Jimkoski v. Shupe

• Decision Date: 23 December 2008
• Docket Number: No. 279580.,279580.
• Citation: 763 N.W.2d 1,282 Mich. App. 1
• Parties: JIMKOSKI v. SHUPE.
• Court: Court of Appeal of Michigan — District of US

763 N.W.2d 1

282 Mich. App. 1

JIMKOSKI v. SHUPE.

No. 279580.

Court of Appeals of Michigan.

Submitted December 3, 2008, at Grand Rapids.

Decided December 23, 2008, at 9:00 a.m.

Gordon & Gordon, P.C. (by Arnold M. Gordon), West Bloomfield, for Carey Jimkoski.

Jonathon Shove Damon, for Peter Shupe.

Before: HOEKSTRA, P.J., and BANDSTRA and DONOFRIO, JJ.

BANDSTRA, J.

Peter Shupe (defendant) appeals as of right the judgment entered in plaintiff's favor following a jury trial. Defendant also challenges the trial court's decision to deny defendant's motions for summary disposition and a directed verdict. We conclude that the trial court did not err in determining that the factual record would support a conclusion by the fact-finder that, even if the danger resulting in plaintiff's injuries was open and obvious, special aspects existed that justified imposing liability on defendant under a premises-liability theory. Because of that conclusion and the imposition of liability under that theory that was a sufficient basis for the verdict, we need not consider defendant's claim that the jury was erroneously permitted to find him liable under a negligence theory. Further, we conclude that there was no error in failing to include possible future cost of living increases in social security benefits as a collateral source that would reduce plaintiff's damages. We affirm.

STATEMENT OF FACTS

Defendant is a farmer. His farming operation includes selling bales of straw, weighing approximately 700 pounds, that are stored in stacks, with the top bales being approximately 11 feet off the ground. Plaintiff's¹ father placed an order for several bales of straw from defendant. On a cold and blustery winter day, defendant began loading the bales of straw onto plaintiff's wagon, using a loader tractor to transfer the straw bales from the stack. At some point during the loading process, plaintiff, whom defendant described as a good friend, stopped by to see how the job was progressing.

Defendant had nearly completed loading the wagon when he encountered a problem. When defendant attempted to pull a three-bale group from the top of the stack, instead of all three bales lifting, as was normal, only the two lower bales came off the stack; the topmost bale remained attached to the stack, apparently frozen in place. Defendant, who had experience with thousands of bales, had never seen this happen before.

Defendant finished loading the wagon using the two bales that had come off the stack, as well as the additional bales that had been stacked below them. He then attempted to dislodge the hanging bale using the loader tractor, nudging it four or five times, but the bale remained frozen in place. After the unsuccessful attempt to knock down the frozen bale, defendant left it hanging there and, with plaintiff's assistance, secured the bales that had been loaded onto plaintiff's wagon. At some point after the load was secured, the frozen bale fell from the stack and struck plaintiff. Because of his injuries from the accident, plaintiff died and this suit followed. Additional facts will be provided as necessary to explain our decision.

ANALYSIS

I. PREMISES LIABILITY—OPEN AND OBVIOUS DANGER DOCTRINE

Defendant argues that the trial court should have granted his motion for summary disposition based on the open and obvious danger doctrine.² We disagree.

Because this issue was raised in the trial court, it is preserved for review. Peterman v. Dep't of Natural Resources, 446 Mich. 177, 183, 521 N.W.2d 499 (1994). We review de novo the decision of the trial court on the motion for summary disposition. Associated Builders & Contractors v. Dep't of Consumer & Industry Services Director, 472 Mich. 117, 123, 693 N.W.2d 374 (2005).

Summary disposition is proper under MCR 2.116(C)(10) if the documentary evidence submitted by the parties, viewed in the light most favorable to the nonmoving party, shows that there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. Veenstra v. Washtenaw Country Club, 466 Mich. 155, 164, 645 N.W.2d 643 (2002). A question of material fact exists when the record leaves open an issue on which reasonable minds might differ. West v. Gen. Motors Corp., 469 Mich. 177, 183, 665 N.W.2d 468 (2003). This Court is liberal in finding genuine issues of material fact. Lash v. Allstate Ins. Co., 210 Mich.App. 98, 101, 532 N.W.2d 869 (1995).

A possessor of land owes an invitee a duty to exercise reasonable care to protect the invitee from unreasonable risks of harm caused by dangerous conditions on the premises. Lugo v. Ameritech Corp., Inc., 464 Mich. 512, 516, 629 N.W.2d 384 (2001). This duty does not ordinarily extend to the removal of open and obvious dangers. Id. In determining whether a condition presents an open and obvious danger, an objective test is used to establish whether an average person with ordinary intelligence would have discovered the danger upon casual inspection. Novotney v. Burger King Corp. (On Remand), 198 Mich.App. 470, 474-475, 499 N.W.2d 379 (1993). Even if a condition is open and obvious, however, a possessor of premises still owes a duty of care to an invitee if "special aspects" of the condition render the hazard effectively unavoidable or unreasonably dangerous. Robertson v. Blue Water Oil Co., 268 Mich.App. 588, 592-593, 708 N.W.2d 749 (2005).

At issue with respect to defendant's motion for summary disposition is his contention that no special aspects existed that would preclude application of the open and obvious danger defense. Defendant had also argued with respect to the motion that there was no genuine issue of material fact regarding the predicate determination that the hanging straw bale was an open and obvious danger. However, even had the trial court agreed with defendant with respect to that issue, defendant's motion for summary disposition would properly have been denied because, as we explain below, a genuine issue of material fact existed regarding whether special aspects existed that precluded applying the open and obvious danger defense. Further, as we also explain below, the jury in this case agreed with defendant that the hanging straw bale was open and obvious and only imposed liability on defendant because it found that special aspects existed. For these reasons, defendant was not prejudiced by the trial court's determination that a genuine issue of material fact existed with respect to whether the hanging bale was an open and obvious danger, and we need not further consider that question.

We conclude that the trial court did not err by concluding that a genuine issue of material fact existed concerning whether the hanging bale presented special aspects that "[gave] rise to a uniquely high likelihood of harm or severity of harm if the risk [was] not avoided. . . ." Lugo, 464 Mich. at 519, 629 N.W.2d 384. The straw bale that killed plaintiff was extremely heavy and hanging high in the air in a position where, if it became dislodged, it would fall with sufficient speed to cause significant damage. Defendant admitted that, having unsuccessfully attempted to dislodge the bale, he believed that it would not continue to hang suspended that way indefinitely. Given the inevitability of the bale's collapse, its height, and its weight, the fact-finder could reasonably have concluded that it constituted a special aspect because of the "severity of harm" it could foreseeably cause if not avoided. Id.

Further, there was evidence upon which the fact-finder could reasonably have concluded that the hanging bale presented a "high likelihood of harm," even beyond the facts of its weight and precariously hanging position. Id. Before the accident, plaintiff and defendant had apparently moved out of the zone of danger presented by the hanging bale to work together securing the straw that had been loaded on plaintiff's wagon. Nonetheless, for some reason, plaintiff moved back near the stacked straw, where he was killed. Similarly, defendant stated, both in answer to interrogatories and at his deposition, that he was himself almost struck by the falling straw bale, thus indicating that he too had returned to the dangerous area. Further, according to a state police investigator, defendant stated that, after the trailer was loaded, it was cold and he and plaintiff got in the corner behind the bales to get out of the wind. The fact-finder could reasonably have concluded that, because the hanging bale presented a danger in an area where plaintiff might likely seek shelter from the wind, it presented a high likelihood of harm notwithstanding its open and obvious nature.

We recognize that the evidence could lead a reasonable fact finder to conclude that plaintiff and defendant were both equally aware of and knowledgeable about the danger presented by the hanging bale. Nonetheless, as the owner of the premises on which that danger was located, defendant had a legal obligation to protect plaintiff, his invitee, because of the special aspects presented by that dangerous condition. In light of that, the fact that plaintiff here may also have been negligent does not bar a cause of action, as explained in Lugo:

Under comparative negligence, where both the plaintiff and the defendant are culpable of negligence with regard to the plaintiff's injury, this reduces the amount of damages the plaintiff may recover but does not preclude recovery altogether. . . .

Accordingly, it is important for courts in deciding summary disposition motions by premises possessors in "open and obvious" cases to focus on the objective nature of the condition of the premises at issue, not on the subjective degree of care used by the plaintiff. [Lugo, 464 Mich. at 523-524, 629 N.W.2d 384.]

Consistent with these principles, the jury's special verdict in this case allocated 40 percent of the negligence giving rise to the accident to plaintiff and reduced the damages...