TRANSCONTINENTAL INS CO V HASTINGS AUTO PARTS
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STATE OF MICHIGAN
COURT OF APPEALS
TRANSCONTINENTAL INSURANCE
COMPANY and M & S AUTO REPAIR,
UNPUBLISHED
November 27, 2001
Plaintiffs-Appellants,
and
No. 219924
Wayne Circuit Court
LC No. 97-715810-NZ
G. FISHER CONSTRUCTION,
Plaintiff,
v
HASTINGS AUTO PARTS, INC.
Defendant-Appellee,
and
DESIGN BUILD TECHNOLOGIES, WALKER
CONSTRUCTION, INC. DEBDE
CORPORATION, LARRY ALFORD, and
STEWART HOME CORPORATION,
Defendants.
Before: Jansen, P.J., and Collins and Cooper, JJ.
PER CURIAM.
Plaintiff Transcontinental Insurance Company, subrogee of plaintiff M&S Auto Repair,
appeals as of right the trial court’s order denying their motions for JNOV and new trial following
a jury verdict of no cause of action against defendant Hastings Auto Parts, Inc. We affirm.
Plaintiffs assert that the trial court erred in denying their motion for JNOV because (1)
the evidence was insufficient to support the jury verdict on their negligence claim, and (2) the
jury verdict ignored the great weight of the evidence with respect to causation and damages. We
disagree. This Court reviews de novo a trial court’s ruling on a motion for JNOV. Morinelli v
Provident Ins Co, 242 Mich App 255, 260; 617 NW2d 777 (2000), and views the evidence, and
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all legitimate inferences that may be drawn therefrom, in a light most favorable to the
nonmoving party. Id. If reasonable jurors could have honestly reached different conclusions, the
jury verdict must stand. Id. at 261, citing Severn v Sperry Corp, 212 Mich App 406, 412; 538
NW2d 50 (1995).
A trial court is required to concisely articulate its reasoning on a motion for JNOV after
reviewing the sufficiency of the evidence either in a signed order, opinion filed in the action, or
on the record. Badalamenti v Beaumont Hospital, 237 Mich App 278, 283; 602 NW2d 854
(1999). Here, it is apparent that the trial court only gave prefatory treatment to plaintiffs’ motion
for JNOV and failed to review the sufficiency of the evidence on the record. Therefore, the court
erred by (1) not examining the evidence in a light most favorable to plaintiffs, (2) not applying
the law to the facts, and (3) failing to articulate whether the evidence was legally sufficient to
support plaintiffs’ negligence claim. Id. Nevertheless, this Court’s de novo review is not
impeded by the trial court’s error. Id. at 284.
To establish a negligence claim, a plaintiff must demonstrate that (1) the defendant owed
the plaintiff a duty, (2) the defendant breached that duty, (3) the defendant’s breach of its duty
was the proximate cause of the plaintiff’s injury, and (4) the plaintiff suffered damages. Case v
Consumers Power Co, 463 Mich 1, 6; 615 NW2d 17 (2000). A duty may arise by statute,
contract, or the basic common-law rule that imposes an obligation to use due care or to act so as
to not unreasonably endanger the person or property of another. Hampton v Waste Management
of Michigan, Inc, 236 Mich App 598, 602; 601 NW2d 172 (1999).
The jury determined that defendant was not negligent and never reached the issue of
causation or damages. Therefore, plaintiffs’ argument that the jury ignored the great weight of
the evidence with regard to causation and damages is without merit and we focus on whether
defendant owed a duty to plaintiff at the time the wall collapsed on plaintiff’s property. After
reviewing the evidence in the light most favorable to defendant, we believe that it was
reasonable for the jury to conclude that defendant did not owe plaintiffs a duty because
defendant was not in actual possession and control of the premises when the collapse occurred
and because defendant did not intend to control the premises once work on the building began.
Moreover, defendant showed no signs of controlling the premises after hiring Design Build
Technologies (DBT) as construction manager in November 1995. Hampton, supra at 603.
Premises liability is conditioned on the presence of both possession of and control over the
premises. Kubczak v Chemical Bank & Trust Co, 456 Mich 653, 660; 575 NW2d 745 (1998).
Title to the property is not necessary, and liability depends on actual possession and actual
control. Id. at 661-662. Although the trial court erred by failing to review the sufficiency of the
evidence, it did not err by denying plaintiffs’ motion for JNOV because the jury verdict was
supported by the evidence.
Plaintiffs next assert that the trial court erred when it denied their motion for new trial
because (1) the jury verdict was against the great weight of the evidence because plaintiffs
proved liability and damages, and (2) it denied plaintiffs a fair trial due to the irregularities in the
court proceeding. We disagree. A trial court’s denial on a motion for new trial is reviewed for
an abuse of discretion, Morinelli, supra at 261, and may be reversed only where the denial was
so palpably and grossly violative of fact and logic that it evidences a perversity of will, a
defiance of judgment, or the exercise of passion or bias. Bean v Directions Unlimited, Inc, 462
Mich 24, 34-35; 609 NW2d 567 (2000).
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A new trial may be granted when a party’s substantial rights have been materially
affected due to irregularities in the proceedings of the court that denied the moving party a fair
trial or when the verdict is against the great weight of the evidence. MCR 2.611(A)(1)(a)(e);
Snell v UACC Midwest, Inc, 194 Mich App 511, 516; 487 NW2d 772 (1992); Poirier v Grand
Blanc Twp (After Remand), 192 Mich App 539, 547; 481 NW2d 762 (1992).
Plaintiffs’ argument that damages were proven is irrelevant because the jury determined
that defendant was not negligent and never reached the question of damages. Further, our review
of the records shows that there was enough evidence to allow the jury to determine that Hastings
did not owe plaintiff a duty at the time the wall collapsed because Hastings had given up actual
possession and control of the premises to DBT – the construction manager. Plaintiffs’ argument
that they were denied a fair trial because of alleged irregularities in the court proceeding is
without merit and has been waived for appeal because plaintiffs’ counsel acquiesced to the trial
schedule and failed to raise the argument at oral argument on their JNOV/new trial motion.
Hilgendorf v St John Hospital & Medical Center Corp, 245 Mich App 670, 683; 630 NW2d 356
(2001); Etefia v Credit Technologies, Inc, 245 Mich App 466, 471-472; 628 NW2d 577 (2001).
Further, even if preserved, plaintiffs failed to show how its substantial rights were materially
affected because the jury verdict was supported by the evidence. MCR 2.611(A)(1).
Affirmed.
/s/ Kathleen Jansen
/s/ Jeffrey G. Collins
/s/ Jessica R. Cooper
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