Pugno v. Blue Harvest Farms LLC

Decision Date27 September 2018
Docket NumberNo. 340142,340142
Parties John PUGNO and Ailene Pugno, Plaintiffs-Appellees, v. BLUE HARVEST FARMS LLC, Defendant-Appellant.
CourtCourt of Appeal of Michigan — District of US

Rhoades McKee PC (by Stephen J. Hulst ), Grand Rapids, for plaintiffs.

Secrest Wardle (by Drew W. Broaddus ), Grand Rapids, for defendant.

Before: Murray, C.J., and Cameron and Letica, JJ.

Cameron, J.

In this negligence case, a jury awarded a total judgment of $358,288.98 in favor of plaintiffs, John and Ailene Pugno.1 Defendant, Blue Harvest Farms, LLC, appeals the trial court’s order denying its motion for a new trial, judgment notwithstanding the verdict (JNOV), and remittitur. On appeal, Blue Harvest raises multiple allegations of error originating from the trial court’s denial of Blue Harvest’s motion for summary disposition under MCR 2.116(C)(10) and from its motion for a new trial, JNOV, and remittitur. We conclude that the trial court erred when it allowed plaintiff to proceed to trial on both a premises liability and an ordinary negligence theory. However, it was permissible to proceed on the premises liability theory, the jury instructions on res ipsa loquitur and spoliation as to premises liability were proper, and it was appropriate for the jury to find Blue Harvest liable on the premises liability claim. Therefore, a new trial is not merited. In all other respects, we affirm.


Plaintiff was employed by Air Components, Inc., as an air-compressor technician and salesperson. Blue Harvest is a family-owned blueberry farm and packaging facility located in West Olive, Michigan. On October 28, 2014, plaintiff met with Blue Harvest’s owner, Adam LaLone, to inspect a malfunctioning air compressor on Blue Harvest’s premises. As plaintiff and LaLone walked through the warehouse where packaging materials were stored, they passed a stack of three pallets of unassembled cardboard boxes near the walkway. The top two bundles unexpectedly fell on them. Plaintiff suffered multiple injuries, including a broken hip that required emergency hip replacement surgery.

Blue Harvest did not preserve the pallets or cardboard boxes that fell, nor were there any photographs taken. According to LaLone, each pallet of stacked cardboard was four feet long and four feet high. Each stack of cardboard was bound to a wooden pallet with nylon straps and was delivered to Blue Harvest by an outside vendor. A week before the incident, LaLone used a forklift to move the bound pallets of cardboard in the warehouse and stacked them three bundles high. Together, the tower of cardboard weighed 1,000 pounds and reached a height of 14 feet. LaLone testified at his deposition that stacking cardboard in this manner was normal in the industry. He had worked on farms that had used that method of storage for 50 years without incident. Importantly, he admitted that if the cardboard was properly stacked, it should not "go anywhere," but he did not know what happened to cause the cardboard to fall. After the incident, LaLone noted that one of the pallets that fell was cracked. However, he was unsure whether the crack was on the back side or the front side of the pallet because "[e]verything was flipped over." LaLone opined that the incident may have been caused by a damaged pallet; however, there was no indication whether the pallet was cracked before the incident because the cardboard obscured the view of the pallet. Unfortunately, LaLone used the remaining undamaged boxes after the incident and threw away the cracked pallet before plaintiff could inspect it.


Plaintiff filed a two-count complaint against Blue Harvest on June 20, 2016, alleging negligence and loss of consortium. Blue Harvest moved for summary disposition under MCR 2.116(C)(10), arguing that the lawsuit sounded in premises liability and that because plaintiff failed to show that Blue Harvest had actual or constructive knowledge of the alleged hazardous condition, summary disposition was appropriate. The trial court entered an order denying Blue Harvest’s motion for summary disposition without the benefit of oral argument, holding that plaintiff’s complaint sounded only in ordinary negligence and that "[d]efendant’s motion argues against a legal theory which has not been pled." Blue Harvest moved for reconsideration, arguing that the trial court committed palpable error because plaintiff’s claim was based exclusively on premises liability—not ordinary negligence. The trial court denied Blue Harvest’s motion, citing its earlier order denying the motion for summary disposition.

At a later proceeding, plaintiff’s attorney surprised the court when he informed it that plaintiff was pursuing his negligence claim on both a premises liability and an ordinary negligence theory. The trial court decided to rehear Blue Harvest’s request for summary disposition on plaintiff’s premises liability claim. At the hearing, Blue Harvest argued that summary disposition was proper because there was no genuine issue of material fact that Blue Harvest did not have actual or constructive notice of the hazardous condition. Blue Harvest further argued that there was no evidence of negligence at all because plaintiff presented no evidence explaining why the pallet fell, e.g., LaLone stacking the pallets improperly, a pallet cracking under the weight of the cardboard, or the vibrations of forklift activity nearby causing the pallets to shift off balance. Plaintiff’s attorney referred to the theory of res ipsa loquitur, explaining that such an instruction was needed for the very reason that there was no evidence as to why the pallets fell. Plaintiff’s attorney also addressed the fact that he was alleging two separate negligence theories:

[Plaintiff’s Attorney ]: But in terms of the premises liability claim, we have to separate conduct, which is negligence, from what is your duty as a landowner? And we cited the law that says you can have both claims. We have the conduct. [LaLone] clearly stacked it. There’s no dispute on that.
The Court : Why have you made your complaint so, I guess, simple yet complicated because you're alleging a couple theories on a simple complaint.
[Plaintiff’s Attorney ]: I—
The Court : This is difficult.
[Plaintiff’s Attorney ]: And I can tell you why. Because we didn't even know. Because we knew it fell over. We didn't know about the cracked pallets. My client was in the hospital when all this was cleaned up. So, we're coming in saying we know something happened here, something went wrong, and now I need to discover it....
The Court : What you need to do is to file an amended complaint putting forth your theories, and then once we get that, we'll determine if they're prepared to go to trial on your amended complaint or not.

Plaintiff’s attorney filed an amended complaint a few days later, alleging premises liability and ordinary negligence. Blue Harvest did not file another motion for summary disposition,2 and the trial court never addressed whether plaintiff could continue on both negligence theories. Before trial, Blue Harvest filed an emergency motion for an adjournment, claiming that plaintiff was no longer calling his treating medical doctor to testify and, therefore, Blue Harvest needed time to subpoena and depose him. The trial court denied the motion, concluding that Blue Harvest failed to file any witness list and therefore would not be prejudiced by the fact that the doctor was not going to testify at trial. Trial commenced on June 14, 2017. Before closing arguments, the trial court overruled Blue Harvest’s objections to plaintiff’s request for jury instructions on res ipsa loquitur and spoliation. The trial court also denied Blue Harvest’s request for two other specific jury instructions. The jury returned a verdict finding Blue Harvest liable on both negligence theories. Blue Harvest then moved for a new trial, JNOV, and remittitur, claiming that the trial court failed to grant its emergency motion for an adjournment, that it erred when it allowed the instructions on res ipsa loquitur and spoliation, that it erred when it denied Blue Harvest’s request for specific jury instructions, and that remittitur was necessary because the jury failed to account for the fact that plaintiff was cleared to go back to work.


Blue Harvest first argues that the trial court erred by denying its motion for summary disposition because plaintiff’s claim sounded exclusively in premises liability, there was no genuine issue of material fact for a jury to decide the premises liability issue, and the trial court should not have allowed the claim to proceed on the basis of res ipsa loquitur because the doctrine is inapplicable to premises liability claims. While we agree that plaintiff’s claim sounded exclusively in premises liability, we are unpersuaded by Blue Harvest’s remaining arguments.


An issue is preserved for appellate review when it is raised in and decided by the trial court. Fast Air, Inc. v. Knight , 235 Mich. App. 541, 549, 599 N.W.2d 489 (1999). In this case, Blue Harvest moved for summary disposition under MCR 2.116(C)(10), arguing that plaintiff’s claim was based on premises liability and that plaintiff failed to produce any evidence that Blue Harvest was negligent. The trial court denied Blue Harvest’s motion as it pertained to premises liability, concluding that Blue Harvest was not entitled to summary disposition for an apparent lack of actual or constructive notice because LaLone created the hazardous condition and notice was imputed to Blue Harvest. Therefore, Blue Harvest’s argument that it is entitled to summary disposition in relation to plaintiff’s premises liability claim is preserved. However, it is less clear whether Blue Harvest has preserved its argument that plaintiff’s ordinary negligence theory should have been summarily dismissed. While Blue Harvest alleged in its motion for summary disposition that plaintiff’s claim sounds...

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