Petraszewsky v. Keeth
| Decision Date | 20 September 1993 |
| Docket Number | Docket No. 144362 |
| Parties | Linda PETRASZEWSKY, Plaintiff-Appellant, v. Don KEETH, a/k/a Don Keith, d/b/a Don Keith, Defendant-Appellee. (On Remand). |
| Court | Court of Appeal of Michigan — District of US |
Zeff & Zeff, P.C. by A. Robert Zeff, Detroit (Donald M. Fulkerson, Westland, of counsel), for plaintiff-appellant.
Poling, McGaw & Poling, P.C. by Richard B. Poling, Jr., Troy, for defendant-appellee.
Before HOLBROOK, P.J., and GRIBBS and SAWYER, JJ.
At approximately 2:30 a.m. on February 6, 1983, plaintiff was on her way to socialize with her companion, Ed Pepper, at his flat in an apartment house owned by defendant Keeth. In order to reach the front porch, visitors to the apartment house had to ascend steps made out of railroad ties. Plaintiff slipped during the climb and sustained what she claims were serious injuries to the facial bones of the cheek and left eye, requiring three surgical procedures that, nonetheless, have left her with persistent double vision and consequent lost wages due to inability to resume industrial employment.
In a jury trial in the 35th District Court, plaintiff was awarded $125,000, diminished by fifteen percent for comparative negligence. Among the issues at trial were the extent of the duty that defendant landlord owed to plaintiff, and, in terms of comparative negligence, whether and to what extent plaintiff was intoxicated at the time of the accident. Plaintiff testified that she had consumed at least four or five beers in the evening hours preceding the climb up the stairs; Ed Pepper, in a deposition admitted into evidence at trial, testified that he thought that plaintiff had been consuming mixed drinks, that she had consumed quite a few, and that she was loud, drunk, and stumbling around the bar where the drinking took place.
Also admitted into evidence were medical records from plaintiff's hospital admission, including a nurse's bedside notation reciting plaintiff's medical history statement that "she has not eaten for two days and drinks a lot (especially on weekends)." Excluded from evidence, however, were portions of the medical records in which plaintiff acknowledged that she normally consumed twelve beers a day. 1
Initially, the district court granted defendant's motion for remittitur, reducing the verdict to $20,000, diminished by fifteen percent for comparative negligence. Plaintiff's application for leave to appeal was denied by the Wayne Circuit Court, but, on appeal to this Court, the order of remittitur was vacated as having been based on an erroneous review standard, and the cause was remanded to the district court for reconsideration in light of Palenkas v. Beaumont Hosp., 432 Mich. 527, 443 N.W.2d 354 (1989). On remand, the district court concluded that remittitur was not appropriate, but that a new trial should be granted on the basis of an error in the jury instructions regarding the distinction in the duties owed licensees and invitees. The court opined that defendant landlord owed plaintiff, a social guest of a tenant, the same duty owed her by the tenant, that of a licensee. The court also gave an alternative reason for granting a new trial, its error in excluding the evidence of plaintiff's habitual consumption of a dozen beers daily, where plaintiff's intoxication was at the heart of defendant's comparative negligence argument. The Wayne Circuit Court affirmed, and this Court denied leave to appeal, citing Bradford v. Feeback, 149 Mich.App. 67, 70-71, 385 N.W.2d 729 (1986), and 2 Restatement Torts, 2d, § 330, comment e (final sentence) and comment h(3), pp 174-175. The Supreme Court, in lieu of granting leave to appeal, remanded this case for our consideration as on leave granted, noting:
The authority cited in support of the conclusion in the Court of Appeals denial order that the application for leave to appeal lacked merit does not appear responsive to the distinction plaintiff has consistently drawn between her acknowledged status as a licensee of the tenant, but as an invitee of the landlord regarding common areas of the premises over which the landlord retained control.
Petraszewsky v. Keeth, 438 Mich. 851, 472 N.W.2d 849 (1991).
Our review of the trial court's order granting a new trial is extremely limited. As this Court first phrased the standard in Benmark v. Steffen, 9 Mich.App. 416, 420, 157 N.W.2d 468 (1968), if the reasons assigned by the trial court for granting a new trial are legally recognized, and those reasons are supported by any reasonable interpretation of the record, the trial court has acted within its discretion. The Supreme Court has never expressly adopted that formulation of the standard, but acting on the assumption that the Benmark standard is appropriate, it has merely noted that, in such situations, the appellant bears the burden of presenting the reviewing court with a record that allows proper review. Kailimai v. Firestone Tire & Rubber Co., 398 Mich. 230, 233, 247 N.W.2d 295 (1976). Kailimai is, of course, consistent with the principle that, generally, the appellant bears the burden of furnishing the reviewing court with a record that verifies the basis of any argument on which reversal or other claim for appellate relief is predicated. Lemanski v. Ford Motor Co., 82 Mich.App. 244, 252, 266 N.W.2d 775 (1978).
Our first inquiry, therefore, must be whether the trial court erred in its instructions to the jury. No specific instruction was addressed in the trial court's written opinion, nor has our review of the record disclosed a specific focus for this issue. However, conceding that the trial court left the jury with the impression that defendant landlord owed the plaintiff, as a social guest of a tenant, the duty of an invitee, we now think it clear that such instruction was correct. In previously denying leave to appeal with regard to this issue, citing Bradford v. Feeback, supra, and 2 Restatement Torts, 2d, § 330, comments e and h(3), we cited authority for the proposition that the plaintiff was merely a licensee of the tenant, her social invitor, and as such was owed only a limited duty of care. Preston v. Sleziak, 383 Mich. 442, 175 N.W.2d 759 (1970), discusses the different duties owed to licensees and invitees.
However, the duties owed by a landlord to the social guests of a tenant are duties owed to invitees, not licensees, as the Supreme Court made clear in Quinlivan v. Great Atlantic & Pacific Tea Co., Inc., 395 Mich. 244, 257, n. 10, 235 N.W.2d 732 (1975):
The same standard of care is owed by the landlord to the tenant and his invitees as is owed by the proprietor and landowner...
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