Pugno v. Blue Harvest Farms LLC, No. 340142

CourtCourt of Appeal of Michigan (US)
Writing for the CourtCameron, J.
Citation326 Mich.App. 1,930 N.W.2d 393
Decision Date27 September 2018
Docket NumberNo. 340142
Parties John PUGNO and Ailene Pugno, Plaintiffs-Appellees, v. BLUE HARVEST FARMS LLC, Defendant-Appellant.

326 Mich.App. 1
930 N.W.2d 393

John PUGNO and Ailene Pugno, Plaintiffs-Appellees,
v.
BLUE HARVEST FARMS LLC, Defendant-Appellant.

No. 340142

Court of Appeals of Michigan.

Submitted September 5, 2018, at Grand Rapids.
Decided September 27, 2018, 9:00 a.m.


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.

326 Mich.App. 5

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

326 Mich.App. 6

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.

I

Plaintiff was employed by Air Components, Inc., as an air-compressor technician

930 N.W.2d 398

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

326 Mich.App. 7

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.

II

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

326 Mich.App. 8

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

930 N.W.2d 399

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—
326 Mich.App. 9
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

326 Mich.App. 10

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.

III

Blue Harvest first argues that the trial court erred by denying its motion for

930 N.W.2d 400

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...

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25 practice notes
  • Ramadan v. Home Depot, Inc., Case No. 18-12765
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • November 30, 2020
    ...for negligence. However, this court is not bound by the label that Ramadan has attached to his claim. Pugno v. Blue Harvest Farms LLC , 326 Mich.App. 1, 930 N.W.2d 393, 401 (2018). Instead, the court should read the entire complaint and determine the nature of the claim. Id. Claims based on......
  • Komendat v. Gifford, 346990
    • United States
    • Court of Appeal of Michigan (US)
    • October 1, 2020
    ...failure to preserve that evidence can result in a sanction in the form of a spoliation instruction, Pugno v. Blue Harvest Farms LLC , 326 Mich. App. 1, 24, 930 N.W.2d 393 (2018). Moreover, as the use note contained in the pertinent model jury instruction indicates, a spoliation instruction ......
  • In re Brettschneider, 357318
    • United States
    • Court of Appeal of Michigan (US)
    • April 7, 2022
    ...(3) the evidence is material, not merely cumulative, and not equally available to the other party." Pugno v. Blue Harvest Farms, LLC, 326 Mich.App. 1, 24; 930 N.W.2d 393 (2018) (quotation marks and citation omitted). This case does not involve the suppression or concealment of evidence of a......
  • Batchelder v. Echelon Homes, 353265
    • United States
    • Court of Appeal of Michigan (US)
    • November 18, 2021
    ...injury by a condition of the land, and as such, his claim sounds exclusively in premises liability"); Pugno v. Blue Harvest Farms, LLC, 326 Mich.App. 1, 14; 930 N.W.2d 393 (2018) (holding that the plaintiffs claim, which was captioned as a claim for ordinary negligence, actually sounded in ......
  • Request a trial to view additional results
25 cases
  • Ramadan v. Home Depot, Inc., Case No. 18-12765
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • November 30, 2020
    ...for negligence. However, this court is not bound by the label that Ramadan has attached to his claim. Pugno v. Blue Harvest Farms LLC , 326 Mich.App. 1, 930 N.W.2d 393, 401 (2018). Instead, the court should read the entire complaint and determine the nature of the claim. Id. Claims based on......
  • Komendat v. Gifford, 346990
    • United States
    • Court of Appeal of Michigan (US)
    • October 1, 2020
    ...failure to preserve that evidence can result in a sanction in the form of a spoliation instruction, Pugno v. Blue Harvest Farms LLC , 326 Mich. App. 1, 24, 930 N.W.2d 393 (2018). Moreover, as the use note contained in the pertinent model jury instruction indicates, a spoliation instruction ......
  • In re Brettschneider, 357318
    • United States
    • Court of Appeal of Michigan (US)
    • April 7, 2022
    ...(3) the evidence is material, not merely cumulative, and not equally available to the other party." Pugno v. Blue Harvest Farms, LLC, 326 Mich.App. 1, 24; 930 N.W.2d 393 (2018) (quotation marks and citation omitted). This case does not involve the suppression or concealment of evidence of a......
  • Batchelder v. Echelon Homes, 353265
    • United States
    • Court of Appeal of Michigan (US)
    • November 18, 2021
    ...injury by a condition of the land, and as such, his claim sounds exclusively in premises liability"); Pugno v. Blue Harvest Farms, LLC, 326 Mich.App. 1, 14; 930 N.W.2d 393 (2018) (holding that the plaintiffs claim, which was captioned as a claim for ordinary negligence, actually sounded in ......
  • Request a trial to view additional results

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