McNabb v. Green Real Estate Co.

• Decision Date: 21 July 1975
• Docket Number: Docket No. 19718
• Parties: Anna McNABB, Executrix of the Estate of Donald McNabb, Deceased, and Anna McNabb, Plaintiff-Appellee, v. GREEN REAL ESTATE COMPANY, a Michigan Corporation, Defendant-Appellant. 62 Mich.App. 500, 233 N.W.2d 811
• Court: Court of Appeal of Michigan — District of US

Page 811

233 N.W.2d 811

Anna McNABB, Executrix of the Estate of Donald McNabb, Deceased, and Anna McNabb, Plaintiff-Appellee, v. GREEN REAL ESTATE COMPANY, a Michigan Corporation,

Defendant-Appellant.

Docket No. 19718.

62 Mich.App. 500, 233 N.W.2d 811

Court of Appeals of Michigan.

July 21, 1975.

Released for Publication Oct. 21, 1975.

Leave to Appeal Denied Nov. 5, 1975.

Martin, Bohall, Joselyn, Halsey & Rowe, by William A. Joselyn, Detroit, for defendant-appellant.

[62 MICHAPP 502] Sanford N. Lakin, Detroit, for plaintiff-appellee.

Before ALLEN, P.J., and BRONSON and KAUFMAN, JJ.

KAUFMAN, Judge.

Defendant appeals from a Wayne County Circuit Court jury verdict in plaintiffs' favor. The jury rendered a verdict in the amount of $105,000 for plaintiff Donald McNabb, who is now deceased, and of $25,000 for Anna McNabb, his wife and now executrix of his estate. The court denied defendant's motion for a new trial and defendant now appeals of right.

Defendant owns and operates the building in [62 MICHAPP 503] which Donald McNabb worked. On December 24, 1969, Mr. McNabb, while leaving work, sustained a fractured left leg as a result of falling on the stairs in defendant's building. Mr. McNabb testified at trial that his fall occurred when his right foot slipped on the main landing and his left leg was pulled beneath him when he fell. The landing was made of marble and was slippery due to an accumulation of water. McNabb and other witnesses stated that a mat covered part of the landing but that it was saturated with water and was positioned so that an individual descending the stairs would first step on the bare, then wet, marble before reaching the mat.

Witnesses attributed the slippery state of the landing to an accumulation of slush, water and melted snow tracked in from outside the building. There had been a snow storm on the day before, but not on the day of, the accident. One of defendant's security guards, who first saw Mr. McNabb after his fall, testified that the water on the landing originated from two sources: (1) water which had accumulated in a depression in the area in front of the building entrance and (2) from the mat on the landing which had become saturated. Other witnesses stated that the depression in the front step was the result of continuous use and was so situated that individuals entering the building would, of necessity, step into it. No employee was designated to clean the area of the accident on the day it occurred.

I

On appeal, defendant raises five claims of error, two of which we find especially cogent. First, defendant contends that the trial court committed error by refusing to discharge a juror whom defendant[62 MICHAPP 504] had challenged for cause. Defendant claims that the juror, a Mr. Seymour, should have been excused because the similarities between the instant case and an accident involving juror Seymour's wife were so great as to require his removal under GCR 1963, 511.4(13). That Rule provides:

'.4 Challenges for Cause. After the examination of prospective jurors is completed and before any juror is sworn, the parties may challenge any juror for cause. Every challenge for cause shall be determined by the court. A juror challenged for cause may be directed to answer every question pertinent to the inquiry. The following are grounds for challenges for cause:

'(13) that the person is interested in a question like the issue to be tried.'

Juror Seymour stated during Voir dire that, two weeks before the trial, his wife had slipped on some ice on the first step of the entrance to their apartment building. His wife had 'a pulled ligament in her knee with a broken bone in her foot' necessitating a cast and causing great pain. The juror stated that his wife had consulted a lawyer to determine the possibility of suing the owner of the apartment building. At the time defendant challenged juror Seymour for cause, it had exhausted its peremptory challenges, GCR 1963, 511.5. Mr. Seymour was later named foreman of the jury.

Defendant argues that, in the alternative, because the facts placed the challenged juror under GCR 1963, 511.4(13), the trial court had no discretion to retain him and, even if the court had discretion, failure to excuse the juror was an abuse of discretion. Defendant cites Rice v. Winkelman Brothers Apparel, Inc., 13 Mich.App. 281, 287, 164 [62 MICHAPP 505] N.W.2d 417 (1968), Lv. den. 381 Mich. 798 (1969), for the principle that a juror's 'bias or prejudice may be inferred' when any of the grounds for challenge enunciated by GCR 1963, 511.4 are present.

Plaintiff responds by claiming that Rice, supra, makes the existence of actual prejudice or bias a matter for the trial judge's discretion. Plaintiff claims that Rice requires the challenging party to make a showing of prejudice and that defendant made no such showing. The trial court, in denying defendant's motion for a new trial, stated:

'* * * when the court does question in detail and satisfies itself that the concept of fairness will not be impaired. then in that instance it has properly exercised its discretion * * * after lengthy questioning the Court was satisfied that the juror Seymour would be fair and that the defendant did not satisfy the Court, that they (sic) had proved his bias.'

A juror is presumed competent, People v. Collins, 166 Mich. 4, 131 N.W.2d 78 (1911); Lee v. Misfeldt, 1 Mich.App. 675, 137 N.W.2d 753 (1965), Lv. den. 377 Mich. 702 (1966), and the challenging party must show that the challenged juror 'has preconceived opinions or prejudices, or such other interests or limitations as would impair his capacity to render a fair and impartial verdict'. 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed.), p. 466. A trial judge is given broad discretion in his voir dire examination of the juror, Darr v. Buckley, 355 Mich. 392, 94 N.W.2d 837 (1959); Kuisel v. Farrar, 6 Mich.App. 560, 149 N.W.2d 894 (1967), Lv. den. 379 Mich. 770 (1967), and his decision as to the juror's impartiality may be reversed only if it [62 MICHAPP 506] represents a clear abuse of discretion, Rice v. Winkelman Brothers Apparel, Inc., supra.

Indeed, for several reasons, appellate reversal of this exercise of discretion is rare. First, in most cases of possible juror bias or prejudice, '(a) challenge is ordinarily granted to insure a fair and impartial trial.' Lee v. Misfeldt, supra, 1 Mich.App. at p. 679, 137 N.W.2d at p. 755. Second, the 'clear abuse of discretion' standard is a difficult barrier for a challenging party to overcome. Appellate courts will generally defer to the trial court's ability to better assess from a juror's demeanor whether he will be impartial. This deference is especially required in challenges made under the broad, more imprecise common law grounds of GCR 1963, 511.4(3), 'that the person is biased for or against a party or attorney.' The vest majority of cases reviewed by this Court are based on this section.

Third, and most importantly, the challenging party must show, on appeal, that the inclusion of a challenged juror resulted in 'actual prejudice' or present 'facts clearly establishing an inference of prejudice'. People v. Schram, 378 Mich. 145, 160, 142 N.W.2d 662, 669 (1966). Given the severe restrictions on impeaching a jury verdict, Metz v. City of Bridgman, 371 Mich. 586, 124 N.W.2d 741 (1963), a demonstration of actual prejudice is a virtual impossibility. As this Court noted in Rice v. Winkelman Brothers Apparel, Inc., supra, subparagraphs (4)--(13) of GCR 1963, 511.4 present situations in which such prejudice may be inferred. Plaintiff here contends that Rice requires a challenging party, in addition to presenting a prima facie case under Rule 511.4(4)--(13), to make an actual showing of bias or prejudice. We disagree. We find that Rule 511.4 requires a court to excuse a juror whenever a challenge for cause clearly falls within [62 MICHAPP 507] one of the grounds enunciated in subparagraphs (4)--(13). Such a showing is equivalent to a ahowing of bias or prejudice at common law. The committee comments to Rule 511.4 make this holding clear. The committee stated that the purpose of enumerating the grounds for challenges for cause were:

'(1) to verify that unqualified jurors may be challenged; (2) to verify that biased jurors may be challenged; and, most important, (3) to indicate that the presence of some of the more common facts from which bias should be inferred Will result in the juror's being excused upon challenge.' (Emphasis supplied.) 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed.), p. 461.

The words 'will result' make it mandatory that the court excuse a juror who falls under one of the enumerated grounds for challenge. ¹

We find that the challenged juror's voir dire testimony placed him clearly within the proscription of GCR 511.4(13) and, as a matter of law, he should have been excused. The facts of the juror's wife's accident are strikingly similar to the transaction which gave rise to the instant case. Both juror Seymour's wife and Donald McNabb fell as a result of accumulated moisture near a building entrance. The building owner in both cases was responsible for maintaining the building. Both cases would have the same issues, E.g., notice to the building owner of the condition, reasonableness of precautions, contributory negligence. Unlike the common law it is immaterial under the [62 MICHAPP 508] court rules that juror Seymour and his wife had not in fact instituted a law suit. The common law ground of interest in another suit of the same character or involving the same controversy, People v. DeHaven, 321 Mich. 327, 333, 32 N.W.2d 468 (1948), is embodied in Rule 511.4(11). The rule cited here, 511.4(13), is concerned with interest in a 'question', not a law suit. Because of the challenged juror's manifest 'interest in a question like the issue to be tried', his claim of impartiality cannot overcome the statutory mandate.

Although we...