ANNIE CLARK V K-MART CORP
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STATE OF MICHIGAN
COURT OF APPEALS
ANNIE CLARK AND WALTER CLARK,
FOR PUBLICATION
January 8, 2002
9:05 a.m.
Plaintiffs-Appellees,
v
No. 212749
Wayne Circuit Court
LC No. 96-611960-NO
ON REMAND
Updated Copy
March 15, 2002
KMART CORPORATION,
Defendant-Appellant.
Before: O'Connell, P.J., and Jansen and Whitbeck, JJ.
O'CONNELL, P.J.
This case is before us on remand from the Supreme Court following its review of our
previous opinion in this case, Clark v Kmart Corp, 242 Mich App 137; 617 NW2d 729 (2000)
(Clark I). Our Supreme Court reversed and remanded with instructions that we address
defendant's claims of instructional error. Clark v Kmart Corp, 465 Mich 416; 634 NW2d 347
(2001) (Clark II). On remand, we affirm.
We articulated the pertinent facts underlying this appeal in our previous opinion:
[P]laintiff Annie Clark and her husband, plaintiff Walter Clark, visited
defendant's Super Kmart store in Dearborn at approximately 3:30 a.m. on October
8, 1994. As they walked through a closed checkout lane into the store, Mrs. Clark
sustained an injury when she slipped and fell on approximately four or five loose
grapes that were scattered on the floor. Mr. Clark testified at trial that he saw
footprints from "some big, thick, rubber-soled shoes" leading away from the
grapes, which were smashed on the floor. [Clark I, supra at 139.]
In our first opinion, we reversed1 the trial court's denial of defendant's motion for a
directed verdict, concluding that plaintiffs did not offer sufficient evidence to support the
inference that defendant had constructive notice of the hazardous condition that led to Mrs.
1
Judge M. J. Kelly dissented, reasoning that plaintiffs proffered sufficient evidence from which
the jury could infer that defendant had actual or constructive notice of the hazardous condition.
Clark I, supra at 145.
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Clark's injury. In lieu of granting plaintiffs' application for leave to appeal, our Supreme Court
reversed, concluding that the record evidence "was sufficient for the jury to find that the
dangerous condition that led to the injury existed for a sufficient period of time for defendant to
have known of its existence." Clark II, supra at 421. Given our resolution of defendant's claim
of error concerning its motion for a directed verdict, we did not fully address defendant's
remaining claims of instructional error. Our Supreme Court remanded to allow us the
opportunity to address these claims.
In Case v Consumers Power Co, 463 Mich 1, 6; 615 NW2d 17 (2000), our Supreme
Court recently articulated the principles of law that guide an appellate court's inquiry into claims
of instructional error.
We review claims of instructional error de novo. In doing so, we examine
the jury instructions as a whole to determine whether there is error requiring
reversal. The instructions should include all the elements of the plaintiff 's claims
and should not omit material issues, defenses, or theories if the evidence supports
them. Instructions must not be extracted piecemeal to establish error. Even if
somewhat imperfect, instructions do not create error requiring reversal if, on
balance, the theories of the parties and the applicable law are adequately and
fairly presented to the jury. Murdock v Higgins, 454 Mich 46, 60; 559 NW2d 639
(1997). We will only reverse for instructional error where failure to do so would
be inconsistent with substantial justice. MCR 2.613(A); Johnson v Corbet, 423
Mich 304; 377 NW2d 713 (1985).
Defendant's claims of alleged error require us to review the trial court's decisions
concerning the applicability of the Standard Jury Instructions (SJI). When a party so requests, a
court must give a standard jury instruction if it is applicable and accurately states the law. MCR
2.516(D)(2). In Johnson, supra at 326-327, our Supreme Court explained that the determination
regarding the applicability of an SJI to a particular case rests within the trial court's broad
discretion:
[I]t remains the duty of the trial court, as historically it has been, to
determine the subject matter of the instructions to be given to the jury, and that
includes the duty to determine the applicability of the particular SJI requested by
counsel. That duty cannot be delegated to counsel. Merely because the evidence
in a case may include the subject matter of an SJI, it does not mean that the court,
upon request of counsel, is automatically required to read every SJI which might
tangentially touch on the subject matter. The trial court's duty to determine the
"applicability," under MCR 2.516, of a requested SJI runs deeper than that and
calls for the exercise of discretion. . . . [I]t is for the trial court to determine when
the SJI are applicable, not in an abstract or theoretical sense, but in the context of
the "personality" of the particular case on trial, and with due regard for the
adversaries' theories of the case and of counsel's legitimate desire to structure jury
argument around anticipated jury instructions. [Citation omitted.]
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Defendant first asserts that the trial court erred in instructing the jury in conformance
with SJI2d 6.01(c).2 Specifically, defendant claims that the instruction was not applicable
because defendant proffered a reasonable excuse for its failure to preserve evidence concerning
the location where Mrs. Clark slipped and fell. In our first opinion, we concluded that the
instruction was not applicable because plaintiffs were not entitled to any presumption with
respect to the condition of the grapes. On remand, we conclude that the trial court did not abuse
its discretion in giving this instruction.
Over defendant's objection, the trial court instructed the jury in the following manner:
The defendant in this case has not offered the evidence of the grapes and
photograph of the accident at the time that it happened. As this evidence was
under the control of the defendant and could have been produced by them, you
may infer that the evidence would have been adverse to the defendant, if you
believe that no reasonable excuse for defendant's failure to produce the evidence
has been shown.
SJI2d 6.01 allows the jury to draw the inference that evidence would have been adverse
where a party who is in control of the evidence fails to produce it at trial. Lagalo v Allied Corp
(On Remand), 233 Mich App 514, 521; 592 NW2d 786 (1999). However, because SJI2d 6.01 is
phrased in a permissive manner, the jury is not required to draw an adverse inference, but "is free
to decide for itself." Lagalo, supra; Brenner v Kolk, 226 Mich App 149, 155-156; 573 NW2d 65
(1997). SJI2d 6.01(c) should be given where a question of fact arises regarding whether a party
has a reasonable excuse for its failure to produce the evidence, the court finds that the evidence
was under the party's control and could have been produced by the party, and the evidence would
have been material, not cumulative, and not equally available to the other party. See Note on
Use of SJI2d 6.01.
During trial, defendant's employee, Virginia Jones, testified that after she witnessed Mrs.
Clark slip and fall, she wiped up the grapes with a paper towel and threw them away before
contacting defendant's loss control department. According to Cornelius Jones, one of defendant's
loss control associates, following an accident in the store, it was "standard protocol" for loss
2
SJI2d 6.01(c) provides:
The [plaintiff / defendant] in this case has not offered [the testimony of
_______ / _______]. As this evidence was under the control of the [plaintiff /
name
identify exhibit
defendant] and could have been produced by [him / her], you may infer that the
evidence would have been adverse to the [plaintiff / defendant], if you believe that
no reasonable excuse for [plaintiff 's / defendant's] failure to produce the evidence
has been shown.
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control staff to photograph the scene. Another loss associate, Lucius Scott, also testified that it
was defendant's policy to photograph the scene where an accident occurred.
After a careful review of the record, we are not persuaded that the trial court abused its
discretion in finding SJI2d 6.01(c) applicable under the circumstances. Johnson, supra.
Whether cleaning up the grapes and discarding them before the scene was photographed was
reasonable action in light of defendant's established policy of photographing an accident scene
was a contested issue at trial. Further, the evidence was in defendant's control, and defendant
could have provided a photograph of the scene with the grapes intact.3 In fact, Scott
photographed the area where plaintiff fell shortly after Jones wiped up the grapes, and this
photograph was entered into evidence at trial. Consequently, where defendant failed to proffer
material evidence within its control and questions of fact concerning the reasonableness of such
action existed, the trial court's decision to instruct on SJI2d 6.01(c) was not an abuse of
discretion.
Defendant also challenges the following portion of the jury instructions, which were
given over its objection.
Now, a possessor of land . . . has a duty to exercise ordinary care to protect
an invitee from unreasonable risks of injury that were known to the possessor or
in the exercise of ordinary care that should have been known.
Whether a condition should have been known is to be determined by the
nature of the condition, the length of time it existed, and other relevant factors.
However, where there is evidence that the grapes had previously been stepped on
sufficiently establishes that it had been there long enough to give the store actual
or constructive notice. [Emphasis supplied.]
On appeal, defendant contends that the trial court erred in reading to the jury the final
sentence of this portion of the jury instructions, drawn from our Court's decision in Ritter v
Meijer, Inc, 128 Mich App 783, 787; 341 NW2d 220 (1983). In our previous opinion, we
rejected the Court's reasoning in Ritter and declined to follow that decision on the basis of MCR
7.215(H)(1).4 Specifically, we held that "the Ritter panel's conclusion, that the jury could infer
that the defendant had constructive notice of the grape based on the fact that it was previously
3
In its brief on appeal, defendant maintains that its decision not to photograph the area where
Mrs. Clark fell was attributable to Mrs. Clark's decision not to file an accident report
immediately following her fall. However, according to Jones' testimony, she wiped up the
grapes immediately after Mrs. Clark fell, before plaintiffs made any decision regarding whether
to file an accident report. Moreover, to the extent that defendant maintains that it was not
feasible for it to retain evidence of the smashed grapes, we note that photographing the grapes
was not circumscribed in spite of the perishable nature of the fruit.
4
Pursuant to amendments effective April 1, 2001, MCR 7.215(H)(1) has been redesignated
MCR 7.215(I)(1). Sumner v General Motors Corp (On Remand), 245 Mich App 653, 656, n 1;
633 NW2d 1 (2001).
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stepped on, to be too logically attenuated." Clark I, supra at 141-142. Because we rejected the
Ritter Court's conclusion that "'a stomped-upon grape is sufficient evidence to prove constructive
notice of a slippery condition,'" id. at 144, quoting Ritter, supra at 787, we further held that the
challenged jury instruction did not "accurately state the law." Clark I, supra at 144.
Our Supreme Court, after finding that Ritter was factually distinguishable, declined to
address whether Ritter was correctly decided. Specifically, the Court concluded that evidence
independent of the condition of the grapes suggested that the grapes had been on the floor for a
long enough period that defendant should have been aware of a potentially dangerous condition.
Clark II, supra at 419-420. Thus, our Supreme Court left undisturbed the portion of our opinion
rejecting Ritter. On remand, we confirm our earlier holding that the trial court erred in giving
the portion of the jury instructions drawn from Ritter. However, to the extent that this portion of
the jury instructions may have misstated the law regarding constructive notice, we are not
persuaded that reversal is warranted.
Our courts are "reluctant to overturn a jury's verdict" where there is "ample evidence" to
support the jury's decision, Krohn v Sedgwick James of Michigan, Inc, 244 Mich App 289, 295;
624 NW2d 212 (2001), and will do so only where we are satisfied that allowing the verdict to
stand would be inconsistent with substantial justice. MCR 2.613(A); Case, supra at 6; Johnson,
supra at 327. In light of our Supreme Court's unequivocal determination in this case that "the
evidence was sufficient for the jury to find that the dangerous condition that led to the injury
existed for a sufficient period of time for defendant to have known of its existence," Clark II,
supra at 421, we are unable to conclude that the trial court's erroneous giving of the instruction
unfairly prejudiced defendant and that failure to vacate the jury verdict would be "inconsistent
with substantial justice." Johnson, supra at 332.
Finally, defendant argues that the trial court erred in declining to instruct the jury
regarding comparative negligence.5 See SJI2d 11.01. We disagree.
In Placek v Sterling Heights, 405 Mich 638, 653-654, 660-662; 275 NW2d 511 (1979),
our Supreme Court adopted a pure form of comparative negligence. Under this pure form of
comparative negligence, "a plaintiff 's recovery of damages is reduced to the extent that [the]
plaintiff 's negligence contributed to the injury." Kalamazoo Oil Co v Boerman, 242 Mich App
75, 80; 618 NW2d 66 (2000). In Pontiac School Dist v Miller, Canfield, Paddock & Stone, 221
Mich App 602, 623; 563 NW2d 693 (1997), this Court articulated the proper standard for
discerning whether an instruction on comparative negligence is appropriate.
"When deciding whether an instruction on comparative negligence is
appropriate, the question is whether, in viewing the evidence most favorably to
5
Defendant further contends that any error was compounded by the trial court's decision to
instruct the jury in conformance with SJI2d 10.04, concerning a plaintiff 's duty to use ordinary
care, and SJI2d 19.04, which provides that a plaintiff must use ordinary care while in a selfservice store and is entitled to a presumption that the defendant will provide reasonably safe
aisles and passageways.
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the defendant, there is sufficient evidence for the jury to find negligence on the
part of the injured plaintiff. . . . Circumstantial evidence and permissible
inferences therefrom may constitute sufficient proof of negligence. . . . The trend
is to allow all issues, when supported by facts, to go to the jury." [Quoting Duke
v American Olean Tile Co, 155 Mich App 555, 565-566; 400 NW2d 677 (1986).]
However, a trial court's decision not to instruct the jury on comparative negligence does not
amount to an abuse of discretion where the record evidence does not reveal that the plaintiff was
negligent. Rickwalt v Richfield Lakes Corp, 246 Mich App 450, 460; 633 NW2d 418 (2001).
After reviewing the record evidence in the light most favorable to defendant, we are
unable to conclude that the trial court abused its discretion in finding SJI2d 11.01 inapplicable.
An abuse of discretion exists "'"only if an unprejudiced person, considering the facts on which
the trial court acted, would say that there was no justification or excuse for the ruling made."'"
Id. at 454, quoting Berryman v Kmart Corp, 193 Mich App 88, 98; 483 NW2d 642 (1992), in
turn quoting Gore v Rains & Block, 189 Mich App 729, 737; 473 NW2d 813 (1991).
In support of its contention that Mrs. Clark was negligent, defendant points to Mrs.
Clark's trial testimony, in which she stated that she did not see the grapes before slipping on
them. During cross-examination, Mrs. Clark further conceded that nothing obstructed her view
of the aisle where she slipped and that she was not looking down at the floor while she was
walking. However, the record reveals that when Mrs. Clark slipped and fell on the grapes, she
and her husband were attempting to locate the grocery department of defendant's Super Kmart
store. In Jaworski v Great Scott Supermarkets, Inc, 403 Mich 689, 699; 272 NW2d 518 (1978),
our Supreme Court recognized that the determination whether a plaintiff was negligent depends
on the facts of each case. Moreover, an individual shopping in a self-service store is entitled to
presume that passageways provided for his use are reasonably safe, and is not under an
obligation to see every defect or danger in his pathway. Id.; see also SJI2d 19.04. Under the
circumstances, we are unable to conclude that the trial court's decision to omit the requested
instruction was without justification or excuse. Rickwalt, supra at 454.
Affirmed.
/s/ Peter D. O'Connell
/s/ Kathleen Jansen
/s/ William C. Whitbeck
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