Knight v. Gulf & Western Properties, Inc.

• Decision Date: 21 September 1992
• Docket Number: Docket No. 133214
• Citation: 492 N.W.2d 761,196 Mich.App. 119
• Parties: Richard KNIGHT and Lilien Knight, Plaintiffs-Appellees, v. GULF & WESTERN PROPERTIES, INC., Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 761

492 N.W.2d 761

196 Mich.App. 119

Richard KNIGHT and Lilien Knight, Plaintiffs-Appellees, v. GULF & WESTERN PROPERTIES, INC., Defendant-Appellant.

Docket No. 133214.

Court of Appeals of Michigan.

Submitted June 8, 1992, at Grand Rapids.

Decided Sept. 21, 1992, at 9:25 a.m.

Released For Publication Dec. 21, 1992.

Miller, Johnson, Snell & Cummiskey by James S. Brady and Stephen R. Ryan, Grand Rapids, for plaintiffs-appellees.

Smith, Haughey, Rice & Roegge by Jon D. Vander Ploeg, Grand Rapids, for defendant-appellant.

Before SHEPHERD, P.J., and CONNOR and SAPALA, ^* JJ.

CONNOR, Judge.

Defendant appeals as of right from a judgment entered for plaintiffs in the amount of $608,394.14 in their action for premises liability. ¹ The matter was tried before a jury in April 1990. We affirm.

I

Plaintiff Richard Knight's injuries resulted from his visit to defendant's vacant warehouse on October 7, 1987. Plaintiff was working as a licensed real estate agent on behalf of potential buyers of the warehouse. Plaintiff was well aware that not all lights in the building were operating, and he even advised the potential buyers to bring flashlights with them when they toured the warehouse to illuminate interior portions that natural light did not infiltrate.

After the potential buyers left the building on October 7, 1987, plaintiff returned to the warehouse to make sure it was secured and all lights were off. As he turned to leave, plaintiff fell off a loading dock approximately four or five feet into the loading dock well. At trial, plaintiff testified that he believed he was in one large room and that the floor went all the way across the room. No warnings or barricades were placed near the edge of the loading dock, and the dock was in an interior portion of the building that witnesses described as very dark. Plaintiff had his flashlight with him, but could not recall if it was on at the time of his fall. Although plaintiff was aware that there were loading docks at the facility, he testified that he did not know that there was a loading dock located inside the building and that he had not been warned about an interior loading dock by defendant or its real estate agent.

When he fell into the dock well, plaintiff injured the left side of his body and he could not put any weight on his leg or use his left arm for support. He tried to slide or crawl to a door for help, but only made it halfway before he ran out of strength. He became chilled and began to fear he would never be found. After approximately two or three hours, plaintiff was able to shout and attract the attention of Gary Rounds, who worked at a nearby business and had formerly worked in defendant's building.

Plaintiff suffered a comminuted fracture of the upper portion of his left thigh and a comminuted fracture of his left shoulder. Both fractures required surgery to implant metal prosthetic devices. At the time of his injuries, plaintiff was in his late sixties. Although healthy for his age, he had a long stay in the hospital and had to undergo physical and occupational therapy. He now has a reduction in his left leg between the knee and hip, which prevents him from kneeling. His shoulder causes him constant pain, which could be remedied by surgery, but plaintiff elected to forgo the procedure because there could be no guarantee his condition would improve. He has a limited range of motion in his left shoulder, and cannot lift his left arm above shoulder height. Plaintiff has also experienced depression and mood changes.

Plaintiff testified he could not play golf, dance, or do much of the housework or yard work he previously enjoyed if it involved kneeling or overhead movement with the left arm. Plaintiff's orthopedic surgeon believed these were the only limitations caused by the injuries.

The jury found that defendant was negligent in its maintenance of the premises but that plaintiff was also comparatively negligent by twenty percent.

II

The first issue raised by defendant on appeal concerns two of its requested special jury instructions. Both involved open and obvious dangers. The trial court declined to give the instructions because the standard jury instructions for comparative negligence were adequate to guide the jury.

A trial court may, in its discretion, give instructions not covered by the standard jury instructions, if the instructions accurately state applicable law and are understandable, concise, conversational, and nonargumentative. MCR 2.516(D)(4); Wengel v. Herfert, 189 Mich.App. 427, 431, 473 N.W.2d 741 (1991). The decision whether to give special, supplemental instructions should also take into account the nature of a case, with due regard for the parties' theories and counsel's desire to structure closing arguments around anticipated jury instructions. Id.

In this case, the trial court held that, as a matter of law, plaintiff was a business invitee and it instructed the jury regarding the duty owed by a possessor of land to business invitees, SJI2d 19.03: ²

It was the duty of the possessor of the land here, Gulf and Western, to exercise reasonable care for the protection of an invitee. They must warn the invitee of dangers of which they know or have created and must inspect the premises, land, place of business to discover possible dangerous conditions of which he does not know. He must take reasonable precautions to protect the invitee from dangers that are foreseeable. However, the possessor is not an insurer of the safety of an invitee and their [sic] duty is only to exercise reasonable care for the invitee's protection. The mere existence of a defect or danger is not enough to establish liability unless it is shown to be of such a character or such duration that it would have been discovered by a reasonably careful person.

Defendant wanted the standard instructions to be supplemented to inform the jury that it could not find defendant owed plaintiff a duty if the danger was so open and obvious that plaintiff should have discovered it himself, relying upon Williams v. Cunningham Drug Stores, Inc., 429 Mich. 495, 500, 418 N.W.2d 381 (1988). Defendant also requested that the jury be separately instructed that plaintiff had a duty to act reasonably for his own safety in discovering dangerous conditions, relying upon Rice v. Goodspeed Real Estate Co., 254 Mich. 49, 55, 235 N.W. 814 (1931). The trial court denied the requests, but did read defendant's theory to the jury, which emphasized defendant's belief that plaintiff walked into an obviously dangerous place without using the care an ordinary person would use.

Our Supreme Court recently held that possessors of land do not have a duty to warn invitees of open and obvious dangers. Riddle v. McLouth Steel Products Corp., 440 Mich. 85, 92, 485 N.W.2d 676 (1992). In that case, the claimed defect was a slippery condition on the defendant's plant floor caused by the accumulation of oil that dripped on the floor during a process designed to prevent steel from rusting. While walking through the plant, the plaintiff slipped and sustained severe injuries. The plaintiff contended that he did not realize the area contained oil. The defendant claimed that the plaintiff, a truck driver who made daily deliveries to the defendant's plant, had knowledge of the presence of oil and that, because the danger was obvious, the defendant had no duty to warn.

The Supreme Court reiterated that the premises owner has a duty to exercise due care to protect the invitee from dangerous conditions. Id., p. 96, 485 N.W.2d 676. And if the dangerous conditions are hidden or latent, the premises owner is obliged to warn the invitee of the dangers. Id. The Court went on to state that even when the conditions are known or obvious to the invitee, the premises owner may nonetheless be required to exercise reasonable care to protect the invitee from the danger. However, what constitutes reasonable care is a question for the jury, and there is no absolute duty to warn invitees of known or obvious dangers. Id., pp. 96-97, 485 N.W.2d 676.

Under the facts in Riddle, the Court found the trial court instructions, which closely tracked the language in SJI2d 19.03, incorrectly informed the jury that a premises owner's duty to warn an invitee of dangerous conditions is absolute and ever present. Riddle, supra, p. 101, 485 N.W.2d 676. ³

The instruction found to be objectionable in the Riddle case is, for all practical purposes, identical to the instruction in the case at bar. However, the Supreme Court did note that this instruction is "patterned after statements made by Professor Prosser, cited in Kroll v. Katz, 374 Mich. 364, 373, 132 N.W.2d 27 (1965), and Wymer v. Holmes, 429 Mich. 66, 71, n. 1, 412 N.W.2d 213 (1987). Prosser, Torts (2d ed), p. 459." The Court distinguished those cases because the premises in Kroll and Wymer contained hidden or latent dangerous defects. Riddle, supra, 440 Mich. pp. 100-101, n. 14, 485 N.W.2d 676.

We believe, pursuant to the Riddle analysis, that a trial court must instruct the jury that there is no duty to warn an invitee of open and obvious defects if the facts at issue could support a jury determination that the complained-of defect was open and obvious. The Supreme Court has expressly made this issue an initial question of law for the trial court. Riddle, supra, 440 Mich. pp. 95-97, n. 11, 485 N.W.2d 676. Because we believe the facts at issue in this case could not support a finding by the jury that plaintiff encountered a known or obvious danger, that resulted in his injuries, the trial court's failure to instruct as defendant requested does not require reversal.

In its opinion, the Supreme Court adopted a portion of 2 Restatement Torts, 2d, Sec. 343A, comments e and f, pp. 219-220, to offer guidance in determining the scope of the duty owed to invitees for known or obvious dangers:

"e. In the ordinary case, an invitee who enters land is entitled to nothing more...