Marietta v. Cliff's Ridge, Inc.

• Decision Date: 27 August 1971
• Docket Number: No. 13,J,13
• Citation: 189 N.W.2d 208,385 Mich. 364
• Parties: Neil J. MARIETTA and James Marietta, Plaintiffs and Appellees, v. CLIFFS RIDGE, INC., Defendant and Appellant. an. Term.
• Court: Michigan Supreme Court

Page 208

189 N.W.2d 208

385 Mich. 364

Neil J. MARIETTA and James Marietta, Plaintiffs and Appellees, v. CLIFFS RIDGE, INC., Defendant and Appellant.

No. 13, Jan. Term.

Supreme Court of Michigan.

Aug. 27, 1971.

Wisti & Jaaskelainen, by Andrew H. Wisti, John M. McCarthy, Hancock, for plaintiffs and appellees.

Baldwin, Kendricks & Bordeau, by Robert M. Bordeau, Marquette, for defendant and appellant.

Before the Entire Bench.

WILLIAMS, Justice.

The prime issue in this negligence case is whether the plaintiff on a motion for judgment notwithstanding the verdict produced enough evidence to go to the jury.

On December 31, 1964, plaintiff Neil Marietta, then a minor, was injured while skiing through a slalom course at defendant's ski area. While turning through the last gate of the slalom course, plaintiff's body struck a 1 1/2 inch thick maple sapling pole being used as a slalom gate marker. The pole flipped over, its top becoming imbedded in the snow, and plaintiff was impaled through his groin and abdominal region on the pole's other end. Plaintiffs alleged that defendant was negligent in using a wooden pole of such diameter to mark the slalom course, rather than a bamboo or fiberglass pole which would have broken when struck.

After all proofs has been presented, the defendant moved for a directed verdict. The court denied the motion and submitted the case to the jury. The jury returned a verdict for the plaintiff, and the defendant then moved for a judgment notwithstanding the verdict claiming there was no factual issue to be submitted to the jury. The trial court granted defendant's motion stating that the defendant complied with a degree of care equal to the average in the trade or industry in which it was engaged and therefore there was no negligence on its part as a matter of law.

The Court of Appeals, 20 Mich.App. 449, 174 N.W.2d 164, reversed and remanded for entry of the jury verdict. We affirm the decision of the Court of Appeals.

The standard by which the negligent or non-negligent character of the defendant's conduct is to be determined is that of a reasonably prudent man under the same or similar circumstances. McKinney v. Yelavich, 352 Mich. 687, 90 N.W.2d 883 (1958). The customary usage and practice of the industry is relevant evidence to be used in determining whether or not this standard has been met. Such usage cannot, however, be determinative of the standard. As stated by Justice Holmes:

'What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not.' Texas & Pacific R.R. Co. v. Behymer, 189 U.S. 468, 470, 23 S.Ct. 622, 623, 47 L.Ed. 905 (1903).

The danger inherent in allowing an 'industry' standard to be the sole criteria for determining whether or not the defendant exercised due care was recognized in Witt v. Chrysler Corp., 15 Mich.App. 576, 583, 167 N.W.2d 100, 104 (1969):

'To adopt this view would permit the industry to set its own standard of care.'

Similarly, Judge Learned Hand also enumerated the dangers of allowing an industry standard to be determinative of negligence:

'Indeed, in most cases reasonable prudence is in fact common prudence; but strictly it is never its measure; a whole calling may have unduly lagged in the adoption of new and available devices. It never may set its own tests, however persuasive be its usages.' The T. J. Hooper, 60 F.2d 737, 740 (2d Cir. 1932).

The question of whether the defendant in fact met the standard of reasonable prudence required of him is ordinarily one for the jury:

'It is only where the facts are such that all reasonable men must draw the same conclusion from them that the question of negligence is ever considered one of law for the Court.' Ackerberg v. Muskegon Osteopathic Hospital, 366 Mich. 596, 600, 115 N.W.2d 290 (1962) quoting Grand Trunk R. Co. of Canada v. Ives, 144 U.S. 408, 417, 12 S.Ct. 679, 683, 36 L.Ed. 485 (1892).

Applying the standard of reasonable prudence to an owner or occupier of land, the duty of such an owner or occupier to a business invitee, the stipulated status of the plaintiff, is to remedy or warn of dangers which are known to him or which, in the exericse of reasonable care, he should have discovered. Kroll v. Katz, 374 Mich. 364, 132 N.W.2d 27 (1965).

The question for this Court is whether the plaintiffs produced enough evidence from which a jury could have reasonably found that the permitted use of sapling poles 1 1/2 inches in diameter was a danger which the defendant, in the exercise of reasonable care, discovered or should have discovered, and, in the exercise of reasonable care, should have either remedied or warned of its existence.

In determining, on defendant's motion for a judgment notwithstanding the verdict, whether the plaintiff has met his burden of producing enough evidence from which a jury could reasonably find in his favor, the Court must view all the evidence and all legitimate inferences therefrom in the light most favorable to the plaintiff. Weisenburg v. Village of Beulah, 352 Mich. 172, 184, 89 N.W.2d 490 (1958). This Court has said:

'* * * a directed verdict against a litigant is proper only if the evidence and permissible inferences therefrom, viewed most favorably to that litigant, leave no room for disagreement thereon among reasonable men.' In Re Wood Estate, 374 Mich. 278, 291, 132 N.W.2d 35, 44 (1965).

When a factual question is raised, it must be decided by the jury, not by the court. As this Court stated in Davis v. Belmont Creamery Co., 281 Mich. 165, 169, 274 N.W. 749 (1937):

'The determination of factual questions is purely within the province of the jury. The judgment Non obstante veredicto was based upon the court's decision on a reserved motion for a directed verdict, and, in determining said motion the same considerations are applicable as are pertinent to the determinatiion of a motion for a directed verdict. A verdict cannot properly be directed for one party when an issue of fact, as in the instant case, is presented for the jury's determination.'

The evidence produced by the plaintiffs consisted of:

A. The 1 1/2 inch in diameter sapling pole on which the plaintiff was impaled.

B. The demonstration in court of the relative breaking qualities of bamboo and sapling poles, i.e., the particular sapling pole on which the plaintiff was impaled.

C. The testimony of the plaintiff concerning:

1. The propensity of slalom skiers to strike slalom gates 2. the plaintiff as an experienced skier who had never skied on a slalom course on which sapling poles were used;

3. the use of bamboo poles on other slalom courses on which the plaintiff had skied;

4. the normal practice of skiers on a slalom course not to examine the poles on the course before skiing on it;

5. the ski run on which he was injured as the first time the plaintiff had skied on defendant's slalom course;

6. no signs being posted on the hill restricting its use;

7. the plaintiff's lack of knowledge that sapling poles were being used on the defendant's slalom course;

8. the plaintiff's impression that bamboo poles were being used on the defendant's slalom course;

9. the plaintiff's refusal to use the slalom course had he known that sapling poles were being used on the course.

D. The testimony of William Hart, the Athletic Director of the local high school that skiers on slalom courses will knock down slalom gates.

E. The testimony of Bruce C. Makinen, an employee of the defendant on ski patrol, that:

1. he and the other employees of the defendant knew that sapling poles were being used on the defendant's slalom courses;

2. in the month prior to the accident bamboo poles were stored on the defendant's premises.

F. The testimony of John J. Racine, a ski instructor, that a thin, flexible sapling pole was safer than a thick sapling pole.

G. The testimony of Robert J. Rieboldt who was skiing on the hill at the time of the accident that he never examined the poles on a slalom course before he went down it.

H. Six ski magazines subscribed to by the defendant containing pictures showing the use of bamboo poles on other slalom courses.

Viewing the evidence produced by the plaintiffs and all legitimate inferences therefrom in the light most favorable to the plaintiffs, we cannot say that they did not produce enough evidence from which a jury could reasonably find that the use of a sapling pole 1 1/2 inch in diameter on a slalom course failed to meet a standard of reasonable prudence. There was testimony that bamboo poles are safer than sapling poles for use on a slalom course, that a thinner sapling pole is safer than a thicker one, and that defendant's employees knew that sapling poles were being used on the defendant's slalom course. This evidence raised a question for the jury. It is a cherished tenet of our legal philosophy that a jury comprised of a man's peers, properly instructed in the law by the court, will render an honest finding of fact based on the truth, and a fair and just verdict as to damages suffered. Indeed, this jury acted with the fairness and reality with which a jury in theory is supposed to work. It returned a verdict in the amount of $10,000 though plaintiff had prayed for a much larger sum. This case does not contain those very special circumstances under which a judge may substitute his trained intelligence for the common sense of the jury.

The defendant also asserts that the ski magazines introduced by the plaintiff for the purpose of showing notice or knowledge of the defendant of the use of bamboo poles on other slalom courses were hearsay, not authenticated, and irrelevant, and that their admission was reversible error. The record shows that there was no specific objection made at the trial on the grounds now asserted on appeal.* Objections to admissibility not properly raised at trial cannot be later asserted on appeal, E.g., Kocks v. Collins, 330 Mich....