WILLIAM FRANK WARD V CONSOLIDATED RAIL CORP
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Michigan Supreme Court
Lansing, Michigan
Chief Justice:
Opinion
Justices:
Clifford W. Taylor
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
FILED MARCH 8, 2005
WILLIAM FRANK WARD,
Plaintiff-Appellee,
v
No. 124533
CONSOLIDATED RAIL CORPORATION,
Defendant-Appellant.
_______________________________
PER CURIAM
The issue before us concerns the consequence, if any,
of defendant’s inability to produce an allegedly defective
locomotive handbrake at trial.
In this case, the trial court instructed the jury that
because
defendant
disposed
of
the
handbrake,
it
was
presumed to be defective and the jury could infer that the
missing
evidence
instruction
was
was
given
unfavorable
despite
the
to
defendant.
fact
that
This
defendant
produced evidence that it discarded the handbrake in the
regular
course
plaintiff’s
of
claim.
business,
The
jury
for
reasons
returned
unrelated
a
to
verdict
for
plaintiff.
The Court of Appeals affirmed, in part, and
remanded.1
We conclude that the jury instructions were flawed in
two
respects.
First,
the
trial
court
erred
when
it
instructed the jury that the handbrake was presumed to be
defective.
evidence.
the
jury
Such a presumption is not supported by the
Second, the trial court erred when it instructed
that
it
could
draw
an
adverse
inference,
but
failed to explain that no inference should be drawn if
defendant
produce
had
the
harmless,
we
a
reasonable
evidence.
reverse
excuse
Because
the
part
of
for
these
the
its
failure
errors
were
Court
of
to
not
Appeals
judgment concerning the Federal Safety Appliance Act, 49
USC 20302, and remand this case for a new trial on that
claim before a properly instructed jury.
I.
BACKGROUND
Plaintiff, a railroad engineer, claimed that he was
injured by a faulty handbrake that he was using to secure
one of defendant’s locomotives.
two control levers.
The braking system employs
The brake is engaged by moving the
application lever in an up-and-down arc; each upward stroke
tightens a chain that runs from the lever to the brake.
1
Unpublished opinion per curiam, issued August 7, 2003
(Docket No. 234619).
2
The brake is disengaged through a separate release lever.
Plaintiff
claimed
that
his
back
was
injured
when
the
application lever unexpectedly stopped while he was in the
middle of an upward stroke.2
Plaintiff reported his injury to his employer the next
day.
Defendant
had
inspected
the
locomotive
four
days
before plaintiff’s accident and the handbrake was working
properly at that time.
In response to plaintiff’s injury
report, the entire handbrake assembly was inspected again,
this
time
by
machinist.
including
defendant’s
They
the
trainmaster
took
apart
and
levers,
brake
chain,
and
examined
and
a
locomotive
the
assembly,
gear
mechanism.
They determined that the handbrake was functioning properly
and returned the locomotive to service.
Defendant’s
employees
then
operated
the
locomotive
regularly for more than two weeks, successfully using the
application lever to engage the brake.
Nineteen days after
plaintiff’s injury, one of defendant’s employees reported
that the release lever jammed and that the handbrake could
not be disengaged.
facility
in
Elkhart,
The locomotive was moved to a repair
Indiana,
2
where
it
was
examined
by
Defendant’s trainmaster had once before experienced
difficulty engaging the handbrake; the evidence showed that
this is a fairly common occurrence and is not considered a
defect in the brake.
3
defendant’s
maintenance
supervisor.
He
removed
and
discarded the entire handbrake assembly and installed a new
one.
The Elkhart maintenance supervisor was unaware of
plaintiff’s
earlier
report
of
a
malfunction
in
the
application lever.
Plaintiff
later.
filed
this
lawsuit
more
than
ten
months
He theorized that the application lever stopped in
mid-stroke because of the presence of a repair link, or
clevis, in the brake chain.
negligent
under
the
He alleged that defendant was
Federal
Employers’
Liability
Act
(FELA), 45 USC 51 et seq., and that defendant violated both
the Federal Locomotive Inspection Act (FLIA), 49 US 20701
et seq.,3 and the Federal Safety Appliance Act (FSAA), 49
USC 20302.4
In a motion for partial summary disposition, plaintiff
informed
the
trial
court
that
defendant
discarded
the
entire handbrake assembly and argued that he was entitled
3
The FLIA states, in relevant part, that a railroad
carrier may “use or allow to be used a locomotive or tender
on its railroad line only when the locomotive or tender and
its parts and appurtenances . . . [a]re in proper condition
and safe to operate without unnecessary danger of personal
injury . . . .” 49 USC 20701(1).
4
The FSAA states, in relevant part, that a railroad
carrier may “use or allow to be used on any of its railroad
lines . . . a vehicle only if it is equipped with . . .
efficient hand brakes . . . .” 49 USC 20302(a)(1)(B).
4
to
a
presumption
that
the
handbrake
was
defective.
Defendant argued that no adverse presumption should be made
because the handbrake was discarded in the ordinary course
of business following a malfunction in the release lever—a
mechanism different from the one plaintiff theorized caused
his
injury.
affidavit
from
Defendant
its
supported
Elkhart
its
maintenance
position
with
supervisor.
an
The
trial court resolved this issue in plaintiff’s favor and
reaffirmed its ruling before the start of trial.
The
jury
was
made
aware
of
the
presumption.
Plaintiff’s counsel said, during opening statement:
And even though they knew about the injury,
they knew about these claims, the defect in this
hardware, they destroyed the evidence.
The
railroad destroyed the evidence. They threw away
the chain, they threw away the clevis, they threw
away the entire handbrake even though they had
this knowledge.
And it is for this reason that
this Court has concluded there is a presumption
in this case that this handbrake was defective
when Mr. Ward went to use it and got hurt on the
evening of February 19, 1998.
This theme was repeated during jury voir dire and closing
arguments.
After the close of evidence, the trial court reminded
the jury of the presumption and instructed it that it could
infer that the missing evidence would have been unfavorable
to defendant:
5
The Court made a determination that there
was a presumption that the handbrake at issue was
defective due to the fact that the handbrake
clevis and chain were discarded by defendant.
The defendant railroad has come forward with some
evidence to rebut this presumption. Accordingly,
the law requires that I instruct you as follows:
Certain evidence relevant to this case,
namely the handbrake, the clevis and chain, were
not
available
at
trial
because
they
were
destroyed while in the possession or control of
the defendant.
The Rules of Evidence provide
that you, the jury, may infer that this evidence
was unfavorable to the defendant.
The jury returned a verdict for plaintiff.
It found
that defendant was not negligent under the FELA and that
the handbrake was “in proper condition and safe to operate
without unnecessary danger of personal injury” as required
by
the
FLIA.
The
jury
concluded,
however,
that
the
handbrake was not “efficient” as required by the FSAA and
awarded plaintiff damages on this basis.
Defendant appealed.
The Court of Appeals held that
the trial court properly granted plaintiff a presumption of
defect and properly instructed the jury.5
Defendant now seeks leave to appeal with this Court.6
5
Defendant raised a total of thirteen issues in the
Court of Appeals. It obtained relief on one issue relating
to the calculation of case-evaluation sanctions.
6
We consider here only defendant’s claim that the
trial court erred when it granted plaintiff a presumption
that the missing handbrake was defective and when it
6
II.
STANDARD OF REVIEW
We review claims of instructional error de novo.
Cox
v Flint Bd of Hosp Managers, 467 Mich 1, 8; 651 NW2d 356
(2002). Jury instructions should not omit material issues,
defenses, or theories that are supported by the evidence.
Case v Consumers Power Co, 463 Mich 1, 6; 615 NW2d 17
(2000).
Instructional
error
warrants
reversal
if
it
“resulted in such unfair prejudice to the complaining party
that
the
failure
‘inconsistent
Corbet,
423
with
Mich
to
vacate
the
substantial
304,
327;
jury
verdict
377
NW2d
713
be
Johnson
justice.’”
would
v
(1985);
MCR
2.613(A).
III. DISCUSSION
The trial court’s instructions to the jury blurred the
distinction between presumptions and inferences and were
not tailored to the evidence submitted by the parties.
In Widmayer v Leonard, 422 Mich 280, 289-290; 373 NW2d
538
(1985),
we
explained
that
a
presumption
is
a
“procedural device” that entitles the person relying on it
to
a
directed
verdict
if
the
opposing
party
introduce evidence rebutting the presumption.
fails
to
If rebuttal
instructed the jury on this issue. In all other respects,
defendant’s application for leave to appeal is denied.
7
evidence is introduced, the presumption dissolves, but the
underlying inferences remain to be considered by the jury:
Almost all presumptions are made up of
permissible
inferences.
Thus,
while
the
presumption
may
be
overcome
by
evidence
introduced, the inference itself remains and may
provide evidence sufficient to persuade the trier
of fact even though the rebutting evidence is
introduced.
But always it is the inference and
not the presumption that must be weighed against
the rebutting evidence. [Id. at 289.]
It is well settled that missing evidence gives rise to
an adverse presumption only when the complaining party can
establish
desire
“‘intentional
to
truth.’”
destroy
conduct
[evidence]
indicating
and
thereby
fraud
and
suppress
a
the
Trupiano v Cully, 349 Mich 568, 570; 84 NW2d 747
(1957), quoting 20 Am Jur, Evidence, § 185, p 191; see also
Lagalo v Allied Corp (On Remand), 233 Mich App 514, 520;
592 NW2d 786 (1999).
The evidence here does not warrant a presumption that
the application lever of the handbrake was defective.
When
plaintiff requested the presumption, he established only
that he gave defendant notice that the application lever
had malfunctioned and that defendant discarded the entire
handbrake assembly approximately three weeks later.
falls
short
“'intentional
destroy
of
establishing
conduct
[evidence]
that
indicating
and
thereby
8
defendant
fraud
and
suppress
a
the
This
committed
desire
to
truth.'”
Trupiano, supra at 570, quoting 20 Am Jur, Evidence, § 185,
p 191.
Moreover,
showing
ultimately
if
been
had
even
sufficient,
remain
plaintiff’s
because
no
defendant
initial
evidentiary
presumption
came
would
forward
with
rebuttal evidence that provided a nonfraudulent explanation
for its decision to discard the handbrake.
supra at 289.
See Widmayer,
Once defendant presented this evidence, the
initial presumption dissolved and, at best, the fact-finder
was left with the possibility of considering the underlying
inferences.
Id.
As a result, the trial court erred when
it granted plaintiff an unrebuttable, adverse presumption
that the handbrake was defective and allowed the jury to be
informed of its ruling.
The trial court compounded this error when it read the
jury a modified version of M Civ JI 6.01 and instructed the
jury that it could infer that the evidence would have been
unfavorable
to
defendant.7
A
jury
may
draw
an
adverse
7
M Civ JI 6.01(c) addresses the situation, like this
one, where a party admits that it had control of evidence
but cannot produce it and seeks to offer a reasonable
excuse:
(The [plaintiff / defendant] in this case
has not offered [the testimony of [name] /
[identify exhibit]]. As this evidence was under
the control of the [plaintiff / defendant] and
9
inference
against
a
evidence only when:
party
that
has
failed
to
produce
(1) the evidence was under the party’s
control and could have been produced; (2) the party lacks a
reasonable excuse for its failure to produce the evidence;
and (3) the evidence is material, not merely cumulative,
and not equally available to the other party.
supra at 520; M Civ JI 6.01.
Lagalo,
In this case, the trial
court’s instruction omitted the critical language in M Civ
JI
6.01
explaining
that
no
adverse
inference
arises
if
defendant has a reasonable explanation for its failure to
produce the missing evidence.
We conclude, therefore, that
the
in
trial
presumption
court
ruling
erred
and
both
the
regard
modified
M
to
the
adverse
Civ
JI
6.01(c)
instruction.
Having determined that the trial court erred, we turn
to the issue whether the error was harmless.8
Instructional
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.)
8
As an initial matter, before a “harmless error”
inquiry is performed by the reviewing court, the party
challenging the instruction must preserve the issue for
appeal.
MCR 2.516(C).
To preserve the issue, the party
must timely object to the instruction on the record,
“stating specifically the matter to which the party objects
and the grounds for the objection.” Id.
10
error is harmless unless a failure by the reviewing court
to
correct
the
error
substantial justice.”
would
be
MCR 2.613(A).
“inconsistent
with
The error in this
case was harmless with regard to the FELA and FLIA claims
because the jury returned a verdict of no cause of action
in favor of defendant.
the judgment.
Id.
We do not disturb this aspect of
The error was not harmless, however,
with regard to the jury’s finding that the handbrake was
“inefficient” and that defendant violated the FSAA.
During
references
Counsel
trial,
to
for
the
plaintiff’s
erroneous
plaintiff
told
counsel
adverse
the
jury
made
presumption
during
repeated
ruling.
voir
dire,
opening arguments, and closing arguments that the handbrake
At oral argument, counsel for plaintiff stipulated the
timeliness of defendant’s objection.
Plaintiff’s counsel
only challenged the specificity of the objection.
At
trial, defense counsel objected to the instruction given by
the trial court by stating, “The defendant objects to the
presumption
instruction
or
the
revised
presumption
instruction that was given today.
We object to the fact
that the requested instruction by the defendant regarding
inference that the prior and post condition of the brake
should have been considered.”
While we acknowledge that defense counsel’s objection
is not a model of clarity, we conclude that defense counsel
satisfied the specificity requirements of MCR 2.516(C).
Counsel stated specifically the matter to which defendant
objected (i.e., the revised presumption instruction given
by the trial court) and the grounds for the objection
(i.e., that the trial court did not give the full inference
instruction requested by defendant).
Accordingly, defense
counsel preserved the issue for appeal.
11
could
be
defective.”
the
reminded
“presumed
of
instructed
jury
the
jury
the
The
adverse
before
trial
court
presumption
deliberations.
itself
when
The
it
trial
court’s erroneous ruling on the adverse presumption and the
numerous references by plaintiff’s counsel to the ruling
during
respect
trial
to
fundamentally
the
FSAA
prejudiced
claim
because
defendant
it
with
significantly
interfered with the jury’s ability to "'decide the case
intelligently, fairly, and impartially.'” Cox, supra at 15
(quoting Johnson, supra at 327).
Accordingly, failure to
vacate this aspect of the judgment and to grant defendant a
new trial on the FSAA claim would be “inconsistent with
substantial justice.”
MCR 2.613(A).
We are not persuaded by plaintiff’s argument that the
trial court cured its erroneous adverse presumption ruling
when
it
adverse
later
read
inference
6.01(c).
the
jury
a
instruction
To
the
contrary,
M
Civ
JI
contained
the
6.01(c)
modified
trial
only
version
in
court’s
compounded
the
Civ
M
of
JI
truncated
version
of
its
prior
error.
The modified version of M Civ JI 6.01(c) omitted
the critical language informing the jury that no adverse
interference arises if the jury believes that a reasonable
excuse
for
defendant’s
failure
evidence has been shown.
12
to
produce
the
missing
At
trial,
maintenance
defendant
supervisor,
presented
unaware
evidence
of
that
plaintiff’s
its
earlier
injury report, discarded the handbrake assembly during the
normal course of business.
evidence
that
handbrake
its
assembly
Specifically, defendant offered
maintenance
supervisor
in
to
response
a
discarded
separate
the
complaint
about the handbrake’s release lever—a lever different from
the application lever, which plaintiff theorized caused his
injury.
Accordingly,
because
defendant
presented
a
reasonable excuse for its failure to produce the handbrake
at
trial,
we
conclude
that
defendant
was
fundamentally
prejudiced by the trial court’s modified version of M Civ
JI 6.01(c).
Defendant was entitled to have the jury hear
the entire version of M Civ JI 6.01(c), not an abbreviated
version
that
created
an
artificial
advantage in favor of plaintiff.
and
overwhelming
To hold otherwise would
deny defendant a fair trial and would be “inconsistent with
substantial justice.”
MCR 2.613(A); see also Cox, supra at
15 (holding that the failure to reverse on the basis of the
trial
court’s
effectively
modified
altered
the
version
burden
of
of
inconsistent with substantial justice).
13
SJI2d
30.01,
proof,
which
would
be
IV.
Accordingly,
we
CONCLUSION
reverse
the
part
of
the
Court
of
Appeals judgment concerning the FSAA claim and remand this
case to the trial court for a new trial on plaintiff’s FSAA
claim before a properly instructed jury.
On remand, the
trial court shall instruct the jury that it may infer that
the evidence would be unfavorable to defendant, but that no
such
inference
should
arise
if
the
jury
believes
that
defendant has a reasonable explanation for its failure to
produce the missing evidence.
M Civ JI 6.01(c).
Clifford W. Taylor
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
14
S T A T E
O F
M I C H I G A N
SUPREME COURT
WILLIAM FRANK WARD,
Plaintiff-Appellee,
v
No. 124533
CONSOLIDATED RAIL CORPORATION,
d/b/a CONRAIL,
Defendant-Appellant.
_______________________________
CAVANAGH, J. (dissenting).
While I tend to agree that the trial court initially
erred under existing law when it concluded that plaintiff
was
entitled
to
an
adverse
presumption,1
I
am
not
as
convinced as the majority that the trial court ultimately
erred when it instructed the jury that it could infer that
the
missing
evidence
was
unfavorable
to
defendant.2
Moreover, even assuming that the trial court erroneously
1
See Trupiano v Cully, 349 Mich 568, 570; 84 NW2d 747
(1957).
2
See, e.g., In re Wood Estate, 374 Mich 278, 288-290;
132 NW2d 35 (1965). See also Widmayer v Leonard, 422 Mich
280, 289; 373 NW2d 538 (1985); Brandt v C F Smith & Co, 242
Mich 217, 222; 218 NW 803 (1928); Dowagiac Mfg Co v
Schneider, 181 Mich 538, 541; 148 NW 173 (1914); Vergin v
City of Saginaw, 125 Mich 499, 503; 84 NW 1075 (1901);
Cooley v Foltz, 85 Mich 47, 49; 48 NW 176 (1891); Cole v
Lake Shore & M S R Co, 81 Mich 156, 161-162; 45 NW 983
(1890).
instructed the jury, I would conclude that the error was
harmless.
Here, the jury found that defendant was not negligent
under the Federal Employers’ Liability Act (FELA), 45 USC
51 et seq.
question
The jury also concluded that the handbrake in
was
in
proper
condition
and
safe
to
operate
without unnecessary danger of personal injury as required
by the Federal Locomotive Inspection Act (FLIA).
USC 20701(1).
Safety
See 49
However, the jury found that the Federal
Appliance
Act
(FSAA),
specifically
49
USC
20302(a)(1)(B), had been violated because the handbrake was
inefficient.
perceived
On the facts before us, I fail to see how the
error
in
this
case
resulted
in
such
unfair
prejudice to defendant that permitting the jury’s verdict
to stand would be inconsistent with substantial justice.
In my view, the jury could have reached its verdict without
the
aid
of
instruction.
the
trial
court’s
arguably
erroneous
The jury could have concluded that defendant
was not negligent and that the handbrake, even though not
unnecessarily
dangerous,
was
nonetheless
inefficient.3
Accordingly, I must respectfully dissent.
Michael F. Cavanagh
Marilyn Kelly
3
See, e.g., MCR 2.613(A); Urben v Pub Bank, 365 Mich
279, 287; 112 NW2d 444 (1961); Macklem v Warren Constr Co,
343 Mich 334; 72 NW2d 60 (1955).
2
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