Rockwell v. Hillcrest Country Club, Inc., Docket No. 6343

• Decision Date: 27 July 1970
• Docket Number: No. 1,Docket No. 6343,1
• Citation: 25 Mich.App. 276,181 N.W.2d 290
• Parties: James A. ROCKWELL and Ann Rockwell, Plaintiffs-Appellees, v. HILLCREST COUNTRY CLUB, INC., a Michigan corporation, Defendant-Appellant, and Hillcrest Social Club, Inc., a Michigan nonprofit corporation, and Woodrow W. Woody, jointly and severally, Defendants
• Court: Court of Appeal of Michigan — District of US

Page 290

181 N.W.2d 290

25 Mich.App. 276

James A. ROCKWELL and Ann Rockwell, Plaintiffs-Appellees, v. HILLCREST COUNTRY CLUB, INC., a Michigan corporation Defendant-Appellant and Hillcrest Social Club, Inc., a Michigan nonprofit corporation, and Woodrow W. Woody, jointly and severally, Defendants.

Docket No. 6343.

Court of Appeals of Michigan, Division No. 1.

July 27, 1970.

Leave to Appeal Denied Oct. 16, 1970.

Released for Publication Nov. 27, 1970.

William J. Weinstein, Gussin, Weinstein & Kroll, Detroit, for defendant-appellant.

Lampert & Fried, Detroit, for plaintiffs-appellees.

Before J. H. GILLIS, P.J., and V. J. BRENNAN and WEIPERT, ^* JJ.

J. H. GILLIS, Presiding Judge.

On July 27, 1963, a suspension bridge covering the Clinton river and located on the Hillcrest golf course, Mt. Clemens, Michigan, collapsed, dropping its occupants into the river below. Immediately before the bridge gave way, there were approximately 80 to 100 golf enthusiasts on the bridge, together with a golf cart. Among them were plaintiffs James and Ann Rockwell; they were spectators watching a tournament being played on the Hillcrest course. Ann Rockwell fell 25 feet, struck the water, and sustained serious injuries. This suit followed.

Joined as defendants were the sponsors of the tournament--Hillcrest Social Club, a non-profit corporation; Hillcrest Country Club, corporate operator of the Hillcrest course; and Woodrow Woody, principal officer of Hillcrest Country Club, Inc. Plaintiffs' complaint alleged negligence, including defendants' failure to warn tournament participants and spectators of the maximum capacity of the bridge. At trial, it was plaintiffs' theory that overloading caused the bridge to collapse and that defendants' negligence proximately caused plainiffs' injuries. At the conclusion of trial, the jury was instructed to return a verdict of no cause as against the individual defendant, Woodrow Woody. The trial judge denied defendant Hillcrest Country Club's motion for directed verdict and the case against this defendant, as well as the case against Hillcrest Social Club, was submitted to the jury. A verdict was returned against both remaining defendants in the amount of $75,000 for Ann Rockwell and $2,500 for James Rockwell. Defendant Hillcrest Country Club's motion for judgment notwithstanding the verdict was denied and it appeals.

On appeal, 11 assignments of error are presented. We treat them collectively under the separate headings which follow.

I Defendant's Motion for Directed Verdict

The question here is whether, 'accord(ing) plaintiffs that full measure of favorable view to which they were entitled upon submission of defendant's said motion,' Schedlbauer v. Chris-Craft Corporation (1968), 381 Mich. 217, 221, 160 N.W.2d 889, 891, plaintiffs' proofs established a prima facie case of actionable negligence, including sufficient evidence of negligent causation. The trial court answered in the affirmative. Our review of the record leads us to the same conclusion.

Upon favorable-to-plaintiff view of the evidence, the record clearly supports plaintiffs' pleaded contention that defendant Hillcrest County Club was under a duty to warn, by some reasonably appropriate means, tournament participants and spectators of the maximum capacity of the Clinton river bridge. The bridge itself was constructed in 1953. At that time, Woodrow Woody, defendant's president, was informed of the bridge's maximum capacity. He testified as follows:

'Q. (By Mr. Fried, plaintiffs' counsel) Did you find out how many people could use the bridge:

'A. I did.

'Q. And what was that number?

'A. Twenty-Five. As a safe factor. Not the capacity, but a safe factor.

'Q. Mr. Woody, after you made that determination, after you found out that twenty-five people was the safe factor on that bridge, did you put a sign on the bridge?

'A. Yes, sir.

'Q. Did the sign say limited to twenty-five people?

'A. It said capacity twenty-five persons.'

Woody's testimony established that the defendant corporation had knowledge of a latent danger existing on premises occupied by the Hillcrest County Club. That more than 25 golf enthusiasts might--without notice of the safe capacity of the bridge--attempt to cross it during the tournament at the same time was a risk reasonably to be foreseen. Under these circumstances, the defendant corporation was obliged to warn its invitees, including plaintiffs, of the bridge's maximum capacity.

'(T)he obligation of reasonable care is a full one, applicable in all respects, and extending to everything that threatens the invitee with an unreasonable risk of harm. The occupier must not only use care not to injure the visitor by negligent acts, And to warn him of latent dangers of which the occupier knows, but he must also * * * take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement or use. The obligation extends to the original construction of the premises, where it result in a dangerous condition.' Prosser on Torts (3d ed.), § 61 pp. 402--403, quoted with approval in Powers v. Huizing (1968), 9 Mich.App. 437, 441--442, 157 N.W.2d 432. (Emphasis supplied.)

Clearly preponderant proof also established that no forewarning was given to those crossing the bridge on the date of the tournament. Again we quote Woody's testimony:

'Q. On July 27th, the date of this incident that's involved in this lawsuit, was there a sign on this bridge?

'A. The day the incident happened?

'Q. Yes.

'A. There was not a sign there. I looked at it and there was not a sign there, to my great disappointment.'

'Q. Mr. Woody, on July 27, 1963, did you have any--by 'you' I mean the Hillcrest Country Club--did you have anybody at that bridge controlling traffic on that bridge?

'A. If you are asking me personally as president of Hillcrest Country Club--

Q. First let me ask you personally, did you have anybody. Did you on July 27, 1963, direct anybody to go down and control traffic on that bridge?

'A. I did not.

'Q. Did you as president of Hillcrest Country Club, Incorporated, on July 27, 1963, direct anybody to control traffic on that bridge?

'A. I did not.

Defendant makes no answer to plaintiffs' proofs establishing duty and its breach. That proof made an issue for the jury provided there is evidence in the record likewise establishing, upon favorable view, negligent causation. See Schedlbauer v Chris-Craft Corporation, Supra, 381 Mich. at 223, 160 N.W.2d 889.

Defendant invokes the rule of conjectural cause, see Kaminski v. Grand Trunk Western Railroad Company (1956), 347 Mich. 417, 419, 79 N.W.2d 899, and suggests that plaintiffs' case must fail for want of proof of negligent causation. We are told in its brief:

'There can be no question that the court allowed this case to go to the jury without the benefit of the jury knowing from plaintiffs-appellees' side as to what the cause of the accident was.'

Defendant contends that the only theory consistent with the testimony presented as to why the bridge collapsed is that one of the 8 hooks which supported the bridge had a hidden defect; that only this one hook broke under the pressure of the crowd; and that but for the defect the accident would not have occurred. At trial, the expert testimony of Dr. Clark Corey, a metallurgical engineer, was offered by defendant in support of its theory regarding causation. Dr. Corey testified that of the 8 hooks he examined only one had broken; that microscopic study of the grain structure and steel constituents of this hook indicated a fracture; and that: 'I believe I said that we could assume in the absence of fracture * * * it would not have broken under the load that was on it when it did break.'

Contrary to the assertion made in defendant's brief and quoted above, the record undermines defendant's view that the jury was left uninformed from plaintiffs' side as to what caused the accident. In his closing argument to the jury, plaintiffs' counsel succinctly stated plaintiffs' theory as follows: 'There is no doubt that what made that bridge collapse was that there were more than twenty-five people on that bridge on the date that this accident happened.' Throughout trial, plaintiffs had consistently maintained that overloading of the bridge was the cause in fact of its collapse.

In Kaminski v. Grand Trunk Western Railroad Company, Supra, Mr. Justice Black enunciated the standards by which we are to test defendant's contention that the rule of conjectural cause precludes recovery. Quoting City of Bessemer v. Clowdus (1954), 261 Ala. 388, 394, 74 So.2d 259, 263, Justice Black characterized the dispositive inquiry as follows:

"(I)f there is evidence which points to any one theory of causation, indicating a logical sequence of cause and effect, then there is a juridical basis for such a determination, notwithstanding the existence of other plausible theories with or without support in the evidence." 347 Mich. at 422, 79 N.W.2d at 902.

In other words:

"If, however, plaintiff has proven sufficient facts to justify a verdict upon one theory, the fact that there may be one or more other seemingly rational explanations of the episode in no manner precludes a recovery or invalidates the verdict. These are mere matters of argument to be presented to the jury." Id. quoting Juchert v. California Water Service Co. (1940), 16 Cal.2d 500 106 P.2d 886, 890.

(Emphasis supplied.)

Measured against those standards, we are satisfied that plaintiffs' proofs in this case were sufficient to justify a verdict upon the theory that the bridge collapsed because of overload.

Turning to the record: Upon favorable view plaintiffs' proofs show (1) that the bridge was constructed to hold 25 people safely; (2) when it collapsed there were 80 to 100 people on the bridge; (3) no sign was present warning those using the bridge of its safe capacity; (4) no marshals or other supervisory personnel were present to oversee proper use of the...