Webster v. WXYZ, Docket No. 19031

• Decision Date: 11 March 1975
• Docket Number: Docket No. 19031,No. 2,2
• Citation: 59 Mich.App. 375,229 N.W.2d 460
• Parties: Edith Fern Melrose WEBSTER and Forrest U. Webster, Plaintiffs-Appellees, v. WXYZ, a division of the American Broadcasting Corporation, Defendant- Appellant
• Court: Court of Appeal of Michigan — District of US

Page 460

229 N.W.2d 460

59 Mich.App. 375

Edith Fern Melrose WEBSTER and Forrest U. Webster Plaintiffs-Appellees, v. WXYZ, a division of the American Broadcasting Corporation Defendant- Appellant.

Docket No. 19031.

Court of Appeals of Michigan, Division No. 2.

March 11, 1975.

Rehearing Denied April 24, 1975.

Released for Publication June 4, 1975.

Garan, Lucow, Miller, Lehman, Seward & Cooper by George J. Parish, Detroit, for defendant-appellant.

Daniel M. Clark, A. Robert Zeff, Detroit, for plaintiffs-appellees.

Before McGREGOR, P.J., and J. H. GILLIS and QUINN, JJ.

McGREGOR, Presiding Judge.

Plaintiffs brought this action against the defendant television station, for negligently maintaining a dangerous condition on its premises which allegedly occasioned the physical injuries to the person of plaintiff Edith Webster. A 5-day jury trial in the circuit court resulted in a verdict in favor of plaintiff Edith Webster in the amount of $75,000 and in favor of plaintiff Forrest Webster in the amount of $25,000. The order of judgment for the plaintiffs was entered on October 11, 1973; on October 29, 1973, defendant filed a motion for judgment notwithstanding the verdict and/or a new trial, which was denied. Defendant appeals as a matter of right.

This cause arises from a trip-and-fall accident which occurred on February 27, 1968.

(Hereinafter, reference to plaintiff will mean Mrs. Webster and not her husband, whose claim is a derivative one.)

Plaintiff was 70 years of age at the time of the accident on defendant's premises; she was there for the purpose of taping a television commercial. At the time of this accident, plaintiff had recently completed several years of producing a weekly one-hour television show for another television station.

Plaintiff vaguely remembers working in the studio for the filming of another commercial, but was sure that she had never been to the end of the studio where the accident occurred. This studio contained six 300-watt reflectorized houselights in addition to stage lights. There were cameras and cables in the studios, and plaintiff testified that she was always watchful for hazards in the studios. Plaintiff reported for work at approximately 9:00 a.m. and immediately began reading her script, waiting for lighting to be arranged. The stage lights were turned on for the determination of effect and were described by plaintiff as being brilliant lighting. Plaintiff testified that her eyes had become so sensitive to that high intensity of light that, at the time of the accident, she was wearing eyeglasses which had tinted lenses.

The commercial was rehearsed by dry runs and the stage lights were then turned off. Plaintiff remanied on the set and did not leave for lunch, stating that she wanted to rehearse her lines and keep the proper mood for the commercial. Plaintiff testified that she did not see a prop called a 'groundrow' ¹ during any of the dry runs, nor had she ever seen such a prop used in all her years in television. During this break, plaintiff was given a microphone and told to go behind the scenery and to secure this microphone under her clothing, to 'fasten it on your bra'. After doing so, she returned around the scenery prop stepping away from it a little to prevent soiling her dress. In doing so, she tripped over a nail protruding from the 'groundrow' which extended into the passageway.

Plaintiff testified that there was about 15 or 18 inches of space between the 'false background' set and the 'groundrow.' Plaintiff also testified that she did not see the 'groundrow' on her way behind the scenery because 'my mind was intent upon what I had to do that day. It was important. I had the mike in my hand. Frankly, I did not look down directly at the floor.' She stated in her testimony that this was 'one of those times when you look with your mind rather than your eyes. I was involved with what I was to do'. She also testified that she noticed the floor and the 'groundrow' were of similar colors, after she fell.

The Fire Marshal for the City of St. Clair Shores testified that defendant's premises were in violation of a fire ordinance of the City of Southfield, and that the local city ordinance required that 'passageways' must be at least 28 inches wide. Defendant raised several objections to this testimony, but the court allowed it into evidence and instructed the jury that it could consider violation of that ordinance to be evidence of negligence. The pleadings do not include an allegation of a fire hazard or the violation of an ordinance, code or statute that existed in the City of Southfield at the time of the accident.

At the conclusion of the evidence, defendant moved for a directed verdict and, later, moved for judgment notwithstanding the verdict, based upon a contention that plaintiff was guilty of contributory negligence as a matter of law. Both motions were denied.

In this appeal, defendant first contends that the trial court erred in allowing violation of a fire ordinance to be considered as evidence of negligence, and, further, that the trial court erred in allowing the fire marshal of another city to testify as an expert witness to the effect that defendant's premises were in violation of the local fire code where his only knowledge of those premises came from viewing photographs shown at trial.

Briefs of the parties present two different legal concepts which cannot be reconciled. While the courts can take judicial notice of the existence of a statute, an ordinance must be pleaded and proven. Richter v. Harper, 95 Mich. 221, 54 N.W. 768 (1893), Grud v. Warren, 297 Mich. 546, 298 N.W. 276 (1941). However, it is also true that, as a general rule, a party must object at trial to preserve an issue for appeal. Kellom v. City of Ecorse, 329 Mich. 303, 45 N.W.2d 293 (1951), Cabana v. City of Hart, 327 Mich. 287, 42 N.W.2d 97 (1950). Thus, the key question is whether this issue was preserved for appeal; for, if it was, defendant should prevail.

Fire Marshal Warren Vernier, of St. Clair Shores, made the following reference to the local fire ordinance of Southfield:

'Q. (by Mr. Zeff, plaintiff's attorney): Would you tell me, sir, whether or not you are familiar with the Michigan Fire Code applicable to the State of Michigan, and particularly in the City of Southfield?

'A. Yes, I am.

'Q. Are you familiar with the City of Southfield fire code?

'A. Yes.

'Q. As of 1968?

'A. Yes, I am.

'Q. Do you have a copy of the fire code, would you, for the State of Michigan and/or City of Southfield in 1968?

'A. Yes; I have a copy of the code presently used by the City of Southfield and used at that particular time.'

Counsel for plaintiff then questioned this witness as to whether certain places shown in photographs of the television studio were 'passageways' as defined in the fire regulations. Counsel for the defendant objected:

'Mr. Parish (defendant's attorney): Your Honor, my objection is that the proper foundation had not been laid. Looking at a small part of a studio.

'The Court: Why you feel he's not laid a foundation. Seems to me, he's a fire chief and he's been to all these seminars and 13 years doing it in the course of his job, he obviously has to apply a custom in the trade, in quotes, as to what a passageway is, and I suppose the lack of a foundation is this, of what Mr. Zeff didn't introduce into evidence the rule or ordinance or statute, that where it uses the word 'passageway'. But I assume that isn't your objection. (Emphasis supplied.)

'The Court: We are not the finders of fact. Is your objection because there isn't an ordinance, statute, or rule, or are you--

'Mr. Parish: That's The second part of my objection. The pleadings do not plead--(Emphasis added.)

'The Court: When we get to that one, it's a good objection. Mr. Zeff, do you have anything to say to that? I think you first have to introduce the fire code or definition or the rules of law that you are relying on when you use the word 'passageway.' I think it's a necessary part of your foundation. But once you have done that I can see no reason why you haven't laid a foundation with this witness. Do you have any arguments concerning that?

'Mr. Zeff: I have no argument.'

Defendant's objection seems to allege only two things. First, defendant argued that photographs of an isolated area of the studio did not constitute a sufficient basis upon which an expert opinion could be formed. The second basis for the objection was that the ordinance was not pleaded and that the ordinance itself was not introduced. The response of the trial judge was that the failure to plead the ordinance was premature since the contents of the ordinance had not yet been introduced into evidence. The court also instructed the plaintiff to introduce the ordinance itself into evidence.

The defendant objected to the trial judge's charge to the jury concerning the fire ordinance:

'The Court: We have spent considerable time in chambers. We have gone over all the requests to charge of both parties. Both parties have indicated that they are satisfied with the charge except as to the defendant. The plaintiff has indicated he is satisfied with every line of the charge, but ...