MARIO MORRI V DESIGN/BUILD ASSOC INC
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STATE OF MICHIGAN
COURT OF APPEALS
MARIO MORRI,
UNPUBLISHED
Plaintiff-Appellant,
v
No. 192209
Oakland Circuit Court
LC No. 91-419162-NO
DESIGN/BUILD ASSOCIATES, INC.,
Defendant-Appellee,
and
WALDENBOOK COMPANY, INC.,
Defendant.
Before: Markey, P.J., and Jansen and White, JJ.
White, J. (concurring in part and dissenting in part).
Having in mind the jury’s answers to the special verdict questions, I conclude that any trial court
errors concerning Offer’s testimony or the jury instructions relating to defendant’s liability did not affect
the verdict, and provide no grounds for reversal.
I agree that the motion for JNOV was properly denied, and that plaintiff failed to preserve any
claim of error in the giving of the comparative negligence instruction.
I also agree that the jury’s verdict cannot be impeached by the foreperson’s statements after
trial, and that these statements must be disregarded in determining whether the verdict of 70%
comparative negligence was against the great weight of the evidence.
I conclude, however, that based on an in-depth analysis of the record, Arrington v Detroit
Osteopathic Hospital, 196 Mich App 544, 560; 493 NW2d 492 (1992), and according substantial
deference to the trial court, id., the trial court abused its discretion in failing to grant a new trial on the
ground that the verdict of 70% comparative negligence was against the great weight of the evidence.
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Plaintiff was a masonry laborer whose duty was to assist the masons by setting up the walls,
bringing bricks and block to the masons, making mortar, and setting up scaffolding. He also braced the
walls when instructed to by the boss or foreman. While plaintiff testified to having fifteen years’
experience as a masonry laborer, he testified that he never worked as a mason, and that he never
received any training in MIOSHA rules or other regulations regarding when to brace walls, or training
regarding working around walls in high winds. The evidence was uncontradicted that plaintiff was
injured when the wall fell on him as he was preparing to brace it after being instructed to do so by his
foreman. There was no testimony that it was his responsibility as a laborer to brace the wall at some
earlier time, or that he appreciated the danger presented in bracing it when he did. Defendant’s foreman
testified that plaintiff did nothing to cause the wall to fall on him, and that he was not a reckless or
careless worker at the job site. Assuming the jury concluded that notwithstanding his lack of training
and his position as a laborer, plaintiff’s experience should have caused him to appreciate the danger
and either insist on his own that the wall be braced earlier, or refuse to brace the wall when instructed to
do so by his boss given the windy conditions, the apportionment of 70% fault to him based on this
negligence was against the overwhelming weight of the evidence. The trial court abused its discretion in
failing to grant a new trial on this basis. I would reverse and remand for a new trial.
/s/ Helene N. White
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