negligent design and construction. The court stated that the case would proceed only on one theory--that of premises liability. The trial continued, resulting in the above-described jury verdict. Defendants subsequently moved for judgment notwithstanding the verdict or, in the alternative, a new trial, which the trial court denied.

II

On appeal, defendants first argue that plaintiffs produced insufficient evidence to support their claim of premises liability and, therefore, the trial court erred by denying their motion for a directed verdict. We disagree.

In deciding whether to grant a motion for a directed verdict, the trial court must view the testimony and all legitimate inferences therefrom in the light most favorable to the nonmoving party to determine whether a prima facie case has been established. Caldwell v. Fox, 394 Mich. 401, 407, 231 N.W.2d 46 (1975).

Defendants assert that plaintiffs presented no evidence regarding who owned, operated, or had control of the property when plaintiffs' injury occurred and therefore they were entitled a directed verdict. However, we note that in their answer to plaintiffs' complaint, defendants admitted that Delaware McDonald's owned the property at 207 Lansing Road and leased it to Fix and that the 211 Lansing Road property was leased to Fix and C.H.A.D. Enterprises.

We find it axiomatic that, where the defendant in its answer has admitted to facts alleged by the plaintiff in its complaint, the plaintiff is relieved of the burden of proving these facts at trial. Slocum v. Ford Motor Co., 111 Mich.App. 127, 132, 314 N.W.2d 546 (1981); Cady v. Doxtator, 193 Mich. 170, 159 N.W. 151 (1916). Furthermore, under MRE 801(d)(2), statements in pleadings may be treated as admissions.

We disagree with defendants' contention that the repeal of former GCR 1963, 604 implies a repudiation of established case law by our Supreme Court. Rather, the reason GCR 1963, 604 is not in the Michigan Court Rules of 1985 is because evidence is now covered in the comprehensive Michigan Rules of Evidence. See Proposed Michigan Court Rules, 402A Mich xxvii and Chapter 4, Committee Reporter's Note, 402A Mich 364.

Thus, the trial court properly denied defendants' motion for a directed verdict.

III

Defendants next argue that the trial court abused its discretion by denying defendants' motion for a new trial because a juror misrepresented his litigation history on the written questionnaire and the juror would have been dismissed had he been truthful. This argument is without merit.

MCR 2.611(A)(1)(b) authorizes motions for a new trial on the basis of jury bias or misconduct. Whether a new trial should be awarded on the ground that a juror was biased in favor of or against a particular party is discretionary with the trial court and this Court reviews such a decision only for an abuse of that very broad discretion. Gustafson v. Morrison, 57 Mich.App. 655, 662, 226 N.W.2d 681 (1975), lv. den. 394 Mich. 755 (1975).

A person sitting on a jury panel is presumed to be qualified and competent to serve, and the burden is on the challenging party to make out a prima facie case to the contrary. Lee v. Misfeldt, 1 Mich.App. 675, 679, 137 N.W.2d 753 (1965). A moving party must present actual proof of prejudice on the part of that juror or establish that the moving party would have challenged for cause or otherwise dismissed the juror in question had the truth been revealed prior to trial. Citizens Commercial & Savings Bank v. Engberg, 15 Mich.App. 438, 440, 166 N.W.2d 661 (1968).

Following the jury verdict in the instant case, the trial judge informed the respective attorneys that he had been advised by the jury foreman that, at the beginning of deliberations, one of the jurors revealed to the rest of the panel that he had failed to disclose that he had been involved in "some sort of personal injury litigation."

A hearing was held and defendants failed to present any evidence that any of the jurors withheld information or answered untruthfully the questions on the questionnaire. Indeed, the identity of the juror was never shown with any degree of certainty.

Defendants failed to present sufficient evidence of prejudice or juror misconduct; the trial court therefore did not abuse its discretion by denying defendants' motion.

IV

Finally, defendants argue that the trial court abused its discretion by denying their motion for a new trial on the basis of allegedly improper remarks by plaintiffs' attorney during closing argument. We disagree.

Defendants take issue with a reference by plaintiffs' attorney to the Northwest Flight 255 disaster, which they claim was designed to appeal to the sympathy of the jurors. Defendants also assert that plaintiffs' attorney made improper remarks when he repeatedly appealed to the jurors to send a message from "little old Eaton County, to corporate headquarters in Delaware, that in fact this is a dangerous situation."

Although we regard plaintiffs' counsel's closing argument to have been improper, defendants made no objection to these remarks at the time they were made. After both parties completed their closing arguments, defendants' attorney put an objection on the record to plaintiffs' alleged characterization of Delaware McDonald's Corporation as a big business pitted against a small postman from Eaton Rapids. Defendants' attorney did not request a ruling on the objection and the court did not offer one. Nor did defendants' attorney request a curative...