Stitt v. Holland Abundant Life Fellowship

• Decision Date: 14 February 2001
• Docket Number: Docket No. 192208.
• Citation: 243 Mich. App. 461,624 N.W.2d 427
• Parties: Jill STITT, Personal Representative for the Estate of Violet J. Moeller, Deceased, and Gilbert E. Moeller, Plaintiffs-Appellants, v. HOLLAND ABUNDANT LIFE FELLOWSHIP, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

624 N.W.2d 427

243 Mich. App. 461

Jill STITT, Personal Representative for the Estate of Violet J. Moeller, Deceased, and Gilbert E. Moeller, Plaintiffs-Appellants, v. HOLLAND ABUNDANT LIFE FELLOWSHIP, Defendant-Appellee.

Docket No. 192208.

Court of Appeals of Michigan.

Submitted September 21, 2000, at Grand Rapids.

Decided December 8, 2000, at 9:00 a.m.

Released for Publication February 14, 2001.

Ronald J. Giddy, Holland, for the plaintiff.

Smith, Haughey, Rice & Roegge (by Elizabeth Roberts VerHey), Grand Rapids, for the defendant.

Before HOEKSTRA, P.J., and RICHARD ALLEN GRIFFIN and BANDSTRA, JJ.

ON REMAND

PER CURIAM.

This case is on remand from our Supreme Court. On original submission, we reversed the judgment of the trial court, concluding that Violet Moeller was an invitee when she tripped over a concrete tire stop in defendant's parking lot. Stitt v. Holland Abundant Life Fellowship, 229 Mich.App. 504, 582 N.W.2d 849 (1998) (Stitt I). Our Supreme Court reversed and remanded for consideration of plaintiffs' remaining arguments. Stitt v. Holland Abundant Life Fellowship, 462 Mich. 591, 614 N.W.2d 88 (2000) (Stitt II). We have considered these arguments and now affirm the judgment of the lower court, but reverse the award of offer of judgment sanctions.

Plaintiffs contend that they are entitled to reversal because of the cumulative effect of (1) defense counsel's repeated attempts to introduce evidence relating to the illumination of the parking lot of plaintiff's counsel, despite the court having ruled the evidence inadmissible, (2) improper admission of expert testimony regarding visibility in the parking lot, and (3) improper admission of evidence that no one had fallen previously in the parking lot. We disagree. Because the bases for plaintiffs' claim each involve different considerations, we will address them separately.

During cross-examination of Richard Stark, an engineer called on behalf of plaintiffs to testify concerning the adequacy of lighting in defendant's parking lot, counsel for defendant asked Stark about the lighting in the parking lot of plaintiffs' counsel. Before Stark could answer, plaintiffs objected on the basis of "confidentiality" and relevance; defense counsel withdrew the question. Defense counsel again attempted to ask if Stark had a client in Holland who had a parking lot that was "darker than the bottom of the well." Plaintiffs again objected, saying that the question was "totally irrelevant and immaterial." Counsel for defendant then attempted to rephrase the question to add that the client in question expected people to visit the premises. Again, plaintiffs objected on the grounds of relevance, and the court sustained the objection. No further relief was requested.

Later, plaintiffs called George Kruggel, an engineer who had designed between eighty and one hundred parking lots in the region,¹ to testify concerning his analysis of the amount of lighting in defendant's parking lot. Kruggel testified, on the basis of photometric readings he had taken, that defendant's parking lot had insufficient lighting. On cross-examination, defense counsel asked whether there were other parking lots in the area with no lights. After plaintiffs' objection was overruled, Kruggel testified that other such unlit parking lots existed. When defense counsel went on to ask if the parking lot of plaintiffs' counsel was unlit, plaintiffs again objected on the grounds of relevancy. The court sustained plaintiffs' objection. No further relief was requested.

In Reetz v. Kinsman Marine Transit Co., 416 Mich. 97, 102-103, 330 N.W.2d 638 (1982), our Supreme Court provided the following means for analyzing a claim of attorney misconduct:

When reviewing an appeal asserting improper conduct of an attorney, the appellate court should first determine whether or not the claimed error was in fact error and, if so, whether it was harmless. If the claimed error was not harmless, the court must then ask if the error was properly preserved by objection and request for instruction or motion for mistrial. If the error is so preserved, then there is a right to appellate review; if not, the court must still make one further inquiry. It must decide whether a new trial should nevertheless be ordered because what occurred may have caused the result or played too large a part and may have denied a party a fair trial. If the court cannot say that the result was not affected, then a new trial may be granted.

Although plaintiffs objected to each of the instances complained of on appeal, all but one of the objections were sustained, and no further relief was requested. In these instances, no evidence was actually elicited. To the extent that the jurors could glean that the parking lot of plaintiffs' counsel was unlit, their consideration of this evidence could have been limited by an instruction to disregard. People v. McAlister, 203 Mich.App. 495, 504, 513 N.W.2d 431 (1994). We cannot conclude that questions of counsel that were not answered constituted misconduct requiring reversal where plaintiffs neither requested that the jury be instructed that questions of counsel are not evidence nor requested a mistrial. See Young v. Flood, 182 Mich.App. 538, 544, 452 N.W.2d 869 (1990).

As for Kruggel's testimony that he had seen other unlit parking lots in the area, we note that, on direct testimony, Kruggel had testified regarding the number of lots he had designed in the area and further testified that his duties included lighting design. One issue in the case was whether defendant knew or should have known of the hazard posed by an unlit parking lot.² The condition of other lots in the area could have been relevant to whether defendant should have known that an unlit lot would pose a hazard. It was therefore appropriate for counsel for defendant to cross-examine by asking initially whether other lots in the area were unlit. However, when defense counsel sought to examine Kruggel regarding whether the parking lot of plaintiffs' counsel was lit, the objection was sustained. Again, no improper evidence was injected, and no relief, other than that received by plaintiffs, was requested. No error requiring reversal is shown.

Plaintiffs next argue that the trial court erred in admitting a video deposition of defendant's expert, John Monahan, who testified concerning visibility theory. Plaintiffs had objected to the introduction of Monahan's testimony on the grounds that he was not qualified to testify as an expert and that his opinion testimony was based on a theory that had not gained acceptance in the scientific community. Monahan, a professor at Central Michigan University, possessed a Ph.D. in psychology and had worked in the area of visual perception. His doctoral work included studies on the amount of lighting "necessary to see things." He had worked in the area of perception for the past twenty-three years. Monahan testified about contrast theory, which concerns the relative amount of light reflected from two surfaces. Specifically, Monahan had measured the contrast between the parking lot surface and the tire stop on which Moeller tripped, as well as the amount of light reflected by the tire stop. The theory on which Monahan based his opinion had been in existence for over one hundred years. Plaintiffs' expert, Richard Stark, testified that his association, the Luminating Engineering Society, had not accepted any particular visibility model. However, he also testified that while contrast between an object and its background could be measured, other factors, such as adaptation, amount of time the object is viewed, age of the viewer, and angle of reflectance, must also be considered. Monahan provided testimony regarding each of these factors and the effect they had on visibility of the tire stop.

We review the admission or exclusion of expert testimony for abuse of discretion. Phillips v. Deihm, 213 Mich.App. 389, 401, 541 N.W.2d 566 (1995). Expert testimony is admissible under MRE 702 if "recognized scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." Anton v. State Farm Mut. Automobile Ins. Co., 238 Mich.App. 673, 677, 607 N.W.2d 123 (1999). Novel scientific evidence is admissible only if it is demonstrated that the evidence has gained general acceptance in the scientific community. Id. at 678, 607 N.W.2d 123. This test, known as the Davis-Frye³ test, places on the proponent of the evidence the burden of showing acceptance. Id. at 679, 607 N.W.2d 123.

Although plaintiffs' argument touches on both the question of the adequacy of Monahan's credentials and the question whether Monahan's theories had been generally accepted, their argument stresses what they consider to be Monahan's lack of qualification. Monahan began working in the area of visibility perception when studying for his doctorate and had worked in the area of human perception for twenty-three years. We conclude that his credentials sufficiently established his qualifications. While plaintiffs point to conflicting portions of his testimony that they believe show Monahan's lack of qualifications, their claims are relevant only to the weight to be given the testimony, not whether it should have been admitted. People v. Gambrell, 429 Mich. 401, 408, 415 N.W.2d 202 (1987).

As for plaintiffs' claim that defendant failed to show acceptance of the method used by Monahan, there was testimony from Monahan himself that the method had gained general acceptance by experts in his field. In addition, the method used by Monahan, which was summarized in a casebook provided by Monahan during his deposition, had been in existence for over one hundred years. While plaintiffs' expert, Stark, testified that no particular model of contrast theory had been adopted by his association, he went on to discuss factors that should be considered in determining visibility of objects,...